1.What does the term mean exactly?

When we use the phrase “the claim is time-barred,” we mean that a sufficient period of time has passed, recognized by the law, after which the right has weakened and therefore can no longer be pursued judicially or extrajudicially. This means that the person who owes the provision (for example, the debtor in a loan agreement) is entitled to refuse the provision (to pay the loan) by asserting the defense of prescription. It is important to know that if the debtor is unaware that the creditor’s claim has prescribed and nevertheless fulfills the provision, what he has given cannot be claimed back. The same applies even if he knows that the right has prescribed and still fulfills the provision.

2.What is the rule for prescription?

The rule in civil law regarding prescription is that claims are prescribed 20 years after they arise. This deadline is complete, meaning that Saturdays and holidays are not excluded. Furthermore, for prescription to begin, the claim of its bearer must have arisen and the judicial pursuit thereof must be possible (= certain, determined, free from objections/defensive limitations).

Equally crucial is that prescription begins on the day following the birth of the claim. For example, if someone caused me damage on June 15, 2023, the claim for compensation I have against him ‘starts’ to be time-barred from June 16, 2023.

3.Are there exceptions?

From the above rule, there are exceptions for certain categories of claims subject to a 5-year prescription period by law. These are mentioned in Article 250 of the Civil Code and indicatively include those:

• Of merchants/craftsmen/artisans
• Of passenger carriers
• Of hoteliers/innkeepers
• Of lawyers/notaries/judicial bailiffs

This list includes several professional categories, so it would be useful to consult it. Shorter prescription periods are also established by the provisions of insurance law (for claims against the insurer), labor law (for the claim of wages against the employer), etc.

4.What do we mean by the term ‘suspension’ of prescription?

When we refer to the suspension of prescription, we mean that there are certain real reasons that are considered sufficient by the law to prevent prescription from continuing. For as long as this situation persists, prescription cannot proceed; it is considered ‘frozen’. Prescription is suspended:

• Between spouses during the duration of the marriage/civil partnership for as long as it lasts.
• Between parents and children as long as they are minors.
• Between trustees and those under trusteeship, for as long as that lasts.

Between employers and employees for the duration of the employment relationship (but up to a maximum of 15 years).

Additionally, if during the last six months of the prescription period, any of the events we mention below occur:

• If the claimant was prevented by the suspension of court operations or other force majeure from pursuing their claim.
• If the debtor deliberately prevented the claimant from pursuing their claim.

Then, in this case as well, prescription will be suspended, and in no case can it be completed before six months have passed since the reason that caused the suspension ceased to exist (for example, if the courts stopped operating on March 10, 2020, due to COVID-19, and resumed their operation on May 20, 2020, then if I had a claim that was in the last six months of prescription, it could not be prescribed before November 20, 2020).

5.And what about the term interruption?

This term means that when interruption occurs, the time of prescription that had started to ‘run’ so far is not calculated, resulting in the prescription of the claim starting again from the beginning. For this to happen, there must be a lawful reason for interruption, such as:

• When the debtor acknowledges the claim (of the creditor) in any way.
• When the creditor files a lawsuit against the debtor to satisfy their claim (even a request for interim measures).
• When the creditor delivers a payment order to the debtor with an enforceable title.
• When the debtor declares bankruptcy and the creditor is notified of their bankruptcy (to receive a portion of the liquidable assets).
• When the creditor raises an offset objection against a claim that the debtor has against them (in case one owes the other).

6.Until when can i propose an objection in court?

It is a fundamental principle in civil law that the objection that each party is entitled to raise does not expire, unlike claims. This means that if I owe someone a sum of money (from a loan agreement) and I have a corresponding claim against them from another legal relationship (from a sale price that has not yet been paid), then I always have the right to raise an offset objection against them for the claim I have against them, so that there is offsetting of claims where one overlaps with the other.

7.How does prescription differ from extinguishing deadline?

In several contracts, the parties sometimes set a deadline themselves in order for the respective right provided for in the contract to be exercised. For example, it is provided (Civil Code Article 508) that someone who made a donation to someone else can revoke it within 5 years from the date of the donation if either the donor was alive or a legitimate child of theirs was born, or if another child of theirs became legitimate through the marriage of the parents. In the above example, the 5-year deadline is called an extinguishing deadline because within that period the right (to be born and) to be exercised. The differences between the extinguishing deadline and prescription are as follows:

• The extinguishing deadline is taken into account ex officio by the court and does not need to be raised like prescription (so there is no possibility of it being ignored).
• If the extinguishing deadline passes without the right being exercised, then both the claim and the right are definitively lost (in prescription, the claim continues to exist, but the debtor is not forced to fulfill it).

8.If I have civil and criminal claims?

It is not uncommon in practice for a real event to fall within the provisions of multiple legal statutes. Let’s take the example of someone stealing my high-value car. In this case, I have a (civil) claim against them for compensation = to return the car to me or to compensate me for its value in money if return is not possible. But at the same time, I also have a criminal claim to file a lawsuit (as it’s called when the victim files it) against the perpetrator for prosecution and punishment. So here we observe a confluence of claims, as the two claims I have aim at different outcomes.

Regarding prescription, the compensation claim of civil law expires in 5 years from when I learned of the damage or in 20 years from when the wrongful act (theft) occurred. On the other hand, the crime of theft under the criminal code prescribes in 20 years because here, due to the high value of the stolen car (e.g., over 120,000 euros), the theft is a felony. Therefore, in this case, the longer 20-year prescription of the criminal claim will prevail and will also apply to the civil claim. The above constitute the rule that applies in cases of confluence of civil and criminal claims only when the criminal claim has a longer prescription than the civil claim, so the prescription of the latter will prevail.

9.I filed a lawsuit and it was dismissed as inadmissible.What now?

The legislator, seeing this phenomenon unfortunately thriving in practice, namely the dismissal of a lawyer’s lawsuit for formal errors, introduced the following auxiliary rule:

• Initially, filing a lawsuit as an action interrupts the prescription of the claim (which is very helpful when the prescription limits are close).
• If the lawsuit is dismissed for formal reasons, and the plaintiff files a new lawsuit within 6 months from the dismissal of the last lawsuit, then the prescription is considered to have already been interrupted by the previous lawsuit.

So if the prescription was due on 10/1/2024 and the lawsuit was filed on 2/6/2023, and it was dismissed as inadmissible for formal reasons, if the respective lawyer files a new lawsuit by 2/12/2023, then the prescription will be considered interrupted as of 2/6/2023.

10.If my claim from the sale expires, is there an alternative?

In the case where one of the two parties fails to timely exercise their claims and these claims consequently expire, the unjust enrichment claim may be useful, which is always ancillary to the main claim from the basic legal relationship. Thus, for example, in a sales contract, the buyer’s right due to non-conformity of the goods to the contract, especially for movable goods, prescribes after 2 years. If the buyer’s claim for remedy expires, then the buyer may invoke the unjust enrichment claim, which has a prescription period of 20 years. Of course, in such a scenario, the buyer must prove that the conditions for unjust enrichment are met, namely that the seller, by not delivering a conforming good to the buyer, obtained an undue benefit, etc.

 

Next to the client and his needs.

Athina Kontogianni-Lawyer

 

 

The above does not constitute legal advice, and no responsibility is assumed for it. For more information, please contact us.