Preclusion consists of loss of right to manifest itself in a lawsuit, mainly due to the fact of not having exercised its manifestation at the correct time and in the foreseen manner.
The estoppel can still be configured in different cases, according to each situation, as will be explained below.
O New Code of Civil Procedure (CPC), defined by Law No. 13,105, of March 16, 2015, provides for the conditions that result in the phenomenon of estoppel.
Types of estoppel
There are several types of estoppel, however there are three main scenarios that can configure this phenomenon, according to Procedural Law:
Consumable preclusion
The consummative estoppel happens when a specific act has been previously performed, in a different way, within what is allowed by law. Thus, it is not allowed to run again.
In short, it represents the idea that procedural power that has already been used cannot be exercised in the same process again.
For example: if one of the parties presents two challenges or two equal appeals against the same act. In that case the second will be invalid.
Temporal estoppel
Temporal estoppel occurs when the legal deadline for a certain procedural act is not observed, when the procedural act is not performed within the previously stipulated period.
A contestation, for example, will be under penalty of estoppel if it is made after the period determined by law.
Article 223 of the CPC says:
Art. 223. After the period, the right to practice the act or to amend the procedural act is extinguished, regardless of court declaration, it being assured, however, that the party proves that it did not for cause.
Logical preclusion
The logical preclusion happens when a procedure is incompatible with another that has already been exercised, that is, it is the loss of the right to perform an act due to its incompatibility with another act already performed. This measure avoids the risk of some acts going against your own action.
Example: when the party pays an amount determined in the judgment, it loses the right to appeal this decision.
Preclusion and Prescription
Preclusion and prescription cannot be confused. The estoppel is the loss of the right to exercise a certain procedural act or to manifest itself in a process, but it does not mean the loss of the right.
The statute of limitations is the loss of the right to file a lawsuit. In the prescription, the passage of time makes the right to propose the action be lost.
know more about Prescription.
Preclusion in Criminal Procedure
The estoppel also exists in the Criminal Procedure. In addition to the cases of estoppel provided for in the Code of Civil Procedure, which can also be applied to Criminal Procedure, there is prescription for the court.
the prescription for the court defines that the judge cannot, as a rule, make new decisions on issues that have already been decided during the process.
Preclusion in the Work Process
In the Labor Proceedings, the estoppel occurs in relation to the party's right to demonstrate. According to the Consolidation of Labor Laws (CLT), the party must manifest itself in the process at the first opportunity that it can do so.
If it does not manifest itself, this right lapses and the party loses the right to express its opinion on the act.