Limitation of Actions Consultation - Law Commission

the same manner as under the Limitation Act 1980. However, as in France, the
codificatory approach has produced a vast number of narrowly defined individual
causes of action, in particular in contract. Consequently, a correspondingly wide
variety of prescription periods has arisen.
10.146 The result is that the cases in which the law lays down a special period of
prescription are so numerous that it is impossible to cite them all. 475
Unjustifiable
distinctions are common, in particular where special regimes, such as the rules
governing warranties for work and labour 476
interact with the general rules of
prescription. In addition, problems of delimitation have caused “serious
distortions” in the law and fostered unnecessary litigation. 477
10.147 As a result, the rules relating to prescription are regarded as one of the least
satisfactory features of the BGB and academics 478
and law reform bodies, such as
the Commission for the Revision of the Law of Obligations, 479
have made
proposals for its radical simplification. 480
(1) Actions in Contract
10.148 The basic period of prescription is thirty years. 481
Time normally runs from the
date when the claim becomes enforceable. 482
It is irrelevant that the damage was
not discoverable. 483
10.149 This period is considered by most commentators to be far too long. 484
It was the
partial realisation of this even at the time of the drafting of the BGB which, by way
of reaction, led to the beginning of the diversification of prescription periods.
475 Witz, Droit Privé Allemand (1992), p 532.
476 Art 638 BGB.
477 R Zimmermann in E H Hondius (ed), Extinctive Prescription, pp 173 - 174.
478 See, eg, F Peters and R Zimmermann, Verjährungsfristen - Der Einfluß von Fristen auf
Schuldverhältnisse: Möglichkeiten der Vereinhältlichung von Verjährungsfristen, in Bundesminister
der Justiz (ed), Gutachten von Vorschläge zur Überarbeitung des Schuldrechts, vol I (1981), pp
77ff.
479 Bundesminister der Justiz (ed), Abschlußbericht der Kommission zur Überarbeitung des
Schuldrechts (1992). See paras 10.168 - 10.173 below.
480 None of the reform proposals support a large number of different prescription periods for
different types of contracts.
481 Art 195 BGB.
482 Art 198 I BGB. See, eg, BGHZ 53, 222 (225); 73, 363 (365). For contract this will usually
be when performance is due: G Dannemann, Introduction to German Civil and Commercial
Law (1993), p 34.
483 The lack of a subjective discoverability criterion has caused problems, in particular where a
client suffers damage caused by an agent where only the agent understands that the damage
has occurred. Thus, where a lawyer negligently allowed his client’s claim to be lost through
prescription and the three year period for this negligence elapsed without the client coming
to realise that this had occurred, the courts were forced into the artificial construction of
imposing a duty on the lawyer to alert the client to the claim against himself, producing an
independent claim in damages: R Zimmermann in E H Hondius (ed), Extinctive
Prescription, pp 195 - 196. See BGH VersR 1967, 979 (980).
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