Prescription and decay relate to the loss of a right, due to non-exercise by the titleholder. The general rules are provided for in the Civil Code, but are institutes applicable to all areas of law.
The difference is in the stage at which the subject is in search of his right.
In the prescription, the subject loses the right to a certain action. That is, your right to demand something by legal means ceases to exist. In decay, the person loses his own material right, for not having formalized the request for his right within a defined period.
| Prescription | Decadence | |
| What is | The prescription extinguishes the right to claim. That is, the power to demand something from someone through a legal process, if that right has not been used within a certain period of time.
Material law still exists, but it cannot be achieved through legal means. The limitation can be claimed at any time by the parties. |
In decay, also called forfeiture, what is lost is the material right itself, due to the 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 done, the right ceases to exist. In decay, the action must be officially recognized by the judge. |
| Law | Articles 205 and 206 of the Civil Code. | It is spread throughout the Civil Diploma. |
| Renounce | Admits waiver. | 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 can be interrupted, in the cases described in art. 202 of the Civil Code. The interruption can only occur once. | It cannot be suspended or interrupted. |
| Exceptions | Prescribing is not for everyone. According to Article 197, there is no prescription between spouses, between ancestors and descendants, and between guardians and their guardians. | There are no exceptions for cases of decay, it occurs for everyone. |
| Start of term | The statute of limitations starts after the violation of the right, and is usually 10 years. However, the law sets different deadlines for specific cases. | In decay, the term of perishing begins with the right itself. |
| Example | One company sent its employee away without paying for his rights.
The employee then decides not to bring the company to justice. However, 10 years later, he decides to sue for what he owes. In this case, the judge will deny the request, as the deadline for filing a lawsuit had already expired. However, if the company decides to pay the debt, and then repents, it will not be able to demand the money back, since the employee’s material right was still valid. |
Maria bought a cell phone at Pedro’s store. When he got home, he realized that the product had a problem. However, he was unable to complain the same day, and soon left on his 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 passed. |
What is prescription?
The prescription occurs when someone loses the right to demand that someone else perform an action, for not having done it within a certain period of time.
The limitation periods 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 the suspension, the limitation period that was underway stops, and remains the same as soon as the problem is solved.
In the interruption, the limitation period that was in progress must be restarted, disregarding the previous period.
What is decay?
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.
In other words: the person has the right, but since he did not file a formal request for its realization within a certain period of time, the right expires.
Decay terms can 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 found mainly in the Special Part of the Civil Diploma.
Unlike the statute of limitations, the decay period cannot be prevented, suspended or interrupted.
