The discussion regarding the statutory limitations period applicable to actions for refund of amounts unduly paid to supplementary pension entities, based on unjust enrichment, is longstanding before the Superior Court of Justice (STJ). As a rule, the controversy lies in whether to apply the ten-year or three-year limitations period, provided, respectively, in articles 205 and 206, paragraph 3, subsection IV, both of the Civil Code of 2002 (CC/02).
Until recently, it was possible to state that the case law of both private law classes of the STJ, based on the unjust enrichment of the entity, had been settled around the three-year period (article 206, paragraph 3, IV, of the CC/02), as decided by the 2nd Section in the judgment on Repetitive Topic No. 610/STJ, which addressed the issue from the point of view of health plan operators. However, the issue won another chapter before the STJ in June of this year.
By a majority, the 3rd Panel found that the statutory limitations period for A refund is ten years (article 205 of THE CC/02), since enrichment of the pension entity had a legal issue as its cause, namely the prior contractual relationship with the plan participants. This would therefore not constitute a case of unjust enrichment, which would lead to the three-year statutory limitations period. At the time, Justice Ricardo Villas Bôas Cueva dissented and Justice Marco Aurélio Bellizze recused himself.
The 3rd Panel based its understanding on a precedent of the Special Court, the highest body of the STJ, to the effect that "the discussion regarding the undue collection of amounts in a contractual relationship and undue payment does not fit within the three-year period, whether because the legal nature of the cause, in principle, exists (prior contractual relationship in which the legitimacy of the charge is discussed), whether because the action for refund of overpayment is a specific action.”
Although the case decided by the Special Court did not deal with undue charging for a supplementary pension, but rather for noncontracted telephone service, the Justice writing for the court, Justice Paulo de Tarso Sanseverino, found that the situation is similar, because, in the course of a benefit plan, there was undue charging of contributions, a refund of which was claimed.
In principle, the case decided by the 3rd Panel was classified as Representative Controversy No. 121/STJ for potential assignment to the procedure for repetitive appeals, in order to reaffirm the STJ's guidance on the issue in a precedent qualified as being one of mandatory observance by the lower courts, under the terms of article 927 of the CPC/15. However, in the light of the Panel's amendment of the case law, the reporting judge rejected the indication of the subject as representative of the controversy.
Considering that the 4th Panel has precedents in the opposite direction of that of the 3rd Panel, the issue may be submitted to a procedure to resolve dissent by the 2nd Section, which is composed by both panels and has competence to standardize private law issues at the STJ. In this scenario, it is important to provide some comments on the new understanding of the 3rd Panel.
- According to Justice Ricardo Villas Bôas Cueva, "it is not enough for the claim to be based on a prior contractual relationship between the parties to call for the application of the ten-year limitations period." This is so because article 205 of the CC/02, since it is a residual rule, should be applied in an exceptional manner, only when it is found that there is no specific provision of law, which is gathered from the wording itself: “A time-bar occurs in ten years when the law has not set a shorter period."
In this sense, the Justice continues, it is necessary to examine the nature of the claim in order to define the statute of limitations applicable: (i) if it results directly from the contract, it is ten years; or (ii) if it does not have any direct relationship with it or constitutes a logical consequence of recognition of some nullity, in whole or in part, of the agreement entered into, it is three years.
- It cannot be disregarded that the 2nd Section, on three occasions, under the system for repetitive appeals, found for application of the three-year period in cases in which unjust enrichment arises from a prior contractual relationship, namely: a) claims of nullity of a readjustment provision for health care plans or insurance contracts (Topic No. 610/STJ); b) claims to repeat indebtedness of a farm credit note contract (Topic No. 919/STJ); and c) claims to refund amounts paid as brokerage commission (Topic No. 938/STJ).
Despite the particularities of each case and the guidance that the theories defined in the repetitives appeals be applied exclusively in their specific scenarios, the logic employed by the 2nd Section in the aforementioned repetitive appeals may be applied to situations involving supplemen tary pension plans, at least in relation to Repetitive Topic No. 610/STJ, cited in various precedents on the topic that defined as correct the statute of limitations of three years, with a basis on article 206, paragraph 3, IV.
In line with such precedents, since the claim is based on the absence of a legal cause for the collection of the contributions paid into the supplementary pension plan, even if there is a contractual relationship between the parties (termination of adherence), one should apply to the scenario the limitations period of article 206, pargraph 3, IV, CC/02, which sets at three years the limitations period for claiming compensation for unjust enrichment.
- The new understanding of the 3rd Panel indicates a change in the jurisprudential guidance of the STJ and, naturally, may be replicated in other cases. However, it is important to point out that, in the specific situation, Justice Marco Aurélio Bellizze, who cast the winning vote on Topic 610/STJ, recused himself from voting, which may have contributed to the result.
- In the case examined, the entity report the existence of at least 55 precedents from the STJ regarding an identical issue involving beneficiaries of State Law No. 4,819/58. The three-year limitations period was applied in all of them. Several of them have become final and unappealable, and in 16, it occurred after the filing of a motion to resolve dissenting opiniosn by the beneficiaries, which was duly rejected.
The sudden change in the Court's dominant stance, without any new fact from the social, economic, and/or legal point of view, compromises the stability of legal relations and goes against the legal obligation of the courts to keep the case law stable, complete and coherent (article 926 of the CPC/15).
In order to safeguard the rights of both the insured and entities that have lawsuits in progress, it would be prudent to submit the matter to the sieve of the 2nd Section of the Superior Court of Justice for it to review, or for it to maintain, the Court's understanding and potential incompatibility with the theories established in the repetitive appeals. If the case law is overturned, the possibility of relaxing the effects of the decision must be assessed, for the theory established to be applied only to appeals lodged after the publication of the respective appellate decision, in accordance with article 927, paragraph 3, of the CPC/15.
This is justified by the institutional role of the STJ in giving the final word on the interpretation of infra-constitutional law. It is clear that the change in its understanding represents a real change in the applicable normative act, the retroactive effects of which must be examined by the Court.
 AgInt no REsp 1674510/SP, opinion drafted by Justice Nancy Andrighi, Third Panel, decided on June 8, 2020, published in the Electronic Gazette of the Judiciary on June 10, 2020); (AgInt no AREsp 1.322.956/SP, 3rd Panel, published in the Electronic Gazette of the Judiciary on February 1, 2019), and (AgInt no REsp 1.717.109/SP, 4th Panel, published in the Electronic Gazette of the Judiciary on November 20, 2018.
 REsp 1803627/SP, opinion drafted by Justice Paulo de Tarso Sanseverino, Third Panel, decided on June 23, 2020, in the Electronic Gazette of the Judiciary on July 1, 2020.
 EREsp 1523744/RS, opinion drafted by Justice Og Fernandes, Special Court, decided on February 20, 2019, published in the Electronic Gazette of the Judiciary on March 13, 2019.
 The following were also qualified: REsp No. 1838337/SP; REsp No. 1838335/SP, and 1838334/SP, in order to define “the statutory limitations period for the repayment of contributions paid into the supplementary pension plan known as ‘Plan 4819,’ the illegality of which was recognized in court.”
 (REsp 1360969/RS, Opinion drafted by Justice MARCO BUZZI, written for an Appellate Decision by Justice MARCO AURÉLIO BELLIZZE, SECOND SECTION, decided on August 10, 2016, published in the Electronic Gazette of the Judiciary on September 19, 2016)
 (REsp 1361730/RS, Opinion drafted by Justice RAUL ARAÚJO, SECOND SECTION, decided on August 10, 2016, published in the Electronic Gazette of the Judiciary on October 28, 2016)
 (REsp 1599511/SP, Opinion drafted by Justice PAULO DE TARSO SANSEVERINO, SECOND SECTION, decided on August 24, 2016, published in the Electronic Gazette of the Judiciary on September 6, 2016)
 (REsp 1756283/SP, Opinion drafted by Justice LUIS FELIPE SALOMÃO, SECOND SECTION, published in the Electronic Gazette of the Judiciary on June 3, 2020)