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Part XIII Limitation of Actions, 51 Limitation of Actions

From: Global Sales and Contract Law

Ingeborg Schwenzer, Pascal Hachem, Christopher Kee

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 06 June 2023

Subject(s):
Remedies for breach of contract — Limitation of liability

51  Limitation of Actions

  1. A.  General 51.01

    1. I.  Policy Reasons 51.03

    2. II.  Procedural or Substantive Approach 51.04

    3. III.  International Initiatives 51.13

    4. IV.  Party Autonomy 51.16

  2. B.  The Period Itself 51.20

    1. I.  General 51.20

    2. II.  Traditional Civil Law Approach 51.23

      1. 1.  General 51.23

      2. 2.  Breach of Contract in General 51.25

      3. 3.  Non-Conformity of the Goods 51.27

    3. III.  The Common Law Approach 51.33

    4. IV.  The Modern Approach 51.35

  3. C.  Renewal and Extension of Limitation Periods 51.38

A.  General

51.01  In practical terms it can be said that all legal systems recognize the need to impose limitation1 or prescription periods.2 However this practical reality belies the subtle but significant differences that exist amongst jurisdictions. The limitations of actions considered in this chapter are those specifically related to contracts for the sale of goods. The limitations on issues of mistake, fraud, and duress are discussed earlier in this work.3 Furthermore, time periods within which a party must give notice of a breach of contract are not limitation periods, and are therefore also considered elsewhere.4

51.02  Although most discussion in legal literature today focuses on questions of limitation periods for tortious liability for personal injury and especially sexual abuse of children, in many legal systems there have been statutory amendments to the law on limitations of actions at a more general level.5 During the last decades uniform law and projects have also addressed these questions.

I.  Policy Reasons

51.03  There are three principle policy reasons behind the imposition of a limitation period.6 Two of these reasons may be genuinely called policy reasons, the third is also somewhat of a practical concern. The first policy reason is that it may be considered unfair to the party against whom the claim may be brought to live under the spectre of that claim indefinitely. The second policy (p. 790) reason is that those who have claims but do not properly enforce such should lose them. Finally, the third and more practical concern is that the passage of time can naturally diminish the availability, reliability, and integrity of evidence.

II.  Procedural or Substantive Approach

51.04  At the domestic level the classification of limitation periods as a procedural or substantive matter is largely a non-issue. However, it can have significant practical effects in a cross-border transaction. If limitation periods are classified as a procedural law issue then the matter is governed by the lex fori. In contrast if limitation periods are classified as a substantive law issue then the matter is governed by the lex causae (or more precisely in the context of sales, the lex contractus).7 This is significant as the time permitted by the various jurisdictions varies greatly.8

51.05  It is often observed that, traditionally, common law and civil law jurisdictions have taken different approaches to the classification of limitation periods.

51.06  In civil law jurisdictions it is almost unanimously accepted that limitation periods are a matter of substantive law.9 Uniform law and projects clearly follow this approach.10 Likewise the Rome Convention on the Law Applicable to Contractual Obligations favours the substantive characterization.11

51.07  Even among the legal systems following the substantive approach, there are still differences as to the consequences of limitation. In some civil law legal systems the obligation itself is extinguished by limitation,12 while in others the obligor must plead limitation as a defence, and the court may not take notice of it ex officio.13 In others limitation merely gives the obligor the right to refuse performance after expiry of the period of limitation. The obligation itself is not extinguished;14 thus the obligor performing the obligation despite the expiry of the period of limitation would not give rise to a claim based on unjust enrichment.

51.08  Common law jurisdictions on the other hand are historically associated with adopting a procedural law classification. A generic observation of this kind, while not incorrect, is not sufficiently nuanced.

(p. 791) 51.09  Common law jurisdictions have tended to determine whether a limitation period is procedural or substantive based on its effect. Where the expiration of the limitation period merely denies access to the courts for enforcement of a claim then the matter is a procedural one. Where, however, the rights associated with the claim are themselves extinguished at the end of the limitation period, then it is a matter of substantive law.15 Within common law jurisdictions limitation periods are, on the basis of this system of characterization, typically procedural in nature—due in part to non-recognition of limitation periods within the common law itself.16

51.10  In recent times there have been legislative steps taken in numerous common law jurisdictions to clarify the classification of limitation periods as being a matter of substantive law.17 In Canada judicial reform has pre-empted the need for legislative reform.18 On the other hand, common law jurisdictions in Asia and Africa do not seem to have addressed the issue. Reform in favour of the substantive law classification was proposed in India19 but does not appear to have been implemented. Indeed the existing legislation in both India and Pakistan is arguably more biased in favour of the lex fori than even the traditional common law approach.20 The legislation in these two jurisdictions states that the principle rule is that the limitation period should be that of the lex fori. However, a foreign limitation period may be a defence where: (a) the contract has been extinguished, and (b) the parties were domiciled in that foreign jurisdiction during the period prescribed by the rule. It is the domicile requirement that is particularly striking; however the specific reference to contract is also notable.21

51.11  Within the USA there is a recognizable trend away from blindly applying the lex fori, although not necessarily in favour of the lex contractus. The 1982 USA Uniform Conflicts of Laws: Limitation Act characterized limitation periods as a matter of substantive law.22 However, this Act was only adopted by a limited number of states, by its own terms only has domestic application, and was in any case withdrawn by the NCCUSL in 1999. Furthermore the 1988 Restatement (Second) on Conflict of Laws rejected this approach in favour of applying the limitation periods of the law of the state with the most significant relationship to the occurrence and the parties.23 The Restatement nevertheless retains a forum bias,24 and appears to favour the shorter of the potentially applicable limitation periods.25

(p. 792) 51.12  While the specific approach adopted by the USA is not without its difficulties when applied at the international level, it may nevertheless point to an advisable approach particularly for common law jurisdictions without legislation, as well as in international commercial arbitration. Applying conflict-of-laws rules to determine the law most closely associated with the claim and then applying the limitation periods of that law is a change which could be implemented by courts alone without legislative amendment.26 If adopted with respect to international commercial arbitration it would provide a clearer and more certain path to the application of rules of law, such as the PICC.27

III.  International Initiatives

51.13  There have been a number of initiatives at the international level with the intention of reducing the complexity caused by the varied domestic approaches.28 First amongst these is the 1974 United Nations Convention on the Limitation Period in the International Sale of Goods (amended by the Protocol Amending the Convention on the Limitation Period in the International Sale of Goods of 4 April 198029). This ‘sister convention’30 of the CISG grew out of the same UNCITRAL work conducted on the harmonization and unification of international sales law.31 However, it has not received the same level of acceptance, and at the time of writing it had only been adopted by 28 countries.32 It is notable that the Limitation Convention is the law of the USA; however its application there is limited to transactions involving parties from Contracting States.33

51.14  Although modelled principally on the CISG, the OHADA AUDCG was the next international initiative to tackle the limitation periods issue in 1998. Chronologically, the next harmonization step was taken in 2003 when Part III of the PECL addressed the question of limitation periods.34 The fourth initiative was the inclusion of limitation period provisions in the 2004 edition of the PICC.35 These provisions remain unchanged in the 2010 edition. Finally most recently provisions regarding limitation periods can be found in the DCFR.36 The DCFR provisions mirror those found in the PECL.37

51.15  Insofar as uniform projects like the PICC, PECL, and DCFR provide a model for modern legislative enactments, the largely consistent approach to limitation periods adopted by them is advantageous. However, as to whether the specific provisions of these soft laws can be given actual application depends on the approach the applicable law takes to party autonomy.

(p. 793) IV.  Party Autonomy

51.16  There is considerable divergence throughout the legal systems whether the statutory rules on limitation can be modified by party agreement, as limitation is viewed as affecting public policy. In some legal systems it is clear that statutory limits cannot be modified by the parties in either way.38 Neither may the obligor renounce limitation beforehand, although after its accrual such renunciation may be possible in some legal systems.39

51.17  Several legal systems permit parties to reduce but not to extend the general limitation periods.40 In exceptional cases legal systems provide for the possibility of the parties to agree on a longer limitation period where the statutory one is extremely short.41 Other systems allow both extension and reduction.42 However, wherever party autonomy is recognized there are statutory limits to what can be agreed by the parties.43

51.18  It appears that common law jurisdictions are far more likely to permit (or effectively enforce) contractually stipulated limitation periods.44 As discussed above common law limitation periods typically bar the remedy rather than extinguish the claim.45 As a consequence an agreement to extend a limitation period, even if not enforceable on its own terms, may amount to a waiver or give rise to an estoppel. The situation may be different however where the agreement purports to reduce the statutory limitation period. The UK Law Commission has suggested that there is in principle no reason why an agreement to reduce limitation periods should not be possible46—although adding it was necessary to provide some protection against shortened periods where one party is in a weaker bargaining position.47

51.19  At the international level the Limitation Convention does not permit parties to contractually alter the limitation periods.48 The Article does, however, permit a debtor to unilaterally extend the limitation period for the benefit of the creditor once the limitation period has begun running.49 The Convention also preserves the effect of clauses which call for arbitration within a shorter period of time, if such clauses are valid under the applicable domestic law.50 The uniform (p. 794) projects all permit the contractual modification of limitation periods within limits.51 These limits control the extent to which periods can be shortened52 and extended.53

B.  The Period Itself

I.  General

51.20  While the statutory stated length of a limitation period is an obvious issue for consideration, there are a variety of other factors which also affect the real length of a limitation period. These issues include the time at which the period commences, as well as factors which may interrupt the period.

51.21  An interesting question in the context of cross-border transactions, but one which appears more or less settled, concerns which civil calendar is to be used when defining time periods. The vast majority of jurisdictions only have one civil calendar based on the Gregorian calendar. Nevertheless, there has been debate in the Middle East and Arabic jurisdictions—where two calendars are in use—as to whether the codes refer to the Arabic calendar.54 This is potentially significant as the Arabic calendar year has 360 days. However, it has been said that the law in these jurisdictions has been settled in favour of the Gregorian calendar.55

51.22  Regarding the length of limitation periods three different approaches can be distinguished; the traditional civil law approach, the common law approach, and finally the modern approach followed by the most recent amendments to codifications and uniform projects.

II.  Traditional Civil Law Approach

1.  General

51.23  Under the traditional civil law approach, codes usually provide for rather long general limitation periods, ranging between 10 and 30 years.56,57 However, these statutes regularly display a huge variety of exceptions. Some legal systems distinguish according to the parties involved between (p. 795) B2B and other contracts;58 others have special regimes for everyday transactions or claims of a petty nature.59

51.24  The most important exceptions relating to contracts for the sale of goods in these legal systems are special—extremely short—limitation periods in case of delivery of non-conforming goods.60 This has led many courts in those systems to rely heavily on the aliud–peius distinction61 as the short limitation period applies to a peius only but not to an aliud; on the other hand it has fuelled the possibility in these systems of allowing concurrent remedies such as rescission for mistake or tort liability for damage to the chattel itself.62

2.  Breach of Contract in General

51.25  As has been mentioned earlier63 civil law legal systems distinguish according to the cause of the breach. In case of non-performance or delay in performance there are no special limitation periods but usually the general (longer) limitation periods apply.

51.26  These limitation periods typically start to run when the obligation becomes due.64 In case of non-delivery or non-payment this is the date when performance is due;65 in case of breach of any other obligation it is the date of the breach.66 This also applies in case of an anticipatory breach. Among the civil law legal systems there are however rare exceptions where the limitation period starts to run on the date of the conclusion of the contract.67

3.  Non-Conformity of the Goods

51.27  Based on the Roman law tradition under the traditional civil law approach there are extremely short limitation periods in case of non-conformity of the goods usually ranging between 30 days,68 60 days,69 six months,70 and one year.71 Under the former French Civil Code72 as well (p. 796) as in all legal systems where it is still in force73 the action for hidden defects must be brought within a ‘short time’ (bref délai). In the traditional civil law legal systems that belong to the European Union, following the EU Consumer Sales Directive74 the limitation period in relation to non-conformity in consumer sales has been extended to two years. In some legal systems different periods apply according to the remedy sought for by the buyer. Thus avoidance may only be asked during six months whereas the remedy of price reduction is only prescribed after one year.75

51.28  Even some of the civil law legal systems that have amended their rules on limitation of actions recently and today follow the modern approach described below76 still retain special provisions for remedies in case of defective goods.77

51.29  The commencement of the short limitation period in case of non-conformity is usually linked to the date of delivery of the goods,78 the date of the effective real delivery of the goods,79 the date when the defects became apparent,80 or when notice is given.81

51.30  As such short limitation periods aim at protecting the seller, many of these legal systems specially provide that the seller may not rely on them if it acted fraudulently.82

51.31  In legal systems providing for a limitation period in case of non-conformity of the goods of less than two years difficult coordination problems arise where this country is a party to the CISG. As has been described above,83 under the CISG in case of hidden defects the buyer is not excluded from giving notice of non-conformity of the goods until two years from the date on which the goods were actually handed over to the buyer (Article 39(2) CISG). Any domestic limitation period of less than two years clearly conflicts with this two-year cut-off period. Although this problem arises in many civil law legal systems—especially in Latin America—up to now it has been discussed in Germany and Switzerland only.

51.32  As the public international obligations of the state parties to the CISG override domestic law it is now unanimously held that shorter limitation periods cannot be applied strictly but have to be adjusted to comply with Article 39(2) CISG.84 There are however several approaches to tackle this problem. A solution favoured by Swiss scholars in the 1990s was to apply the general (p. 797) limitation period of ten years instead of the one-year period for non-conformity.85 Today two solutions are mostly preferred. The German legislature upon implementing the CISG retained the then six-month limitation period86 but postponed its commencement.87 It only started to run when notice of non-conformity was given or should have been given to the seller. Thus, on the one hand, the possibility of the buyer relying on a lack of conformity that appears within the two-year cut-off period of Article 39(2) CISG as well as the short limitation period, on the other hand, are reconciled. This approach has also found support among Swiss courts.88 The other approach is to simply extend the shorter limitation period to two years with the commencement of the period remaining unchanged—that is, starting with the delivery of the goods.89 Thus, the end of the cut-off period in Article 39(2) CISG coincides with the adjusted domestic limitation period in case of non-conforming goods.90

III.  The Common Law Approach

51.33  The common law approach in general is rather simple; there is just one limitation period for all contractual claims starting with the accrual of the action. Usually such limitation periods vary between four and six years.91 The limitation period starts to run when the breach occurs, which in cases of non-conformity of the goods is usually upon delivery.92 This approach has also been followed by the UN Limitation Convention.93

51.34  India, however, opted for an extremely complicated system by having listed over 100 different kinds of actions and providing diverging periods of limitation, varying from 1 to 60 years.94

IV.  The Modern Approach

51.35  The modern approach as it has been developed in some domestic legal systems recently but also notably on the international level by PICC, PECL, and the DCFR is characterized in the first place by aiming at a uniform limitation regime, the general limitation period neither being extremely short—such as six months or one year—nor extremely long—such as 20 or 30 years. Most recent legal systems provide for a general limitation period between two and five years.95

(p. 798) 51.36  The second characteristic is the existence of two different sets of limitation periods; whereas the general limitation is relative—that is, its commencement is only triggered when the obligee is aware or could not have been unaware of its claim96—this relative period is supplemented by an absolute maximum period (‘long-stop’) of between 10 and 30 years starting with the accrual of the action and notwithstanding whether the obligee ever acquired knowledge of its existence.97

51.37  Finally an intriguing scenario exists under German law where the general relative three-year limitation period begins on the first day of the calendar year following the date the claim became enforceable.98

C.  Renewal and Extension of Limitation Periods

51.38  It is recognized in all legal systems that under certain circumstances a limitation period begins to run afresh or may be extended. Synonyms used in the different legal systems are interruption or cessation on the one side and suspension or postponement of expiry on the other.99

51.39  Renewal in many legal systems occurs, in the first place, when the obligor acknowledges the claim of the obligee.100 Traditionally, in most legal systems, renewal in the second place can also be effected by the obligee initiating any judicial or arbitral proceedings.101 Under the most recent amendments to domestic statutes as well as according to the uniform projects the latter only gives rise to an extension of the limitation period while the proceedings are pending.102 In these systems, however, renewal at least occurs upon each attempt of execution undertaken by the obligee.103

(p. 799) 51.40  An extension of the limitation period is usually envisaged in cases where the obligee is prevented from bringing an action due to impediments beyond its control.104 This principle is best captured in the Latin maxim agere non valenti non currit praescriptio—that is, prescription does not run against a person who is not able to bring an action.105 Typical cases include force majeure, death, incapacity or bankruptcy, close family relationships, and the like.106

51.41 To these circumstances the most recent sets of rules add the initiation of judicial and arbitral proceedings, negotiations between the parties about their rights and obligations,107 and—as far as knowledge of the claim is not a prerequisite for the commencement of the limitation period—ignorance on the side of the obligee.108

Footnotes:

1  The expression ‘limitation of actions’ will be used as a synonym of the terms used in non-English speaking jurisdictions eg: ‘prescription’ in French; ‘prescrizione’ in Italian; ‘Verjährung ’ in Germany. On the terminology issue, see Bonell, Limitation Periods, pp 517, 520; Zimmermann, ZEuP (2005) 264, 271.

2  The statement may not be strictly correct as it has been said that the limitation of actions is not something that is recognized in the ‘common law’, see McGee, para 1.052. It is not an issue for present purposes as in the vast majority of common law jurisdictions legislation regarding limitation periods exists.

3  See para 17.18.

4  See Ch 34. In particular it is important to note that Art 39(2) CISG does not constitute a limitation period, see paras 39.74 et seq.

5  For a comparative discussion see Zimmermann/Kleinschmidt, pp 27ff.

8  See paras 51.20 et seq.

9  Arabic/Middle East Hafez, p 395; East Asia SJ Yang, p 392 noting inference from location in codes possible; Eastern Europe/Central Asia Lapiashvili, p 353; Ibero-America Muñoz, p 521; Sub-Saharan Africa Penda Matipé, p 476; Deu Staudinger/Peters/Jacoby, Vorbem zu §§ 194–225, para 2. See generally: Schwenzer/Manner, 23 Arb Int (2007), 296; Girsberger, p 27; Basedow, pp 131, 136, Borda, vol II, p 152; Aguilar Gorrondona, p 261. But see Danco, p 61, criticizing the substantive qualification in civil law countries and Peters/Zimmermann, Verjährungsfristen, pp 77, 318 stating that the issue of limitation in civil law countries is ‘on the edge’ of procedural law.

10  See for the UN Limitation Convention Schlechtriem/Schwenzer/Müller-Chen, Art 22 Limitation Convention, para 4, fn 200; DCFR Art III.-7:101, Comment B and note 2.

11  Art 10(1)(d) Rome Convention.

12  Ben Art 2219 CC; Bfa Art 2219 CC; Caf Art 2219 CC; Can (Qué) Art 2921 CC; Civ Art 2219 CC; Cmr Art 2219 CC; Cog Art 2219 CC; Esp Art 1930(2) CC; Fra Art 2219 CC; Gbn Art 2219 CC; Gin Art 2219 CC; Ita Arts 2934, 2938 CC; Jpn Art 167 CC; Kor Art 162 CC; Lux Art 2223 CC; Mdg Art 2219 CC; Mli Art 2219 CC; Ner Art 2219 CC; Sco ss 6, 7, 8A Prescription and Limitation (Scotland) Act (1973); Tcd Art 2219 CC; Tgo Art 2219 CC.

13  See Can (Qué) Art 2878 CC; Cze Kuchar/Cerny, para 2.2; Fra Art 2247 CC; Jpn Art 145 CC.

14  See PICC, Vogenauer/Kleinheisterkamp/Wintgen, Art 10.1, para 6; DCFR Art III.-7:501; Aut § 1432 CC, Koziol et al/Griss/Meissel, § 1051, para 2; Blr Art 207 CC; Che Arts 63(2), 142 CO; Chn Ma/Yu, p 245; Deu § 214 CC; Hkg Chui/Roebuck, para 8.11.1; Khm Art 480 CC; Mac Art 297 CC; Mdg Art 2223 CC; Rus Art 206 CC; Tha Art 193(9) CCC; Twn Wang Zejian, Civil Principles, p 530.

15  Common Law Hayward, 26 Journal of International Arbitration (2009), 415; Aus McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 (HC).

16  See generally McGee, para 1.052 and Can Tolofson v Jensen, 1994(3) SCR 1022 for detailed historical discussion.

17  Aus (NSW) Choice of Law (Limitation Periods) Act (1993); (Vic) Choice of Law (Limitation Periods) Act (1993); (SA) Limitation of Actions Act (1936) ss 38, 38A; (Qld) Limitation of Actions Act (1974) s 43A; (WA) Choice of Law (Limitation Periods) Act (1994); (Tas) Limitation Act (1974) ss 32A–D; (NT) Choice of Law (Limitation Periods) Act (1994); (ACT) Limitation Act (1985) Pt 4 Div 4; see also John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625; O’Driscoll v J Ray McDermott [2006] WASCA 25; Mortensen, para 6.51; Eng Foreign Limitation Periods Act (1984); Contracts (Applicable Law) Act (1990); Ire Contractual Obligations (Applicable Law) Act (1991); Nzl Limitation Act (1950) Part 2A; Sco Prescription and Limitation (Scotland) Act (1973), s 23A; Contracts (Applicable Law) Act (1990); Wal Foreign Limitation Periods Act (1984); Contracts (Applicable Law) Act (1990).

18  Can Tolofson v Jensen 1994(3) SCR 1022.

19  Ind Law Commission of India, Report 193 (June 2005).

20  Ind s 11 Limitation Act (1963); Pak s 11 Limitation Act (1908).

21  For discussion and criticism of both these points see Ind Law Commission of India, Report 193 (June 2005).

22  USA § 2 Uniform Conflicts of Laws: Limitation Act.

23  USA § 142 Restatement (2d) Conflict of Laws. Comment (e) to § 142 describes this as an ‘emerging trend’ and cites numerous cases.

25  Note that the Limitation Convention applies in the USA where the transaction is one between businesses from Contracting States.

26  As evidenced by court decisions in both the USA and Can. See para 51.11.

27  See para 4.29.

28  For a discussion of the history of select domestic and international initiatives in this area see Zimmerman/Kleinschmidt, pp 27ff.

29  UN Doc A/CONF 97/18, annex II, YB XI (1980), 162–4.

30  Sono, ‘The Limitation Convention: The forerunner to establish UNCITRAL credibility’, <http://www.cisg.law.pace.edu/cisg/biblio/sono3.html> (last accessed 21 July 2011).

31  The Limitation Convention (Explanatory Note, para 2).

32  See with varying reservations: Arg, Bel, Bih, Bdi, Blr, Cub, Cze, Dom, Egy, Gha, Gin, Hun, Lbr, Mda, Mex, Mne, Nor, Pol, Pry, Rom, Srb, Svk, Svn, Uga, Ukr, Ury, USA, Zmb. For current status see <http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1974Convention_status.html> (last accessed 2 August 2011).

33  Upon accession the USA declared that, pursuant to Art XII of the protocol, it did not consider itself bound by Art I of the protocol, and as such Art 3 of the Limitation Convention as originally drafted in 1974 applies.

34  Chapter 14 PECL.

35  Chapter 10 PICC.

36  Book III, Chapter 7 DCFR.

37  Art III.-7:201 DCFR (3-year general period); Art III.-7:307 (10-year maximum period).

38  Eastern Europe/Central Asia Lapiashvili, p 353 (likely); Alb Velaj/Gjon, para 2.2.; Bol Art 1043 Com C; Can (Qué) Art 2884 CC; Che Art 129 CO, but see Art 210(1) CO (extension of the 1-year period possible); Chn Ma/Yu, p 256 (confirming); Est § 802(5) CC (no extension or reduction in standard terms); Pol Art 58(1) CC; Sco Prescription and Limitation Act (1973) s 13; Tha Art 193(11) CCC; Twn Art 147 CC; USA (Co only) § 4-2-725(1) Col Rev Stat.

39  UN Limitation Convention Art 22(2); Can (Qué) Art 2883 CC; Che Art 141(1) CO; Fra Art 2250 CC.

40  Kor Art 184 CC; USA § 2-275(1) UCC (the parties can reduce the statutory 4-year period to a minimum of 1 year).

41  See eg Che Art 210(1) CO. See similar Hrv Art 404 CO.

42  Are Art 111(4) Com C; Bhr Art 111(2) Com C; Deu § 202 CC; Staudinger/Peters/Jacoby, § 202, para 1; Egy Art 101(5) Com C; Fra Art 2254(1) CC; Lbn Art 463(2) CO; Mar Art 573 CO; Qat Art 112 Com C; Tun Art 672 CO.

43  Deu § 202 CC (no reduction with regard to liability for intentional harm, no extension to more than 30 years).

44  Hkg Chui/Roebuck, para 8.11.2; USA § 2-725(1) UCC Snyder v Gallagher Truck Center, Inc, NY Sup Ct App, 22 July 1982, 89 AD 2d 705. But see Sco s 13 Prescription and Limitation (Scotland) Act (1973).

45  See paras 51.08 et seq.

46  UK Law Commission Report no 270 (9 July 2001) para 3.170. See also Common Law (Eng) Lade v Trill (1842) 11 LJ Ch 102.

47  EU Council Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts; UK Law Commission Report no 270 (9 July 2001) para 3.170, citing eg UK Unfair Contract Terms Act (1977).

49  Art 22(2) Limitation Convention 1974.

50  Art 22(3) Limitation Convention 1974.

51  Art 10.3 PICC; Art 14:601 PECL; Art III.-7:601 DCFR.

52  PICC (general limitation period not less than 1 year, maximum limitation period not less than 4 years); PECL (not less than 1 year); DCFR (not less than 1 year).

53  PICC (maximum limitation period not more than 15 years); PECL (not more than 30 years); DCFR (not more than 30 years).

54  Malkawi, 20 Bond Law Review (2008), 92. See eg Yem Art 450 CC specifically addressing the calendar issue. The Arabic calendar year has 360 days.

56, 57  See Alb Art 115 CC; Are Art 336 CC (15 years); Arg Art 4023 CC (10 years); Aut § 1478 CC (30 years), but see § 1486 no 1 CC (3 years for claims of an entrepreneur regarding payment for delivery of things, Koziol et al/Dehn, § 1486, para 2); Aze Art 373 CC (generally 10 years—3 years for contractual claims, 6 years if related to immovables); Bhr Art 365 CC (15 years); Can (Qué) Art 2924 CC (10 years); Che Art 127 CO (10 years); Chn Art 137 GPCL (20 years); Dza Art 308 CC (15 years); Egy Art 374 CC (15 years); Esp Art 1. 964 CC (15 years); Fin § 1 Prescription Decree (10 years); Geo Art 128 CC (10 years), but see Art 129 CC (3 years for contractual claims, 6 years if related to immovables); Irq Art 429 CC (15 years); Jor Art 311 CC (15 years); Jpn Art 167(1) CC (10 years); Kor Art 162(1) CC (10 years); Kwt Art 438 CC (15 years); Lbn Art 349 CC (10 years); Lby Art 361 CC (15 years); Ltu Art 1.125 CC; Ltv Art 1895 CC (10 years); Mac Art 302 CC (15 years); Mex Art 1047 Com C (10 years); Mng Art 75(1) CC (10 years); Per Art 2001(1) CC (10 years); Phl Art 1144 CC (10 years); Pol Art 554 CC (10 years); Prt Art 309 CC (20 years); Qat Art 403 CC (15 years); Swe § 11 Prescription Act (10 years); Syr Art 372 CC (15 years); Tha Art 193(30) CCC (10 years); Tkm Art 147 CC (10 years), but see Art 148 CC (3 years for contractual claims, 6 years if related to immovables); Twn Art 125 CC (15 years).

58  OHADA Art 301(2) AUDCG (2 years for commercial parties), Art 16 (all other cases 5 years); Jpn Art 552 Com C (5 years); Ndl Art 7:28 CC (action for the price against consumer prescribes within 2 instead of 5 years); Slv Art 995 Com C (2 years).

59  See eg Che Art 128 CO (5 years).

60  See para 51.27.

61  See paras 31.15 et seq.

62  See para 49.28.

63  See paras 41.05 et seq.

64  See Aut OGH, 15 April 2004, 8ObA105/03d; Koziol et al/Dehn, § 1478, para 2; Che Art 130(1) CO.

65  See eg Are Art 111(2) Com C; FHC, challenge no 231, session dated 30 January 1994, JY 15, TO 16, p. 128; Arg Art 473 Com C; Bhr Art 423 CC; Art 111(1) Com C, COC, challenge no 53, session dated 29 October 2000, TO, year 11, 2000, p 510; Bol Art 635 CC; Art 849 Com C; Chl Art 1866 CC; Art 154 Com C (effective real delivery); Col Art 1923 CC (effective real delivery); Dza Art 383 CC; Ecu Art 1833 CC; Art 192 Com C (effective real delivery); Egy Art 452 CC; Art 101(3) Com C, Cass Civ, challenge no 4899, session dated 27 February 2000, CCRC, JY 68; Cass Civ, challenge no 3712, session dated 20 February 1994, CCRC, JY 59, p 400, Cass Civ, challenge no 537, session dated 31 December 1985, CCRC, JY 55; Esp Art 1.490 CC; Ven Art 1.525 CC; Kwt Art 496 CC; Lby Art 441 CC; Per Art 1514 CC; Qat Art 462 CC; Art 112 Com C; Slv Art 1668 CC (effective real delivery); Syr Art 420 CC; Yem Art 550 CC.

66  See OHADA Art 302 AUDCG; Mex Art 1040 Com C.

67  See Prt Art 929(2) CC.

68  Lbn Art 463(2) CO; Mar Art 573 CO; Tun Art 672 CO.

69  Are Art 111 Com C, FHC, challenge no 96, session dated 12 March 2003, JY 22, UAEUP, MJ, first ed, year 24, 2002, p 587; Egy Art 101(2) Com C.

70  Arabic/Middle East Basha, pp 338–9; Are Art 111(2) Com C; Arg 473 Com C; Bhr Art 423 CC; Art 111(1) Com C; Chl Art 154 Com C; Col Art 938 Com C; Dza Art 383 CC; Ecu Art 191 Com C; Esp Art 1490 CC; Egy Art 452 CC; Art 101(3) Com C; Kwt Art 496 CC; Lby Art 441 CC; Qat Art 462 CC; Art 112 Com C; Syr Art 420 CC; Twn Art 365 CC; Yem Art 550 CC.

71  Are Art 111(2) Com C; Bhr Art 423 CC; Art 111(1) Com C; Bol Art 849 Com C; Che Art 210(1) CO; Dza Art 383 CC; Egy Art 452 CC; Art 101(3) Com C; Khm Art 547; Kwt Art 496 CC; Lby Art 441 CC; Qat Art 462 CC; Art 112 Com C; Syr Art 420 CC; Yem Art 550 CC.

72  Fra former Art 1648 CC.

73  Ben Art 1648 CC; Bfa Art 1648 CC; Caf Art 1648 CC; Civ Art 1648 CC; Cmr Art 1648 CC; Cog Art 1648 CC; Gbn Art 1648 CC; Gin Art 1648 CC; Mdg Art 1648 CC; Mli Art 1648 CC; Ner Art 1648 CC; Tcd Art 1648 CC; Tgo Art 1648 CC.

74  Art 5 Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees.

75  Chl Arts 1866–9 CC, Art 154 Com C; ICC Final Award Case no 10299 Lex Contractus Chilean Law: dismissing the buyer’s claim as the price readjustment claim was time-barred in accordance with Chile’s Statute of Limitations as applied to quanti minoris, ie 1 year for personal property; Col Arts 1923–6 CC; Ecu Arts 1833–6 CC, Art 191 Com C; Slv Arts 1668–71 CC.

76  See paras 51.35 et seq.

77  See Deu § 438(1) CC; Fra Art 1648(1) CC; Ndl Art 7:23(2) CC.

78  Are Art 111(2) Com C; Arg Art 473 Com C; Bhr Art 423 CC; Art 111(1) Com C; Bol Art 635 CC; Art 849 Com C; Dza Art 383 CC; Egy Art 452 CC, Art 101(3) Com C; Est § 802 CO; Kwt Art 496 CC; Lby Art 441 CC; Per Art 1514 CC; Qat Art 462 CC, Art 112 Com C; Syr Art 420 CC; Ven Art 1.525 CC; Yem Art 550 CC.

79  Che Art 210(1) CO; Deu § 438(2) CC; Esp Art 1490 CC.

80  OHADA Art 17 AUDCG; Arg Borga, p 225; Blg Art 1648 CC; Fra Art 1648(1) CC.

81  Ndl Art 7:23(2) CC.

82  Arabic/Middle East (Shari’a) Basha, pp 338–9; Are Art 111(2) Com C; Bhr Art 423 CC; Art 111(1) Com C; Che Art 210(3) CO; Chl Supreme Court, 9 May 2001, RDJ, XCVIII, sec 1, pp 99–100 (cited generally for venire contra factum proprium); Deu § 438(3) CC; Dza Art 383 CC; Egy Art 452 CC, Art 101(3) Com C; Kwt Art 496 CC; Lby Art 441 CC; Qat Art 462 CC, Art 112 Com C; Syr Art 420 CC; USA (La) Aegis Ins Co v Delta Fire & Cas Co, La Ct App, 23 December 1956, 99 So 2d 767, 777; Yem Art 550 CC.

83  See para 34.72.

86  See the former Deu § 477 CC.

87  See Deu § 3 Contract Law (Vertragsgesetz).

88  See Commercial Court Bern, 17 January 2002, CISG-online 725; Commercial Court Bern 30 October 2001, CISG-online 956.

89  See Court of Justice Geneva, 10 October 1997, CISG-online 295.

90  The Swiss Supreme Court has not finally solved the dispute, see BGer, 18 May 2009, CISG-online 1900; for comments see Mohs/Hachem, AJP (2009), 1541.

91  Aus (Vic) s 5(1)(a) Limitations of Actions Act (1958) (6 years); Can (BC) s 3(2) Limitation Act (1996) (2 years); Eng s 5 Limitation Act (1980) (6 years); Hkg s 4(1)(a) Limitation Ordinance 1965 (6 years); Nzl s 4(1)(b) Limitation Act (1950) (6 years); Mys s 6(1)(a) Limitation Act (1953) (6 years); Nga (Lagos) s 8(1) Limitation Law; (Western States) s 4(1) Limitation Law; (Northern and Eastern States) s 7(1) Limitation Act; Sgp s 6(1)(a) Limitation Act (1996) (6 years); USA for all sales § 2-725(1) UCC (4 years), but several states have altered the period—MS, SC, WI (6 years), OK (5 years); for contracts generally the period can be found in the state laws of civil procedure (eg NY § 213(2) CVP (6 years)); Wal s 5 Limitation Act (1980) (6 years).

92  Aus (Vic) s 5(1)(a) Limitation of Actions Act (1958); Can (BC) s 3(2) Limitation Act (1996); Eng s 5 Limitation Act (1980); Hkg s 4(1)(a) Limitation Ordinance (1965); Mys s 6(1)(a) Limitation Act (1953); Nga Adimora v Ajufo, [1988] 6 SCNJ 18; Nzl s 4(1)(b) Limitation Act (1950); Sgp s 6(1)(a) Limitation Act (1996); USA § 2-725(2) UCC; Wal s 5 Limitation Act 1980 (6 years).

93  Art 8-10 UN Limitation Convention (4 years).

94  Ind Limitation Act 1877. For breach of contract the period is only 1 year starting with the breach.

95  PICC Art 10.2(1) (3 years); PECL Art 14.201 (3 years); DCFR Art III.-7:201 (3 years); Arm Art 332 CC (3 years); Blr Art 197 CC (3 years); Cze Art 101 CC (3 years), but see Art 397 Com C (4 years for merchant transactions); Deu § 195 CC (3 years); Est § 802 CO (3 years); Fra Art 2224 CC (5 years); Hun Art 324(1) CC (5 years); Kaz Art 178 CC (3 years); Kgz Art 212 CC (3 years); Mda Art 267 CC (3 years); Ndl (numerous articles) (5 years); Rus Art 196 CC (3 years); Svk Art 101 CC (3 years), but see Art 397 Com C (4 years for merchant transactions); Tjk Art 221 CC (3 years); Ukr Art 257 CC (3 years); Uzb Art 150 CC.

96  See Art 10.2(1) PICC; Eastern Europe/ Central Asia Lapiashvili, p 353; Blr Art 201 CC; Deu § 199(1) CC; Rus Art 200 CC. A different solution with albeit similar results can be found in PECL: although the limitation period commences when the obligation becomes due (Art 14:203), it is suspended while the obligee does not know or could not reasonably know of its existence (Art 14:301). The DCFR chooses the same approach, see Arts III.-7:203(1), III.-7:301.

97  Art 10.2(2) PICC (10 years); Art 14:307 PECL (10 years/30 years in cases of personal injury); Art III.-7:307 DCFR (10 years/30 years in cases of personal injury); Deu § 199(2), (3) CC (10 years/30 years in cases of personal injury).

98  Deu § 199(1) CC. Thus if the claim arose on 10 January 2011 and the obligee became aware of it on 31 January 2011 the limitation period would run from 1 January 2012.

100  Art 20 UN Limitation Convention (acknowledgment in writing or partial performance); Art 10.4 PICC; Art 14:401 PECL; Art III.-7:401 DCFR; Common Law Busch v Stevens [1962] 1 All ER 412 (QB); Aus The Laws of Australia/Handford para 5.10.2000; Aut § 1497 CC; Ben Art 2248 CC; Bfa Art 2248 CC; Blr Art 204 CC; Caf Art 2248 CC; Can (BC) s 5 Limitation Act (1996); Che Art 135 no 1 CO; Chl Art 2518 CC; Chn Art 140 GPCL; Civ Art 2248 CC; Cmr Art 2248 CC; Cog Art 2248 CC; Col Art 2539 CC; Deu § 212(1) no 1 CC; Eng s 29(7) Limitation Act (1980); Esp Art 1973 CC; Fra Art 2240 CC; Gbn Art 2248 CC; Gin Art 2248 CC; Jpn Art 147 CC; Khm Art 489 CC; Kor Art 168 CC; Mac Art 315 CC; Mdg Art 2248 CC; Mex Art 1041 Com C; Mli Art 2248 CC; Mng Art 79 CC; Mys s 21 Limitation Act (1953); Ner Art 2248 CC; Ndl Art 3:318 CC; Nga (Lagos) ss 37, 38 Limitation Law; (Western States) s 22(3) Limitation Law; Per Art 1996(1) CC; Nzl s 25 Limitation Act (1950); Rus Art 203 CC; Sco s 10(1) Prescription and Limitation (Scotland) Act (1973), Gloag/Henderson paras 4.18 et seq; Sgp s 26 Limitation Act (1996); Slv Art 2257 CC; Tcd Art 2248 CC; Tgo Art 2248 CC; Tha Art 193(14) CCC; Twn Art 129 CC; Vnm Art 158 (2) CC; Wal s 29(7) Limitation Act (1980).

101  Arts 13−18 UN Limitation Convention; Aut § 1497 CC; Blr Art 204 CC; Che Art 135 no 2 CO; Chn Art 140 GPCL; Fra Arts 2241 et seq CC; Ndl Arts 3:316−3:317 CC; Eng ss 29, 30 Limitation Act (1980); Jpn Art 147 CC; Khm Art 489 CC; Kor Art 168 CC; Mac Art 315 CC; Mng Art 79 CC; Rus Art 203 CC; Swe § 7 Prescription Act; Tha Art 193(14) CCC; Twn Art 129 CC; Vnm Art 158(2) CC.

102  Arts 10.5-10.7 PICC; Art 14:302 PECL; Art III.-7:302 DCFR; Deu § 204 CC.

103  Art 14:402 PECL; Art III.-7:402 DCFR; Deu § 212(1) no 2 C.

104  This is laid down in a very general manner in UN Limitation Convention Art 21; see also Art 10.8 PICC; Art 14:303 PECL; Art III.-7:303 DCFR; Aut § 1496 CC.

106  See eg Arts 14:305, 14:306 PECL; Arts III.-7:305, III.-7:306 DCFR; Deu §§ 205−11 CC; Aus The Laws of Australia/Handford paras 5.10.2010 et seq; Can (BC) s 7 Limitation Act (1996); Che Art 134 CO; Eng s 28 Limitation Act 1980; Ndl Art 3:321 CC; Nzl s 24 Limitation Act (1950); Sgp s 24 Limitation Act (1996); Wal s 28 Limitation Act (1980).

107  Art 14:304 PECL; Art III.-7:304 DCFR; Deu § 203 CC.

108  Art 14:301 PECL; Art III.-7:301 DCFR.(p. 800)