The expression ad rem, derived from Latin, translates literally as "to the matter" or "to the thing," possessing the nature of an argumentative principle and a procedural technique guideline. In the field of Law, its application is predominant in Procedural Law and Legal Hermeneutics, serving as a benchmark for delimiting controversy, ensuring that the reasoning of decisions and petitions maintains strict relevance to the object of the dispute, avoiding digressions extraneous to the merits.
Concept and Foundation
The ad rem principle, inseparable from the maxim argumentum ad rem, imposes on the legal practitioner the duty to restrict the discussion to the objective elements of the case. Unlike the argumentum ad hominem, which shifts the focus to the character of the parties, the argumentum ad rem requires that rhetoric and legal reasoning gravitate exclusively around the facts and legal grounds that compose the claim brought before the court.
In Brazilian Law, the institute finds direct resonance in the principle of adstriction or congruence, provided for in art. 141 and art. 492 of the Code of Civil Procedure (CPC/2015). The procedural rule requires the magistrate to decide the dispute within the limits in which it was proposed, and it is forbidden for the judge to issue a decision of a nature different from that requested, as well as to condemn the party in an amount greater or in an object different from what was demanded.
Historical Origin and Evolution
The genesis of the expression dates back to Aristotelian logic and medieval scholasticism, where the distinction between the nature of the object of the dispute (res) and the qualities of the debaters became fundamental to the validity of the legal syllogism. In the evolution of Roman Law, the transition from legis actiones to the formulary system consolidated the need for precise fixation of the litis contestatio, the moment when the object of the demand was crystallized, preventing arbitrary changes that would violate the principle of the stability of the dispute.
In the contemporary legal system, the application of ad rem has transcended forensic rhetoric, integrating due process of law (art. 5, LIV, CF/88). The requirement of thematic relevance is a fundamental guarantee against arbitrariness, ensuring that the adversarial principle (art. 5, LV, CF/88) is effective, since the party can only defend itself against what is part of the object of the controversy.
Practical Application and Jurisprudential Understanding
The jurisprudence of the Superior Courts (STF and STJ) corroborates the mandatory adherence to the object of the litigation. Within the scope of the STJ, it is a settled understanding that an extra petita or ultra petita decision violates the principle of congruence, constituting a procedural defect subject to correction in appellate proceedings.
Recently, the STF has reinforced, in concentrated and diffuse control, that the reasoning of decisions must be strictly ad rem, under penalty of nullity due to the absence of adequate reasoning (art. 93, IX, of the CF). The prohibition of digressions that do not hold a causal link with the request is a mechanism for containing judicial activism, ensuring that the Judiciary acts within the boundaries established by due process of law.
Related Principles and Divergences
The ad rem principle is closely correlated with:
- Principle of Congruence (or Adstriction): Limitation of the jurisdictional provision to the plaintiff's request.
- Principle of Stability of the Dispute: Impossibility of changing the request or the cause of action after the case has been settled (art. 329, CPC).
- Principle of Causality: Direct link between procedural conduct and the intended legal result.
Doctrinal divergences arise, however, in the interpretation of implicit requests (art. 322, § 1º, CPC), where ad rem analysis allows the magistrate to include portions that, although not expressly requested, logically follow from the main request, such as legal interest and monetary correction.
Contemporary Relevance
In a scenario of Judiciary overload and the need for speed, adherence to the ad rem technique is vital for procedural efficiency. Verbosity and the inclusion of impertinent arguments (argumenta ad hominem or political digressions) not only extend the processing time but compromise the quality of the jurisdictional delivery. The modernization of the Brazilian civil process therefore requires that the procedural document and the judicial decision be surgical, focused strictly on the resolution of the conflict of interests placed under the scrutiny of the State-judge.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988, arts. 5, LIV and LV; 93, IX.
- BRAZIL. Law No. 13.105, of March 16, 2015 (Code of Civil Procedure), arts. 141, 322 and 492.
- STJ, AgInt in AREsp 1.842.394/SP, Rel. Min. Marco Buzzi, Fourth Panel, judged in 2023.
- STF, ADI 6.363, Rel. Min. Alexandre de Moraes, Plenary, regarding the need for strict reasoning and observance of due process of law.
