Prescription is a roman law legacy. Comes from the Latin praescriptio, composed word of the terms prae and scribere which means prior to be written (Opala 1971). Charles P. Sherman mentions that under Roman law prescription consisted in a preliminary allegation before addressing the main issue in a trial.
He cites that there were many kinds of prescriptions but the most important were those related to acquisition or extinction of a right by lapse of time (Sherman 1911).
Prescription is currently present in both civil and common law countries involving two different approaches in legal relations due of the time lapse: Acquisition and extinction (Opala 1971). The initial principle was that the right of actions were perpetual known as actiones perpetuae. Roman Emperor Theodosius II introduced in A.D. 424 the modification of this principle in exchange of temporales actiones recognizing extinctive prescription, with the regular period of prescription in 30 years (Zimmermann 1996).
Emperor Justinian improved the rules on prescription and included the principles of actio nata, and the stipulation that lapse of time needs to be continuous. He also introduced the causes of suspension of prescription. (López 2003).
The Catholic Church influenced changes in the principles of prescription, as with the requirement of good faith or bona fide. Canon Codes from 1512 and 1983 ratified this: “No prescription is valid if is not based on good faith, not only at the beginning but also during all the lapse of time required.” (López 2003).
Besides, the bona fide requirement is the purported basis that prescription is to be alleged by the party who wants to benefit from it. As a result, a judge cannot award prescription without this previous allegation, and therefore if a party does not invoke it then there is no prescription. That is the reason why it is considered a potestative right (Valle 2005).
Parties that are willing to invoke prescription need to be very clear in exposing their pretensions both in the facts and motives. Judges can apply the law according to the principle Iura Novit Curia but they need clear facts and the justification of the bona fides requirement. (Melich 2002)
Actio Nata and Contra Non Valentem Principles
Actio nata is a principle related to the determination of when time begins to be counted for extinctive prescription purposes. The birth of the right to sue. Also known as “action nodum natae non praescribitur”, meaning that while an action to sue does not exist there is no way for prescription (Melich 2002).
This is a principle that was valid under the napoleonic Civil Code and commented by Pothier “time of prescription cannot begin to be counted but only from the day the creditor is able to file lawsuit”. This principle is still present in the law of many Latin American countries (López 2003).
Further, Roman law created another principle to allow suspension of prescription, “contra non valentem agere non currit praescriptio”, meaning that prescription does not run against one who is unable to act. The development of this rule is attributed to the jurist Bártolo de Sassoferrato in the XIV century. The rule was intended to benefit those individuals who were unable to act, as minors, disabled people, people in absence due to wars or other reasons, but it was also applied as a social or political benefit (Marin 2014).
The principle was applied in the Civil Codes with the recognition that extinctive prescription is to be considered suspended in favor or minors, those mentally incapable, deaf people, and others under legal control by their parents or guardianship, etc, as stated in Arts. 2420 and 2409 of the Ecuador Civil Code (Código Civil, Codificación 2005).
Certain legislations allow to suspend prescription terms due to agreement between parties, or with conciliation proceedings and also regarding other causes. This is the case of Section 32 of the UK Limitation Act 1980, which states that “the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake” (Limitation Act 1980).
Besides, the Louisiana Civil Code article 3467 states that “prescription runs against all persons unless exception is established by legislation” (Louisiana Civil Code 2011). In spite of this provision, the contra non valentem principle meaning that prescription does not run against one who is unable to act has been reinstated in the law of Louisiana through jurisprudence (Nichols 1996).
Accordingly, the decision dated 8 October 1979, by the Supreme Court of Louisiana in the case Corsey v. State of Louisiana stated four categories in which the principle acts to prevent liberative prescription to continue:
“(1) Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff’s action; (2) Where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action. (4) “Where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant” (Corsey v State of Louisiana 1979)
Louisiana judges have applied the contra non valentem principle to suspend prescription when they find an unfair and impossible short prescriptive period (Nichols 1996), as in the case Held v. State Farm Ins. Co., 610 So. 2d 1017 (La. Ct. App. 1992), in which the Court of Appeals on 25 November 1992 reversed a previous judgment that dismissed the claim by Stephanie Held based in extinctive prescription (Held v State Farms Ins. Co. 1992).
Special Suspension of Prescription Terms by Statute or Decree
In 2005, prescription terms were suspended in a retroactive basis through several executive orders by Louisiana Governor due to the Katrina Hurricane incident. Water covered eighty percent of Louisiana. Although legal commentators criticized these decisions, this was a recognition that at moments when a catastrophe takes place it is impossible for affected people to exercise their rights to sue.
This particularity is not new in Louisiana. Two hundred years before, the State Legislature decided to suspend prescription effects for 120 days near to the Battle of New Orleans. The decision of the Legislature was ratified in 1817 by the Louisiana Supreme Court in the case Quierry’s Ex’r v Faussier’s Ex’rs, and mentioned as an application of the contra non valentem principle. This was the leading case related to this doctrine. (Janke 2011)
Similarly, in 2016 a regulation was instituted in Ecuador after the earthquake that affected the Provinces of Manabi and Esmeraldas destroying several cities. The Assembly approved the Organic law of Solidarity for the Reconstruction and Reactivation of the affected zones by the earthquake of 16 April 2016. The outcome was a general term that amended the Tax Code of Ecuador stating that prescription for recovery actions that is running during a force majeure incident will be suspended until causes that provoked it are concluded (Ley de Solidaridad 2016).
Interruption of Prescription
Prescription is to be interrupted when the debtor recognizes the debt, and once a legal action begins. As a development, the Spanish Civil Code states in Art. 1973 that prejudicial actions by the claimant interrupt prescription (Código Civil Español 1989). The interruption of prescription means that the time counted until the day prescription gets interrupted goes to zero. If the cause of interruption is the recognition of the debt then it means that the term will begin to be counted after said recognition. If the cause is the filling of a lawsuit, or the serve of process depending of the legislation, then the general rule is that prescription time is not to be counted anymore, and procedural rules will be applied when the case is not continued by the plaintiff but for abandonment of lawsuits nor related to the main liability. (Marin 2014)
Praescriptio Temporis in Common Law
It is estimated that caselaw for prescription appears in England in the twelfth or thirteenth century with the civil and canon law influence promoted by jurist and cleric Henry Bracton in his treatise named De Legibus Consuetudinibus Angliae written between centuries XII and XIII (Opala 1971).
The justifications brought by Brancton for liberative prescription in his treaty were in concern of both parties. The complication by the defendant to find the necessary evidence that could be missed by the long passage of time and the consideration of the inaction by the plaintiff. The Defendant defectum probatioms and plaintiff´s negligentiam. (Nichols 1996)
Nowadays, the UK Limitation Act 1980 is the general statute with the aim to determine time bars for filing claims. This statute faces criticism and the proposal of reform by the Law Commission of England recommending a common regime for prescription (The Law Commission 270 2001).
The modern doctrine and purposes of statute of limitations in common law is well explained by the Law Reform Commission of Ireland :
1. “later the claim, less reliable the memories of witnesses and the more likely that there will be difficulties in locating witnesses and evidence”. 2. “the length of time which is required to resolve the dispute and thereby prevent the use of the public resources of the courts system forcurrent disputes”. 3. “the expense of extended insurance coverage and storage of records necessary to defend a claim, further adds to the defendant’s burden and, where the defendant is a business, these costs may be passed on to its customers” (The Law Reform Commission of Ireland 2001).
General Comments on Extinctive Prescription
In summary, extinctive or liberative prescription is the extinction of a right by lapse of time. It is a way of extinguishing the right to pursue an action due to no action by the titular of the claim. Commentators differ if the extinctive prescription produces both the extinction of the right and the action, but the most accepted interpretation is that the right remains but the action to claim that right expires. Traditional doctrine considers two fundamental factors, the inertia of the creditor and the passing of time taking in consideration the existence of a right that can be exercised (Melich 2002).
To sum up, extinctive prescription is to be considered as a transformation from a state of law to a state of fact. A person who has the right to sue losses his right of action because of the pass of certain time. It is a presumption of abandonment by the potential claimant benefiting legal security (Muñoz 2012).
For this reason, Savigny stated that prescription is one the most important institutions for the society (Savigny 1839/1847). This approach has coincided with other authors considering extinctive prescription as fundamental for the order (Valle 2005), the need to put an end to uncertainty of the rights abandoned by the holder of the potential claim (Puig 1986).
Finally, regulations related to prescription need to be clear, accurate and based on a proper equilibrium between affected parties (Marin 2014). In next chapters it will be verified that said equilibrium shall include the determination of adequate time to have an action barred in the way that these rules do not infringe the rights of access to justice of the potential claimants. These rules are to be accompanied by procedural rules that do not create restrictions on the exercise of the rights.