Time-barred debts cannot be collected in or out of court
11 de December de 2024, às 22:25
Alcemir Junior
There can be no collection of a time-barred debt.
When the creditor fails to exercise his right to collect his debt within the period stipulated by law, he loses the right to collect it, because the debt is considered to be time-barred, or in popular terms, lapsed.
This means that there can no longer be any collection from the debtor, even if out of court, but the creditor is not obliged to discharge an unpaid debt. This is the understanding established by the Superior Court of Justice when it ruled on REsp 2.088.100-SP.
Understand more:
The debtor cannot be charged in or out of court, that is, if the statute of limitations is recognized, which is the loss of the right to exercise the claim to demand payment of the debt.
If the claim is the power to demand the performance of the service, once it is paralyzed due to the statute of limitations, it will no longer be possible to demand this behavior from the debtor, that is, it will no longer be possible to collect the debt.
Therefore, recognition of the statute of limitations prevents both judicial and extrajudicial collection of the debt, since there are not "two claims", one made through a lawsuit and the other made extrajudicially. Regardless of the instrument used, it is the same claim. Once it is time-barred, it is impossible to collect the payment.
In these situations, there is no need to talk about undue payment, or even unjust enrichment, under the terms of article 882 of the Civil Code, since the subjective right (credit) continues to exist. What does not exist, in fact, is the possibility of demanding it.
When the creditor fails to exercise his right to collect his debt within the period stipulated by law, he loses the right to collect it, because the debt is considered to be time-barred, or in popular terms, lapsed.
This means that there can no longer be any collection from the debtor, even if out of court, but the creditor is not obliged to discharge an unpaid debt. This is the understanding established by the Superior Court of Justice when it ruled on REsp 2.088.100-SP.
Understand more:
The debtor cannot be charged in or out of court, that is, if the statute of limitations is recognized, which is the loss of the right to exercise the claim to demand payment of the debt.
If the claim is the power to demand the performance of the service, once it is paralyzed due to the statute of limitations, it will no longer be possible to demand this behavior from the debtor, that is, it will no longer be possible to collect the debt.
Therefore, recognition of the statute of limitations prevents both judicial and extrajudicial collection of the debt, since there are not "two claims", one made through a lawsuit and the other made extrajudicially. Regardless of the instrument used, it is the same claim. Once it is time-barred, it is impossible to collect the payment.
In these situations, there is no need to talk about undue payment, or even unjust enrichment, under the terms of article 882 of the Civil Code, since the subjective right (credit) continues to exist. What does not exist, in fact, is the possibility of demanding it.
