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Direito para espertos demais e espertos de menos

bemon Plural: 651 comentários
  • O menor de idade não deve fingir ter mais de 18 anos ao fazer negócios com outras pessoas, pois pode perder o direito de anular os atos que realizou sem a assistência de seus pais.

O menor relativamente incapaz, ou seja, com 16 ou 17 anos de idade, pode pedir a um juiz a anulação de seus atos realizados sem a assistência dos pais ou responsáveis. Isso significa que pode desfazer muitos dos atos que lhe causarem arrependimento ou que contrariem a vontade de seus responsáveis. Por isso, muitos adultos de boa-fé evitam fazer negócios com relativamente incapazes para não correrem o risco de terem o negócio anulado mais tarde. Mas se o adulto não toma as precauções necessárias, pedindo os documentos do menor e apenas pergunta sua idade quando faz uma compra, uma venda, um contrato de cessão da imagem para um filme publicitário, esse adulto pode ser enganado pelo menor dissimulado. Convenhamos, de vez em quando, menor adora fazer umas coisinhas que só os adultos podem… e muitas vezes consegue.

Se o relativamente incapaz sabe mentir e consegue esconder sua idade de um adulto quando essa informação lhe é pedida, na realização de um contrato ou qualquer ato da vida civil, o Direito não deveria beneficiar o menor… e realmente não beneficia. O moleque esperto demais pode se dar mal. Se ele assume uma obrigação, em um contrato qualquer, escondendo sua idade, pensando que depois não precisará cumprir, que poderá anular o contrato devido a sua incapacidade civil e à falta de assistência dos responsáveis, está muito enganado. O menor nesse caso não pode pleitear a proteção que a incapacidade civil oferece, e terá que cumprir aquilo com o que se comprometeu.

Clovis Bevilaqua, autor do antigo Código Civil, de 1916, dizia que a malícia do menor supre a idade, ou seja, se o menor já tem malícia, não deve mais ser considerado incapaz. Mas nem todos pensam assim.  Aparentemente, Caio Mario da Silva Pereira não concorda que a má-fé seja sinal de maturidade e discernimento. Para ele, não se trata de dar validade aos atos do menor malicioso reconhecendo sua capacidade civil, mas sim de punir a má-fé do menor negando-lhe a proteção que deveria receber por sua falta de maturidade.

O moleque esperto entendeu que não deve fingir ter mais de 18 anos. Mas e se a malícia for dos outros? E se o menor for enganado, for levado a fazer coisas que não deveria, das quais se arrependerá mais tarde? E se os responsáveis fizerem coisas que prejudiquem o menor? Ele pode nem ficar sabendo, ou pode não ter discernimento para entender que está sendo prejudicado. Nesse caso, o que o Direito faz para proteger o menor?

Já vimos como o menor pode se defender de abusos de seus responsáveis em post anterior. Já tratamos dos poderes do menor e de como eles têm mais direitos que os adultos. Mas existe algo que é fundamental para que o menor possa se defender no momento mais apropriado.

Além da proteção integral, da aplicação do princípio do melhor interesse da criança e de vários direitos que só as crianças e adolescentes têm, existe um recurso muito interessante que o Direito oferece para a defesa dos menores. Trata-se do início da contagem dos prazos prescricionais, que só ocorre quando a pessoa atinge a maioridade.

Para explicar o que é prescrição, precisamos entender o que é pretensão. Quando uma pessoa viola o direito subjetivo de outra, surge uma pretensão exigível judicialmente por quem teve o direito violado. Se a pessoa sofreu um dano por ato ilícito, por exemplo, essa pessoa passa a ter a possibilidade de exigir judicialmente a reparação do dano. Se uma pessoa emprestou a bicicleta a um amigo que não quer devolvê-la, surge para o dono da bicicleta a pretensão de exigir a devolução por meio de ação judicial, se a conversa com o amigo não for suficiente. Depois de um tempo determinado na lei, a pretensão acaba, se extingue, a pessoa perde o direito de exigir judicialmente a bicicleta de volta. A extinção da pretensão chama-se prescrição. Com a prescrição, o direito de ter a bicicleta de volta continua a existir, mas não é mais exigível judicialmente. E lembre-se, em geral, só quem pode usar a força para tomar a bicicleta de volta é o Estado, com ajuda da polícia, se necessário, e com ordem judicial.

Para cada pretensão diferente existe um determinado prazo prescricional, que pode variar de um a dez anos, no atual Código Civil. A diferença, para os menores, é que esse prazo só começa a correr quando a pessoa completa 18 anos e se torna civilmente capaz. Então, se ninguém defende a criança ou o adolescente, ou se ele não tem discernimento para procurar quem o defenda, depois dos 18 anos ele terá um bom tempo para “acordar” e defender seus direitos por meio de processo judicial.

Eu concordo que não é o melhor dos mundos. É sempre melhor prevenir do que remediar. Além disso, depois de muitos anos, pode se tornar inviável a reparação do dano. Mas o início do prazo prescricional aos 18 anos é uma proteção a mais para os menores, com certeza.

Legislação básica:

Código Civil

Art. 180. O menor, entre dezesseis e dezoito anos, não pode, para eximir-se de uma obrigação, invocar a sua idade se dolosamente a ocultou quando inquirido pela outra parte, ou se, no ato de obrigar-se, declarou-se maior.

(…)

Art. 197. Não corre a prescrição:

I – entre os cônjuges, na constância da sociedade conjugal;

II – entre ascendentes e descendentes, durante o poder familiar;

III – entre tutelados ou curatelados e seus tutores ou curadores, durante a tutela ou curatela.

Art. 198. Também não corre a prescrição:

I – contra os incapazes de que trata o art. 3o;

II – contra os ausentes do País em serviço público da União, dos Estados ou dos Municípios;

III – contra os que se acharem servindo nas Forças Armadas, em tempo de guerra.

Referências

PEREIRA, Caio Mario da Silva. Instituições de Direito Civil – vol. I. 21ª edição. Rio de Janeiro, Forense, 2005

VENOSA, Sílvio de Salvo. Direito Civil: parte geral. 5ª edição – São Paulo : Atlas, 2005

TEPEDINO, Gustavo et all. CÓDIGO CIVIL interpretado conforme a Constituição da República – 2ª edição – Rio de Janeiro: Renovar, 2007

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