ANTINOMIES BETWEEN CIVIL CODE AND NEW CIVIL PROCEDURE CODE: ANALYSIS OF ARTICLE 221 OF THE CC/2002 AND ARTICLE 784 OF THE RULE 13.105/2015

Abstract

Article 221 of the Brazilian Civil Code defines the form of evidence to provethe obligations between contracting parties, asserting that just the existence of contract signed by the parties, which are in the free disposal of theirs property, it´s enough to be proven the obligatory relationship between them, independent the adjusted value of the obligation. As noted, the Brazilian Civil Code of 2002 no longer requires that the contractsneed to be signed by two witnesses to attest their existence and binding force between the parties. However, Article 784, item III, of Rule n. 13.105/15 (new Civil Procedure Code which will come into force in March 2016), makes it clear that it will only be considered extrajudicial title of the executionaction the particular document signed by the debtor and two (2) witnesses, keeping the expression of Art.585, item II of the CPC/1973. In this sense, one can say that art. 784 of Rule No. 13.105/15 would be contradicting the terms of Art. 221 of the Civil Code/2002? After all,the new Civil Procedure Code requires the presence of two witnesses in private documents (contracts) in general. We would be facing an antinomy? This academic paperanalyzesthese issues, contributing to the study of antinomy between the rules of Civil Code and the new Civil Procedure Code, without conclude all the questions related a potential antinomies between these two legislations. These are issues that need tobe carefullyreviewedby the jurist, in searches, for the future solutions.

Keywords

• contracts
• extrajudicial title
• witnesses
• antinomy
• the conflict rules