The statute of limitations applicable to the collection of royalties arising from a licensing agreement for the use of cultivars, in the event that it is the net and constant debt of a private instrument.
The understanding is of the Third Panel of the Superior Court of Justice (STJ), which applied the rule of article 206, paragraph 5, item I, of the Civil Code to reject the appeal of a producer cooperative that charged royalties of a company for having used its vegetative material developed for the cultivation of sugar cane.
According to minister Villas Bôas Cueva, rapporteur of the cooperative's special appeal, the Cultivar Protection Law (Law 9.456/1997) does not regulate the statute of limitations for action to collect royalties and does not provide for the subsidiary application of another law, which attracts the application of the Civil Code.
This does not mean, in the judge's view, that the thesis defended by the cooperative in the appeal is correct, that the absence of a rule would lead to the adoption of the general statute of limitations of ten years, provided for in article 205 of the Civil Code.
"Only if there is no specific discipline in the Civil Code will the general ten-year term apply", he stated.
In the collection action filed by the cooperative, the first degree court recognized the right to royalties, but declared the values relating to the period prior to five years from the filing of the action to be prescribed.
The court considered the liquidity of the debt contained in the contract between the cooperative and the company to apply the five-year prescription provided for in article 206, paragraph 5, item I, of the Civil Code. The decision was upheld by the São Paulo Court of Justice.
In the special appeal, the cooperative defended the application of the general prescription rule of the Civil Code, which would allow it to charge royalties for a period longer than that recognized in ordinary courts.
When analyzing the case, Minister Villas Bôas Cueva highlighted some points to be considered when calculating the consideration owed by the company that used the vegetative material developed by the cooperative.
In these contracts, stated the rapporteur, the value can be defined taking into account the time of use, the planted area or the volume, which can correspond to units, kilos or liters. The settlement of the obligation will depend, according to the minister, on the information established in the contract.
He stressed that, in the case analyzed, the consideration was stipulated based on the planted area, at the value of R$10 per hectare.
"Thus, it is concluded that the determination of the amount due depends on mere arithmetic calculations, as the defendant informed the quantities and types of cultivars used each year. Thus, the claim is to receive a net debt contained in a private instrument" , concluded the minister when justifying the application of the five-year statute of limitations.
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