The amendment of the provisions of the Civil Code within the scope of limitation

The legislator has amended by the Act of 13th April 2018 on amendment of the act – Civil Code and several other acts (Official Journal 2018 position 1104) provisions of the Civil Code within the scope concerning limitation. This amendment covers with its material scope period of limitation and introduces particular provisions concerning this legal institution in the consumer trading.

While referring to the first of presented issue it should be stated that the legislator has shortened general periods of the limitation of claims. The longest ten-year period applied in cases where the Civil Code does not stipulate any particular provision as well as ten-year period of limitation of claim upheld by a final and non-revisable decision of a court or other authority appointed to hear cases of a given type or by an arbitration tribunal award, and a claim upheld by a settlement being made before a court or an arbitration tribunal or a settlement reached before a mediator and approved by the court has been shortened to six years. Whereas period of limitation of concerning periodical performances and claims connected with conducting business activity has been preserved. The manner of calculating of period of limitation has also been modified. In accordance with article 118 sentence 2 of the Civil Code end of the period falls on the last day of the calendar year unless the period of limitation is shorter than two years. This implies statement that civil law claim is barred by limitation on the last day of the calendar year in which period of limitation falls, therefore as an example possible claim may be barred by limitation after 6 years and 300 days. Described manner of calculating of the period does not concern period of limitation shorter than two years – e.g. article 722 of the Civil Code – the borrower’s claim for the object of the loan to be handed over.

As it was mentioned above, the legislator has modified in a significant manner provisions concerning limitation of claims in the consumer trading. Hitherto an action might have been refused owing to expiration of period of limitation solely on a legitimate defenence of the defendant. Hence it has demanded appropriate activity of the party of the proceedings. Currently in accordance with article 117 para 21 of the Civil Code claim against the consumer may not be pursued after the period of the limitation. Transition of the claim in the consumer trading into a natural obligation occurs along with the lapse of the limitation period. Therefore the court examines the relevant issue itself, and not on the defense of the defendant. It should be added that the lapse of the period of limitation shall not always yield refusing an action. Namely the court after consideration of the interest of the parties is entitled to not comply lapse of the period of the limitation of the claim appertaining against the consumer whether equality so requires. The court while applying this entitlement shall consider in particular length of the period of limitation, length of the period from lapse of period of limitation to the moment of pursuing the claim and nature of circumstances which caused non-pursuing the claim by the entitled including influence of the behavior of the obliged on delay of the entitled in pursuing the claim (art. 1171 of the Civil Code).

The Amendments in the Civil Code has entered into force on 9th July 2018. Hereupon the question about period of limitation which is applied in cases of claims existing in the day of act entering into force appears. This problem is solved by the intertemporal provisions of legal act being analyzed. New provisions are applied to claims which arose prior to the day of the act entering into force and have not yet been barred by limitation (article 5 section 1 of the Act of 13th April 2018). However the legislator has introduced two exceptions to this rule. Firstly whether in accordance with amended provisions the period of limitation is shorter than the foregoing one, the period starts running on the day of the act entering into force. However in case where limitation which period starts running prior to 9th July 2018 occurs earlier while application of the foregoing period, the limitation occurs after the earlier period. As a result this exception shall be applied solely in cases of claims encompassed by the general period of limitation and claims held by a final and non-reversible decision of a court etc. Secondly particular intertemporal rule concerns claims appertaining consumers and non-barred by limitation to the day of the amending act entering into force which period of limitation is determined in accordance with article 118 and 125 of the Civil Code. The provisions in the foregoing wording are applied to such claims. It should be complementarily indicated that claims being barred to limitation appertaining against the consumer which defense limitation has not been set prior to 9th July 2018 are subject from that day to effects determined in the Act of 13th April 2018.


Advocate Mateusz Budziarek

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