© Springer International Publishing Switzerland 2015Javier Plaza Penadés and Luz M. Martínez Velencoso (eds.)European Perspectives on the Common European Sales LawStudies in European Economic Law and Regulation410.1007/978-3-319-10497-3_15
15. The Rules on Prescription
LL.M. Humboldt Universität Berlin, University of Valencia, Valencia, Spain
LL.M. Cambridge University, Valencia, Spain
The Common European Sales Law, although limited in its application to the sale of goods, contains a systematic and almost complete regulation of the prescription of actions that takes into account several new tendencies that have emerged from a number of national legal systems. Broadly speaking, it contains two expiry periods that vary depending on the way in which the dies a quo are fixed. The shorter of the two expiry periods employs a subjective criterion, while the longer period makes use of an objective criterion, although this period is not a preclusion period. The law allows the parties concerned a great deal of autonomy in determining the length of these periods. It further distinguishes between the interruption and the suspension of the prescription period. In terms of the effects of the limitation period, the legislator has opted for the weak effect: that is, while it paralyses the action of the claimant, it does not extinguish the claimant’s right.
Prescription is undoubtedly a necessary doctrine; not only for obligations derived from contracts but for all types of obligations, and so its regulation in the Common European Sales Law could go on to form the basis of its regulation in a future European Civil Code.
KeywordsPreclusion periodAcquisitive prescriptionExtinctive prescriptionRights susceptible to prescriptionPeriods of prescriptionDies a quoInterruption of prescriptionPostponement of expiryRenewal of the prescription periodEffects of prescriptionAgreements concerning prescription
The Common European Sales Law (from here on the CESL), although limited in its scope of application to the sale of goods , regulates the prescription of actions in a way that is systematic and almost complete, and which furthermore takes into account the new regulatory tendencies apparent in various national legal systems (for example the reform of the German Civil Code with respect to the regulation of the limitation of actions, as well as the recent reforms of the PECL and the DCRF). These tendencies can be summarised as presenting five main strands Zimmermann 2002:
The shortening of the expiry period. The expiry periods should not be excessively long (nor too short) as is the case under the national law of some countries in which certain actions have an expiry period of 30 years.
In order to determine the K for the calculation of the expiry date, the legislator makes use of a subjective criterion; that is, the period commences when the subject who wishes to bring a legal action knows, or is in a reasonable position to find out, the circumstances that provide the foundation of the claim and the person against whom the claim may be directed.
The legislator allows the subjects a great deal of autonomy in deciding upon the lengthening or shortening of the expiry period.
A distinction is made between the interruption and the suspension of the limitation period. In the case of the interruption of the period, when the conditions given in the law are met, the expiry period begins again from zero; whereas in the case of the suspension of the expiry period, the clock is stopped temporarily and then begins to run again from the point it had reached previously.
The weak effect of the limitation period is preferred to extinction; the effect of the limitation period is to paralyse the action of the claimant but does not result in the extinction of the claimant’s right or action.
The doctrine of prescription is necessary, not only for obligations derived from contracts, but for all types of obligations; and so the regulation of this doctrine in the CESL could serve as the template for its regulation in a future European Civil Code.
There has been some discussion among legal experts concerning the basis on which prescription has been established. One of the principle justifications put forward in the literature is that it favours legal certainty by removing any doubts about the temporal validity of rights, and this configures its role as an instrument of public order, which in turn explains the imperative nature of the rules that comprise it. The limitation period is not subject to the autonomy of the parties, even though the rights it affects normally are (García Goyena 1852).
Another argument put forward in favour of this doctrine is that it serves to protect the security of commercial traffic because it saves debtors the costs entailed by the conservation of proof of payment of their debts. This reasoning is of special relevance to short limitation periods.
Finally, it is frequently affirmed that the limitation period determines the cases in which it is objectively inadmissible for claimants to exercise their rights tardily; typifying this behaviour as unfair conduct that is contrary to the rules of good faith and obliging claimants to exercise their rights within the appropriate time-frame.
These last two reasons are equally directed towards the protection of the passive subject of a right or power, as the passing of time will deprive this subject of the means of proving his case, and because the subject needs to be protected from the prospect that the prolonged silence of the right holder may suddenly be broken with legal action (Díez-Picazo y Ponce de León 1964).
Apart from prescription, other types of time period may be used to limit the exercise of the rights of the buyer; as, for example, in the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the Directive on Certain aspects of the Sale of Consumer goods and Associated Guarantees. Article 39.2 of the CISG determines that: “the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer…”. While article 5.1 of the Directive stipulates that: “The seller shall be held liable under Article 3 where the lack of conformity becomes apparent within two years as from delivery of the goods. If, under national legislation, the rights laid down in Article 3(2) are subject to a limitation period, that period shall not expire within a period of two years from the time of delivery.”
The system employed in the CISG by which a claim based on lack of conformity is limited temporally is a method by which such claims may be regulated without the need to make use of the doctrine of prescription.
The limitation period begins to count from the moment in which the object purchased has been placed effectively in the possession of the buyer. This is an objective method of calculation that offers security to the seller but is to the detriment of the buyer whose interests would be better protected if the period began at the moment in which he became aware of the lack of conformity of the goods (Morales Moreno 2003).
A similar system is employed by Directive 1999/44/EC of the European Parliament and of the Council of the 25 th of May 1999 on certain aspects of the sale of consumer goods and associated guarantees, in which the time limits for the provision of guarantees by the seller are not formulated as a period of prescription but rather as the set period within which the conditions for liability must be met (Cañizares Laso 2003). A different issue is the prescription period indicated for a claim that arises as a consequence of a lack of conformity. According to art. 3 of the Directive if, under national legislation, the rights laid down in Article 3(2) (which relate to rescission of the contract and a reduction in price of the goods) are subject to a limitation period, that period shall not expire within a period of 2 years from the time of delivery.
In German Law the question of the limitation of claims for defects in goods is regulated in Section 438 of the German Civil Code (§ 438 BGB). According to this Section: “(1) The claims cited in section 437 nos. 1 and 3 become statute-barred
in thirty years, if the defect consists of
a real right of a third party on the basis of which return of the purchased thing may be demanded, or
some other right registered in the Land Register,
in five years:
n relation to a building, and
in relation to a thing that has been used for a building in accordance with the normal way it is used and that has resulted in the defectiveness of the building.
Otherwise in two years”.
The German legislator has opted for a set of special rules, different from the general rules regarding prescription, to govern defects in things. This is due to the fact that usually most actions are governed by a 3 year prescription period, covering both contractual and extra-contractual claims, which relies on a subjective criterion to determine the “dies a quo” . This subjective criterion was considered prejudicial for the provision of guarantees against hidden defects and contrary to legal security, and an objective criterion was thought to be more appropriate.
The proposal for a Common European Sales Law does not follow this dual system of regulation. The lack of conformity must be present in the moment in which the risks are transmitted to the buyer, as stated in article 105 of the CESL:
“1. The seller is liable for any lack of conformity which exists at the time when the risk passes to the buyer under Chapter 14 .
2. In a consumer sales contract, any lack of conformity which becomes apparent within six months of the time when risk passes to the buyer is presumed to have existed at that time unless this is incompatible with the nature of the goods or digital content or with the nature of the lack of conformity”.
If, however, the contract is between traders, then article 121 stipulates that:
“1. In a contract between traders the buyer is expected to examine the goods, or cause them to be examined, within as short a period as is reasonable not exceeding 14 days from the date of delivery of the goods, supply of digital content or provision of related services”. In order to determine the period within which a claim based on a lack of conformity may be made we must apply the general rules contained in Chapter 18 CESL.
15.2 The Relation Between Extinctive and Acquisitive Prescription (Usucaption) in European Law
As a consequence of certain technical aspects of Roman Procedural Law and the historical evolution of prescription in Roman Law, Roman jurists considered extinctive prescription to be a special form of acquisitive prescription (De Pablo Contreras 1992). This confusion is still present in European Private Law, particularly in German Law. In German Law the action for the recovery of ownership expires after 30 years, in accordance with § 197 BGB (this point was not affected by the latest reform of the law of obligations). When the action for the recovery of ownership has expired after the 30 year period, the possessor in bad faith acquires an exception that has the status of a right (“Einrede”), and which is transmitted to his heirs but not to a third party, for example someone who has robbed him of the object. German legal experts have treated this dominium sine re as a “curiosity”, “an amicable deviation from the system” or “an untenable situation” (Peters and Zimmermann 1981).
The Italian Civil Code of 1942 declares in art. 948.3 that the action to reclaim ownership does not expire, except in the case in which another has acquired ownership through usucapion.
This point of law was reformed in the Dutch legal system by the promulgation of a new Civil Code in 1994. The previous Code, dating from 1839, had limited the acquisition of property by prescription to those that had possessed the property in good faith, while those who had possessed it in bad faith benefitted from extinctive prescription, which occurred after a period of 30 years. The owner lost the right to reclaim the goods when one or various persons had possessed those goods for a period of at least 30 years. Cases in which the ownership and the possession of goods could end up in different hands were more common in old Dutch Law than in German or Roman law, as the action to reclaim ownership could not be revived when the possessor in bad faith had involuntarily lost possession of the goods after the 30 year period had passed.
This system was thought of as an anomaly, as the possessor in bad faith could benefit from extinctive prescription but not acquisitive prescription . The position commonly held in legal doctrine was that both types of prescription should have the same effect, as connecting extinctive prescription to acquisitive prescription maximises legal security. The new art. 3:105 of the Dutch Civil Code establishes that the person who is in possession of the property in the moment that the action prescribes, due to the expiration of the legal time period, acquires the property even when he is a possessor in bad faith. Article 3:306 fixes this period at 20 years. When the owner has not had possession of the property for 20 years and a third party has possessed the property for the same period, the owner loses the action to reclaim ownership and the possessor acquires ownership of the property through acquisitive prescription . Some legal scholars believe that this amendment, which frees the legal system from the possibility of “dominium sin re” in order to guarantee legal certainty, pays too high a price to achieve its aim (Jansen 2012).
In French law the action to reclaim ownership does not prescribe as long as the property has not been acquired by a third party through acquisitive prescription ; this is because the right of ownership is considered to be a perpetual right, and the right to property cannot exist without the corresponding right to reclaim ownership. The prescriptive acquisition of immovable objects is possible, but it requires public and pacific possession of the property. Article 277 of the French Civil Code (which was modified in 2008) states that the right to property is not subject to a statute of limitations. However, rights in rem for immovable objects expire 30 years from the date in which the right holder knew or should have known of the circumstances that permit the use of the action in question.
English Law does not allow for acquisitive prescription for either movable or immovable goods. This is because it does not protect absolute property rights but rather the best right to possession. By virtue of this, when an owner loses his right to make a claim through extinctive prescription (after a period of 12 years in the case of immovable objects in accordance with the Land Registration Act 2002), the possessor (the adverse possessor) has a better right (the adverse possessor is, therefore, comparable to the owner that possesses the object).