Early Test Production
By Júlia Trindade de Sá
How can the anticipated production of evidence be used in cases involving contracts signed with the Public Power?
Article 381 of the Code of Civil Procedure guarantees the possibility of producing evidence in advance in cases where (i) there is reason to fear that it will become impossible or very difficult to verify certain facts while the action is pending; (ii) when the evidence to be produced can enable self-composition; or (iii) when prior knowledge of the facts may avoid litigation.
For contracts signed with the Public Power, the measure is especially important for verifying facts that require immediate registration, such as incidents that occurred during works or during the provision of public services. Still, it may demonstrate issues such as changing the contractual scope in view of the inclusion of obligations not initially provided for in the public notice or proposal.
In cases involving complex contractual objects or whose verification of compliance requires technical analysis, in light of article 38 of the Federal Administrative Procedure Law and article 22 of the Administrative Procedure Law of the State of São Paulo, the evidence produced and ratified in court may be presented in sanctioning administrative processes, as a way to support the defense arguments.
Does the procedure imply recognition of rights?
The evidence produced and homologated in advance does not imply recognition of the right of any of the parties involved in the procedure.
In this way, even if situations such as alteration of the contractual scope or hidden defect are found, for example, the analysis of the merits regarding possible liability is restricted to the competent court in the case of filing a subsequent action, or, then, to the competent authority in the case sanctioning administrative proceedings or an attempt to settle with the Public Power.
What are the positive points of producing evidence in advance in these cases?
In addition to making negotiations with the Public Power possible, the adoption of the procedure for producing evidence in advance tends to be quick, since, except in specific situations, appeals to question the homologation of the evidence produced are not allowed. And even if there is no agreement at the administrative level, the approved evidence guarantees greater speed in actions for judicial discussion of the merits and/or settlement of the obligations of each party.
In addition, using the general rule of article 202, item V, of the Civil Code, the national jurisprudence understands that the procedure of anticipated production of evidence interrupts the prescription, guaranteeing a longer period for eventual questioning on the merits.
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