KEYWORDS/SCOPE

Shifting of the burden of proof, Brazilian judiciary, Civil procedure, Consumer Protection Code.

SUMMARY

The shifting of the burden of proof presents challenges to the defense and underscores the importance of legal strategies in Brazil.

TEXT

Foreign companies operating in Brazil must adapt not only to commercial and cultural differences, but also to the unique features of the local legal system. One such feature is the possibility of shifting the burden of proof - a legal mechanism that can significantly affect how companies should prepare to handle litigation in the country.

This procedural dynamic is an exception to the traditional rule that each party must prove the facts it alleges, allowing, in certain situations, the defendant to be required to demonstrate the nonexistence of facts alleged against them.

In Brazilian civil procedure, the general rule for the allocation of the burden of proof is set forth in Article 373 of the Code of Civil Procedure (CPC), which establishes that the plaintiff must prove the facts constituting their right, while the defendant is responsible for proving facts that prevent, modify, or extinguish the plaintiff’s right.

However, this allocation can be modified by legal provision or by judicial decision, based on the principles of procedural effectiveness and access to justice.

The most notable example of a legal provision for the shifting of the burden of proof is found in Article 6, item VIII, of the Consumer Protection Code (CDC).

According to this provision, the judge may shift the burden of proof in favor of the consumer when the consumer’s allegations are plausible or when the consumer is at a disadvantage, whether technical, informational, or economic.

In practice, this means that, when faced with a reasonable and plausible allegation by the consumer, the supplier may be required to demonstrate, for example, that the product was not defective, that the service was properly provided, or that the information given was clear and sufficient.

Although the shifting of the burden of proof under the CDC depends on a reasoned judicial decision, Brazilian case law has shown a strong tendency to apply this mechanism broadly, in order to ensure consumer rights, as consumers are recognized as the vulnerable party in consumer relations.

This creates a scenario in which companies must act preventively and strategically, considering that they may be required to produce evidence that, in other legal systems, would be the sole responsibility of the plaintiff.

The Code of Civil Procedure, in turn, extends the scope of the shifting of the burden of proof beyond consumer relations.

In Article 373, paragraph 1, the CPC provides that the judge may reallocate the burden of proof in cases where producing evidence would be excessively difficult for one party or when the other party is in a better position to produce it. This possibility, although dependent on a request by the parties and governed by the principle of adversarial proceedings, allows the judiciary to adapt the traditional structure of evidentiary allocation in pursuit of substantive justice in the specific case.

For companies operating in Brazil, this characteristic of the procedural system is a significant point of attention.

The shifting of the burden of proof can result in additional costs, both in the pre-litigation phase and during the course of judicial proceedings, and represents a concrete risk of an adverse judgment in cases where there is insufficient documentary evidence to refute the opposing party’s allegations.

In disputes involving consumers, for example, it is common for the company to have to prove that it provided clear and adequate information, that there was no failure in product delivery, or that billing was correctly performed. The absence of evidence or disorganized documentation may lead to a judicial presumption of the company’s liability.

For this reason, foreign companies operating in Brazil should adopt strict internal policies for recording interactions with customers, maintain effective systems for tracking products and services, invest in the formalization of contracts and terms of use, and train their legal and operational teams to handle litigation involving the shifting of the burden of proof.

Prevention and organization are essential to mitigate risks and avoid losses resulting from an unfavorable allocation of the burden of proof.

In summary, the shifting of the burden of proof in the Brazilian judiciary is a tool designed to promote procedural balance and effectiveness in judicial proceedings, but at the same time, it imposes concrete obligations and challenges on companies operating in the country.

Understanding this mechanism and preparing accordingly is essential to ensure legal certainty, reduce contingencies, and protect the reputation and sustainability of business operations in Brazil.

AUTHORS

Raissa Simenes Martins – Partner (Corporate Litigation & Dispute Resolution)

Ana Lígia Alves F. Fantinato – Coordinator (Corporate Litigation & Dispute Resolution)

Luiza Pattero Foffano – Senior Associate (Corporate Litigation & Dispute Resolution)

Isadora Proença Cruz – Intern (Corporate Litigation & Dispute Resolution)