What is the importance of prescription and forfeiture?

Although it may not seem so at first glance, the legal concepts of prescription and forfeiture are intimately related to legal certainty , especially the stabilization of human relations over time, which brings harmony to human relationships and thus fulfills the main objective of law: social peace.

To make the reasoning easier, we will start from the beginning. When studying the purposes of law for society in General Theory of the State (TGE), the most prominent is social pacification; the objective of law is harmonious coexistence among people through the regulation of human life.

One way to achieve this goal is to guarantee the legal security of human relations, which consists of providing predictability to human actions and preventing "surprises" in legal relationships.

It is precisely in this aspect that prescription and forfeiture come into play, by not allowing a person to exercise their right against another at any time; these legal mechanisms only allow relationships to be consolidated. 

For example, imagine being charged in 2023 for a debt incurred in 1984 that you may not even remember – doesn't that seem absurd? It would certainly surprise you. Well, to avoid these unforeseen circumstances, prescription and forfeiture exist.

What are prescription and forfeiture? What are their similarities and differences?

The explanation above touched upon the concepts of prescription and forfeiture, but made it seem as if they were identical siblings with different names. This is not quite the case; although both are related to time and the stabilization of legal relationships, these concepts are distinct.

In accordance with alphabetical order, we will begin with forfeiture , which is regulated in articles 207 and following of the Civil Code – CC – and is characterized by the loss of the substantive right itself due to its non-exercise. For example, the CC establishes in its article 505 the repurchase clause, and this article also determines that if the seller does not decide to repurchase the property within 3 (three) years, he loses this right.

Prescription , on the other hand , is the loss of the right to take legal action, to claim the substantive right itself; that is, the substantive right continues to exist, but it is no longer possible to claim it. The word prescription originates from the Latin praescriptio ( prae = before + scriptio = written), which in Roman law denotes a matter prior to the substantive right itself and still retains this preliminary character today.

By definition alone, it is possible to note the first difference between forfeiture and prescription: while in forfeiture the substantive right itself lapses due to its non-exercise, in prescription only the right to claim the substantive right lapses.

In other words, when a debt is said to be time-barred, it doesn't mean it simply ceases to exist, but rather that there is no longer any possibility of forcing the debtor to pay it.

The second difference between the two legal concepts concerns their origin : while forfeiture begins with the creation of the right, prescription begins from the moment the right is violated. The right, therefore, pre-exists the prescription.

In our example of repurchase, the limitation period begins with the signing of the purchase and sale contract; that is, the limitation period begins to run from the date the right to repurchase "arises." In a lawsuit for moral damages, the violated right is honor, which exists from birth, but the limitation period begins to run from the date it was violated.

The third difference concerns the form ; while the limitation period can be established by law or by the will of the parties, the statute of limitations can only be established by law, without the possibility of arbitration between the parties.

The fourth difference concerns the passage of time . While forfeiture cannot be interrupted or suspended and can only be prevented by exercising the right, prescription can be interrupted if one of the legal hypotheses is met. Furthermore, it should be noted that Article 197 of the Civil Code lists the persons against whom the prescriptive period does not run.

The fifth difference concerns the possibility of waiver . Decadence does not allow for waiver, while prescription can be waived, expressly or tacitly, by the interested parties, as per article 191 of the Civil Code. However, it should be noted that such a waiver does not affect third parties, only those who waive it.

Finally, the last difference, which is merely a historical curiosity, is that before Law No. 11.280/2006, only forfeiture could be declared ex officio by the court, while prescription had to be argued by one of the parties. However, with the advent of the aforementioned law, both can be declared ex officio by the court.

Practical utility of prescription and forfeiture.

In procedural terms, prescription and forfeiture are issues that we call preliminary matters to the merits, that is, it is imperative that the court analyze these issues before analyzing the merits of the case. Now, if there has been prescription or forfeiture of the right claimed by the plaintiff, then what is the need to analyze the merits? There is none, because either the right has ceased to exist (forfeiture), or it is no longer possible to claim it (prescription).

Thus, by declaring the expiration or prescription, in both cases the analysis of the merits becomes unnecessary, which can serve as a strategy in legal proceedings where the issue on the merits is not favorable to the party or is unclear.

Furthermore, knowledge of prescription and forfeiture is not only useful for defense. It is essential for a professional litigating on the plaintiff's side to have a thorough understanding of these issues in order to avoid or combat claims of prescription.

For example, imagine that a client comes to your office and recounts that they purchased a motor vehicle from a dealership. However, six years after receiving the keys, the vehicle began to experience problems with the fuel injection pump due to poor manufacturing of the component, resulting in material damage to your client.

Initially, we might think that the claim was time-barred, since, as you well know, the statute of limitations for a claim for damages against a supplier is 5 (five) years, according to article 27 of the Consumer Protection Code – CDC. 

However, you not only read the article, but you also follow the IDP blog and know that, in this case, it is a hidden defect and, therefore, the statute of limitations only begins to run from the date the defect is discovered, according to the principle of actio nata.

Therefore, simply knowing about the statute of limitations and its peculiarities has already guaranteed the lawyer a client in a case that, in theory, would be lost due to the statute of limitations.

Where to find limitation and forfeiture periods.

Statutes of limitations and forfeiture periods are not exclusive to civil law. They can be found in most areas of law, from criminal law and tax law to consumer law.

In Civil Law, limitation periods are found in Article 206 of the Civil Code. In that article, you will see the time required, in each paragraph, for certain claims to be declared time-barred, which are listed in the subsections of each paragraph.

For example, the statute of limitations for a claim by an insured party against an insurer, or vice versa, is one year, according to article 206, §1°, item II of the Civil Code. However, limitation periods are scattered throughout the code and in other laws.

In Consumer Law, both prescription and forfeiture are found in Section IV of the CDC (Consumer Protection Code), with Article 26 containing the forfeiture periods and Article 27 the prescription period.

Finally, in the Penal Code – CP –, since it largely deals with violations of rights, there is little regulation regarding forfeiture, which is only governed by article 103 of the Penal Code, while prescription is governed by article 108 and following articles of the CP.

It should be noted that the interpretation and application of such deadlines vary greatly and are constantly influenced by case law. To cite just one example, there is a recent understanding by the Superior Court of Justice (STJ) that alters the application of article 240, §1 of the Code of Civil Procedure (CPC ).

The aforementioned article stipulates that "The interruption of the statute of limitations, effected by the order for summons, even if issued by an incompetent court, will retroact to the date the action was filed." In other words, for the purposes of the statute of limitations, after the summons, the inaction will be disregarded on the date the action was filed, not on the date the defendant was summoned.

The Superior Court of Justice (STJ), in its new understanding, holds that if an amendment to the initial pleading exists, the retroactive effect will not apply to the filing of the lawsuit, but to the amendment itself. In other words, if a lawsuit is filed close to the statute of limitations expiring, and an amendment is made after the filing, it is possible that the statute of limitations will be declared.

To learn more about the changing interpretations of the Courts and to fully understand the issues of prescription and limitation periods discussed here, you can explore the Postgraduate Course in Civil Procedural Law at IDP.

It features live interactive classes, connecting you with leading industry professors and colleagues with diverse expertise and knowledge from across Brazil. 

The subjects are frequently updated to meet market demands and provide greater success, both in career advancement and in overcoming challenges for professionals in Civil Procedural Law.

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References

Civil Law: General Part / Silvio Salvo Venosa. - 17th ed. – São Paulo: Atlas 2017;

Civil Law: Carlos E. Elias, João Costa – Neto; Rio de Janeiro: Forense 2022.