The need for an agile and efficient action in the recovery of credit through the courts


11 de March de 2021

According to a good part of the doctrine and the jurisprudence, in order to verify the intercurrent prescription in the executions governed by the CPC, the absence of a manifestation by the creditor is necessary (art. 921, § 4). This is because this type of prescription depends on the creditor’s “continued and uninterrupted inertia”.

The intercurrent prescription, according to this understanding, is therefore related to the inertia of the creditor / enforcer, who has the burden of promoting the regular pursuit of the executive deed, requiring the appropriate judicial measures for the preservation of his right and satisfaction of his credit.

Going against the understanding that the intercurrent prescription depends on the inertia of the creditor / enforcer, it was fixed in the judgment of the special appeal representing controversy nº 1.340.553 / RS, in a vote of rapporteur of the eminent Minister Mauro Campbell Marques, the thesis of that in tax foreclosures, the term of one year of suspension provided for in art. 40, §2 of Law no. 6.830 / 80 [1] begins on the date of the Public Finance notice regarding the non-location of the debtor or the lack of pledged assets at the residential address provided, with only the effective attachment and / or service able to remove the course of intercurrent prescription, mere petition in court requiring the attachment of financial assets or other assets is not enough.

Despite the decision being directed at tax foreclosures, some decisions of e have been observed. TJPR [2] and TJSP [3] related to the possibility of applying by analogy the understanding established in REsp. No. 1,340,553 / RS in extrajudicial title executions governed by the CPC.

We note that the creditor’s diligent and effective performance is increasingly essential, as much as the location of the debtor to quote him in the demand, as well as in the search for assets in the name of the debtor.

Check the full version of the decision issued in the special appeal representing controversy No. 1,340,553 / RS.

[1] Art. 40 – The Judge will suspend the course of execution, as long as the debtor is not found or assets found on which the attachment may fall, and in such cases, the statute of limitations will not run.

Paragraph 1 – The execution course has been suspended, a view of the case file will be opened to the judicial representative of the Public Treasury.

Paragraph 2 – Once the maximum term of 1 (one) year has elapsed, without the debtor being located or pledging assets found, the Judge will order the filing of the records.

[2] 0002112-50.2002.8.16.0001; 0039248-88.2019.8.16.0000; 0064332-35.2012.8.16.0001

[3] 2295959-82.2020.8.26.0000; 2247667-66.2020.8.26.0000; 2201672-64.2019.8.26.0000


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