|
Newsticker December 2004
Attention! Limitation of time!
During the last three years a lot of changes in the law have happened. At the end of this year, one fundamental change in the statute of limitations – i.e. the reduction of the general limitation period from 30 years to 3 years - will have effect (§ 195 BGB). Those claims which were subject to a 30 years limitation period according to old law and have still existed in 2001, now become statute-barred with effect of 31st December 2004 in case they have not become statute-barred before due to the old 30 years rule. This is the result of quite complicated transitional provisions which can only be understood in context of the overall new system.
Reduction of the regular limitation period to three years
All statutory and contractual claims and claims from legal transactions and of similar transactions are subject to the regular limitation period – with exception of the special regulations which are described in the following. Statutory claims are claims in tort, negotiorum gestio and claims of unjustified enrichment; contractual claims/claims from legal transactions are claims to primary performance and accessory claims. Periodic performances (e.g. pension, alimony, rent and interest) are also subject to the regular limitation period.
To contracts which were concluded after 1st January 2002, the new and shorter 3-years limitation period is applicable, as far as no own limitation period is applicable for the respective claims. The regular limitation period – and only this period – is designed as “New Year’s Eve limitation” (§ 199 I BGB), i.e. it continues with the end of the year in which the claim comes into being and in which the creditor becomes aware of the circumstances which constitute the claim and of the person of the debtor. Due to the newly created subjective element, a line had to be drawn by maximum time limitations of 10, respectively 30 years.
Maximum time limitations, § 199 II – IV BGB
-Claims which do not comprise damages: 10 years from coming into existence
-Damages for injury of body, life, health and freedom: 30 years from the incident which caused the damage
-Other claims for damages: 10 years from coming into existence, but in any case 30 years from the incident which caused the damage
In cases of contracts which were concluded after the 1st January 2002, the question of the expiry of the regular limitation period is not yet relevant, as those claims become time-barred on the 31st December 2005 at the earliest.
Special regulations:
The adjustments of the specially regulated time limitations to the statute of limitations which was changed by the reform of the law of obligations of 2001 have already been determined by the parliament. But as the legislative procedure is not yet concluded, the old provisions are still applicable. A preview of the planned changes can be seen in the attached table. In order to distinguish the regular limitation, the changed special regulation in the BGB – which are generally designed as cut-off date limitations (§§ 200, 201 BGB) because the begin of the limitation period is tied up to purely objective facts - will be described in the following:
The 30 years limitation period (§ 197 I BGB) continues to be applicable to:
-claims for return based on property and other property rights (not: claims for removal and claims to compel someone to refrain from doing something resulting of absolute rigthts -> regular limitation period)
-claims arising from family law and the law of succession (exception: equalization of the surplus and right to a compulsory portion -> 3 years; periodic performances [maintenance] -> regular limitation period)
-”enforceable” claims (claims which have become res judicata, claims from enforceable settlements and deeds, enforceable claims from insolvency proceedings, claims for refund of enforcement costs)
The 10 years limitation period (§ 196 BGB) is applicable to
-claims for conveyance of real property as well as for constitution, conveyance or termination of a right in real property (easement, charge on land, usufruct, mortgage, land charge) and claims for the counter performance (purchase price), (but not claims for conveyance and transfer of possession of a piece of land -> regular limitation period)
The 4 years limitation period is applicable to
-bond of debt of the owner (§ 801 I sentence 2, § 804 I sentence 3)
The 3 years limitation period is applicable to the following claims:
-equalization of the surplus (§ 1378 IV BGB)
-impairing gift in the contract of succession (§ 2287 II BGB)
-claims to a compulsory portion (§ 2332 II BGB)
-claims for damages against the lawyer (§ 51b BRAO)
The 2 years limitation period is applicable to
-claims of the purchaser based on defects in context of a sales contract from the moment of delivery of the goods
-claims based on defects in context of a contract for work and services from the moment of acceptance of the completed work, in cases of buildings the limitation period is 5 years from the moment of acceptance of the completed work
-claims from travel contracts (§ 651 g BGB), preclusion period: 1 month
The 6 months limitation period is applicable to
-claims for compensation and rights to remove an object which is not a fixture in the landlord and tenant law (§ 548 BGB)
-claims for compensation in the law of farm tenancy (§ 591 b BGB)
-claims for compensation of the lender (§ 606 BGB)
-claims for compensation with regard to usufructuary rights (§ 1057 BGB)
-claims for compensation in the area of rights of lien ( § 1226 BGB)
-claims for right to reversion / claims for contractual penalty in the area of hereditary building rights (§ 4 ErbbauVO)
Problem: old contracts
The limitation which will come into effect at the end of the year 2004 results from the relatively complicated transitional provisions for old contracts (Art. 229 § 6 EGBGB), as the new statute of limitations is also applicable to all claims which exist on the 1.1.2002 and have not become statute-barred. Several combinations are possible:
1.The limitation would – according to old law – come into force at an earlier date than the limitation according to new law.
2.The limitation would – according to old law – come into force to a later date than the limitation according to new law.
In these cases there is a simple rule: in cases of doubt always the shorter limitation period (in the comparison of old and new law) is applicable. For combinations in which the new limitation period is shorter than it is the case with contractual claim for payment, the claims become time-barred at the 31.12.2004 at the latest.
Example: A claim from unjustified enrichment or a claim for payment from a sales contract came into existence in 1996. The limitation period according to old law was 30 years and thus ended in the year 2026. The limitation period according to new law is 3 years as the regular limitation period. This time limit is shorter and thus authoritative. It starts – other than the begin which is laid down in the BGB – according to Art. 229 § 6 IV EGBGB on the 1.1.2002 and ends on the 31.12.2004.
It is a different matter only if the limitation period ended before the 31.12.2004 – if the claim in our example came into existence in the year 1973 – then the claim would be time-barred already in 2003.
The same is applicable figuratively for the time limits for avoiding which have been shortened to 10 years according to § 121 II and § 124 III. Problem: procedures of bringing an action do not any longer interrupt the period of limitation. The “luxury” of interruption of the period of limitation by procedures of bringing an action has since the 1.1.2002 largely ceased to apply. Only two combination fall in the category of the new term of “restart”(as the limitation period starts again from beginning):
-Acknowledgement of the debtor (also by partial payment, payment of interest, deposit)
-Enforcement actions of courts and public authorities
Apart from that, procedures of bringing an action will in the future only effect a suspension of the period of limitation. I.e. the length of time of the pursued procedures of bringing an action (but not in case of not taking action) is not taken into account for the calculation of the limitation period (§ 209 BGB). After termination or standstill of the actions the limitation period simply continues, but does not – unlike in the past – start again from the beginning.
The elements of the rule concerning the suspension of the period of limitation which were already laid down in the law of tort are now laid down in the general statute of limitations. In case of negotiations about the claim or the circumstances which constitute the claim, the period of limitations is suspended. Other new suspension elements are the suspension of the period of limitation because of family or similar reasons and in case of violation of the right to sexual self-determination.
Solution:
1.Claims which came into existence before 2002 should be asserted by means of a court order.
2.Alternatively, make an arrangement with the debtor to the effect that he renounces the right to plead the statute of limitations until the 31.12.2005, as you can generally – with some exceptions – make arrangements according to the BGB.
Synoptical table in PDF format
|
