Limitation of Actions Consultation - Law Commission

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has watered down the definition of knowledge from actual towards constructive knowledge. It is not necessary that a plaintiff knows all the individual details on which his or her claim may depend. Similarly it has been deemed sufficient that the plaintiff could have found out without much trouble the name and address of the defendant. 10.161 German law will usually prevent the use of a tortious claim to circumvent a contractual limitation period. Thus, Article 558 of the BGB lays down a six month period for claims between a lessor and lessee. Damage to the property by the lessee will generally found both an action for breach of the covenants of the lease and a tortious action under Article 558. The general principle in German law is that claims are to be assessed solely in terms of their own requirements. Nevertheless, it is widely recognised that the six month period of Article 558 has to be applied to the corresponding tortious claims to avoid violating the policy of the statute. 505 On the other hand, this policy has not been adopted consistently. 506 The reform proposals by the Commission for the Revision of the Law of Obligations recommends that where claims are concurrent, the prescription period relating to the contractual claim should generally prevail. 507 (3) Interruption and Suspension 10.162 Time can be stopped from running in two different ways. Interruption 508 occurs in the conditions prescribed by Articles 208 to 216 of the BGB, the most important of which are interruption by acknowledgement 509 and by an action for satisfaction of a claim. 510 Time elapsed before an interruption is not taken into account and a new period of prescription must begin again once the interruption is over. 10.163 A weaker form of protection is provided by suspension, which is a concept alien to the English law of limitation. During suspension time ceases to run, but on the cessation of the suspension it restarts at the point where it stopped, rather than from zero. 511 10.164 Suspension is frequently individually specified for particular limitation periods. The period of prescription for delict is suspended as long as the injured party and the person claimed to be liable are engaged in negotiations with each other aimed 505 BGHZ 61, 227 (229ff); BGHZ 66, 315 (319ff); BGHZ 71, 175 (179). See R Zimmermann in E H Hondius (ed), Extinctive Prescription, pp 181 - 182. 506 For example, the prescription periods under Articles 414, 423 and 439 of the HGB do not constrain the corresponding tortious claims. See, eg, BGHZ 9, 301 (304); BGH NJW 1992, 1679ff. 507 Bundesminister der Justiz (ed), Abschlußbericht der Kommission zur Überarbeitung des Schuldrechts (1992), Art 200 BGB-DC. However, an exception is proposed for all claims for personal injury and liberty, which will always take the tortious period, whether arising from contract or tort: ibid, Art 201 BGB-DC. 508 Unterbrechung der Verjährung. 509 Art 208 BGB. 510 Art 209 BGB. 511 Art 207 BGB. 237
at achieving a settlement. 512 Similar, though slightly different, provisions exist in relation to some particular contracts. 513 10.165 There are also a number of general conditions for suspension. For example, prescription is suspended between spouses during marriage and between parents and children during minority. 514 If a person is either incompetent or of limited competence to enter into legal transactions, prescription is suspended so that no period may expire until six months after he or she becomes fully competent or has received a legal representative. 515 Prescription is also suspended for as long as the debtor is granted indulgence. 516 (4) Variation by Agreement 10.166 In principle, the parties can shorten prescription periods. 517 However, their ability to do this is restricted by consumer protection legislation. 518 In contrast, prescription can normally neither be excluded nor made more onerous by agreement. 519 In consequence, waiver of prescription is also prohibited. 520 (5) Estoppel 10.167 Where it would be unfair for the plaintiff to rely on the full extent of the limitation period, the general principle of good faith 521 in German law will anticipate the statutory period. If the plaintiff’s conduct over a period of time leads the debtor to believe that no claim will be made, the debtor’s reliance will be protected. 522 (6) Reform 10.168 The Commission for the Revision of the Law of Obligations proposes a greatly streamlined system which nonetheless retains considerable differentiation. 523 It recommends periods of three years for contractual claims; exceptional five year periods for particular contracts; 524 a ten-year period where the defendant has acted 512 Art 852(3) BGB. 513 See R Zimmermann in E H Hondius (ed), Extinctive Prescription, p 201. 514 Art 204 BGB. 515 Art 206 BGB. These provisions appear to be more flexible than the corresponding English provisions relating to disability. 516 Art 202(1) BGB. 517 Art 225(2) BGB. 518 Art 11 no 10 f AGBG. 519 Art 225(1) BGB. Exceptions are provided for the short prescription periods of, eg, Arts 477 and Art 638(2) BGB. 520 However, the courts have used estoppel to assist plaintiffs who have relied on defendants’ declarations of waiver: see, eg, BGH NJW 1991 974 (975). 521 This has been compared to the role of equity in common law jurisdictions: N Horn, H Kötz and H G Leser, German Private and Commercial Law (1982), p 145. 522 See N Horn, H Kötz and H G Leser, op cit, pp 144 - 145. See also BGHZ 25, 47 (51); BGHZ 43, 292. 523 See R Zimmermann in E H Hondius (ed), Extinctive Prescription, p 194. 524 Eg claims in relation to building defects: Art 195(2) BGB-DC. 238
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PART I INTRODUCTION 1. WHY DOES THE
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Consumer Protection Act 1987. 12 Th
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periods applicable to them, 29 they
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whether a period of four or five ye
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have been damaged. 54 The Committee
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it is fair to assume that it reflec
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particularly where a defendant is o
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We apprehend that the law of limita
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1.41 Although, plainly, there are a
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(5) actions on a judgment or arbitr
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SECTION A: THE CURRENT LAW PART II
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TABLE 1 Limitation Periods under th
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Nature of Action Starting Point Len
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performed even after they are first
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promise by the guarantor that the d
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The fact that the damage was not at
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whether the ‘reasonable discovera
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limitation period that commission,
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the starting of time running from t
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had been no violation of the Conven
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has taken all reasonable steps to o
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3.44 The operation of section 14(2)
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(that is, the amputation). The Cour
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assess the intelligence of the plai
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approach taking into account an ind
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But there is a lack of solid and bi
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court will naturally be more inclin
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that the court will wish to exercis
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3.82 The basic provision is section
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enacted in the Latent Damage Act 19
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(2) the identity of the defendant;
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first has knowledge of those facts,
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“once he knew whether or not the
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3.113 The drafting of section 4 has
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(8) A Note on Bailment 3.116 A bail
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PART IV STARTING DATE, LENGTH OF PE
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Property Act 1925 where land is own
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express but implied and constructiv
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with the meaning of fraud in sectio
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was the expression “to recover mo
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from the other beneficiaries who ha
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The situation can therefore arise w
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elation to the apportioned cost) re
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defendant’s unjust enrichment has
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difference between this and the San
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money received will fall within thi
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PART VI STARTING DATE, LENGTH OF PE
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the limitation period running from
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a third party who has dispossessed
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in respect of which time will never
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It is not necessary, however, for t
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(1) where the land has been effecti
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title to the land of the person who
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limitation period is either sixty y
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6.50 Where a lender holds a second
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2. ARBITRATION (1) Arbitration Awar
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outside his control; whether the cl
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local authority entered on to the l
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such actions should be classified a
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7.25 Under section 10(4), where the
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expiry of the time limit; whether n
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(vi) Merchant Shipping Act 1995 (
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Act Nature of Action Starting Point
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Act Nature of Action Race Relations
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Act Nature of Action Compulsory Pur
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Act Nature of Action Companies Act
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Act Nature of Action Ibid, Schedule
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Act Nature of Action Town and Count
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PART VIII FACTORS WHICH POSTPONE TH
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(a) the period applicable in accord
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ended in 1993. 25 But, as the next
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not mean ‘concealed’, since any
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supported by the wording of this ph
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(4) Proviso to Section 32 8.23 By r
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3. ACKNOWLEDGEMENT AND PART PAYMENT
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further agreement by the parties. 8
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of discrete debts, and those where
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(3) Acknowledgements and Part Payme
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PART IX ADDITIONAL ISSUES 1 WHAT HA
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2 WHAT THE PLAINTIFF NEEDS TO DO TO
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that the defendants were also debar
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laches cannot be invoked where ther
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emedy, 52 so that, for example, a p
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granted. Under section 13(4) of the
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actions under Order 15, rule 1(2) o
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the court from allowing the action
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9.37 It appears, therefore, that su
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SECTION B: OTHER JURISDICTIONS PART
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Law Reform (Miscellaneous Provision
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(who may not be immediately identif
Page 185 and 186: for personal injuries; actions for
Page 187 and 188: corresponding English provision. 64
Page 189 and 190: 1980 78 ] are so obvious that the e
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Page 195 and 196: (7) Factors Postponing the Running
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Page 199 and 200: fraudulent breach of trust or the r
Page 201 and 202: (b) while he is, for a continuous p
Page 203 and 204: causes of action. A confirmation is
Page 205 and 206: action. 206 As in England and in ot
Page 207 and 208: discoverable. 228 Moreover, one sho
Page 209 and 210: (6) Actions in respect of Land 10.7
Page 211 and 212: 5. CANADA 10.85 Statutory rules of
Page 213 and 214: (3) Latent Damage 10.90 Nearly all
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Page 217 and 218: the new Limitations Act in Alberta
Page 219 and 220: periods may apply for the different
Page 221 and 222: 10.112 Below we shall examine three
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Page 227 and 228: general, parties cannot renounce fi
Page 229 and 230: (vii) A one-year period 425 applies
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Page 233 and 234: the same manner as under the Limita
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Page 241 and 242: pursued in the tort of nuisance 6 b
Page 243 and 244: open to argument. It is also arguab
Page 245 and 246: Deliberate concealment (initial and
Page 247 and 248: 11.22 In discussing the options for
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Page 253 and 254: adopt the model of the Latent Damag
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Page 257 and 258: which the demand was made. We would
Page 259 and 260: (c) that the injury, assuming liabi
Page 261 and 262: provision for vicarious liability.
Page 263 and 264: ecommended a definition of knowledg
Page 265 and 266: 12.43 A final question is the exten
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Page 269 and 270: 12.56 We are of the view that a sim
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Page 273 and 274: negligently, and that the plaintiff
Page 275 and 276: a definition of who within an organ
Page 277 and 278: However, we do not believe that it
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Page 281 and 282: 12.92 It should also be remembered
Page 283 and 284: We discuss in a later section the i
Page 285 and 286: (2) A period of 30 years from the a
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in connection with the provision of
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always protect plaintiffs. But a li
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a form of “disability” sufficie
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It is also provided that unless the
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(b) Supervening disability 12.126 B
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In practice a right of action again
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where the injury is known only to t
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isks precisely this injustice, and
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12.148 This leaves two issues for c
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view that deliberate concealment sh
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equirement is inappropriate. Whilst
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Commission felt that the difficulti
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limitation period by entering into
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those rights. 272 We recognise the
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any, the acknowledgement would have
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5 SHOULD THE COURTS HAVE A DISCRETI
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the actual hardships to both sides
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307 See also Deerness v John Keeble
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(1) Whether the core regime should
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13.10 Our provisional view is that
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of action was an intentional trespa
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is the subject of some controversy.
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or police officer to prove 10 years
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consequences, or has been led to be
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eduction in recent years to the lim
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If consultees do not agree, we ask
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(2) To What Extent should the Core
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if a thief’s identity and whereab
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13.59 It can be strongly argued, ho
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If consultees do not agree, we ask
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7 ACTIONS BY A SUBSEQUENT OWNER OF
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ange of disparate sections: and imp
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action, no loss can have occurred u
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13.95 So, for example, in a constru
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of discoverability, offers sufficie
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usually be the time when the land c
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in full to such actions. This would
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actions, and increasing the coheren
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13.125 The situation should also be
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13.131 If such actions are to be br
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12 ACTIONS ON A JUDGMENT 13.137 Und
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13.143 This protection was not comp
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when the distinction was swept away
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authorities and bodies levying char
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performance, injunctions, or other
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common law remedies. 233 This appro
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action have recommended that (contr
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egime but should continue to apply
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94; the Vaccine Damages Payments Ac
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(2) whether they consider that a li
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If a defendant can waive a limitati
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when it is brought to the knowledge
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the rule in land-related actions so
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great advantage in abolishing these
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which was considered determinative
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398
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(2) Definition of the Date of Disco
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(b) the individual would not be exp
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(2) whether, in addition, the defin
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Should an acknowledgement or part p
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6 ACTIONS FOR CONVERSION Are modifi
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and for dishonestly assisting or pr
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13.155 - 13.157. If consultees do n
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2. WHAT THE PLAINTIFF NEEDS TO DO T
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[13 November 1980] APPENDIX LIMITAT
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4A. Time limit for actions for defa
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varies the amount of damages awarde
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of his estate by virtue of section
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and knowledge that any acts or omis
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able to satisfy a judgment. (8) The
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preceding estate or interest or six
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(b) any land is held upon trust (in
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of trust property under the trust,
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ar, the assurance shall thereupon o
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Acknowledgment and part payment 29
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(4) Where in a case within subsecti
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Discretionary exclusion of time lim
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(3) In acting under this section th
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(as the case may be) by way of coun
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In this subsection "duty" includes
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(5) Subject to subsection (6) below
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SCHEDULES SCHEDULE 1 Provisions wit
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7. Accrual of right of action in ca
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corporation sole the right of actio
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9. (1) Nothing in any provision of
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Limitation of Actions Consultation - Law Commission

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