Intercurrent Prescription: What It Means for Debtors

Intercurrent prescription is a topic of great importance for those who have debts and are undergoing an execution process. Understanding this concept can make all the difference when defending yourself and protecting your assets. This article aims to clarify in detail what intercurrent prescription is, how it works, and its direct impacts on the debtor. Furthermore, we will address the differences between prescription and forfeiture, the requirements for intercurrent prescription to be recognized, and how the debtor can defend themselves in case of its occurrence.

Intercurrent prescription is a legal mechanism that extinguishes the creditor’s right to judicially collect a debt if they remain inactive for a certain period after the start of the execution process. In other words, if the creditor does not take the necessary measures to advance the process within the period established by law, the debtor can claim intercurrent prescription and thus be freed from the obligation to pay the debt.

This article will explain how intercurrent prescription applies in different situations, how it differs from common prescription, and what steps the debtor must follow to defend themselves and ensure their rights are respected. Follow this complete guide and learn everything you need to know about intercurrent prescription.

What is Intercurrent Prescription?

Intercurrent prescription occurs when the creditor, after initiating an execution action to collect a debt, leaves the process stalled for a period exceeding the original prescription period of the debt. This period of inactivity causes the right to judicially collect the debt to be extinguished, benefiting the debtor.

Imagine you have a debt with a 5-year prescription period. The creditor files an execution action to collect this debt, but for some reason, leaves the process stalled for more than 5 years. In this case, intercurrent prescription occurs, and you, as the debtor, can claim this prescription to be freed from the obligation to pay the debt.

Difference Between Prescription and Forfeiture

It is crucial not to confuse intercurrent prescription with forfeiture. Prescription refers to the loss of the right of action to demand the fulfillment of an obligation, while forfeiture refers to the loss of the right itself. In prescription, the right exists but can no longer be exercised judicially. In forfeiture, the right ceases to exist.

Intercurrent prescription is related to prescription, as it occurs within an ongoing judicial process. Forfeiture, on the other hand, does not depend on a judicial process to occur. An example of forfeiture is the right to annul a legal transaction, which has a specific deadline to be exercised. After this period, the right of annulment is extinguished.

How Does Intercurrent Prescription Work in Practice?

For intercurrent prescription to be recognized, certain requirements must be met. The main one is the creditor’s inaction. The creditor must remain inactive, without taking steps to advance the process, for a period equal to or greater than the original prescription period of the debt. Furthermore, this inaction must be attributable to the creditor, meaning it is not caused by external factors, such as delays by the Judiciary.

Let’s detail the steps to understand how intercurrent prescription works:

1. Start of Execution: The creditor initiates an execution action to collect the debt.
2. Creditor’s Inaction: The creditor leaves the process stalled, without taking actions to advance the collection.
3. Prescription Period: The creditor’s period of inaction must be equal to or greater than the original prescription period of the debt.
4. Debtor’s Claim: The debtor claims intercurrent prescription before the judge.
5. Judicial Decision: The judge analyzes the case and, if all requirements are met, recognizes intercurrent prescription, extinguishing the execution.

Practical Examples of Intercurrent Prescription

To illustrate better, let’s look at some practical examples:

• Check: A check has a 6-month prescription period. If the creditor initiates the execution but leaves the process stalled for more than 6 months, intercurrent prescription occurs.
• Promissory Note: A promissory note has a 3-year prescription period. If the creditor initiates the execution and does not take the necessary steps to advance the process for more than 3 years, intercurrent prescription can be claimed.
• Debt Contract: A debt contract can have a 5-year prescription period. If the creditor files the execution action but does not move the process for more than 5 years, the debtor can benefit from intercurrent prescription.

What Does Intercurrent Prescription Mean for the Debtor?

For the debtor, intercurrent prescription represents a great opportunity to get rid of the debt. If the creditor is not diligent and leaves the execution process stalled for long enough, the debtor can claim intercurrent prescription and thus extinguish the execution. This means they will no longer be obligated to pay the debt, and their assets cannot be seized to settle it.

Intercurrent prescription is an important defense tool for the debtor, as it protects against creditor inaction and ensures that debt collection is carried out diligently and within the deadlines established by law. It is crucial for the debtor to be aware of the deadlines and process movements to identify the occurrence of intercurrent prescription and thus exercise their right to defense.

How to Defend Against Execution by Claiming Intercurrent Prescription

If you are a debtor in an execution process and suspect that intercurrent prescription has occurred, it is essential to seek a lawyer to analyze the case and take the appropriate measures. The lawyer will verify if all requirements for intercurrent prescription have been met and, if so, will present a defense, requesting the extinction of the execution.

The defense can be presented through a petition in the court records, in which the lawyer will set out the facts and legal grounds that prove the occurrence of intercurrent prescription. It is important to attach documents that prove the creditor’s inaction, such as court certificates and judicial orders demonstrating the lack of movement for a long period.

Furthermore, it is important to be aware of procedural deadlines and present the defense at the opportune moment. Missing the deadline to present the defense can make claiming intercurrent prescription impossible and harm the debtor.

Requirements for the Occurrence of Intercurrent Prescription

For intercurrent prescription to be recognized, certain requirements must be met. Below, we detail each of them:

1. Creditor’s Inaction: The creditor must remain inactive, without taking actions that advance the execution process. This inaction must be prolonged and unjustified.
2. Prescription Period: The creditor’s period of inaction must be equal to or greater than the original prescription period of the debt. This period varies according to the nature of the debt and the applicable legislation.
3. Creditor Notification: In some cases, it is necessary for the creditor to be notified to advance the process, under penalty of intercurrent prescription. This notification aims to give the creditor an opportunity to respond and avoid the extinction of the execution.
4. Not Attributable to External Factors: The creditor’s inaction cannot be caused by external factors, such as delays by the Judiciary or the impossibility of locating the debtor’s assets. If the delay is caused by these factors, intercurrent prescription will not be recognized.

The Importance of Legal Assistance

Given the complexity of the subject and the need to carefully analyze each case, it is essential to have the assistance of a lawyer specialized in civil law and civil procedure. The lawyer can analyze the execution process, verify if all requirements for intercurrent prescription have been met, and, if so, present the appropriate defense to protect the debtor’s interests.

Furthermore, the lawyer can advise the debtor on their rights and duties, helping them make the best decisions regarding their financial situation. Legal assistance is fundamental to ensure that the debtor has a fair and efficient defense and that their rights are respected.

The New Civil Procedure Code and Intercurrent Prescription

The New Civil Procedure Code (CPC), Law No. 13.105/2015, brought important changes regarding intercurrent prescription. Article 921 of the New CPC establishes that, if the process remains suspended due to the absence of attachable assets of the debtor, the period of intercurrent prescription will start to run from the creditor’s knowledge of the non-existence of attachable assets.

This legislative change has brought more legal certainty to the debtor, as it establishes a starting point for the calculation of the intercurrent prescription period, preventing the process from dragging on indefinitely without the creditor taking the necessary measures to advance the collection.

In addition, the New CPC requires the judge to notify the creditor to comment on the occurrence of intercurrent prescription before extinguishing the execution. This notification aims to ensure the adversarial principle and full defense, allowing the creditor to present their arguments and demonstrate that intercurrent prescription has not occurred.

Case Law on Intercurrent Prescription

The case law of Brazilian courts has consolidated in recognizing the importance of intercurrent prescription as a mechanism for debtor protection and a stimulus for procedural speed. The courts have understood that the creditor’s inaction for a period exceeding the original prescription period of the debt justifies the extinction of the execution, provided that the creditor’s lack of diligence in promoting the process is proven.

However, case law also notes that intercurrent prescription cannot be recognized when the delay in the process is caused by external factors, such as the complexity of the case or the difficulty in locating the debtor’s assets. In these cases, case law has understood that the creditor’s inaction is justified and that the extinction of the execution would be unfair.

How to Avoid Intercurrent Prescription? Tips for Creditors and Debtors

To avoid intercurrent prescription, both creditors and debtors must take important measures:

• For the Creditor:
  • Closely monitor the execution process, regularly checking its progress.
  • Take all necessary actions to advance the process, such as requesting the seizure of the debtor’s assets and submitting statements and documents.
  • Be aware of procedural deadlines and comply with all judicial determinations.
  • Keep your lawyer informed of any changes in the debtor’s financial situation.
• For the Debtor:
  • Monitor the execution process, checking if the creditor is fulfilling all their obligations.
  • Seek a lawyer to analyze the case and check if intercurrent prescription has occurred.
  • Present the appropriate defense, requesting the extinction of the execution, if intercurrent prescription has occurred.
  • Keep your registration data updated in the process, to avoid the creditor claiming they could not locate you.