Dualismo e prescrição

Abstract

This article aims to reinterpret the application of civil law statutes of limitation (“prescription”), in light of the autonomy granted to current right to sue and in light of the dual theory of obligations. Historically, until the enactment of the 1916 Brazilian Civil Code, one could affi rm that prescription applied to the action or to the claim, as the governing procedural theory concerned the concrete right to action. However, the current Brazilian Civil Procedural Code, by applying the theory of the abstract right to action, has made the plaintiff’s claim independent and autonomous with regard to the material right being claimed. Subsequently, it is the defendant’s liability that is extinguished by prescription, no longer the plaintiff’s action or claim. In order to corroborate this conclusion, we will also analyze the historic origin of the term “claim” in Comparative Law, in addition to its translation from German to Portuguese, when it was made clear that the statement that prescription applies to the creditor’s action or claim is inaccurate, whereas it should apply to the debtor’s liability.