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Prescriptive period

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Prescriptive period

A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated. In civil law systems, similar provisions are typically part of the civil code or criminal code and are often known collectively as periods of prescription.


Common law legal systems usually have a statute, for example, limiting the time for prosecution of a debt or designated as misdemeanors to two years after the event occurred. Under such a statute, if a person is discovered to have committed a misdemeanor three years later, they cannot be prosecuted, even if enough evidence is available to meet the standard of proof.


The purpose and effect of Statutes of Limitation is to protect defendants. There are three reasons that support the existence of Statutes of Limitation, namely: (a) that a plaintiff with good causes of actions should pursue them with reasonable diligence; (b) that a defendant might have lost evidence to disprove a stale claim; and (c) that long dormant claims have more of cruelty than justice in them (Halsbury's Laws of England, 4th edition). The general rule is that the limitation period begins when the plaintiff’s cause of action accrues or is made to be aware of the injury that might have happened a long time ago (e.g.asbestos injury). In Classical Athens a five-year statute of limitations was established for all cases other than homicide and for prosecutions against unconstitutional laws, which had no limitation. Demosthenes wrote that these statutes of limitations were adopted specifically to control sycophants.[1]

Statute of repose

The statute of repose is related and limits the time within which an action may be brought regardless of when the injury occurred or was discovered based upon when a particular event occurred, such as the construction of a building. An example of this would be that if a person is electrocuted by a wiring defect incorporated into a structure in, say, 1990, a state law may allow his heirs to sue only before 1997 in the case of an open (patent) defect, or before 2000 in the case of a hidden defect. Statutes of repose can also apply to manufactured goods. Manufacturers contend they are necessary to avoid unfairness and encourage consumers to maintain their property while consumers argue that they reduce incentives to manufacture durable products and disproportionately affect poor individuals.

Tolling and the discovery rule

Lawsuits are unlikely to be successful if they are filed after the end of the statute of limitations time period. However, most jurisdictions provide that limitations are tolled, or delayed, under certain circumstances. Examples of such circumstances are if the aggrieved party (plaintiff) is a minor, or the plaintiff has filed a bankruptcy proceeding. In those instances, in most jurisdictions, the running of limitations is tolled (paused) until the condition ends. Equitable tolling may also be applied if an individual is in a position to intimidate another person into not reporting or has been promised a suspended period.

The statute of limitations may begin either when the harmful event such as fraud or injury, occurs or when it is discovered. The Supreme Court of the United States has described the "standard rule" as to when the time begins to be "when the plaintiff has a complete and present cause of action", which it describes as being in place since the 1830s.[2] However, a different rule called the "discovery rule" applies in many other cases, including often in medical malpractice, or a similar effect may be applied through tolling. As discussed in Wolk v. Olson, the discovery rule does not apply to mass-media publications such as newspapers and the Internet; the statute of limitations begins to run at the date of publication. In 2013, the Supreme Court of the United States ruled unanimously in Gabelli v. Securities and Exchange Commission that the discovery rule does not apply to U.S. Securities and Exchange Commission's investment advisor fraud lawsuits, as a purpose of the agency is to root out fraud.[3]

Generally speaking, in the case of private, civil matters, the limitations period may be shortened or lengthened by agreement of the parties. Under the Uniform Commercial Code, the parties to a contract for sale of goods may reduce the limitations period to not less than one year, but may not extend it.

Although such limitations periods generally are issues of law, limitations periods known as laches may apply in situations of equity (i.e., a judge will not issue an injunction if the party requesting the injunction waited too long to ask for it). Such periods are not clearly defined and are subject to broad judicial discretion.

For U.S. military cases, the Uniform Code of Military Justice (UCMJ) states that all charges except for those facing general court martial (where a death sentence could be involved) have a five-year statute of limitation. This statute changes once charges have been prepared against the service member. In all supposed UCMJ violations except for those headed for general court martial, should the charges be dropped, there is a six-month window in which the charges can be reinstated. If those six months have passed and the charges have not been reinstated, the statutes of limitation have run out.


In civil law countries, almost all lawsuits must be started within a legally determined period. If they are presented after that time, an institution called prescription applies, which prevents them from filing the case.

The Italian law[4] as well in Romanian law[5] is quite peculiar in this regard since lawsuits and trials must be ended, rather than started, within such a time limit (this applies only to criminal proceedings). This makes it effectively possible to avoid a guilty sentence by delaying the trial enough for the time limit to expire.

For criminal cases, this means that the public prosecutor must prosecute within some time limit. The time limit varies from country to country, and increases with seriousness of the alleged crime (for example, in most jurisdictions, there is no statute of limitations for murder). When a time limit is suspended, it does not run (akin to hitting "Stop" on a stopwatch). Common triggers include the defendant being on the run. When a time limit is interrupted, it is restarted (like hitting "Reset" on a stopwatch). This may be triggered by a new crime committed.

If a criminal is on the run, he can be convicted in absentia, in order to prevent prescription, or the time limit does not elapse during that time.

The prescription must not be confused with the need to prosecute within "a reasonable delay", an obligation imposed by the European Court of Human Rights. Whether the delay is reasonable or not, will depend on the complexity of the trial and the attitude of the suspect.


Fraud upon the court

In the United States, when an officer of the court is found to have fraudulently presented facts to court so that the court is impaired in the impartial performance of its legal task, the act, known as "fraud upon the court", is a crime deemed so severe and fundamentally opposed to the operation of justice that it is not subject to any statute of limitation.

Officers of the court include: lawyers, judges, referees, and those appointed; guardian ad litem, parenting time expeditors, mediators, rule 114 neutrals, evaluators, administrators, special appointees, and any others whose influence are part of the judicial mechanism.

"Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication".[6]

In Bulloch v. United States,[7] the court stated "Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. ...It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function—thus where the impartial functions of the court have been directly corrupted."

International crimes

By way of custom of international law, genocide, crimes against humanity, and war crimes are usually not subject to statute of limitations, nor to prescription. This custom has been codified in a number of multilateral treaties. States that ratify the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity agree to not allow limitations claims for these crimes. Article 29 of the Rome Statute of the International Criminal Court states that genocide, crimes against humanity, and war crimes "shall not be subject to any statute of limitations".

Heinous crimes in the United States

Crimes that are considered exceptionally heinous by society have no statute of limitations. As a rule, there is no statute of limitations for murder, especially capital or first-degree murder. However, judges have been known to throw out murder charges for cold cases if they feel the delay violates the defendant's right to a speedy trial.

Crimes Against Children and People Under Guardianship in Victoria Australia

The Limitations Act 1958 currently allows 12 years for Child Survivors and the Disabled to make a Claim, the age of 37 being the latest a Claim can be made at present. Police evidence[8] to the Victorian Inquiry into Church and Institutional Child Abuse, running since 2012, exposed that it takes on average 24 years for a survivor of Child Sexual Abuse to go to the Police.[9] Therefore, it is necessary to allow Survivors of Violent Crime the necessary time as adults to deal with the Police and legal processes in a manner that is manageable for them. There is a growing understanding that organisations that have been infiltrated by child rapists and individuals who offend against Minors and the Disabled, have used the Statute of Limitations to avoid detection and prosecution, by moving from State to State and country to country. Dr Vivian Waller's evidence to the Victorian Inquiry details the misuse of the Limitations Act by the Christian Brothers in Victoria Australia.[10]

There is global movement to improve policing, sentencing, services for victims, and to outlaw and prosecute organisations that harbour and support predators. Abolishing the Statutes of Limitations for Civil Claims, for Minors and People under Guardianship, creates certainty that abuse of vulnerable people will be taken seriously by lawyers, Police, organisations and Governments. It is necessary that penalties are enforceable on organisations that have turned a blind eye to crimes in the past, so that they can learn the hard lessons of history and safeguard the most vulnerable people in the community in the future. Peer Support is a powerful tool for Survivors, SNAP Australia,[11] CLAN,[12] Broken Rites.[13] The Law Institute of Victoria's [14] submission points to the need for reform of the Statute of Limitations.

Continuing violations doctrine

In tort law, if a defendant commits a series of illegal acts against another person, or, in criminal law, if someone commits a continuing crime (like molesting a child over a long period of time, which can be charged as a single offense), the period of limitation may begin to run from the last act in the series. In the 8th Circuit case of Treanor v. MCI Telecommunications, Inc., the court explained that the continuing violations doctrine "tolls [i.e freezes] the statute of limitations in situations where a continuing pattern forms due to [illegal] acts occurring over a period of time, as long as at least one incident … occurred within the limitations period".[15] However, in the United States, there has been doctrinal confusion in the courts regarding whether or not the continuing violations doctrine applies to particular violations. For example, the continuing violations doctrine has been ruled to apply to copyright infringement per Taylor v. Meirick 712 F.2d 1112, 1119 (7th Cir. 1983), but has been ruled to not apply per Stone v. Williams, 970 F.2d 1043, 1049-50 (2d Cir. 1992).[16]

See also


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