The institute of succumbency embodies the procedural burden imposed on the defeated party in a lawsuit, obliging them to pay procedural costs and attorney's fees to the prevailing party. Predominant in Civil Procedural Law, but with repercussions in Labor Law and cross-cutting areas, succumbency is based on the principle of full reparation and the objective liability arising from the exercise of the right of action or defense that was judicially frustrated.
1. Concept, Legal Nature, and Definition
Succumbency is defined as the state of decay of one of the parties regarding their claims brought to court. From the perspective of contemporary Civil Procedural Law, succumbency is not merely the result of defeat, but the generative fact of a legal obligation for reimbursement. The legal nature of the institute is one of objective procedural liability, dispensing with the verification of fault or intent by the defeated party; the objective finding of defeat (total or partial) is sufficient for the duty to bear the financial burdens of the process to arise.
Furthermore, regarding succumbing attorney's fees, the 2015 Code of Civil Procedure (CPC/15) consolidated their alimentary nature (Art. 85, §14), granting them the same privileges as labor credits and prohibiting compensation in cases of partial succumbency.
2. Historical Evolution and Comparative Law
Historically, the succumbency system dates back to late Roman Law, specifically Justinian's Constitutio Si quis in hoc, which introduced the condemnation of the defeated party to pay the costs of the process as a way to discourage reckless litigation (temere litigantes). In Comparative Law, the Brazilian system follows the Civil Law tradition (continental European model), resembling the German (Zivilprozessordnung) and Italian models, where the principle of victus victori (the defeated pays the winner) prevails.
In Brazil, the 1939 Code of Civil Procedure adopted a subjectivist theory, linking succumbency to bad faith or fault. It was the 1973 CPC, under the influence of Chiovenda, that codified the objective character of succumbency, an understanding that was improved and detailed by the 2015 CPC, especially in the protection of the lawyer's fee provision.
3. Legal Provision and Normative Structure
The fundamental regulation of succumbency is found in the following statutes:
- Code of Civil Procedure (Law No. 13.105/2015): Articles 82 to 97 regulate expenses, costs, and fees. Art. 85 is the central pillar, establishing that "the sentence shall condemn the defeated party to pay fees to the winner's lawyer."
- Consolidation of Labor Laws (CLT): With the Labor Reform (Law No. 13.467/2017), Art. 791-A was introduced, which instituted succumbency in labor proceedings, breaking with the tradition of free jus postulandi.
- Federal Constitution: Art. 5, item LXXIV, guarantees full and free legal assistance to those who prove insufficient resources, which directly impacts the enforceability (suspension) of succumbency fees.
4. Practical Application and Consolidated Jurisprudential Understanding
The application of succumbency requires the observance of strict fixation criteria. According to Art. 85, §2 of the CPC, fees must be set between a minimum of 10% and a maximum of 20% on the value of the conviction, the economic benefit obtained, or, if it is not possible to measure it, on the updated value of the case.
Jurisprudential Highlights:
- STJ - Repetitive Theme 1076: The Superior Court of Justice established the thesis that the fixation of fees by equity (Art. 85, §8) is subsidiary and exceptional, and cannot be used when the values of the case or the conviction are high. The rule is the application of legal percentages (§2), ensuring legal certainty and dignified remuneration for the legal profession.
- STF - ADI 5766: The Supreme Federal Court declared the unconstitutionality of provisions of the Labor Reform that provided for the payment of succumbency fees by beneficiaries of free justice, if they had obtained credits in other proceedings, reaffirming the protection of broad access to jurisdiction.
- Súmula 326 of the STJ: "In an action for moral damages, the conviction in an amount lower than that requested in the initial petition does not imply reciprocal succumbency." This understanding protects the plaintiff who, although successful in the an debeatur (duty to indemnify), receives a quantum lower than estimated.
5. Related Principles and Doctrinal Divergences
Two fundamental principles govern the distribution of procedural burdens:
- Principle of Succumbency: Focuses on the final result of the process (who won and who lost).
- Principle of Causality: Establishes that expenses must be borne by whoever caused the initiation of the process. This principle is invoked when the result of the litigation does not necessarily stem from a defeat on the merits, such as in the loss of object or the recognition of the request.
The contemporary doctrinal divergence lies in appellate succumbency (Art. 85, §11). Part of the doctrine criticizes the punitive character of the increase in fees in an appeal, while the majority current and jurisprudence defend its character as a deterrent to merely dilatory appeals, aiming at procedural speed.
6. Contemporary Relevance and Impacts on the Legal System
Succumbency acts as a procedural filtering mechanism. By imposing financial risks on litigation, the system discourages judicial adventures and promotes seriousness in the formulation of claims. In the current scenario, the discussion on succumbency in the Public Treasury (Art. 85, §3) and the prohibition on the compensation of fees (Art. 85, §14) reinforce the lawyer's autonomy and the alimentary nature of their remuneration.
The recent Law No. 14.365/2022 amended the Statute of the Advocacy and the CPC to reinforce that the fixation of fees by equity must be restricted to cases of negligible value or inestimable economic benefit, combating the devaluation of attorney's fees in large-scale cases, consolidating the understanding of STJ Theme 1076 in federal legislation.
Legal and Jurisprudential References
- BRAZIL. Law No. 13.105, of March 16, 2015. Code of Civil Procedure.
- BRAZIL. Law No. 13.467, of July 13, 2017. Labor Reform.
- BRAZIL. Law No. 14.365, of June 2, 2022. Amends Law No. 8.906/94 and the CPC/15.
- SUPERIOR COURT OF JUSTICE. Repetitive Theme 1076 (REsp 1850512/SP, REsp 1877883/SP, REsp 1906623/SP, REsp 1906618/SP). Rel. Min. Og Fernandes.
- SUPREME FEDERAL COURT. ADI 5766. Rel. Min. Alexandre de Moraes.
- CHIOVENDA, Giuseppe. La Condanna nelle Spese Giudiziali. Rome: Foro Italiano, 1935.
