Post by account_disabled on Jan 11, 2024 2:22:08 GMT -5
The statute of limitations for the exercise of any claim by the insured against the insurer (and vice versa) based on alleged non-compliance with duties (main, secondary or annexes) of the insurance contract is one year. iStockphoto The plaintiffs took two years to claim their rights in court Thus, confirming the understanding of the private law groups of the Superior Court of Justice, the 2nd Section of the court considered the requests of two insured people to be reestablished as having been originally signed, which had been changed unilaterally by the insurer.
The policyholders filed the lawsuit two years after the change imposed by the insurance company, with the intention of forcing it to maintain the conditions of the previous contract, as well as reimburse the amounts paid in excess and compensate them for moral damage. The rapporteur of the special Telegram Number Data appeal, minister Luis Felipe Salomão, explained that the prescription consists of the loss of the claim — that is, the loss of legal protection — inherent to subjective rights, due to the passage of time. According to him, the Civil Code establishes that the claim exercised through a purely declaratory action is imprescriptible, since its objective is the suppression of legal uncertainty regarding a certain right or legal relationship, and the law does not set any deadline for its exercise.
However, according to the minister, the claim for conviction necessarily presupposes the existence of an injury to a subjective right and the need for a positive or negative provision to restore that right, and is therefore subject to prescription. For the rapporteur, in this case, it is unequivocal that the action is not purely declaratory. "On the contrary, the main object of the demand is to obtain the patrimonial effects resulting from the nullification of contractual clauses that would have resulted in less favorable economic conditions, that is, the authors seek, after all, the refund of amounts paid in a allegedly undue", he argued.
The policyholders filed the lawsuit two years after the change imposed by the insurance company, with the intention of forcing it to maintain the conditions of the previous contract, as well as reimburse the amounts paid in excess and compensate them for moral damage. The rapporteur of the special Telegram Number Data appeal, minister Luis Felipe Salomão, explained that the prescription consists of the loss of the claim — that is, the loss of legal protection — inherent to subjective rights, due to the passage of time. According to him, the Civil Code establishes that the claim exercised through a purely declaratory action is imprescriptible, since its objective is the suppression of legal uncertainty regarding a certain right or legal relationship, and the law does not set any deadline for its exercise.
However, according to the minister, the claim for conviction necessarily presupposes the existence of an injury to a subjective right and the need for a positive or negative provision to restore that right, and is therefore subject to prescription. For the rapporteur, in this case, it is unequivocal that the action is not purely declaratory. "On the contrary, the main object of the demand is to obtain the patrimonial effects resulting from the nullification of contractual clauses that would have resulted in less favorable economic conditions, that is, the authors seek, after all, the refund of amounts paid in a allegedly undue", he argued.