4/30/2021
Aiming at ensuring stability in the legal relations as a result of time, the Law created mechanisms to stabilize legal relationships in the past and provide predictability to future legal relationships. Among such mechanisms, we refer to the entitlement to the statutory period of limitation to sue whose concept is based on the society’s will not to allow that demands remain pending forever.
Thus, the purpose of the statutory period of limitation is not to punish the idle party, but to provide predictability to future legal relationships, and achieve legal security.
Within this context, the 1916 Civil Code established a 20-year statute of limitations for the so-called “personal actions”. On the other hand, the 2002 Civil Code, eliminated the distinction between “personal actions” and “real actions” and established a general deadline of 10 years “when the law has not established a shorter deadline” (article 205), and subsequently (article 206) listed the specific situations, with shorter deadlines.
However, the Civil Code has not set forth specifically the statute period of limitation for action grounded on contract tort, with different understandings among the Courts, thus precisely resulting in lack of legal security that the Positive Law intended to eliminate.
The Code establishes the specific statutory period of limitation (3 years) for suits grounded on civil redress (article 206, paragraph 3, item V).
The discussion is whether actions arising from contractual torts fall under paragraph 3, item V, under the general rule of article 205 (10 years), except, of course, for the hypotheses in which the law provides for a special term for certain types of contracts.
The Superior Court of Justice has already referred to two theses throughout the latest decades. Firstly, said Court decided for applying the general statutory period of limitation (10 years) for understanding that the application of the rule to article 206, paragraph 3, item V, would be restricted to torts not expressed in the contracts. Then, there was the understanding that this provision also contemplated contractual torts, so the statute period of limitations would be three years.
Nevertheless, another understanding was consolidated by a Special Court of the Superior Court of Justice on the theme in the judgment of appeal against a divergent decision, granting relief to an appeal from a vehicle dealer in order to remove a triennium statute of limitations (article 206, paragraph 3, item V), that has already been applied to the case by the Third Panel in RESP No. 1.281.594 – SP (2011/0211890-7).
It is possible that this understanding will be revised in the future, which shows the instability of our legal system.
Author: Gislene Barbosa da Costa
