Oct 29, 2026 · 3 min read · Civil and Consumer Law
When a clause can be read two ways, the written words do not settle the dispute on their own. The Brazilian Civil Code requires looking at what the parties meant to agree and how they behaved after signing. So before arguing about who is right, gather the evidence of what was actually agreed.
What the Civil Code requires
Article 112 provides that, in declarations of intent, the intention they express prevails over the literal meaning of the words. Article 113 adds that contracts are interpreted in accordance with good faith and the customs of the place where they were made.
Since the Economic Freedom Act (Law 13,874/2019), Article 113, § 1 lists the meanings interpretation should seek. Among them:
- the meaning confirmed by the parties' conduct after signing;
- the meaning that matches market usage and practice for that type of deal;
- the meaning most favourable to the party that did not draft the clause, where the drafter can be identified;
- what a reasonable negotiation between the parties would have produced, in light of the rest of the contract and the information available at the time.
In practice, the negotiation and the performance of the contract become evidence. And that evidence is usually scattered across e-mails, messages and spreadsheets.
1. The negotiation before signing
E-mails, messages and proposals exchanged before signing show what each side intended. If the price-adjustment clause is ambiguous, the messages in which the index was discussed may clarify the intention better than the final wording.
2. How the contract was performed
Payment receipts, invoices and delivery reports show how the parties behaved after signing. If payment was always made one way for two years without objection, that history carries weight when the clause is interpreted.
3. The original draft and who wrote it
Keep the first draft and the message that sent it. Who drafted the clause matters: in case of doubt, the meaning most favourable to the party that did not write it applies. For standard-form contracts, Article 423 of the Civil Code points the same way, and in consumer relationships Article 47 of the Consumer Protection Code requires interpretation in the consumer's favour.
4. What the contract itself says about interpretation
Business contracts are presumed to be negotiated on equal terms (Article 421-A of the Civil Code), and the parties may agree their own rules of interpretation and gap-filling (Article 113, § 2). Before arguing over the clause, read the definitions, the order-of-precedence clause and the schedules. Sometimes the answer is already in the contract.
How to organise the evidence
- Create one folder for the contract, with files in date order.
- Export WhatsApp and e-mail conversations to files, without deleting anything.
- Keep each version of the draft with its date and sender.
- Set aside proof of performance: payments, deliveries, acceptances.
- For important conversations that could disappear, consider having a notary record them (ata notarial).
The time to organise is before the conversation heats up. Once a dispute starts, messages get lost, phones are replaced and the people who negotiated may have left the company.
For future contracts
The best evidence is a clause that needs no interpretation. Define technical terms, state which document prevails if the contract and the proposal conflict, and record in writing any changes agreed during performance.
Each contract depends on its wording, the documents and how it was performed. Any interpretation should start from an analysis of the specific case.
Informational content only. It does not constitute legal advice or a legal opinion.