Today's legislator, in facing an unceasingly growing number of cases in court, is forced to consider the issues on how to improve an effective case hearing. One of the following issues with a direct influence on a speedy and qualitative court hearing is the issue of prescription. Prescription is a term restricting the right to performance of an obligation. A debtor, after the lapse of the prescription period, is entitled to refuse to perform an obligation, and if he does so, a creditor loses his right to demand performance; consequently, the latter misses the possibility to defend his rights effectively by pursuing the claim in court.
By the prescription period three major goals are pursued:
(a) the debtor has to be protected from the claims pursued after a long period of time during which he might have lost evidentiary material requisite for their argumentation;
(b) the creditor has to be encouraged 'not to sleep' on his rights but rather to implement them without any unreasonable delay;
(c) the debtor has to be sure that after a certain period of time, legal facts which might serve as a basis for claims in his respect, will not raise any consequences.
Therefore, we assume that under the prescription period not only the debtor's interests are protected, but also the creditor is being encouraged to implement his rights in the effective manner by facilitating the argumentation process for both parties, thus ensuring a common interest 's authenticity and stability of legal relations 's and to prevent long, drawn-out litigation processes.
One of the crucial issues of the prescription period is its duration. The present law of different European states fixes rather lengthy general prescription periods, starting with ten years (Italy, Sweden, Finland, Lithuania), twenty years (the Netherlands, Portugal, Denmark) and up to thirty years (Germany, France, Austria). However, the perspectives to shorten the prescription period is getting distinct, and it is headed towards the general prescription period ranging from between two and six years. For example, the German Commission on Obligations Law Reform recommended a 3 year term for most contractual and non-contractual claims, an analogous opinion is supported by the English Law Commission, the compilers of UNIDROIT Principles of International Commercial Contracts, Principles of European Contract Law (PECL) and Draft Common Frame of Reference (DCFR).
Secondly, with the purpose to prevent costly and excessive lawsuits, regulation of the prescription period itself must be simple and clear, by consolidating a united system of the prescription, without differentiating it in numbers of shorter ones subject to the specific type of claims, thus preventing from likely disputes on the question of whether or not the prescription had occurred in a particular case. It should be acknowledged that modern law of the European states is distinguished by the complication of this issue, still by an obvious tendency to reject different periods, likewise.
Thirdly, although positive law of particular European states is still not uniform, the proposition to let the parties themselves (in certain peremptory restrictions) change the duration of the prescription period, with reference to specific circumstances and specifics of relations, is being expressed louder, too. An absolute ban should be established in the scope, preventing from standard terms of contracts imposed by the stronger party unilaterally, or from unfair prescription periods enforced in consumer contracts.
Moreover, the foreign law doctrine expresses proposals to provide a maximum prescription period, which can be neither suspended nor renewed (about 10-15 years), thus additionally ensuring legal certainty and foreseeable legal relations.
However, it is also essential to perceive that, while examining the following issues, it is crucial to take into consideration and assess a specific situation of each state, raise questions whether a particular social or economic situation in the country, social legal sophistication and education, work quality of the legal system would allow to follow the enlightened tendencies of the developed Western European states, having established legal traditions, to reform regulation of the prescription.
Darius Orla is a lawyer at Jurevicius, Bartkus & Partners, a member of including Glikman & Partnerid in Estonia and Kronbergs & Cukste in Latvia, dedicated to providing a quality "one-stop shop" approach to clients' needs in the Baltics.
