Legal Enforcement: Cognitive, Executive & Title Insights

Cognitive vs. Executive Activity in Law

Cognitive Activity: This refers to the process suitable for recognizing a right that is still uncertain and formulating the legal rule applicable to a specific case. It is a knowledge or cognitive process.

Executive Activity: This involves the state instruments available for the effective practice of law that has already been recognized. It is the implementation process, which can be standalone or a phase within a broader process.

Main Goal of Legal Enforcement

The primary goal of enforcement is the practical and real satisfaction or realization of a right recognized in an enforceable judicial or extrajudicial title.

Key Enforcement Principles: Effectiveness & Lower Cost

Principle of Maximum Effectiveness: This principle ensures that the creditor receives the same practical advantage through enforcement as they would have from voluntary compliance with the obligation.

Principle of Lower Cost (Least Onerousness): This principle dictates that enforcement should be carried out using means that satisfy the creditor while causing the least possible damage or burden to the debtor.

In case of conflict between these principles, the Principle of Least Onerousness should prevail.

Judicial Initiation of Civil Enforcement

Generally, unless expressly stated otherwise, a judge cannot initiate enforcement proceedings. The initiative typically lies with the interested party.

Therefore, if no application for enforcement is made within six months, the judge will order the case to be filed, without prejudice to its reopening later. An exception exists for the execution of a duty to do, not to do, or to deliver something based on a legal title, where specific procedures for execution may apply.

Understanding Enforceable Titles

An Enforceable Title (or Executive Title) is a legal act, embodied in a document, that represents an obligation to do something, not to do something, to deliver something, or to pay an amount. It authorizes the forced satisfaction of this obligation, even against the will of the debtor.

Parties cannot create enforceable titles that are not provided for by law. Enforceable titles, including extrajudicial ones, must be recognized by law and executed according to legal procedures.

Judicial Enforceable Titles (Art. 475-N) & Jurisdiction

According to Article 475-N, the following are judicial enforceable titles:

1. The verdict in a civil case that recognizes the existence of an obligation to do, make, deliver something, or pay an amount;
2. The criminal sentence that has become final and unappealable;
3. The ruling confirming a conciliation agreement or transaction, even if it includes matters not originally brought before the court;
4. The arbitral award;
5. An extrajudicial agreement of any nature that has been judicially approved;
6. A foreign judgment or decision, homologated (approved) by the Superior Court of Justice;
7. Formal and certified records of shares (e.g., in inheritance), exclusively due to the executor, heirs, and universal or singular successors.

Jurisdiction for Enforcement:

Regarding the judicial titles listed in Article 475-N, the responsibility for enforcing a civil court judgment lies with the same civil court that handled the cognitive phase (the phase where the right was recognized). Indeed, the competent court for execution is the same one where the judgment was initially rendered, even if the matter was subsequently reviewed by a higher court on appeal or through a required referral.