Effects of Time on Subjective Rights

• Time can generate acquisition, maintenance, modification, or conservation of subjective rights.
• Usucapião is an original form of acquiring property rights through the passage of time, sometimes called acquisitive prescription.
• An example of modifying subjective rights is the change in someone's legal capacity with age (CC, arts. 3 and 4).
• The passage of time can preserve subjective rights, like the reasonable duration of a legal process.
• The effect of time on the extinction of rights is connected with legal certainty, social stability, and conflict resolution.
• "The law does not assist those who sleep" (dormientibus non sucurrit jus).
• The extinction of rights can occur in two ways: through prescription and decadence.
• Prescription nullifies the right to exercise claims if not exercised over time.
• Prescription is a legal mechanism that destroys unasserted claims related to subjective rights after a period passes.
• Decadence destroys a potestative right.
• Decadence is the legal mechanism that destroys potestative rights.

Potestative Rights

• Potestative rights are self-executing.
• They act as merely informative rights.
• They don't require anyone's action or face obstruction.
• An example is the potestative right to resign from public office or quit a job.
• No one can obstruct the exercise of this informative, self-executing right.
• Subjective rights (rights of claim) require judicial action to be realized, because they can be impeded by the other party.
• Potestative rights are extinguished by decadence (the holder's inaction + passage of time).
• Subjective rights generate a claim, which is extinguished by prescription (the holder's inaction + passage of time).
• Inaction of the holder + passage of time + claim = prescription.
• Inaction of the holder + passage of time + power = decadence.
• Differentiating between prescription and decadence involves understanding legal actions.
• Declaratory actions are imprescriptible, while condemnatory actions are subject to prescription, and constitutive or dissolving actions are subject to decadence.
• Actions of an exclusively declaratory nature are never subject to prescription as they aim to certify the existence, or lack thereof, of a right.
• Condemnatory actions are subject to prescription because they involve claims to give, do, or not do something.
• Unexercised claims are destroyed by prescription.
• Dissolving or constitutive actions include claims of a potestative nature.
• They aim to destroy an existing legal transaction or establish a new legal relationship.
• The potestative right, if unexercised in a timely manner, expires.
• It's possible for an action to combine claims of different natures, such as someone seeking to nullify a legal deal due to coercion.
• The request for annulment is subject to decadence and must be made within four years (Civil Code, art. 178, I), while compensation for damages can be prescribed in three years (Civil Code, art. 206, § 3, V). The three-year prescription period for civil compensation applies to both contractual and extra-contractual liability.
• An action to declare a state of filiation is imprescriptible.
• The claim for inheritance is not.
• The Brazilian Supreme Court (Sumula 149) clarified that an action of investigation of paternity is everlasting (art. 27, Statute of the Child and Adolescent).

Prescription

• Prescription is the loss of the claim, which is related to a disposable, equity right.
• It occurs within the period established by law due to the inaction of its holder.
• It's managed through a condemnatory action and is considered a matter of defense.
• A claim involves the possibility of demanding a certain obligation (to give, do, or not do) from someone, with the threat of asset execution against that person.
• A claim arises when a material right is violated (Civil Code, art. 189).

Actio Nata Theory

• Actio Nata Theory says a claim arises from the violation of a legal right.
• Enunciation 14 of the Council of Federal Justice defends similar ideas.
• Prescription involves disposable equity rights
• The rights without equity content (personality rights and family status) are everlasting, not available, and never expire.
• Non-equity rights are exerted through declaratory actions.
• Claims of civil liability with equity expression allow the formulation of condemnatory pleas.
• Violation of the right to image-attribute: the term for reparation of damages is three years (art. 206, § 3, V, CC), and the term for injunctive relief to prevent the use of the image does not prescribe.
• Regarding alimony, the right to request alimony is unwaivable, but the momentary withdrawal is possible (CC art. 1.707 and S. 379 of the Superior Court of Justice (STJ)).
• Overdue, liquid, and certain alimony credits prescribe in two years if there is no claim (art. 206, § 2, CC).

Prescriptive Periods

• Prescriptive periods are in articles 205 and 206 of the Civil Code/2002.
• Anything outside of it is considered decadence.
• The longest term is ten years art. 205 of the Civil Code/2002.
• There are also specific prescriptive periods, all listed in the five Paragraphs of article 206 of the CC/02.
• The time corresponds to the year of its number.
• Hypotheses of prescription in one year include the lodging or food against those who use this for consumption in the facility; the claim of the insured against the insurer; the claim for emoluments, fees, and salaries.
• The only biennial prescription (of two years) prescribed in the CC/02 is for aliments (§ 2).
• The three-year period occurs for topics involving rentals, companies, compensation arising from unjust enrichment, civil reparation, among other important issues.

Four-Year Term

• The only four-year prescription provided for in § 4 of art. 206 of the CC/02 is for "the claim relating to guardianship, from the date of approval of the accounts."

Five-Year Term

• The five-year prescription (§ 5 of art. 206) applies to the claim for the collection of debts that are liquid and proven in a public or private instrument; the general claim of liberal professionals; the claim of the winning party to obtain from the losing party what they spent in court.

Intercurrent Prescription

• Intercorrent prescription is what occurs within the legal process.
• Federal Law No. 11.051/04 allows the intercurrent prescription in tax execution.
• In tax execution, if no seizable assets are located, the process is suspended for one year, after which the five-year intercurrent prescription period begins.
• Intercurrent prescription is controversial in Brazilian case law.
• It must be aware of the topic of prescription.
• A labor claim, even if dismissed, interrupts the prescriptive period, but only about identical requests.
• In civil procedure, most believe prescription is impossible if the default is due to the State, that someone should not be harmed by the delay of the process when it depends on the Judiciary itself.
• In legal stance, one can verify the intercurrent prescription for the paralysis of the rescission action for more than 5 (five) years, subject to State default.

Impeditive, Suspensive, and Interruptive Causes of Prescription

• The prescriptive period is subject to impediments, suspensions, or interruptions that stop the course.
• Impeditive reasons are considered.
• Suspensive causes temporarily halt the course, which restarts from where it stopped.
• Interruptive causes destroy the initial calculation.
• They restart the count from zero.
• The request for payment of indemnity to the insurer suspends the prescriptive period until the insured becomes aware of a decision.
• According to the Civil Code/2002, prescription does not run "between spouses, during the constancy of the conjugal society" (art. 197, I, CC).
• The family has special protection from the State by constitutional imposition (CF/88, art. 226, caput).
• The litigation and distrust in family is increased.
• The article normally is not about stable union.
• The prescription will not run "between ascendants and descendants during family power" (art. 197, II, CC).
• Protection is legally given to those who are helpless with the legal representative, earning full protection.
• This idea also impedes the flow of prescription "between those under guardianship or trusteeship and their guardians or curators during guardianship or curatorship" (art. 197, III, CC).