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Germany

Published online by Cambridge University Press:  22 December 2020

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Summary

INTRODUCTION

German prescription law is primarily regulated in the German Civil Code (BGB). The Code, originally enacted in 1900, contains the general prescription rules which always apply if no more specific provisions on prescription exist. There are some further special prescription provisions, though only a few in tort law. The special acts on strict liability regularly refer to the prescription provisions of the BGB.

The BGB provisions on prescription were profoundly reformed in 2002. The main aim of the reform was to modernise the whole prescription regime and to unify the different prescription periods as far as possible and reasonable. Smaller adaptations and amendments occurred in 2004 and 2013. The new provisions also apply to tort claims. Tort claims as understood here are claims based on the commission of a tort which entitle to compensation, such as damages claims, or to injunctive relief against threatening damage. The following text exclusively centres on the reformed prescription provisions of the BGB.

DEFINITION OF PRESCRIPTION

The BGB does not define prescription (‘ Verj ährung ‘) but describes its effects in § § 214 et seq. BGB. The main effect is stated in § 214 (1): ‘ After limitation occurs, the obligor is entitled to refuse performance. ‘ The Code thus understands prescription as a right to refuse the owed performance because of the passage of a certain period of time since the claim accrued. This is the general view of the courts and legal doctrine. Prescription, thus, not only constitutes a procedural bar but is a substantive defence which does not however extinguish the prescribed right. This nature does not vary according to varying situations. To modify the nature of prescription due to different situations has not been ventilated or proposed thus far. Generally, only a claim (‘ Anspruch ‘) can prescribe. Claims are characterised by the fact that the creditor can request a certain conduct or omission from the debtor. Subjective rights such as the right to bodily integrity, to property, etc do not regularly prescribe. They exist as long as there is a holder of that right.

Type
Chapter
Information
Prescription in Tort Law
Analytical and Comparative Perspectives
, pp. 339 - 378
Publisher: Intersentia
Print publication year: 2020

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