Amendments of the Civil Code regarding prescription of claims

On April 13th, 2018 an amendment of the Civil Code and of some other acts were adopted. Once legislative works in both Sejm and Senate had been completed, the bill was submitted to the President for his signature. The adopted amendment shortens claim prescription periods left unchanged since 1990, ways of their determination and it distinguishes significantly the situations of the entrepreneur and consumer.

The amendment of the Civil Code under discussion assumes first and foremost the reduction of the general claim prescription period – from 10 to 6 years. 6 years is the time frame upon the expiry of which shall also prescribe any claim legitimized under a legitimate judgment of any court, amicable court or another authority and settlement agreement approved by the court or concluded at court. At the same time, the regulation according to which the 3-year prescription period applies to periodical performance claims and claims associated with business activities has been left unamended. What has changed is the method of determination of the prescription period, because pursuant to the amended 118 sentence 2 of the Civil Code, the prescription period shall expire in both cases on the last day of the respective calendar year unless it is shorter than two years. In practice, therefore, the changes in the determination method shall slightly extend prescription periods (by the time which remains until the end of the calendar year). For instance, therefore, if a claim between entrepreneurs became due and payable on May 11th, 2018, it shall be prescribed at the end of the calendar year, on December 31st, 2021 instead of after 3 years, or on May 11th, 2021.

Furthermore, since the effective date of the amendment, once the prescription period has expired, it cannot be required from a consumer to satisfy a prescribed claim unless they disclaim the prescription. It means that in case of claims against a consumer, the entrepreneur’s claim shall become a natural obligation which they shall not raise at court as early as upon the expiry of the prescription period.

So far the debtor (both the consumer and the entrepreneur) have been able to shrink, upon the expiry of the prescription period, from their duty to satisfy the claim by claiming it to be prescribed. As a result, the impossibility of the compulsory satisfaction of the claim required from the debtor to claim its prescription at court. Should the debtor fail to exercise the right vested in them, the court could not refuse ex officio to admit that the claim had expired (had been prescribed). Therefore, the passive approach of the debtor corresponded to the creditor’s victory at court even if the claim they had raised was prescribed. Under the new amendment and provided that the debtor is a consumer, the court shall be obliged ex officio to examine whether the claim has been prescribed and dismiss actions for prescribed claims. In general, therefore, the entrepreneur cannot any longer raise against a consumer any prescribed claim.

The aforementioned solution, quite restrictive for entrepreneurs, has been mitigated with a barely clear general clause pursuant to which: „in special cases the court can, having examined both parties’ interests, fail to observe the prescription period of the claim raised against the consumer if the rules of equity require it”. Additionally, according to the legislator, the court should consider especially:

  1. prescription period duration;
  2. duration of the period from the expiry of the prescription period to the claim filing moment;
  3. the character of circumstances which prevented the claim holder from raising it, including the obliged party behaviour’s impact on the claim holder’s delay in raising their claim.

It is also important that to claims generated prior to the effective date of the amendment which have not expired so far shall apply the amended regulations. The same goes for prescribed claims against a consumer which were not claimed prescribed until the entry in force of the act under discussion. They shall undergo prescription effects defined in the amendment, so it will not be possible to raise them at court. The prescription period valid so far – that is 10 years – shall remain applicable only to the claims to which a consumer is entitled, which were generated prior to the effective date of the amendment and which on that date were not prescribed yet.

Although it shall undoubtedly revolutionize the Polish legislation system, the reduction of the prescription period from 10 to 6 years does not raise any controversies. It seems, however, that the adopted bill brings lots of risks with respect to ex officio consideration by courts of prescription cases and until common law courts and the Supreme Court develop a homogenous jurisprudence, its applicability shall raise plenty of doubts. On one hand, the legislator introduced a rule according to which prescribed claims against consumers cannot be raised at court, on the other hand, it mitigated that rule by introducing a range of unclear premises which provide courts with the discretionary possibility of non-observing the aforementioned rule, while forgetting at the same time subjective rights.

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