The initial term, technically referred to as dies a quo, consists of a future and certain event or a specific timeframe that determines the beginning of the effectiveness of a legal transaction or the lapse of a procedural or substantive deadline. Present transversally throughout the legal system, especially in Civil, Procedural, and Tax Law, its primary purpose is to provide legal certainty and predictability to legal relations, establishing the exact moment for the enforceability of claims or the start of the counting period for preclusion and prescription.
1. Definition, Concept, and Legal Nature
The initial term is part of the category of accidental elements of a legal transaction, alongside conditions and charges. While a condition subordinates the effect of an act to a future and uncertain event, the term links it to a future and certain event. The legal nature of the initial term is that of a legal fact stricto sensu that acts upon the effectiveness of the legal transaction, suspending the exercise of the right, but not its acquisition, as prescribed by classical Civil Law doctrine.
The term is distinguished from the suspensive condition: in the initial term, the right is already considered acquired (jus ad rem), with only its enjoyment or enforceability being postponed. From a procedural perspective, the initial term is the chronological milestone that triggers the counting of deadlines for the performance of acts by the parties or the magistrate, being fundamental for the structuring of due process and the stabilization of legal relations.
2. Historical Origin and Evolution in Law
The genesis of the institute dates back to Roman Law, where the distinction between dies cedens (the moment the right is born) and dies veniens (the moment the right can be exercised) formed the basis for the theory of deadlines and terms. In Comparative Law, the Napoleonic Civil Code of 1804 exerted direct influence by consolidating the idea that the term suspends the execution of the obligation, but not its substance.
In Brazil, the 1916 Civil Code already treated the term as a modality of the legal act. The evolution to the 2002 Civil Code and the 2015 Code of Civil Procedure refined the application of the initial term, especially regarding the actio nata theory, according to which the initial term of prescription must be counted from the unequivocal knowledge of the injury to the right, and not merely from the objective occurrence of the fact, favoring good faith and material justice.
3. Exact Legal Provision
The normative foundation of the initial term is dispersed across structural statutes:
- Civil Code (Law No. 10.406/2002): Articles 131 to 135. Art. 131 expressly establishes that "the initial term suspends the exercise, but not the acquisition of the right." Art. 134 determines the application of provisions related to the suspensive condition to the initial term, where applicable.
- Code of Civil Procedure (Law No. 13.105/2015): Articles 219, 224, and 231. Art. 231 is the fundamental pillar for determining the initial term of procedural deadlines (date of attachment of the return receipt, date of publication in the Electronic Justice Gazette, etc.).
- Penal Code (Decree-Law No. 2.848/1940): Art. 10, which provides for the counting of the penal deadline, including the day of the beginning (initial term).
- National Tax Code (Law No. 5.172/1966): Art. 173 and 174, which define the initial term for the decadence and prescription of tax credit.
4. Practical Application and Jurisprudential Understanding
The jurisprudence of Superior Courts has focused intensely on fixing the initial term in various fields, consolidating understandings through precedents and binding rulings:
4.1. Civil Liability and Default Interest
The Superior Court of Justice (STJ), through Precedent 54, establishes that, in cases of extra-contractual liability, default interest flows from the harmful event (initial term). Meanwhile, Precedent 43 of the same Court defines that monetary correction in cases of illicit acts applies from the date of the actual loss.
4.2. Actio Nata Theory
Recently, the STJ reaffirmed the application of the subjective aspect of the actio nata theory. In the judgment of REsp 1.731.334/SP, it was established that the initial term of the limitation period for filing an indemnity lawsuit is the date on which the victim becomes aware of the extent of the damage and its authorship, and not necessarily the date of the illicit act itself.
4.3. Labor Law
Within the scope of the Superior Labor Court (TST), Precedent 308 sets the initial term of the five-year prescription retroactively to the date of filing the lawsuit, observing the five-year limit for the claim of labor credits.
5. Related Principles and Doctrinal Divergences
The institute of the initial term is governed by the principles of Legal Certainty, Objective Good Faith, and Tempus Regit Actum. However, doctrinal debates persist regarding the nature of the initial term in obligations of successive performance and those subject to implicit resolutive conditions.
A relevant divergence occurs in the interpretation of the initial term for the collection of contractual attorney's fees in the event of mandate revocation. While part of the doctrine defends the initial term as the date of revocation (principle of immediacy), the STJ has ruled that, if the fee is ad exitum (contingency fee), the initial term of prescription is the success in the original lawsuit, as only at this moment does the claim for collection arise.
6. Contemporary Relevance and Practical Impacts
In contemporary times, the digitization of judicial processes has altered the practical perception of the initial term. Law 11.419/2006, in conjunction with the 2015 CPC, established specific rules for the beginning of the counting of deadlines in electronic systems, where the initial term is often shifted to the first business day following the consultation of the portal or the expiration of the ten-day period for reading the summons.
Furthermore, in Administrative Law, Law 14.230/2021 (New Administrative Improbity Law) brought profound changes to the initial term of prescription, unifying it to eight years from the occurrence of the fact or, in the case of permanent infractions, from the day the permanence ceased, which generated broad debates on the retroactivity of the more beneficial norm.
Legal and Jurisprudential References
- BRAZIL. Law No. 10.406, of January 10, 2002. Civil Code.
- BRAZIL. Law No. 13.105, of March 16, 2015. Code of Civil Procedure.
- BRAZIL. Superior Court of Justice. Precedent No. 43: Monetary correction applies to debt for illicit acts from the date of the actual loss.
- BRAZIL. Superior Court of Justice. Precedent No. 54: Default interest flows from the harmful event, in cases of extra-contractual liability.
- BRAZIL. Superior Court of Justice. REsp 1.731.334/SP. Rapporteur: Justice Mauro Campbell Marques. Judged in 2023/2024 (Consolidated jurisprudence on Actio Nata).
- BRAZIL. Superior Labor Court. Precedent No. 308. Prescription.
