Bad faith constitutes an indeterminate legal concept and a principle of ethical conduct, with transversal application in various branches of Law, notably in Civil Law, Civil Procedure, and Labor Law. Its primary purpose is the sanctioning of unfair behaviors that violate probity, cooperation, and procedural truth, aiming to preserve the integrity of justice and the protection of trust in legal relations.
Concept and Foundation
Bad faith, in the legal spectrum, is characterized by the deliberate intention to obtain illicit gain, cause harm to others, or obstruct the regular exercise of jurisdiction, through conduct contrary to the dictates of objective good faith. While objective good faith imposes a standard of ethical behavior (ancillary duties of loyalty, information, and cooperation), bad faith represents the antithesis of this paradigm, manifesting as procedural or material disloyalty.
The legal nature of bad faith is multifaceted: it acts as a subjective element in institutes of civil liability and acquisition of rights (such as in adverse possession or possession), and as an objective-procedural element, when the legal system sanctions behaviors that transgress procedural ethics (Art. 80 of the Code of Civil Procedure - CPC/2015).
Historical Origin and Evolution
The institute dates back to Roman Law, under the aegis of mala fides. In the Roman system, the protection of bona fides was fundamental in contractual relations (actiones bonae fidei), with bad faith being treated as a violation of one's pledged word. With modern codification, especially starting from the German Civil Code (BGB) and its influence on contemporary Civil Law, bad faith ceased to be merely a defect of consent to become a criterion for controlling the exercise of subjective rights.
In the Brazilian legal system, the 1916 Civil Code already provided for the distinction between good faith and bad faith possession. However, it was from the 1988 Federal Constitution, with the consecration of the principles of morality and probity, and the subsequent promulgation of the 2002 Civil Code and the 2015 CPC, that bad faith began to be combated with greater systemic rigor, elevating the duty of procedural loyalty to a constitutional level.
Legal Provision and Practical Application
The Brazilian legal system confers severe treatment upon bad faith:
- Civil Code (Law 10.406/2002): Art. 1.202 (good faith possession loses this character the moment circumstances suggest the possessor is aware they possess improperly) and Art. 422 (principle of probity and good faith in contracts).
- Code of Civil Procedure (Law 13.105/2015): Art. 80, which exhaustively lists the behaviors that constitute bad faith litigation (deducing a claim against express text of law, altering the truth of facts, using the process to achieve an illegal objective, etc.).
- Consolidation of Labor Laws (CLT): Art. 793-A to 793-D, which regulate liability for procedural damage in Labor Courts.
Consolidated Jurisprudential Understanding
Brazilian Superior Courts have consolidated jurisprudence to the effect that bad faith is not presumed; it must be thoroughly demonstrated. The Superior Court of Justice (STJ) understands that the exercise of the right to appeal, by itself, does not constitute bad faith litigation, unless the appeal is manifestly unfounded or dilatory. STJ Precedent 98, although dealing with conflict of jurisdiction, exemplifies the protection against the penalization of the exercise of the right to defense.
Recently, the Supreme Federal Court (STF) has reinforced the need for rigorous punishment against the abuse of the right of action in repetitive lawsuits or those aimed at destabilizing the Democratic Rule of Law, reiterating that the professional immunity of lawyers is not absolute and does not cover the practice of acts bordering on deliberate procedural bad faith.
Contemporary Relevance and Impacts
In contemporary times, bad faith takes on digital contours. The current debate shifts to the use of artificial intelligence to create petitions with non-existent jurisprudence ("hallucinations" which, if used knowingly, constitute an alteration of the truth of facts) and the predatory use of the Judiciary. The application of fines for bad faith litigation (Art. 81 of the CPC) has been used as an instrument of judicial policy to relieve the courts, ensuring that the right of access to justice is not distorted for purposes of unjust enrichment or obstruction of justice.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988.
- BRAZIL. Law No. 10.406, of January 10, 2002. Establishes the Civil Code.
- BRAZIL. Law No. 13.105, of March 16, 2015. Establishes the Code of Civil Procedure.
- BRAZIL. Decree-Law No. 5.452, of May 1, 1943. Approves the Consolidation of Labor Laws (CLT).
- STJ. AgInt in AREsp 1.845.231/SP, Rel. Min. Marco Aurélio Bellizze, Third Panel, judged in 2023.
- STF. ADI 6.363, Rel. Min. Alexandre de Moraes, Plenary, on the limits of freedom of expression and the prohibition of abuse of rights.
