In a case concerning the collection of a loan of R$ 8,000 – in which the parties verbally agreed on the duty of restitution – the statute of limitations of the action was declared, given that Article 206 of the Civil Code stipulates that the claim for civil redress lapses in three years. However, the Third Panel of the Superior Court of Justice (STJ) determined that the limitation period for collecting amounts that are the subject of a verbal loan contract is ten years.
The Court of Justice of São Paulo (TJSP) reversed the initial decision, emphasizing that “the debt of a verbal loan is subject to the ten-year limitation period of Article 205,” due to the absence of a specific legal provision.
At the STJ, the borrower argued that the situation should be fitted to the provision of the periods set forth in Article 206, precisely the three-year period devoted to civil redress or, subsidiarily, the five-year one, which governs liquidated debts contained in a public or private instrument.
But Justice Villas Bôas Cueva, rapporteur of the appeal at the STJ, upheld the TJSP’s decision. According to him, civil redress subject to the three-year limitation period, although interpreted broadly by the STJ’s case law, is linked to the compensation of non-contractual and contractual damages, reaching contractual ones only when it concerns a claim for reimbursement on account of the uselessness of the principal obligation or losses arising from delay in its performance.
“Since the appellee’s claim is concentrated on the simple demand for the contracted performance, a situation distinct from claims for redress of damages arising from default, the three-year limitation period proves inapplicable,” the justice explained.
Cueva also set aside the application of the five-year limitation period reserved for the collection of liquidated debts contained in a public or private instrument. According to him, in addition to the notion of a public or private instrument relating directly to the idea of a physical contract, the absence of a document materializing it also sets aside the concept of a liquidated debt.
“In view of such considerations, since the appellee’s claim does not consist of civil redress or the collection of a liquidated debt, the application of the ordinary ten-year period – Article 205 of the CC/2002 – is unavoidable, and the understanding set forth in the appealed judgment is irreproachable,” the rapporteur concluded.
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