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(Failure to ensure the wearing of a ski helmet) : D, a ski instructor, negligently fails to make sure that all skiers in her‘off -piste‘group wear helmets. P, a skier in the group, hits a tree. P immediately suff ers head injury X, and years later another head injury Y that developed from the same accident.
An. and Comp. Report ……….. 26 Germany ……………… 349 Poland …………… 529
Austria ……………………………… 147 Greece …………………. 386 South Africa ….. 559
France ………………………………. 316 Norway ………………… 488 United States …. 662
Case 2
(Three mistakes during one treatment) : Physician D treats patient P negligently and performs three mistakes on the day of the treatment: A, B and C. Mistake A causes harm X after a year. Mistake B causes harm Y after two years. Mistakes A and C together cause harm Z after three years.
An. and Comp. Report ……….. 29 Germany ……………… 349 Poland …………… 529
Austria ……………………………… 149 Greece …………………. 387 South Africa ….. 559
France ………………………………. 317 Norway ………………… 489 United States …. 664
Case 3
(Consecutive harms from one injury) : Builder D lays down defective foundations for a building thereby creating the risk of future collapse. As a result, the value to the owner of the building (P) decreases (harm A). Two years later the foundation subsides and requires fixing paid by P (harm B). Three years later cracks appear in the building fixed by P (harm C). Four years later the building collapses (harm D).
An. and Comp. Report ……….. 30 Germany ……………… 350 Poland …………… 529
Austria ……………………………… 150 Greece …………………. 387 South Africa ….. 560
Before the enactment of the new B urgerlijk Wetboek (Dutch Civil Code, hereafter‘BW‘) in 1992, in the Netherlands there was only one prescription period of 30 years for all private law claims. That period accrued the moment the plaintiff was entitled to claim performance of the obligation, which for tort claims was the moment the cause of action occurred. In the current Dutch Civil Code, not only is a distinction made between different claims– contractual, tort, etc– but also between two different prescription periods. For tort claims, there is the, so-called,'subjective‘or‘relative‘period of five years whose running is postponed until the day after the plaintiff is aware of both the damage and the thereof responsible person. And there is the, so-called,‘objective‘or‘absolute‘period of 20 years which starts to run following the moment the cause of the damage occurred. Although in general, this reform of the rules of prescription of tort claims was perceived as an improvement, there was still a lot of criticism on its functioning. Therefore, both the Dutch legislator and the Dutch Supreme Court made some changes to inter alia the commencement of the subjective prescription period and the prescription period of damage that is caused by injury or death.
In this report it will be explored how– and why– the passage of time on alleged tort claims affects the claim, the parties and third parties through the defence of prescription in the Netherlands. In order to do this, first in Sections II and III, the definition and the nature of prescription in the Netherlands will be introduced. After this, in Section IV the considerations for and against the prescription of tort claims will be discussed. Section V gives an overview of the elements of prescription. Subsequently, the starting point of the prescription period in the Netherlands will be examined in Section VI, and hereafter, in Section VII, the length of the Dutch prescription period for tort claims will be discussed.
The law of prescription regarding tort claims in Norwegian law is regulated in the general act on prescription of claims. The origin of the provision is the former act on prescription of claims of 1896. The subject of prescription has not generated much discussion over the years. The major literature on the field is primarily one comment to the statutory law and a doctoral thesis on the starting point of the prescription period, apart from a few other contributions. A few minor doctrinal works analyse the special problems of prescription regarding tort claims.
DEFINITION OF PRESCRIPTION
The definition of prescription under Norwegian tort law is very much in accordance with the definition‘a legal institution that prevents P from enforcing an alleged right against D because of the running of a specified period of time on the tort claim‘.
The claim is a right to damages for harm caused that comes into being once the defendant has committed the tortious act. This is the general starting point, but there are some modifications, see infra 27– 30.
THE NATURE OF PRESCRIPTION AND ITS EFFECTS
The Norwegian concept of prescription only affects the claimant's right to compensation when not suing within the time period. Hence, the material obligation for the defendant exists after the prescription period in the sense that a debtor who mistakenly has paid a claim after the prescription period has expired, cannot claim restitution based on unjust enrichment. The effect of barring the claim is considered to be material, having effect both within and outside courts. It is not merely a procedural defence for the defendant. In fact, one may on principle file a claim after the prescription period has expired, because the civil litigation rules accept the plaintiff's pretention of having a valid claim. In the doctrinal literature the prescription claim is in general perceived as a material, not a procedural matter.
Prescription is a major legal defence that bars civil actions on the claim after the expiry of a certain period of time. Despite its far-reaching practical effects on litigation and on society at large, and the fact that it is the subject matter of pervasive legal reforms in many countries, the law of prescription (limitation of actions) is rarely discussed, analysed and compared. To meet this challenge, this book canvases in-depth the law of 15 selected jurisdictions (covering Europe, South Africa and the US jurisdictions) and extensively analyses in comparative perspective the elements of prescription (accrual of the cause of action, prescription periods, rules of suspension, renewal, extension, etc), their interrelations, and the policy considerations (including economic analysis). Topics also covered include the notions of 'action', 'claim', and 'cause of action', subjective and objective prescription, statute interpretation and judicial discretion. The book concludes with how the present law can be improved and where suitable harmonised. While its main focus is the prescription of tort claims, the analysis, comparison and conclusions are highly relevant to most civil actions. Prescription in Tort Law is the result of a three-year research project lead by the European Group on Tort Law (EGTL) that brings together leading academics of the field. It is an invaluable resource for private lawyers. With contributions by Bjarte Askeland (Bergen Appeal Court Judge, Norway), Ewa Baginska (University of Gdansk, Poland), Jean-Sébastien Borghetti (University Paris II Panthéon-Assas, France), Giovanni Comandé (Sant'Anna School of Advanced Studies, Italy), Eugenia Dacoronia (University of Athens, Greece), Isabelle Durant (Université catholique de Louvain, Belgium), Israel Gilead (Hebrew University, Israel), Michael D Green (Wake Forest University, United States), Ernst Karner (University of Vienna, Austria), Anne LM Keirse (Utrecht University, The Netherlands), Bernhard A Koch (University of Innsbruck, Austria), Frédéric Krauskopf (University of Bern, Switzerland), Ulrich Magnus (University of Hamburg, Germany), Miquel Martín-Casals (University of Girona, Spain), Johann Neethling (University of the Free State, South Africa), Elena Occhipinti (University of Pisa, Italy), Ken Oliphant (University of Bristol, United Kingdom), Albert Ruda (University of Girona, Spain), Stefan Rutten (University of Antwerp), Luboš Tichý (Charles University, Czech Republic) and Bénédict Winiger (University of Geneva, Switzerland). ISRAEL GILEAD is Bora Laskin (Emeritus) Professor of Law at the Hebrew University of Jerusalem, where he was Dean of the Faculty of Law between 1999 and 2002. Since 2016, he has been a Professor and Head of the Advanced Legal Studies program at The Academic Center for Law and Sciences, as well as Head of the committee in charge of social sciences, law and business administration at the Israeli Council of Higher Education. Israel is a Member of the European Group on Tort Law and of the American Law Institute and is the author of numerous publications on tort law, law and economics, prescription and corporate law. BJARTE ASKELAND is an Appeal Court Judge in Gulating lagmannsrett, Bergen, Norway and a Professor of Law at the University of Bergen. He is a Member of European Group of Tort Law and author of numerous monographs and articles on tort law.
The Greek Civil Code devotes a whole chapter (chapter 10, arts 247– 280 GCC) to prescription and peremption.The provisions on prescription apply to all kinds of claims, unless otherwise provided. More particularly, arts 247– 278 GCC refer to the prescription of claims and arts 279 and 280 GCC to peremption, to which, as art 279 GCC provides, the provisions on prescription also apply by analogy. In contrast to Roman Law, where prescription was an institution of a more general nature, which had as a consequence the acquisition, loss and deactivation of rights due to their exercise or omission to exercise (praescriptio acquisitiva or praescriptio extinctiva), the GCC adopts a narrow notion of prescription and, according to it, only the claim, ie the right to seek a performance from another, consisting of an act or omission, is prescribed (art 247 GCC).
DEFINITION OF PRESCRIPTION
The definition given by the editors of the book, ie that ‘Prescription in tort law is the legal institution that prevents P from enforcing an alleged right against D because of the running of a specified period of time on the tort claim‘also suits the Greek jurisdiction. Accordingly, prescription in tort law, as prescription in general, is the legal institution, according to which a claim can no longer be judicially enforced, because the claimant failed to exercise it within a specific time limit designated by law.
THE NATURE OF PRESCRIPTION AND ITS EFFECTS
According to art 272 § 1 GCC, which also applies to tort claims, when the period of prescription has been completed, the obligor may refuse performance. The claim continues to exist, however, as an imperfect or natural obligation, which means that, as explicitly mentioned in art 272 § 2 sent a GCC, whatever was paid without the knowledge of prescription may not be claimed back.
The lapse of time does not lead to P's claim becoming extinguished, but the latter remains intact. The effect of the prescription is to provide D with a procedural defence that bars P's ability to litigate the right in court.
In the course of the analytical and comparative discussions following this Questionnaire some changes were made in the cases, in the order of the topics discussed and in the suggestions made. Therefore there are some differences in this regards between the Questionnaire and the final reports.
INTRODUCTION
The aim of the project is to explore how (and why) the passage of time on an alleged tort law claim affects (and should affect) the claim, the parties (P the plaintiff and D the defendant) and other parties through the defence of prescription (limitation of actions).
DEFINITION OF PRESCRIPTION
Prescription in tort law is a legal institution that prevents P from enforcing an alleged right against D because of the running of a specified period of time on the tort claim. In the context of tort law the subject of prescription is usually the right to tort remedy, mainly the right to damages for harm caused. This right to remedy is a right that comes into being once a right imposed by tort law, such as the right to bodily and property integrity, and the right to reputation, is breached (some jurisdictions distinguish in this regard between a primary right and a secondary right to remedy). For the purpose of this project, claims for professional malpractice are also considered as tort claims, although in some jurisdictions they are treated as contractual claims, as long as they are based on grounds of tortious conduct (eg breach of a standard of care).
Question– Does this definition suit your jurisdiction ? Other definitions?
THE NATURE OF PRESCRIPTION AND ITS EFFECTS
There are different ways by which prescription prevents P from enforcing an alleged right of remedy against D. Its effect may be: (a) to extinguish P's right to remedy; (b) to provide D with a substantive defence that prevents P from enforcing the right to remedy although it is not extinguished; (c) to provide D with a procedural defence that bars P's ability to litigate the right in courts.
The French code civil, which was adopted in 1804 and marks the birth of modern French law, inherited the concept of prescription from Roman law and earlier French law. Prescription was the subject of title XX of the third book of the code civil (which deals mostly with the law of obligations, inheritance law and patrimonial relations within the family). Following the jus commune, prescription in the original code civil covered ‘acquisitive‘ prescription (prescription acquisitive or usucapion) and ‘extinctive‘ prescription (prescription extinctive). As time went by, French rules on prescription grew more and more complex and the Code's provisions ceased to reflect adequately the state of the law on this issue. Quite apart from the fact that the bringing together of acquisitive and extinctive prescription was increasingly criticised, a number of special (extinctive) prescription periods were created by the legislator, mostly outside the code civil, which resulted in an extraordinary variety of applicable prescription periods. Case law also developed a distinction, barely sketched in the Code, between ‘real‘ prescription periods and‘foreclosure‘(forclusion) periods, the main difference between the two being that the latter, unlike the former, cannot be suspended.
As a result of this complexity, and like in many other Western countries, more and more lawyers called for a reform of the law of prescription at the end of the 20th century. It was initially thought that such reform would be part of a wider reform of the law of obligations, but, quite surprisingly, the French Parliament took the initiative to reform prescription law on a stand-alone basis in 2008, and not to wait for this wider reform. This has been achieved through loi no 2008-561 of 17 June 2008, which came into force immediately.
This statute deals both with acquisitive and extinctive prescription but separates them more clearly than the Code formerly did. Both types of prescription are now the subject of two different titles in the code civil (title XX for extinctive prescription and title XXI for acquisitive prescription) and have only the name ‘prescription‘ in common.
This project of the European Group on Tort Law (EGTL) aims to explore how the passage of time on a tort law claim can affect, actually affects and should affect, through the defence of prescription (limitation of actions), the claim, the parties (plaintiff P and defendant D) and other parties. For the purpose of this project, claims for professional malpractice, although considered as contractual claims in some jurisdictions, are treated as tort claims to the extent that they are based on grounds of tortious conduct (such as breach of a standard of care).
Notably, this report focuses on the general law of prescription of tort liability. Special rules of prescription that apply to specific contexts, such as prescription in cases of sexual abuse, prescription under European Council Directives and their national implementations, or of tort claims for harms caused by atomic installations, are discussed, when relevant, only in the national reports and the European Union report. It is also emphasised that this project does not discuss legal arrangements under which rights (such as legal powers) exist from the outset for a limited period of time after which they expire‘from the inside‘rather than by the operation of prescription law. Neither does it discuss acquisitive prescription as a way to acquire property rights in immovable and movables.
The discussion of each of the following topics starts with a theoretical analysis, based on the first round of EGTL discussions, and then proceeds to a comparative report and its conclusions, based on the second round of EGTL discussions. It should be emphasised, though, that the analysis, the observations and the suggestions made in this report, as well as the final conclusions (Section XIII) reflect the views of the authors and not of the EGTL.
DEFINITION OF PRESCRIPTION
Prescription in tort law is a legal institution that prevents the plaintiff (P) from enforcing a tort claim against the defendant (D) because of P's failure to file an action on the claim during the running of a specified period of time on the claim.
As concerns the issue of limitation periods on claims in tort, there are three dimensions in EU law. First, limitation of claims brought against the EU itself has been regulated. This is the primary subject matter of the present report. Second, in striving to harmonise national laws and ensure the functioning of the common market, the EU enacts directives requiring the implementation of specified regulations into domestic law. At times these directives concern tort law, and make reference in some scope to the issue of limitation periods. Third, the issue of expiry of claims appears in conjunction with the liability of a Member State for damage caused by a violation of EU law; such liability is subject to a mixed set of regulations, both national and European. The second and third issues are the focus of the last fragment of the report.
DEFINITION OF PRESCRIPTION
Expiry of a claim for damages against the EU 1 is regulated in art 46 of the Statute of the Court of Justice of the European Union.
Article 46 Proceedings against the Union in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto. The period of limitation shall be interrupted if proceedings are instituted before the Court of Justice or if prior to such proceedings an application is made by the aggrieved party to the relevant institution of the Union. In the latter event the proceedings must be instituted within the period of two months provided for in Article 263 of the Treaty on the Functioning of the European Union; the provisions of the second paragraph of Article 265 of the Treaty on the Functioning of the European Union shall apply where appropriate. This Article shall also apply to proceedings against the European Central Bank regarding non-contractual liability.
The Statute constitutes an annex to the treaties in the form of Protocol no 3, and enjoys the status of primary law, setting out the procedure for proceedings before EU courts and the fundamental rules of their functioning.
The aim of the present report is‘to explore how (and why) the passage of time on an alleged tort claim affects (and should affect) the claim, the parties and other parties through the defence of prescription‘under Belgian law. The report refers exclusively to extinctive prescription (or, rather, liberating prescription) and nothing will be said about acquisitive prescription (prescription acquisitive/ verkrijgende verjaring).
In Belgium, prescription is primarily regulated by the Civil Code (arts 2219 ff). Furthermore, a few special prescription provisions have been adopted by the legislator (eg art 26 of the preliminary title of the Code of Criminal Procedure; art 8 bis of the Act of 30 July 1979 on fire and explosion prevention; art 23 of the Act of 22 July 1985 on civil liability in the field of nuclear energy; art 12 of the Act of 25 February 1991 concerning liability for defective products; arts 12 and 13 of the Act of 31 March 2010 concerning compensation for damage resulting from healthcare; art 88, § 2 of the Act of 4 April 2014 on insurances applicable to the claims covered by art 29 bis of the Act of 21 November 1989 on compulsory motor vehicle liability insurance, which concerns the compensation of vulnerable victims of traffic accidents by the insurer who insure the liability of the owner, driver or holder of the implied motor vehicles).
The last substantial reform in the field of prescription took place in 1998. It was the occasion for the legislator to reduce drastically the prescription period (of 30 years until 1998) as regards claims in personam (actions personnelles/ persoonlijke rechtsvorderingen) and, within these claims, to introduce a distinction between two regimes of prescription: on the one hand the common regime (any claim in personam prescribes after ten years) (art 2262) and on the other hand the regime specifically applicable to claims aiming at compensating damage founded on non-contractual liability (art 2262 bis).
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.
In the US, the substantive rules of tort law are primarily determined by state courts and legislatures. As well, prescription of those claims is a matter for each state. Thus, different prescription rules and periods exist throughout the US, although there are some central tendencies among the states along with variations. In addition, tort claims against the US are governed by federal law, which provides its own statute of limitations.
In what follows, this report aims to address the issues raised by the Questionnaire by reference to legal rules that have gained broad or substantial acceptance across the different US jurisdictions, and will also try to note areas in which the law varies significantly among jurisdictions.
DEFINITION OF PRESCRIPTION
Prescription in tort law is a legal institution that prevents P from enforcing an alleged right against D because of the running of a specified period of time on the tort claim.
The subject of prescription, as can be seen from the above definition, is usually the right of P to tort remedy from D, mainly the right to damages for harm caused. This right to remedy comes into being once a right protected by tort law, such as the right to bodily and property integrity, or the right to reputation, is breached. To the extent that one conceives of the latter right (not to be harmed by tortious conduct) as a primary right, and of the former right (to tort remedy) as a secondary right, it is the secondary right which is the subject of prescription.
Only the first sentence is a definition of prescription. That sentence comports reasonably well with the understanding in the US, although the author would replace ‘institution‘ with ‘rule‘and substitute ‘between accrual of the tort claim and initiation of legal action‘ for‘on the tort claim.‘
Czech civil law does not contain special provisions on prescription in tort law as it is part of prescription regulation as a whole. Despite this, the following text relates solely to prescription in tort law.
Prescription of claims for compensation of damage (tortious claims) is governed in principle exclusively by the new Civil Code (‘CC/2012‘). Only the Atomic Law and the Law on State Liability Act contain specific regulations.
ORIGIN AND REFORM OF CZECH PRESCRIPTION LAW
Until 1951, Austrian prescription law (§ 1451 ff AGBG) applied. Following a communist coup d ‘é tat, a new civil code (CC) was introduced including the new, very short and strict rules on prescription (§ § 87– 99), literally excluding an autonomy of parties (§ 99). Through the introduction of the civil code of 1964, some of the‘Austrian‘provisions appeared in Czech law. In 2012, a new civil code was introduced which entered into effect on 1 January 2014, and which also reformed prescription law in the Czech Republic.
While CC/1964 emphasised that courts shall not reaffirm a previous creditor's claim, the law currently in force (§ 609 of CC/2012) sees the fundamental consequence of prescription in the regulation as a debtor not being liable to perform its contract. BGB's influence (§ 214) is eminent not only here, but it is also reflected in the regulation of prescription by claims arising between spouses (§ 646 CC/2012) during the duration of marriage, and also in postponement of the commencement of the prescription period in case of damage of health (personal injury) of a minor (§ 622 CC/2012). The rule stipulated in § 203 BGB was transplanted in § 648 CC/201 which regards postponement of commencement of the prescription period in case of negotiation outside the court. Influenced by § 1502 ABGB and art 141 OR, § 610 CC/2012 governs the possibility to waive the right to invoke prescription in advance.