Spain - Time Bars
A general approach to limitation periods in Spain: “Prescripción” v. “Caducidad”
An important characteristic of Spanish civil law is that there are two different legal concepts to bear in mind when referring to limitation periods: prescripción and caducidad.
All legal actions will be subject to a prescripción or to a caducidad limitation period, depending on what the legislation states for this specific action in question.
Both legal concepts are quite similar, but there are two main differences which affect the possibility of bringing a claim, because determining whether an action might be time-barred or not could depend on whether it is subject to a prescripción or caducidad limitation period.
- Interruption. The limitation period for actions subject to prescripción can be interrupted at any time unilaterally by the party entitled to claim. Once interrupted, the limitation period starts to run again, and it can be interrupted unilaterally as many times as required. One of the most usual and secure ways to interrupt a prescripción limitation period is by sending a letter by registered post (known as a burofax in Spain) to the defendant(s). However, mere correspondence between the parties in the course of a claim can also be considered enough to interrupt time, provided there is no a lapse in correspondence for a period longer that the limitation period applicable to the action.
On the other hand, if an action is based on caducidad, the limitation period cannot be interrupted unilaterally. Instead, the claim will always be timed-barred when the statutory limitation period for that legal action has expired, unless either a) the parties agree to a time extension, or b) legal proceedings are commenced.
- Time-bar declaration. A claim subject to prescripción can only be declared time-barred if this is alleged by the defendant, because the Court cannot decide on this ex oficio. On the other hand, the limitation period of a claim subject to caducidad the question of whether it is time barred will be decided by the Judge. [Note: If the defendant does allege that the action is prescripción time-barred, in Spain the decision will be taken by the Judge as part of the final judgment after the trial, but not as a preliminary issue as in other jurisdictions.]
The general limitation period for personal actions is of 5 years according to Article 1964 of the Spanish Civil Code.
What is a personal action? The concept and nature of personal actions in Spain is broad, including actions that have a contractual origin, for example actions claiming damages as a result of a negligent performance of a contract or requesting the fulfillment of the contractual obligations. This general 5-year limitation period will be applicable to contractual claims, unless there is a different specific and statutory time bar applicable to the claim.
This limitation period is calculated from the moment in which the performance of the contractual obligation can be claimed.
Previously this general limitation period was 15 years until the reform of the Civil Procedure Act, which came into force on the 7th October 2015.
Please note that the reform includes a transitional period that has retroactive effect, since it might affect personal actions that existed prior to the amendment of the law, reducing the original limitation period from 15 to 5 years.
By way of summary, by virtue of this transitional period, any personal action which arose before the entry into force of the reform will be considered time barred by 7th October 2020. For example, if a breach of a contract was committed on 2010, in theory the claimant will have until the year 2025 to exercise his/her right (15 years' limitation period according to the previous law), but by virtue of the transitional period the claim will be time barred on the 7th of October 2020, which means 5 years less than under the old system.Statutory limitation period for tortious claims, Spanish Civil Code, including personal injury claims.
As a basic concept of Spanish law, a party who by negligent act or omission causes damage to another shall be liable to repair the damage caused (Article 1902 of the Civil Code).
By contrast to the limitation period for contractual claims, this was not amended by the Civil Procedure Act and remains unchanged. Consequently, a claimant who has an action in tort has 1 year to bring a claim from the moment the action could be exercised (article 1968 Civil Code).
In this regard, the Spanish Supreme Court has ruled that in personal injury claims the limitation period will not start to run until the injured party (claimant) has reached an end point in the recovery from the injuries, and/or an estimated time for recovery can be determined.Statutory limitation periods for shipping claims, Spanish Maritime Navigation Act 14/2014 (SMNA)
Port operators’/terminal claims:Port Operator/ terminal
contracts are regulated under this Act (articles 329 to 338), for example in relation to the parties' rights and obligations, the operators' period of liability, documentation as supportive evidence, operators' right to lien on the cargo, their right to limit liability, and notably for the purposes of this article, the limitation period applicable. Thus, the parties to a cargo handling contract in Spain are subject to what is stated in the Act. However, the law allows the parties liberty to agree the remainder of the contractual terms, with the exception of the terminal operator's liability regime for the loss, damage or delay of the cargo, which is compulsory and cannot be modified.
As regards the limitation period, article 337 establishes a two year period to pursue a claim against the terminal operator for the damage, loss or delay of the cargo being handled. The limitation period starts to run when the cargo in question has been delivered, or in the case of a total loss when the cargo should have been delivered.Shipowners’/ship operators’ claims:
This Act, as it was drafted with a view to incorporating by The Hague-Visby Rules, provides for a limitation period of one year for any loss of, damage to or delay in the delivery of thecargo
. This period starts to run from the moment the cargo was delivered or should have been delivered. The limitation period cannot be interrupted, unless an extension is agreed between the parties, or the claimant issues legal proceedings (in other words, it is a caducidad limitation period).
The same one year limitation period is applicable to claims in relation tofreights, demurrage
or any other transport-related costs. The period starts running at the moment the cargo was delivered or should have been delivered, with the exception of time charterers' claims, for which the starting point will be determined by the moment such debts become due in accordance with the C/P.Insurance claims:
This Act also states that any right to claim arising from aninsurance
contract becomes time-barred after 2 years from the moment the claim could have been presented, even if this limitation period is the same as that provided for in the Spanish legislation which regulates insurance (the Insurance Contract Act 50/1980).Summary Of Limitation Periods In Spain
|Contractual Claims||5 years (article 1964 Civil Code)|
|Tortious Claims||1 year (article 1968 Civil Code)|
|Terminal||2 years (article 337 SNA)|
|Cargo||1 year (article 286 SNA)|
|Freight, hire, demurrage||1 year (article 286 SNA)|
|Insurance||2 years from the moment the claim could have been exercised (article 438 SNA)|
Source UK P&I
You may also be interested in:
Ireland - Time Bars
Statutory time bars are governed by the Statute of Limitations Act 1957 as amended by the Statute of Limitations (Amendment) Act 1991 and 2000. The statutory limitation periods cannot be extended by agreement. The issue of whether a claim is statute-barred is however a defence that must be raised by a Defendant once proceedings are issued. A court will not consider this issue on its own volition. A defendant may be estopped from relying upon the Statute of Limitations as a defence if their conduct renders it unjust to permit them to do so.
Canada - Time Bars
Canada is a federal state, in which law-making powers of the central (federal) Parliament and of each of the ten provinces are exclusive and respectively sovereign, and are assigned to one or other of the levels of government essentially according to subject-matter. Most particularly, the power to make laws in relation to "navigation and shipping" is assigned exclusively to the federal Parliament, and scope of this power is interpreted to include matters of contract, tort and agency "integrally connected with maritime matters ... in the modern context of commerce and shipping".