Reflexões sobre a imprescritibilidade no direito civil

Abstract

This study examines the concept of prescription in Brazilian civil law by reevaluating its traditional foundation: legal certainty. It employs a methodology that combines a review of domestic and foreign literature with an examination of legislative reforms and an analysis of the case law of Brazilian courts and the Inter-American Court of Human Rights. The study demonstrates that moving beyond the abstract and formal conception of legal certainty resolves the apparent conflict between the certainty and effectiveness of rights and leads to the convergence of these values, with concrete implications for the starting point of the period of prescription and for the interpretation of the causes that bar, suspend, or interrupt the prescription. Next, the scope and effects of this legal concept are defined through an examination of the concept of a claim, the distinction between prescription and forfeiture, and the move beyond the traditional view of subjective rights. Based on these premises, the theory of the imprescriptibility of claims is reexamined, drawing on the provisions set forth in the Constitution of the Republic, doctrinal interpretations, and cases recognized by national and international case law. From an examination of these cases, common elements are identified, and the following parameters are outlined: (i) a claim for compensation for damages caused to interests protected under fundamental rights; (ii) the transindividual nature of the damages or their resulting consequences; and (iii) a factual context that objectively precludes the victims of the damage from taking legal action. In light of these parameters, it is argued that interpretive consistency requires that other balancing of conflicting interests in similar situations be subject to the burden of proof to verify the possible imprescriptibility. Finally, this study analyzes the application of these parameters to claims for compensation for personal harm resulting from crimes against humanity.