The partial decision on the merits, expressly introduced into the Brazilian legal system with the advent of the Code of Civil Procedure, as provided for in Article 356, represents a significant innovation in how the Judiciary can conduct the adjudication of claims. This mechanism allows the judge to issue final decisions on portions of the merits that are ready for immediate judgment, without the need to wait for the resolution of all controversies in the case.

The possibility of splitting the judgment into stages is supported by fundamental principles of civil procedure, such as the reasonable duration of the process, efficiency, and the effectiveness of judicial protection. However, the adoption of this procedural technique raises important practical discussions, particularly regarding the effects of the partial decision on the merits, its legal nature, and its implications.

Among these discussions, a key controversy concerns the applicability of attorneys’ fees when there is a partial judgment on the merits. The main question is whether, even in the absence of a final judgment terminating the case, it is possible—and legally appropriate—for the judge to award attorneys’ fees in favor of the prevailing party with respect to the portion of the merits already decided.

On this matter, according to Article 85 of the Civil Procedure Code, “the judgment shall order the losing party to pay attorneys’ fees to the winning party’s lawyer,” and its subsequent paragraphs make it clear that such fees are due in all decisions that definitively resolve the merits, even if only partially—that is, by granting only part of the claims.

Thus, it should also be noted that the case law of the Superior Court of Justice (STJ) (REsp 1845542 PR 2019/0322150-4) has reinforced this understanding, recognizing that the partial decision on the merits, as it carries the authority of res judicata, may give rise to the immediate awarding of attorneys’ fees, always proportional to the claim or portion of the claim that was adjudicated. In this sense, there is no need to wait for the final judgment on all the claims made in the case to recognize the lawyer’s right to fees related to the portion of the merits already resolved.

Some argue that preventing the awarding of fees in a partial decision on the merits would violate the principles of causality and procedural effectiveness, as it would allow the losing party to benefit from an unjustified postponement of the award and would delay timely compensation for the prevailing lawyer’s work. Therefore, recognizing this right also contributes to valuing the legal profession, promoting greater legal certainty and predictability in the course of the proceedings.

Finally, it is important to emphasize that the fees awarded in the partial decision on the merits do not preclude future increases or additions, should the remainder of the merits also be ruled in favor of the same party. This ensures that the attorneys’ fees remain proportional to the extent of the lawyer’s work throughout the process, in accordance with Article 85, §2 of the CPC, which sets out the criteria for fee determination.

From the analysis conducted herein, it can be concluded that the concept of partial decision on the merits allows for a swift and efficient judicial response to claims or portions of claims that are ripe and sufficiently substantiated for early review, without compromising the continuation of the process regarding the remaining pending controversies. In this way, it upholds the constitutional principles of reasonable duration of the process, effectiveness of judicial protection, and legal certainty.

As for the awarding of attorneys’ fees in cases of partial judgment on the merits, it has been demonstrated that, although it is not equivalent to a final judgment, the partial decision on the merits can produce similar effects, especially regarding the formation of res judicata and the possibility of enforcement. Despite its formally interlocutory nature, the legislature has conferred upon such decisions a legal treatment akin to that of judgments for certain purposes, such as the immediate awarding of attorneys’ fees, as provided in Article 85 of the CPC. This interpretation has been consistently upheld by national case law, particularly by the Superior Court of Justice, as seen in Special Appeal No. 1.845.542/PR, where it was recognized that attorneys’ fees must be awarded in proportion to the portion of the merits already decided.

Failure to award fees in this context would constitute not only a violation of the statutory provision, but also an affront to the principles of causality, procedural effectiveness, and the valorization of the legal profession. Moreover, it would encourage the proliferation of independent lawsuits based on Article 85, §18 of the CPC, resulting in greater delays and increased burden on the judiciary, in direct contradiction to the ideals of procedural economy and efficiency enshrined in the new Civil Procedure Code, to the detriment of the legal profession.

By allowing for the timely awarding of attorneys’ fees in partial decisions on the merits, the process becomes more predictable, in line with the principle of non-surprise; it ensures legal certainty in the dispute and accelerates the issuance and recognition of rights earlier in the process, without having to wait for the final judgment. This practice also prevents the losing party from unduly benefiting from interpretive ambiguities regarding the timing of the attorneys’ fees award.

Therefore, when properly applied, the partial decision on the merits—especially in regard to the awarding of attorneys’ fees—proves to be fully compatible with the fundamental objectives of due process. This understanding fosters the systemic coherence of the CPC’s application and significantly contributes to the consolidation of a swifter process in accordance with constitutional principles.

Iara Raquel Campedeli Senna Vieira holds a law degree from the Centro Universitário Armando Alvares Penteado (FAAP), is a postgraduate student in Civil Procedural Law at PUC-Campinas, and is a lawyer at Granito Boneli Advogados.