Beatriz Benedete Cardoso
Lawyer at Marcos Martins Advogados
The Third Panel of the Superior Court of Justice (STJ), in the judgment of RESP 1.940.996/SP, reported by Justice Ricardo Villas Bôas Cueva, established a limitation period of five years for collection, via a monitory action, of a debt based on a bank credit bill, under the terms of article 206, paragraph 5, I, of the Civil Code.
In the case before the panel, the main debtor, through a monitory action, claimed that the limitation period would be three years, under the terms of article 44 of Law 10.931/2004, which applies foreign exchange legislation to bank credit bills, combined with article 70 of the Uniform Geneva Law (LUG), which states that all actions relating to bills of exchange are time-barred in three years from their maturity.
According to the Rapporteur’s vote, the foreign exchange action is equivalent to forced execution, since Brazilian procedural legislation confers on bills of exchange the nature of an extrajudicial executive title, according to article 784 of the Code of Civil Procedure. Therefore, in the case of enforcement based on a bank credit bill, the limitation period is three years, as established by the LUG.
However, he said that if the enforcement action is time-barred, it is still possible to collect the credit by means of a monitory action or collection action, using the common procedure, “in which the title will serve only as evidence and no longer as an extrajudicial enforcement title, and the discussion will be reduced to the cause of the obligation”.
He also pointed out that the causal action is based on the underlying legal transaction, which gave rise to the security, and does not discuss the fulfillment of the obligation arising from the security, but rather the fulfillment of the fundamental legal relationship, so that the limitation period for filing the causal action is not the same as for the exchange action.
The Rapporteur concluded that, under the terms of Law 10.931/2004, the bank credit bill constitutes a liquid debt, contained in a private instrument, and that, for this reason, the claim for its collection is time-barred in five years, counted from the maturity of the obligation, under the terms of article 206, § 5, I, of the Civil Code and in accordance with the case law of the STJ itself.
The precedent thus defines an important distinction between the five-year statute of limitations for filing a lawsuit to collect a claim under a bank credit bill, and the three-year statute of limitations for a foreign exchange action to enforce the bill, and is essential guidance for aligning defense strategies, whether the financial institution is the creditor or the company that owes the bill.
Marcos Martins Advogados is aware of this issue and is prepared to provide qualified legal advice to its clients.
