IN MOST JURISDICTIONS, common law and civil law, the law stipulates the period within which a legal claim may be made or legal proceedings may be taken. If the period expires, the claim is said to be time-barred, and either the court no longer has jurisdiction to hear the claim or the defendant can raise the limitation period as a defence to the claim or proceeding. This article considers the effect of limitation periods in common law jurisdictions and in China, and illustrates the concepts by reference to an action to recover a debt.
COMMON LAW JURISDICTIONS
In common law jurisdictions, civil actions are subject to limitation periods. These are the product of statute rather than case law. In a case decided in 2006 – Haward v Fawcetts – Lord Nicholls of Britain’s House of Lords noted as follows (Citation 1):
引文一 Citation 1
Statutes of limitation seek to hold a balance between two competing interests: the interests of claimants in having maximum opportunity to pursue their legal claims, and the interests of defendants in not having to defend stale proceedings. Traditionally, the limitation period for most claims is six years.
This goes back to the Limitation Act 1623.
As reflected in the citation, the purpose of limitation periods is to ensure that legal claims and proceedings occur within a reasonable period of time. Essentially, limitation periods exist to protect defendants. The reason for selecting a period of six years for civil claims is not clear. Some scholars suggest that the period has biblical roots – in the book of Deuteronomy, debts had to be released after a period of seven years. It is understood that the first limitation periods applied to actions to recover land. In the legislation of 1623, a 20-year period was fixed for recovering possession of land. This is based on the concept of adverse possession, under which exclusive possession of land for the relevant limitation period has the effect of giving the party in possession a superior title and extinguishing the title of the former owner. The current period for adverse possession of land in England is 12 years.
Traditionally, except in the case of minor offences, there has been no limitation period in common law jurisdictions for serious criminal offences. In England, this is said to be based on the legal maxim, nullum tempus occurrit regi, meaning “time does not run against the Crown”. However, some have called for a limitation period in respect of sexual crimes as a result of the evidentiary challenges that arise in such cases. By contrast, in the civil law jurisdictions in continental Europe, both civil and criminal actions are generally subject to limitation periods, which are known as “prescription” periods. Unlike common law jurisdictions, where the rules are contained within a separate statute of limitations, civil law jurisdictions usually incorporate the relevant provisions into their civil or criminal codes.
In most common law jurisdictions, the relevant length of time is determined by reference to the cause of action. For example, under the UK Limitation Act 1980 (and subject to various exceptions and special cases):
• The period for bringing an action in simple contracts (including an action to recover a debt) is six years;
• The period for bringing an action in a contract under seal is 12 years (for further discussion about contracts that are executed under seal or “deeds”, see China Business Law Journal volume 2 issue 3: Execute or sign: which is correct?); and
• The period for a claim in tort is generally six years (three years for personal injury, subject to the court’s discretion to extend the period).
The limitation period begins when the plaintiff’s cause of action accrues, or the plaintiff becomes aware of the damage or loss. Most statutes of limitation provide for the limitation period to be suspended or extended in certain situations. For example, in the case of children, the period does not begin until the child is at least 18 years old and has a sound mind. Also, the limitation period may be extended in the case of disability on the part of the claimant, or in the case of fraud of the defendant, or mistake on the part of the claimant. In most cases, after the expiry of the time periods specified in the Limitation Act, the remedies available for breaches are extinguished and no action may be taken in the courts in respect of those breaches.
As previously noted, the limitation period for the recovery of debts is six years. The limitation period starts to run again from the date on which the debtor acknowledges the debt in writing or makes a part payment. In the case of a loan that does not provide for repayment of the debt on or before a fixed or determinable date, the limitation period commences on the date on which the lender makes a demand for repayment.
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A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at law.asia.