Prescription and decay relate to the loss of a right, for reasons of non-exercise by the holder. The general rules are provided for in the Civil Code, but they are institutes applicable to all areas of law.
The difference lies in the stage at which the subject finds himself in the search for his right.
In prescription, the subject loses the right to a certain action. That is, your right to demand something by legal means ceases to exist. Already in the decadence, the person loses his own material right, for not having formalized the request for his right within a defined period.
| Prescription | Decadence | |
|---|---|---|
| What is it |
Prescription extinguishes the right to claim. That is, the power to demand something from someone through a legal process, if this right has not been used within a certain period of time. The substantive right still exists, but it cannot be achieved by legal means. Prescription may be claimed at any time by the parties. |
In decay, also called forfeiture, what is lost is the material right itself, due to lack of use of that right. In it, there is a right, and your request must be formalized in court within a certain period. If the formalization is not made, the right ceases to exist. In the decay, the action must be recognized ex officio by the judge. |
| Law | Articles 205 and 206 of the Civil Code. | It is spread throughout the Civil Diploma. |
| Renounce | Admit resignation. | It does not admit the waiver of legal decay (established by law), but it does admit conventional decay (agreed between the parties). |
| Institute of interest | Private. | Public. |
| Interruption | It may be interrupted, in the cases described in art. 202 of the Civil Code. Interruption can only occur once. | It cannot be suspended or interrupted. |
| Exceptions | Prescription does not work for everyone. According to article 197, prescription does not occur between spouses, between ascendants and descendants, and between wards and their guardians. | There are no exceptions for cases of decay, it happens to everyone. |
| Start of term | The statute of limitations starts after the violation of the right, and is usually 10 years. However, the law points out different deadlines for specific cases. |
In decay, the period of perishing begins with the right itself. |
| Example |
A company sent its employee away without paying for his rights. The employee then decides not to take the company to court. However, 10 years later, he decides to file a lawsuit asking for what is owed to him. In this case, the judge will deny the request, as the deadline for filing an action has already expired. However, if the company decides to pay the debt, and later regrets it, it cannot demand the money back, since the material right of the employee was still valid. |
Maria bought a cell phone at Pedro's store. When she got home, she realized that the product had a problem. However, she was unable to go and complain on the same day, and soon left on a trip, returning only 30 days later. When she got back, Maria went to the store to complain about her cell phone. However, Pedro could no longer do anything, as the deadline had already lapsed. |
What is Prescription?
Prescription happens when someone loses the right to demand that someone else perform an action, for not having done so within a certain period of time.
The statute of limitations are determined in articles 205 and 206 of the Civil Code, and cannot be modified. However, they may suffer suspension, interruption or impediment only once.
In case of impediment, the statute of limitations does not start. In suspension, the limitation period that was in progress is stopped, and continues from the same point as soon as the problem is solved.
In the case of interruption, the limitation period that was in progress must be restarted, disregarding the previous period.
What is decadence?
Like prescription, decay is also directly linked to the passage of time. However, what the subject loses is the material right, if he does not use it within a certain period.
That is: the person has the right, but since he has not filed a formal request for it to be carried out within a certain period of time, the right expires.
Periods of decay may originate from the law or from agreements between the parties involved. These deadlines are set out in different parts of the Civil Code, and are mainly found in the Special Part of the Civil Diploma.
Unlike prescription, the statute of limitations cannot be prevented, suspended or interrupted.
See also the difference between:
- Plaintiff, respondent, defendant and plaintiff
- Natural law and positive law
- Marriage and Stable Union
- guardianship and guardianship
- Open, semi-open and closed regime
