Post by account_disabled on Mar 6, 2024 1:26:54 GMT -5
Recent decision handed down in Special Appeal –SP, reported by minister Nancy Andrighi, of the STJ (Superior Court of Justice), established the impossibility of extrajudicial collection of prescribed debt, especially with regard to the inclusion or permanence of the name of the debtor in “Serasa Limpa Nome” and the impact of the prescribed debt on the consumer's score .
By deciding that “ it is not lawful for the creditor to carry out any extrajudicial collection of the prescribed debt, whether through telephone calls, e-mail, cell phone text messages (SMS and Whatsapp), or by registering the debtor's name in the defaulters register with the consequent impact on your credit score ” and that “ any inclusion or permanence of the debtor's name in 'Serasa Limpa Nome', due to a prescribed debt, cannot lead — even indirectly — to extrajudicial collection, nor impact on the credit score. consumer ”, the ruling factually establishes the extinction of the debt, as it prevents non-coercive acts of attempts to recover the debt and the defense of the commercial system from persistent debtors, as it erases the history of default perpetuated over the years.
Thus, we could say that the higher court understood that the prescription, as it occurs on a commemorative date for maintaining the debt without payment, should award the debtor with forgiveness. This is because the prescription itself BTC Number Data is not, or at least should not be, an amnesty or extinction of the credit, but only the loss of the creditor's right to action. In other words, the material right is preserved, but the claim is extinguished. And then the problems begin, as the heart of the matter lies in the notion of what a claim is and whether the execution of extrajudicial acts would characterize its exercise.
Pretension is the power to demand positive or negative behavior from the other party to the legal relationship. This is, strictly speaking, the so-called degree of enforceability of the right, arising, therefore, as soon as it becomes enforceable (Cf. PONTES DE MIRANDA, Francisco Cavalcanti. Treatise on Private Law: legal efficacy, rights and actions. Atual. by Marcos Bernardes de Mello and Marcos Ehrhardt Jr. São Paulo: Revista dos Tribunais, t. p. ).
For Andreas von Tuhr, the claim is the “power to demand performance from the debtor (…) the claim arises when the holder can demand something to do or not to do from the obligor” (TUHR, Andreas von. Derecho Civil: general theory of derecho civil aleman. v. Buenos Aires: DEPALMA, , p. and ).”
Note the presence of the verb “demand” in the three quotations that support the decision, being a real misnomer for the concept of pretension. In short, pretension can be defined as the right to demand something.
By deciding that “ it is not lawful for the creditor to carry out any extrajudicial collection of the prescribed debt, whether through telephone calls, e-mail, cell phone text messages (SMS and Whatsapp), or by registering the debtor's name in the defaulters register with the consequent impact on your credit score ” and that “ any inclusion or permanence of the debtor's name in 'Serasa Limpa Nome', due to a prescribed debt, cannot lead — even indirectly — to extrajudicial collection, nor impact on the credit score. consumer ”, the ruling factually establishes the extinction of the debt, as it prevents non-coercive acts of attempts to recover the debt and the defense of the commercial system from persistent debtors, as it erases the history of default perpetuated over the years.
Thus, we could say that the higher court understood that the prescription, as it occurs on a commemorative date for maintaining the debt without payment, should award the debtor with forgiveness. This is because the prescription itself BTC Number Data is not, or at least should not be, an amnesty or extinction of the credit, but only the loss of the creditor's right to action. In other words, the material right is preserved, but the claim is extinguished. And then the problems begin, as the heart of the matter lies in the notion of what a claim is and whether the execution of extrajudicial acts would characterize its exercise.
Pretension is the power to demand positive or negative behavior from the other party to the legal relationship. This is, strictly speaking, the so-called degree of enforceability of the right, arising, therefore, as soon as it becomes enforceable (Cf. PONTES DE MIRANDA, Francisco Cavalcanti. Treatise on Private Law: legal efficacy, rights and actions. Atual. by Marcos Bernardes de Mello and Marcos Ehrhardt Jr. São Paulo: Revista dos Tribunais, t. p. ).
For Andreas von Tuhr, the claim is the “power to demand performance from the debtor (…) the claim arises when the holder can demand something to do or not to do from the obligor” (TUHR, Andreas von. Derecho Civil: general theory of derecho civil aleman. v. Buenos Aires: DEPALMA, , p. and ).”
Note the presence of the verb “demand” in the three quotations that support the decision, being a real misnomer for the concept of pretension. In short, pretension can be defined as the right to demand something.