Published with the objective of modernizing brazil's business environment, Provisional Measure No. 1,040/21, also known as The Business Environment MP (MPAN), provides for the facilitation of the opening of companies, the protection of minority shareholders and the facilitation of foreign trade, among other issues. Article 32 drew attention by inserting Article 206-A a into the Civil Code to provide that: "'The intervening statute of limitations shall comply with the same limitation period of the claim.' (NR)". It is, therefore, a pacification by the legislation activity of the deadline to be considered for the recognition of the institute.
This text does not intend to exhaust doctrinal concepts and/or currents about the institute, nor even discuss the writing of the new device inserted in the Civil Code. The objective is simply to analyze whether or not there is novelty about the period to be considered for the recognition of intervening statute of limitations, based on the consensus that it concerns the statute of limitations in the course of an action and observing the same period thereof for the exercise of the original claim (i.e., the period terms listed in Art. 206 CC). Therefore, the answer is negative.
As for the deadline applicable for the recognition of the intercurrent limitation of action in the process, the courts, especially the Supreme Court (STF) and the Superior Court of Justice (STJ), have long recognized that it coincides with the limitation period for the exercise of the initial claim.[1]
To elucidate the theme, ruling 150 of the Supreme Court recommends that "prescribes the execution within the same period of prescription of the action". Although it deals with execution processes, the ruling has been applied since its edition to support the understanding that the intercurrent statute of limitations will observe the same period of the prescription of the action.[2]
Recently, in deciding the first incident in its history, inserted in the new Civil Procedure Code (CPC), named as “Incidente de Assunção de Competência”, which is remitted by the rapporteur of an appeal to be tried by the full bench of the appellate court in order to prevent or to settle divergences in case law (IAC 1), instituted in the judgment of Special Appeal to the STJ No. 1,604.412/SC, seeking to regulate the period of intercurrent statute of limitations applied to proceedings governed under the aegis of the revoked CPC, fixed the thesis in which "the intercurrent statute of limitations is related, in the causes governed by the CPC/73, when the exequente remains inert for period longer than that of prescribing the vindicated material right, according to interpretation extracted from Art. 202, sole paragraph, of the Civil Code of 2002".
Therefore, of course, there has been no change in the understanding that the period of intercurrent limitation is identical to that legally provided for the statute of limitations of the action or, in other words, of the original claim.
The 2015 CPC,[3] Nor did it bring an express provision as to the period to be applied for the recognition of intercurrent statute of limitations, but the understanding enshrined in the country jurisprudence since the 1950s has not ceased to be applied, now substantiated in the newly inserted art. 206-A of the Civil Code.
[1] Under the STJ, we highlight the following judges: REsp 1.340.553-RS, rel. Min. Mauro Campbell Marques, First Section, judged on 12.9.2018; IAC 1/STJ, under the system provided for in Articles 947 of cpc/15 and 271-B of the RISTJ, in REsp. 1,604,412, judged on 6.27.2018. Within the Scope of the Supreme Court, we highlight the following remains: ARE 732,027 AgR, rel. Min. Carmen Lucia, Second Class, judged on 7.5.2013; RE 107878, rel. Min. Djaci Hawk. Second Class, judged on 3.6.1986.
[2] From this perspective, stands out the menu of one of the precedents that led to the edition of the summary, the RE 34.944/DF, rapporteurship of minister Luiz Gallotti, judged on 22.8.1957: "Prescription. Dissidium jurisprudential on whether the execution prescribes within the same period of the action. Decision in the affirmative." Available in: <http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=135367>. Access: 1.5.2021.
[3] Statement 196 of the Permanent Forum of Civil Proceduralists (FPPC) provides that "the term of intercurrent limitation is the same as the action".
