A summons (intimação) constitutes a formal procedural act by which someone is notified of the acts and terms of a lawsuit, aiming to ensure compliance with due process of law. Inserted in the field of Procedural Law, its primary purpose is to guarantee the adversarial system and the right to a full defense, ensuring that parties and interested persons have unequivocal knowledge of judicial rulings and procedural duties.
Concept and Foundation
A summons is the act of procedural communication that enables knowledge of acts already performed or the performance of future acts. It is technically distinguished from a citation (citação), which aims to integrate the defendant into the procedural relationship. The legal nature of a summons is that of a formal act of communication, an indispensable condition for the effectiveness of procedural acts and for the exercise of the right to appeal or comply with judicial orders.
In the Brazilian legal system, the 2015 Code of Civil Procedure (CPC/15) regulates the matter in articles 269 to 275. Classical doctrine, led by authors such as Fredie Didier Jr. and Luiz Guilherme Marinoni, emphasizes that a summons should not be confused with a mere notification, the latter being an act of communication of an extra-procedural or administrative nature, whereas a summons is strictly linked to the dynamics of judicial proceedings.
Historical Origin and Evolution
Historically, the evolution of procedural communications reflects the transition from the oral system to the written system and, contemporaneously, to the electronic system. In Roman Law, the vocatio in jus was essentially oral and in-person. With modern codification, the need for legal certainty imposed formal rigor in the documentation of communications. The Brazilian evolution culminated in Law No. 11.419/2006 (Electronic Process Law), which revolutionized the institute by providing for electronic summons as the rule, overcoming the geographical and temporal limitations of summons by court bailiffs or mail.
Legal Provision and Practical Application
The 1988 Federal Constitution, in its article 5, item LV, bases the requirement of a summons as a corollary of the adversarial system. In the CPC/15, article 272 establishes that, when not carried out electronically, summons must be made by mail or by a court bailiff. Paragraph 2 of the same article enshrines the need for the lawyer's name to appear in the publication for the summons to be valid, under penalty of nullity.
In labor law, the CLT (Art. 841 et seq.) maintains specificities, notably postal notification, which has a presumption of receipt, according to Precedent 16 of the Superior Labor Court (TST), which reverses the burden of proof in favor of the recipient, unless proven otherwise.
Jurisprudential Understanding and Doctrinal Currents
The Superior Court of Justice (STJ) has consolidated the understanding that electronic summons, carried out via the court portal, supersedes the need for publication in the official gazette. The Special Court of the STJ, in the judgment of EAREsp 1.455.514, reaffirmed that the procedural deadline begins with the electronic consultation or, automatically, after the expiration of the 10-day period counted from the date the summons was sent to the system, according to art. 5, § 3, of Law 11.419/2006.
A relevant doctrinal divergence lies in the validity of summons via messaging applications (such as WhatsApp). Although the National Council of Justice (CNJ) has regulated the use of electronic means (Resolution No. 354/2020), part of the doctrine criticizes the relaxation of formalism, arguing that informality may compromise legal certainty and the authenticity of the receipt of notice.
Contemporary Relevance and Impacts
The full digitization of procedural rites imposes a new paradigm: "automatic summons." Procedural speed, a fundamental principle of art. 5, LXXVIII of the CF/88, is directly dependent on the efficiency of the summons system. However, the practical impact falls on the technical responsibility of lawyers, who must keep their registrations updated in judicial systems, under penalty of considering valid the summons sent to the electronic address contained in the court's records (Art. 274, sole paragraph, CPC).
Legal and Jurisprudential References
- Brazil. Constitution of the Federative Republic of Brazil of 1988. Art. 5, LV and LXXVIII.
- Brazil. Law No. 13.105, of March 16, 2015 (Code of Civil Procedure). Arts. 269-275.
- Brazil. Law No. 11.419, of December 19, 2006 (Electronic Process Law).
- Brazil. Decree-Law No. 5.452, of May 1, 1943 (Consolidation of Labor Laws).
- TST. Precedent No. 16: "Notification is presumed received 48 (forty-eight) hours after its posting."
- STJ. Special Court. EAREsp 1.455.514/RJ, Rapporteur Min. Raul Araújo, judged on 06/02/2021.
- CNJ. Resolution No. 354, of November 19, 2020.
