Not today, prescription is seen as a fundamental institute of law. Incidentally, the adage “dormientibus non sucurrit Ius” comes from Rome (or, in translation, “Law does not help those who sleep”).

In addition to being fundamental (and perhaps precisely because of this), it seems possible to establish parallels between prescription and legal certainty: while it takes time for claims to be properly matured and exercised with some degree of reflection and density, it is necessary that this element (the time) is also certain and defined, so that, as much as possible, there is some predictability in the application of the law, bringing comfort and security to the users of the system. If the element could be eliminated from the decision-making process of those who aim to dispute in court, there would certainly be little (or no) stability in human relations, subject to revisions or judicial discussions ad aeternum.

Predictions about prescription are included in articles 205 and 206 of the Civil Code, which, roughly speaking, delimit, respectively, the general ten-year statute of limitations (when the law does not set a shorter period) and the specific statute of limitations for certain life situations ( ranging from one to five years, depending on the nature of the claim).

If, on the one hand, there are rules in place, on the other hand, the statute of limitations applicable in concrete is not always clear, and there are situations in which the definition of the incidence of the term can become a tormenting activity for the interpreter. This, by the way, has been one of the main focuses of the action of the Superior Court of Justice (STJ) in recent years, in which, perhaps seeking to live up to the promise brought with the Code of Civil Procedure of 2015 towards the standardization of the jurisprudence of the country and the a (still incipient) “Brazilian system of precedents”, stable, integral and coherent, has signed binding understandings with regard to statute of limitations incident on this or that life situation.

For what matters to these very brief reflections, more recently, based on the understanding that there would be differences “of a factual nature, of protected legal assets and applicable legal regimes between contractual and extra-contractual liability” [1], the The STJ began to attribute to controversies related to contractual liability the general rule of decennial prescription. Right or wrong (and this is not the intention here), the fact is that, from the consolidation of this new understanding, a kind of “revisionist wave” has been seen within that Superior Court, altering understandings consolidated until then (in a relatively short past, by the way). This wave, incidentally, has already been affecting different market segments, notably pay-TV services (cf. REsp 1.951.988/RS); medical sector (cf. REsp 1.756.283/SP); investment portfolio management (cf. EREsp 1.280.825/RJ); real estate management (cf. REsp 1.846.331/DF); fixed telephony (cf. EREsp 1.523.744/RS, EAREsp 622.503/RS and EREsp 1.526.869/RS); funeral assistance (cf. REsp 1.708.326/SP); basic sanitation (cf. REsp 1,532,514); and social security refunds (cf. EREsp 1.838.337/SP), among others.

Specifically for civil construction, there was the recent establishment of a revision procedure for Theme 938/STJ, whose understanding, signed on 9/6/2016, considered the three-year period for exercising the “claim to refund the amounts paid as commission brokerage or technical-real estate assistance service (SATI), or similar activity”. The possibility of reviewing the understanding is now discussed, in order to consider the ten-year statute of limitations for claims of this nature. Under a similar approach, the STJ is also considering the judgment on Item 1,099/STJ, which seeks to establish an understanding about the “statutory period applicable to the claim to refund the brokerage commission in the event of termination of the contract due to the fault of the builder/developer , due to delay in delivery of the property”; whether three or ten years.

On the other hand, it was also the turn of health plans: a Question of Order is on the agenda in which the (im)pertinence of revising the understanding once established in the sense that the statute of limitations applicable to claims would be three years involving revisions of contractual clauses of health plans in which there is a forecast of readjustment and consequent reimbursement due to a possible repetition of an overpayment. The judgment of such a Question of Order, in turn, was originally scheduled to take place on 10/26/2022, but was postponed due to a request for a review by Justice João Otávio de Noronha.

Having established the premise that prescription and legal certainty are related matters, it seems fair to conclude that the establishment of clear rules on the former (and/or the reaffirmation of the existing ones, since it is not up to the Judiciary to create, but only to interpret and apply the Law ) projects effects on the understanding that one has of it. After all, and as Gustavo Franco noted, “if the facts (and the legal understanding that one has about them over time) are never finished, and can always be rewritten (sometimes with exaggerated frequency), there is no history, only versions “.

That is why, one thing seems to be certain: the future already raises great debates, which, although emerging from Law, go far beyond legal borders. In this sense, any alteration of the current understanding in force could have considerable legal consequences (without a doubt), but also social and economic ones, which, by the way, is intuitive: from three to ten years there is a reasonable distance. In the postmodern world, permeated by “juxtaposition and fragmentation of values, turbo-consumerism and existential dissatisfaction”[2], the question remains: when does the past effectively become History?

From Rome to Brazil, much more than “just” achieving the rights of those who do not sleep, the admonition elsewhere recalled perhaps needed to be complemented with a phrase attributed to Pedro Malan (beaten, it is true, but which, apparently, became an indelible chronicle of the Brazilian reality): “in Brazil, the future is doubtful and the past is uncertain”.

[1] Cf. EREsp 1.280.825/RJ, Report Min. Nancy Andrighi, 2nd S., j. 6/27/2018.

[1] Cf. Marco Fabio Morsello. Categorical analysis of existential and profit contracts. Studies in honor of Clóvis Beviláqua on the occasion of the centenary of codified civil law in Brazil. São Paulo, Escola Paulista da Magistratura, 2018, p. 527.