Statute of limitations / Limitation of action:
Statutory periods of limitation
Please note that Your claims of Year 2017 could become time-barred on 31.12.2020!
A claim based on purchase is legally statute-barred after 3 years starting from conclusion of contract (order, confirmation of order).
After 3 years it is no longer possible to sue the debtor at court (end of the year).
A claim based on transport is legally statute-barred after 1 year.
The regular limitation period for all claims of the buyer/purchaser for defects liability/implied warranty is 2 years.
If you claim for a different cause in law (f.e. loan) please contact us.
Hence, the regular limitation period is basically 3 years for all claims based on civil law (with lot of exceptions). Exceptions are stipulated in the law (please note: the regular limitation period for all claims of the buyer/purchaser for defects liability/implied warranty is 2 years).
The legal meaning and consequence of the Statute:
The Statute is not to check and judge by the court but if your debtor objects the Statute the court has to prove and judge it. This means that you can sue your debtor at court and you can win court proceedings but you have the risk that the debtor object the Statute and you would llose the case.
How to calculate:
The limitation period generally starts end of the year in which the claim legally comes into existence regularly by concluding a contract, not the date of delivery.
Example: if the claim came into existence on 30.07.2015 the limitation period starts on the 31.12.2015 and ends on the 31.12.2018. If the last day is not a working day the period defers to the following working day.
But there are further exemptions: f.e. in case of transport the limitation period starts at the date of delivery (not end of the year).
How to suspend or interrupt lapse of time?
The only fail-safe method to interrupt lapse of time is to initiate court proceedings on 31.12. each year at the latest! It is only necessary to file legal action to court by application.
The application or plaint must definitely be received by the court before that day. Otherwise your debtor can plead the statute of limitations and it is not possible anymore to force the debtor to payment.
The expiry of period of limitation shall be suspended in cases of negotiations between the parties about the claim or the facts which are the basis of the claim or initiation of court proceedings. The limitation period is extended by that time period. That is what we cannot assess without further information. Attention: often it is difficult to prove such "negotiations".
1. The regular limitation period is 3 years for all claims based on civil law. Exceptions are stipulated in the law (please note: the regular limitation period for all claims of the buyer/purchaser for defects liability/implied warranty is 2 years).
The limitation period starts end of the year in which the claim comes legally into existence regularly by concluding a contract.
Calculation, Example: if the claim came into existence on 30.07.2017 by concluding a contract (order, confirmation of order, not the date of delivery/performance) the limitation period starts on the 31.12.2017 and ended on the 31.12.2020. If the last day is not a working day the period defers to the following working day.
The expiry of period of limitation shall be suspended in cases of negotiations between the parties about the claim or the facts which are the basis of the claim (Risk!) or initiation of court proceedings. The limitation period is extended by that time period.
That is what we cannot assess without further information.
2. On the other hand, the limitation periods in the transport sector are well below the three-year limitation period. With the extremely short limitation periods of one year in warehouse/freight law, the legislator aims to ensure that "legal peace" occurs quickly, which is intended to create legal certainty at an early stage, particularly in the freight/warehouse business.
Calculation of the limitation period
In principle, the injured party has one year in which to assert claims arising out of carriage against the carrier. This also applies to cross-border transports (by road). This one-year limitation in the carrier's liability applies to all main claims (e.g. liability for damage to or loss of the goods) arising from a carriage, as well as to ancillary obligations (e.g. customs clearance).
This period of one year begins at the end of the day on which the goods were delivered by the carrier. If the goods have not been delivered, the limitation period shall begin at the end of the day on which the goods should have been delivered.
Measures to suspend the statute of limitations
However, the one-year limitation period in freight law can also be "suspended", i.e. the limitation period for this period stops and does not continue.
The statute of limitations of a claim against the carrier is suspended by a declaration of the sender or recipient with which the latter asserts claims for compensation (so-called liability retention). This declaration must be made in text form (e.g. fax, e-mail). If the carrier or freight forwarder rejects the claims, the one-year limitation period continues.
These provisions on the suspension of the limitation period only apply to the carrier and not to the reverse case, i.e. to claims of the carrier against the consignor (e.g. freight payment claims).
Period of one year also for claims arising from the storage contract
The same applies to the warehouse. If damage occurs to the stored goods during storage, the latter must claim the damage just as quickly. The depositor also has one year to assert claims from a storage contract with the warehouse keeper. In the case of total loss, the limitation period begins at the end of the day on which the warehouse keeper notifies the depositor or, if a warehouse warrant has been issued, the last legitimate holder of the warehouse warrant known to him of the loss.
However, the provision of § 439 (1) sentence 2 HGB with its three-year limitation period also applies to primary service claims. It intervenes in cases of intent or, due to the reference to a fault equivalent to intent according to § 435 HGB, a qualified recklessness of the debtor.
Statute of limitations in transport law - Attention: short deadlines
Particularly short periods of limitation must be observed for freight claims of the transport company. After the statute of limitations has expired, the customer may refuse payment of the freight charge. The customer may raise a plea of limitation with the consequence that the claims are no longer enforceable.
In the case of cross-border transports to which the Convention on the Contract for the Carriage of Goods by Road (CMR Convention) of May 1956 applies, the carrier's claims shall lapse after 15 months. The period begins on the day the transport order is placed. In the case of transports carried out exclusively within the territory of the Federal Republic of Germany, the limitation period shall be governed exclusively by German law. Thereafter, the limitation period shall be 1 year and shall commence at the end of the day on which the goods were delivered or should have been delivered. If a transport order consists of several partial deliveries, the delivery of the last partial delivery shall be decisive.
In the typical credit memo procedure, the following must also be taken into account:
If the sender and the carrier have agreed that payment shall be made by issuing credit notes, the limitation period shall be interrupted by issuing the credit note. The carrier must therefore ensure that he receives a credit note within the short period of limitation. In order to avoid legal disadvantages, the carrier must always keep an eye on the short periods of limitation. It is therefore advisable for every transport company to point out to its personnel the need for strict observance of these periods. If a claim threatens to expire, he must take appropriate measures as quickly as possible to prevent the statute of limitations from becoming effective. For this it is not sufficient to send a simple reminder to the opponent. Either legal action must be filed or a judicial dunning procedure must be initiated.
Normal periods of limitation in transport law Claims against carriers under contract of carriage:
§ 439 HGB, period of 1 or 3 years (3 years in case of intent or negligence)
- Claims against freight forwarder under contract of carriage §§ 436, 439 HGB, period of one or three years
- Claims against freight forwarder if the ADSp apply: Point 64 ADSp, period of eight months
- Claim from carriage in case of application of the CMR: Art. 32 CMR 1, period of one or three years (in case of intent or negligence)
- Claim from storage against the warehouse keeper: §§ 467 ff. HGB, § 439 HGB, deadline see above
- Claim from sea freight contracts and bills of lading: §§ 556 ff. HGB, § 612 I HGB, period of one year
- Claim from air freight contract (according to MÜ): Art. 35 MÜ, two years
Please contact us if you need further information.