What is the difference between preliminary and cautionary relief?

Preliminary relief (tutela antecipada) satisfies the claimed right in advance (e.g., ordering a hospital to perform surgery). Cautionary relief (tutela cautelar) preserves the right so it can be enforced in the future (e.g., freezing assets to secure future enforcement). Both require likelihood of right and danger of harm.

What are the requirements for urgent relief?

Art. 300 of the CPC requires two cumulative conditions. Likelihood of right (fumus boni iuris), meaning the applicant's claim must be plausible. And danger of harm or risk to the useful outcome of the proceedings (periculum in mora), showing that delay may cause irreparable damage.

What happens if urgent relief is revoked?

If the relief is revoked or the plaintiff loses the case, they are liable for damages caused to the defendant by the measure's enforcement (art. 302, CPC). This includes material and moral damages. The judge may require prior bond as security against potential harm to the defendant.

Injunctions and Urgent Relief in Brazil: Guide

Q: Can urgent relief be granted without hearing the other party?

Yes, relief may be granted inaudita altera parte (without hearing the defendant) when prior notice could compromise the measure's effectiveness (art. 300, paragraph 2, CPC). The defendant will then be notified to respond and may request revocation.

Direct Answer

Urgent relief under the CPC/2015 requires two cumulative conditions: likelihood of right (fumus boni iuris) and danger of harm or risk to the useful outcome of the proceedings (periculum in mora). It is divided into preliminary relief (satisfies the right in advance) and cautionary relief (preserves the right for future enforcement). It may be granted before (antecedent) or during proceedings (incidental), including without hearing the other party when necessary.

What Is Urgent Relief

Urgent relief is a procedural tool allowing the judge to grant provisional measures to protect a right before the case’s final judgment. It is provided for in arts. 300 to 310 of the CPC/2015 and aims to prevent the delay of proceedings from causing irreparable harm to the applicant.

Constitutional Foundation

The right to urgent relief derives from the principle of unrestricted access to justice (art. 5, XXXV, Federal Constitution) and due process of law (art. 5, LIV, Federal Constitution). The Constitution guarantees that no law shall exclude from judicial review any injury or threat to a right.

Preliminary vs. Cautionary Relief

Preliminary Relief (Satisfactory)

Advances the effects of the final judgment, provisionally granting the applicant what they would obtain with the definitive ruling.

Examples:

Ordering a health plan to authorize urgent surgery
Ordering a company to stop using a registered trademark
Restoring electricity or water supply
Granting provisional child support
Maintaining possession of an invaded property Learn more about our business law services.

Cautionary Relief (Preservative)

Preserves the right so it can be enforced in the future, without advancing the case outcome.

Examples:

Asset freezing to secure future enforcement
Seizure of a specific asset under dispute
Early production of evidence (art. 381, CPC)
Freezing bank account funds
Staying a protest of a bill

Comparison

Aspect	Preliminary Relief	Cautionary Relief
Objective	Satisfy the right in advance	Preserve the right for the future
Nature	Satisfactory	Preservative
Effect	Grants what the judgment would provide	Ensures the judgment will be effective
Reversibility	Must be reversible (as a rule)	Always reversible
Examples	Surgery, possession, support	Freezing, seizure, attachment

Requirements (Art. 300, CPC)

Likelihood of Right (Fumus Boni Iuris)

The applicant must demonstrate that their claim is plausible, presenting elements indicating the existence of the invoked right. Absolute certainty is not required, but reasonable conviction that the right exists.

How to demonstrate:

Documents proving the right (contracts, reports, certificates)
Favorable case law on the matter
Pre-constituted evidence (photos, videos, messages)
Testimony or declarations

Danger of Harm (Periculum in Mora)

It must be demonstrated that delay in judicial provision may cause irreparable or hard-to-repair harm to the applicant, or risk to the useful outcome of the proceedings.

Typical situations:

Risk to life or health
Imminent loss of assets
Deterioration or destruction of property
Continuing harm that worsens over time
Impossibility of reversing the current state

Grant Modalities

Antecedent Urgent Relief (Arts. 303-304, CPC)

Granted before filing the main action. The applicant indicates the relief requested, the dispute, and the right sought, demonstrating urgency.

Antecedent preliminary relief procedure:

Petition indicating the relief request and dispute
Judge’s decision granting or denying relief
If granted, petition amendment within 15 days to complete arguments
Service on defendant to respond

Stabilization: If the defendant does not appeal the decision granting antecedent preliminary relief, the decision stabilizes, maintaining its effects regardless of whether the case continues (art. 304, CPC).

Incidental Urgent Relief

Requested during ongoing proceedings. May be requested in the initial petition, in the defense (relief in favor of the defendant), or at any procedural moment.

Ex Parte Relief (Inaudita Altera Parte)

Granted without hearing the defendant when prior notice could compromise the measure’s effectiveness (art. 300, paragraph 2, CPC).

Common situations:

Freezing assets that may be dissipated
Measures against ongoing offensive publications
Protection of domestic violence victims
Staying an imminent bill protest

Specific Types of Cautionary Relief

Arrest (Art. 301, CPC)

Seizure of unspecified debtor assets to secure future enforcement for a specific amount.

Sequestration

Seizure of a specific asset that is the subject of the dispute.

Asset Inventory

Cataloging and describing assets to prevent dissipation or deterioration.

Search and Seizure

Locating and seizing a person or thing.

Early Production of Evidence (Art. 381, CPC)

Collecting evidence that may be lost or deteriorate before the main proceeding.

Reversibility of Relief

Art. 300, paragraph 3, of the CPC provides that urgent relief shall not be granted when there is danger of irreversibility. The judge must evaluate whether the measure can be undone if the final decision is unfavorable to the applicant.

Exceptions

In situations involving risk to life or health, case law admits granting relief even when irreversible (risk balancing), as the right to life prevails over financial risk.

Bond (Counter-Security)

The judge may require a bond (security) from the applicant to grant urgent relief (art. 300, paragraph 1, CPC). The bond serves to guarantee compensation to the defendant if the relief is subsequently revoked.

Forms of bond:

Cash deposit
Bank guarantee
Insurance guarantee
Real security (mortgage, pledge)

The bond may be waived when the applicant is economically disadvantaged or when delay in provision could cause irreparable harm.

Liability for Damages (Art. 302, CPC)

If urgent relief is revoked or the plaintiff loses the case, they are liable for damages caused to the defendant. Art. 302 lists the situations:

The final judgment is unfavorable to the plaintiff
The plaintiff fails to provide means for defendant service within 5 days
The relief is quashed or revoked
The judge accepts a statute of limitations or forfeiture defense

Liability is strict — it does not depend on the applicant’s fault.

Appeals Against Urgent Relief

Interlocutory Appeal (Agravo de Instrumento — Art. 1,015, I, CPC)

This is the appropriate appeal against interlocutory decisions that grant, deny, modify, or revoke urgent relief. The deadline is 15 business days. Learn more about our business law services.

Suspensive Effect

The interlocutory appeal does not have automatic suspensive effect. The appellant must request the rapporteur to grant suspensive effect (art. 1,019, I, CPC), demonstrating risk of harm.

Reclamation

If the decision violates a binding precedent or consolidated understanding of a higher court, a reclamation may be filed directly with the competent tribunal.

Relief Based on Evidence (Art. 311, CPC)

Unlike urgent relief, evidence-based relief (tutela de evidência) does not require danger of harm. It is granted when the right is evident:

Abuse of the right of defense or manifest dilatory purpose
Documentary proof with binding precedent
Possessory claim based on a deposit contract
Initial petition with sufficient documentary proof and defendant without contrary evidence

When to Consult an Attorney

If you face an urgent situation requiring immediate judicial action, consult an attorney specialized in civil litigation to:

Assess whether the situation justifies urgent relief
Identify the appropriate type (preliminary or cautionary)
Prepare the request with solid documentation
Request relief on an antecedent or incidental basis
Defend against relief granted to the opposing party

ZS Advogados Associados has a specialized team in urgent measures, with experience in injunctions against health plans, banks, construction companies, and government entities. Contact us for an urgent consultation.

Conclusion

Urgent relief is an essential procedural tool for protecting rights that cannot wait for normal case proceedings. Correctly identifying the requirements (likelihood of right and danger of harm), choosing the appropriate type, and presenting solid evidence are fundamental to obtaining the measure. Specialized legal guidance is indispensable to maximize chances of success and ensure effective protection of the threatened right.

This article is for informational purposes only and does not constitute legal advice. Each case has specific circumstances that should be analyzed by a qualified attorney.