BRAZIL Law and Practice Contributed by: Octaviano Duarte, Henrique Forssell, Marcelo Lucidi and Mayara Rahman Rufino, Duarte Forssell Advogados
case, as a rule, the plaintiff’s allegations shall be presumed to be true. • Relief granted on the basis of prima facie evidence (Article 311 of Civil Procedure Code) – Relief based on prima facie evidence is to be granted when: (a) there is an abuse of the right of defence or the party demonstrates clear intentions of delaying the proceedings; (b) the allegation can be proven only by means of documental evidence and when there is a rule based on the trial of mul- tiple claims on the same point of law or “súmula” , a binding statement; (c) it is an action to reclaim the possession of property based on the documental evidence of a bailment contract, in which case an order shall be issued to return the object held by the bailee for safekeeping, under a fine; or (d) the complaint produces sufficient docu - mental evidence of the facts that consti - tute the plaintiff’s right, and against which the defendant does not produce evidence capable of generating reasonable doubt. 2.7 Rules for Pleading Fraud Although Brazil lacks special legal rules for pleading fraud, there are certain rules and pro - fessional conduct considerations that lawyers must adhere to, including the following. • Substantiation – When pleading fraud, it is essential to provide specific and detailed allegations supported by evidence. Brazilian courts typically require plaintiffs to substanti - ate their claims with sufficient factual and legal basis. Vague or unsubstantiated allega - tions of fraud may be dismissed by the court. • Ethical considerations – Lawyers must adhere to ethical standards when pleading fraud. This includes avoiding making false or mis -
leading statements to the court or opposing parties. Lawyers should present their case honestly and accurately, and refrain from engaging in tactics intended to deceive or manipulate the legal process. Lawyers have a duty to act in the best interests of their clients while also upholding the integrity of the legal profession. • Consequences of frivolous claims – Filing frivolous or meritless claims of fraud can have serious consequences, including sanctions for bad faith litigation. 2.8 Claims Against “Unknown” Fraudsters As a general rule, an initial complaint that ini - tiates a legal action must properly identify the defendant, including their particulars and known address. However, in exceptional circumstanc - es, the Brazilian legal system allows the filing of claims against unknown or uncertain defend - ants. For instance, Article 256 of the Code of Civil Procedure permits service by publication of a notice when “the person being cited is unknown or uncertain” . Furthermore, Article 319 (§3) of the Code of Civil Procedure provides that the initial complaint cannot be rejected when information regarding the defendant’s particulars is impos - sible to obtain. Regarding proprietary measures qualified as ações reipersecutórias , there are judicial prec - edents allowing the commencement of legal cases against defendants not currently known but identifiable. This can be particularly relevant for fraud claims involving cryptocurrency. 2.9 Compelling Witnesses to Give Evidence Testimonial Evidence According to Brazilian law, any person with knowledge of the circumstances of the claim
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