ACTIO NATA UNDER THE SUBJECTIVE APPROACH: THE UNDERSTANDING OF THE SUPERIOR COURT OF JUSTICE AND THE PROPOSAL OF THE NEW BRAZILIAN CIVIL CODE BILL

Abstract

This article examines the starting point of the limitation period in light of the actio nata theory, in both its objective and subjective versions. It begins with the concept and rationale of prescription, an institution aimed at legal certainty and at the stability of legal relations, and with the choice made by the Brazilian Civil Code of 2002, which adopted, in article 189, the objective criterion, under which the period runs from the violation of the right. It then examines the German reform of the BGB of 2001/2002, which combined short periods, constructive knowledge and an objective maximum limit, as well as the case law of the Superior Court of Justice, which accepts the subjective version only in exceptional situations, when the holder of the right had no possibility of knowing the injury to their right. Finally, it analyzes Bill No. 4/2025, which codifies the subjective actio nata for non-contractual civil liability, recognizing the constructive knowledge standard and a maximum period of ten years from the violation of the right. The research is qualitative, bibliographic and documentary, conducted through the legal-dogmatic method, with a focused comparison with German law and an analysis of STJ decisions selected by thematic relevance.