Direito Civil - Aula 182 - Diferença Entre Prescrição e Decadência - Diferença Conceitual

Summary

This video explains the key differences between two important legal concepts in Brazilian law: prescription (*prescrição*) and decadence (*decadência*). Prescription is the loss of the right to enforce a demand (e.g., collecting a debt) due to failure to act within a certain period. Decadence, on the other hand, is the loss of the right to exercise a power (e.g., annulling a contract) due to not acting within a prescribed timeframe. The video clearly distinguishes these concepts by linking them to subjective rights (prescription) and potestative rights (decadence), with practical examples to aid understanding.

Takeaways

• 😀 Prescrição (prescription) refers to the loss of the right to enforce a claim if legal action isn't taken within a specific time period.
• 😀 Decadência (decay) refers to the loss of the right itself if not exercised within a prescribed time limit.
• 😀 The main difference between prescrição and decadência is that prescrição involves losing the ability to claim, while decadência involves losing the right itself.
• 😀 Subjective rights (direitos subjetivos) involve obligations that another party must fulfill, such as paying a debt.
• 😀 Potestative rights (direitos potestativos) give the right holder unilateral power, such as the ability to annul a contract without requiring the other party's cooperation.
• 😀 If a subjective right (such as a debt) is violated and no action is taken within the legal time frame, the right holder loses the ability to enforce the claim (prescrição).
• 😀 If a potestative right (such as annulling a contract) is not exercised within the set time, the right holder loses the power to act (decadência).
• 😀 Prescrição applies when the right to demand a performance (like payment) is not exercised in time, resulting in the loss of the pretension.
• 😀 Decadência applies when a right, like the power to annul a contract, is not exercised within the legal or contractual time frame, leading to the loss of the right itself.
• 😀 The key to avoiding prescrição or decadência is exercising one's rights within the legal time limits to either enforce obligations or use powers granted by law.

Q & A

What is the main difference between prescrição and decadência?

Prescrição refers to the loss of the right to demand something through legal action due to the passage of time, while decadência refers to the loss of a potestative right (the right to exercise a power) when it is not used within a specified time limit.

What is a subjective right, and how is it related to prescrição?

A subjective right is the right to demand something from another person, such as receiving payment for a debt. It is related to prescrição because if the holder of a subjective right does not act within the legal time limit, they lose the right to enforce the claim through legal action.

What is a potestative right, and how is it connected to decadência?

A potestative right is the right to exercise a power, such as the right to annul a contract. It is connected to decadência because if the holder does not act within the set time limit, they lose the power to exercise it, regardless of the other party's action.

Can you provide an example of prescrição in practice?

An example of prescrição is if someone has the right to collect a debt, but they fail to take legal action to enforce the debt within the legal time limit. As a result, they lose their right to demand the payment.

Can you provide an example of decadência in practice?

An example of decadência is when someone has the right to annul a contract, but they fail to exercise this right within the time limit set by law. After the time limit expires, they lose the right to annul the contract.

What happens if a person does not act within the time limit for prescrição?

If a person does not act within the time limit for prescrição, they lose the right to take legal action to demand fulfillment of an obligation, such as payment of a debt or enforcement of a contract.

What is the legal effect of prescrição on a subjective right?

The legal effect of prescrição on a subjective right is the extinction of the right to demand fulfillment, meaning the person loses the ability to take legal action to enforce the obligation.

Why are there two types of time limits: prescrição and decadência?

There are two types of time limits because they apply to different types of rights: prescrição applies to subjective rights, while decadência applies to potestative rights. These rights have different characteristics, requiring different legal treatments.

What is the consequence of not exercising a potestative right within the time limit?

The consequence of not exercising a potestative right within the time limit is the loss of that right, meaning the person can no longer exercise the power (such as annulling a contract) after the expiration of the legal or agreed time limit.

How does the distinction between prescrição and decadência affect legal strategies?

The distinction between prescrição and decadência affects legal strategies because lawyers must be aware of the specific time limits and nature of the rights involved. If a right is subjective, the lawyer will focus on the timing of legal actions to prevent prescrição. If a right is potestative, they must ensure the right is exercised within the set time frame to avoid decadência.