On 9 July 2018 substantial changes in the provisions of the Civil Code regarding limitation periods for claims have entered into force. The most important of these are the shortening of the overall 10-a period of limitation of claims up to years 6. On first It may seem that the bill amending the law k.c. to the greatest extent possible meets the need to protect consumers' interests, but are you sure...
Fortunately, the legislature did not undertake to amend the good old 5 k.c. (this provision provides for an abuse of the law, that is, in the example of the abuse of a limitation charge by an entrepreneur), and in that case the courts will have something to say.
Act dated 13 April 2018 amending the law - Civil Code and some other laws 2018, No 1104, hereinafter referred to as ‘the Act’ makes important changes to the limitation of claims and related matters. The most important solutions introduced by the Act are:
• general reduction 10-a period of limitation of claims up to years 6,
- shortening the period of limitation of the claim ordered by a court judgment, a decision of another body appointed for the examination of a given type, a decision of a court of arbitration, a court settlement or a court of arbitration before a mediator and approved by a court — with 10 to 6 years,
- expiry of the limitation period of the claim at the end of the calendar year (so always on the day 31 December), which de facto means an extension 6, 3 and 2 a limitation period of up to the end of the calendar year in which the limitation occurs,
- expiry of time limits shorter than 2 years, remains unchanged, i.e. the period of limitation at the end of the calendar year shall not apply here,
- resulting from the new Article 117(21) k.c. the obligation of the court to examine the expiry of the limitation period in a case against the consumer, i.e. contrary to what has previously been the case, to raise the limitation plea will not be necessary for the court to formally examine the limitation period in a case. Moreover, the Act takes care immediately of pending cases, in such a way that if in a given case by date 9 July 2018 Whereas the limitation of limitation has not been raised, the court should nevertheless have examined the matter in the light of the new rules, i.e. taking into account the limitation of time;
- the court may also not take into account the limitation of the claim in exceptional cases (although this solution may raise reasonable doubts),
- the provisions of the Act will apply to claims arising before the day 9 July 2018 and on that day not yet expired with the following exceptions:
- if, in accordance with the new provisions, the limitation period in a given case is shorter than the date 9 July 2018 (i.e. the time limit for the general limitation of the claim has been reduced from 10 to 6 years), then the limitation period starts on 9 July 2018,
- if, however, the limitation period which started before the date of entry into force of this Act would have taken into account the existing limitation period earlier, the limitation period shall take place with the expiry of that earlier period (e.g. 10 years flows and on the day 9 July 2018 has passed e.g. 8 years, then the statute of limitations will occur In 2020 – or after 2 years 9 July 2018, not after 6 years from day 9 July 2018),
- in the case of claims to the consumer arising before the date of entry into force of this Act and on that date not yet published, the limitation periods of which are specified under Article 118 and Article 125(1) Amended law – the existing rules, i.e. for consumers, will be longer - 10 years.
On first It may seem that the amendment of the Civil Code introduced by law is a benefit to consumers and is intended to protect their interests in the first place.
However, in view of the cases relating to the cancellation of the franc loans, it must not be taken into account that, if the court finds that a contract indexed to a foreign currency is invalid, the legal relationship is considered to be unreserved and the parties are obliged to return the benefits received.
And here, banks' claims for repayment of outstanding loans are subject to limitation on expiry 3 years after the payment of the loan, while consumer claims for reimbursement of repayments of instalments of the loan expire over the years 10 from the moment of payment.
The cancellation of the agreements would therefore lead to banks having to return what they had received, and consumers could successfully rely on a limitation charge and not surrender to banks or gold.
At present, the Act introduces a situation in which a court, when it becomes convinced or is already in principle known in the case that there is a statute of limitations, will be able to “in exceptional cases” and only “if the reasons for fairness so require” do not take into account the limitation charge on behalf of the consumer in the dispute with the bank.
It is worth noting that the new recipe Article 1171(1) k.c. introduced by the Act, it is precisely ‘in exceptional cases a court may, after considering the interests of the parties, fail to take into account the expiry of the limitation period for a claim against the consumer, if the grounds of fairness so require’, i.e.
the same principle will not apply in a case against the trader. For example, if an entrepreneur raises a complaint (from the application a contrario new Article 117(21) k.c.
- However, the entrepreneur should continue to raise the plea of limitation in a formal manner) that the consumer's claim against the trader is statute of limitations, the court will not be able to apply a new provision Article 1171(1) k.c.
and assess from the point of view of the grounds set out in that provision whether the limitation charge raised by the trader in a dispute initiated by the consumer is justified. Fortunately, the legislature left the good old 5 k.c.
untouched, so the courts still have scope to address an entrepreneur’s abusive reliance on a limitation defence.
Author:
Aleksandra Księżyk
Director of the Legal Department in Warsaw. Legal advisor, from 2013 associated with Russell Bedford. He runs the Legal Department at the Chancellery Russell Bedford.