Limitation of claims by lapse of time – law amendment

On 9 July 2018 a legal act of 13 April 2018 took effect on amendment of the Civil Code Law and some other laws. This amending law, composed of only eight articles implements a true revolution in the former application of laws on limitation of claims by lapse of time.

Firstly, from now on, the general substantive law period of limitation shall change – it has been shortened from 10 to 6 years. From the positon of the creditors it means that they will have significantly less time to undertake actions aiming at execution of the receivables. It should also be mentioned that other – so called shorter periods of limitation – are not amended.

The above may indicate that the changes will mainly affect those civil law relations where one of the parties is a consumer (as for the B2B relationships the mentioned shorter periods often apply – frequently regulated by specific regulations). Indeed, it is hard to reject the impression that the legislator’s objective was to strengthen the positon of the consumer-debtor.

This is also indicated by another change, according to which after the expiration of the limitation period one cannot demand satisfaction of a claim against a consumer. This regulation is perverse enough to contradict the former nature of the institution of limitation of claims. It is worth noting that before the amendment a limitation of a claim by the lapse of time resulted in its transformation into so called natural (imperfect) obligation – meaning there were no obstacles in the demanding of the claim, but it was not any longer covered by the statutory obligation of its demanding (by principle it lost such protection at the moment of the litigation opponent raising the pleas of limitation). However, currently the wording of the regulation (in consumer relations) obliges the court to examine of its own motion whether a claim has been limited by lapse of time and if so – by principle the legislator prohibits to issue a decision aiming at satisfying the creditor.

Moreover, the changes affect the manner of counting the limitation time. Namely, in the case of calculating periods of limitation amounting to at least two years, full calendar years will be taken into account. This means that the claim of an entrepreneur for a payment for a service sold in July 2018 will be expired on 1 January 2021.

As a result – although at the first glance the amendment of the claim limitation regulations causes asymmetry of the debtor’s rights in relation to the creditor’s rights – in practice some of the creditor categories can benefit from this amendment (to mention the entrepreneurs in relation to which usually the so called shorter periods of limitation apply, which nevertheless will be extended as a result of the method of their calculation at the end of a calendar year).

The amendments raise numerous controversies – there is no undisputed answer to the question whether the general period of limitation of six years is sufficient from the point of view of the creditor. The whole situation is certainly complicated by the fact that from now on such claims confirmed by a valid decision of a court, will also be limited by a principle, after lapse of six years.

Special attention should be paid to the construction of so called intertemporal provisions. Namely the amendment introduces a rule that the new regulations are applicable in relation to the claims occurred before it took effect. This means that in relation to all the due claims for which the period of limitation according to the condition as of 9 July 2018 (in the light of the existing regulations) would last longer than six years – this period shall be shortened until 31 December 2024.

On the other hand, in relation to the consumer relationships, the legislator remains consistent to that extent as well, excluding this group from the new regulations and obliging application towards the consumers the hitherto applicable periods of limitation – of course we are talking here about the position of consumer-debtor. Significantly, in a situation of the position of consumer-debtor, all and any claims against them (with regard to which the former 10-year long period of limitation applied) – occurred before 1 January 2012 – shall expire on 1 January 2019 (they are subject to the new legal regime).

Attorney-at-Law Trainee Mariusz Maksis