Limitation of Actions Consultation - Law Commission

(6) Developments
10.142 No general reform of the relevant provisions of the Code has been made since
1804. Particular problems have been dealt with by a mass of specific legislation.
The consequence has been, as with German law, a large number of different
periods. However, this appears to have excited much less adverse comment in
France than in Germany and there appears to be little pressure for general reform.
468
10.143 Current tendencies in French law have been towards expansion of the areas
covered by extinctive prescription accompanied by a shortening of the periods
applied. This increasing restrictiveness has been counterbalanced by the relaxation
of the conditions under which exceptions can be made. Thus with shorter time
limits has come both a later starting date and the expansion of the grounds of
interruption and suspension. 469
8. GERMANY 470
10.144 The juridical nature of the concept of extinctive prescription 471
in German law is in
some respects closer to its English equivalent than some of its Civil Law
counterparts. 472
It does not extinguish a claim but instead gives the person claimed
to be liable a countervailing right to refuse performance. 473
However, the particular
rules and periods of prescription are deeply influenced by the Roman inheritance
and are thus at points extremely similar to French law.
10.145 Book One of the German Civil Code, the Bundesgesetzbuch (BGB) 474
provides
the general rules on prescription while a mass of specific provisions are found in
the other four books of the BGB as well as in other statutes on private law.
Prescription periods are laid down by reference to particular causes of action in
468 Flaubert’s hero Deslauriers, however, did not approve of the French law of prescription - or
indeed the principle in general. See L’Education Sentimentale, Part II, ch I:
By an ill fate, Deslauriers was given prescription as his subject for class. He was
won over by the most shocking theories. He launched into hoary old disputes as if
they were brand new: Why should an owner be deprived of his property just
because he could not prove title after thirty one years ? It gave security fit only for
an honest man to the heir of a thief. Every sort of injustice was cast in stone by
this law: It was nothing but tyranny and the abuse of power. He was so furious
that he blurted out: “We must abolish it; then the French will no longer lord it
over the Gauls, the English over the Irish, the Yankees over the Redskins, the
Turks over the Arabs, the whites over the blacks, and as for Poland .....” The
President interrupted him: “All right! All right! We aren’t concerned with your
political opinions, you’ll get to speak your piece another time!”
469 V Bandrac in E H Hondius (ed), Extinctive Prescription, pp 148 - 149.
470 See n 389 above.
471 Verjährung.
472 In Scottish law negative prescription has the effect of extinguishing the plaintiff’s rights (see
paras 10.9 and 10.18 above). This is also the general position (with exceptions) in French
law (see para 10.125ff supra). In English law limitation in general bars the remedy only,
except in the cases of title to goods and land.
473 Einrede der Verjährung, Art 222(1) BGB.
474 The general part or Allgemeiner Teil.
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