Camila Vieira Guimarães
Lawyer at Marcos Martins Advogados
The Brazilian civil law contemplates the institute of prescription. With the exception of imprescriptible rights, legislation sets deadlines for the exercise of the right by its holder. Once this period has elapsed and the holder is inactive, the right of action is lost.
The statute of limitations is an important instrument for promoting security, stability and social function in legal relationships, since the party that is part of this relationship will not remain indefinitely subject to the risk of a possible lawsuit as a result of the act or business entered into.
The Civil Code of 2002 sets a general limitation period of ten years¹ if there is no shorter period in a legal rule.
In terms of civil reparation, the Code sets the limitation period at three years².
Civil reparation presupposes the occurrence of damage resulting from a wrongful act. When it involves a contractual duty, there is contractual liability, a matter of great importance given the volume of lawsuits submitted to the Judiciary.
Since the Civil Code of 2002 came into force, two distinct currents have emerged as to which limitation period should apply to claims arising from contractual obligations. Even among the panels of the Superior Court of Justice, there was a jurisprudential divergence as to whether a ten-year or three-year limitation period applied to claims based on breach of contract.
There was disagreement as to whether to consider the ten-year period for claims based on contractual wrongdoing or the three-year period, considering that the expression “civil reparation” should be analyzed from a broad perspective, encompassing both contractual liability, which derives from a contractual obligation, and non-contractual liability, which derives from a legal duty.
However, in a ruling published on August 2, 2018, the 2nd section of the Superior Court of Justice decided by a majority, in a dissenting motion filed by Clube de Investimento dos Empregados da Vale (Investvale), to consider the ten-year limitation period for disputes involving contractual default.
In her decision, Reporting Justice Nancy Andrighi said:
[…] the term “civil reparation” does not cover the composition of any and all negative consequences, whether pecuniary or non-pecuniary, of the breach of a legal duty, but only the harmful consequences of the unlawful act or conduct in the strict sense and, therefore, only for cases of non-contractual civil liability⁴.
In her vote, the Justice explained that, looking at the life cycle of contracts, the vast majority are extinguished with the payment of the installments. In the event of non-compliance with the contract, either through specific performance of the unfulfilled installment or termination of the contract, both hypotheses allow the creditor to claim any losses and damages that may exist. In this sense, the legislation would be illogical if it subjected a creditor to exercise claims within different time limits for opposing the same source of default, i.e. a time limit for demanding fulfillment of obligations and a time limit for requesting payment of losses and damages for the first breach.
In this line of reasoning, the Rapporteur took the view that the ten-year limitation period should be considered for all claims relating to breach of contract, including losses and damages arising from the unlawful act.
As for application in similar cases, this decision is a precedent with binding effect, under the terms of art. 927, III of the New Code of Civil Procedure⁵.
Uniform jurisprudence is the duty of the courts, which must seek to resolve existing differences on the same matter. The application of the ten-year statute of limitations for issues of contractual default has brought isonomy and security to contractual legal relations, successively for traders, boosting a business environment favorable to the resumption of economic growth.
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¹Art. 205, Civil Code of 2002.
²Art. 206, §3º, V, Civil Code of 2002.
³Embargos de divergência are appeals that aim to standardize internally divergent legal theses in the STF and STJ, whether due to divergence on admissibility requirements or on the merits. The New Code of Civil Procedure covered this appeal in a specific section, with regulations in art. 1.043 et seq.
⁴STJ. Embargoes of Divergence in RESP No. 1.280.825 – RJ (2011/0190397-7). Rapporteur: Justice Nancy Andrighi. Third Panel. Date of Judgment: 06/27/2018. Record Date: 02/08/2018.
⁵Art. 927. Judges and courts shall observe:
III – the judgments in an incident of assumption of jurisdiction or resolution of repetitive demands and in the judgment of repetitive extraordinary and special appeals.
