O TERMO INICIAL DA PRESCRIÇÃO

A POLISSEMIA DA TEORIA DA ACTIO NATA

Abstract

This article examines the application of the actio nata theory in Brazilian law, with an emphasis on defining the initial term of the limitation period in cases involving latent damage or non-pecuniary harm. It begins with the understanding of prescription as an instrument aimed at ensuring legal certainty and the stability of social relations, in accordance with Article 189 of the Civil Code, and analyzes the suitability of the theory that the cause of action arises upon the claimant’s unequivocal awareness of the injury.

The research is based on legal theory and case law analysis, focusing on the application of actio nata in three contexts: environmental law, competition law, and restitution claims in loan agreements. In these areas, the theory is applied flexibly, justified by the difficulty in identifying the exact moment of the harm or the extent of the damage. In environmental law, the debate centers on whether the limitation period begins with the cessation of the damage or with the awareness of its effects. In competition law, the covert nature of the conduct leads to the limitation period beginning upon the victim’s awareness of the unlawful act or the final decision by the antitrust authority. In restitution claims, the controversy lies between the date of the first undue charge and the full repayment of the loan as the triggering event for the limitation period.

The analysis of the Superior Court of Justice’s (Superior Tribunal de Justiça)  reveals a tendency towards the possibility of flexibility on the the action nata , prioritizing, in some cases, the actual knowledge of the harm and its authorship. The article concludes that such flexibility promotes access to justice but must be balanced with normative predictability and legal certainty.