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Tuesday, 27 October 2015 11:02

Debts will not be enforceable after five years

On day 6 October 2015, the Law 42/2015, partially amending the Civil Procedure Act, which took advantage was published, inter alia, to amend Article 1964 of the Spanish Civil Code concerning prescription personal actions.

In this sense, as a general rule, the legal relationships that are formed from the day October 7, 2015 -Date of entry into force of the Act - have a limitation period of five years.

Recall that, until now, the creditor had a period of fifteen years to enforce the debtor the agreement. It is therefore produced an extraordinary shortening of the limitation period, from fifteen to five years.

Regarding the legal relationships have been established before October 7, 2015, applies the provisions Transitional Provision Five of Law 42/2015, which refers, in turn, Article 1939 of the Civil Code, which applied to the cases analyzed, it can allow various interpretations to set the day from which to start the calculation of the prescription, although it seems to conclude that over a period of five years from October 7, 2015 will be required for debt becomes unenforceable.

1. Inalterability special limitation periods for actions claim

a) Limitation of other contractual actions envisaged in the Civil Code

Despite this legislative development, we can not forget that the Spanish Civil Code provides other limitation periods that have not been changed and continue to maintain their effect. We emphasize, without the following relationship has claim to be exhaustive, the following limitation periods:

The real action on real property prescribed to thirty (30) years (Article 1963).

The mortgage action prescribes twenty (20) years (Article 1964).

The action to claim the price of leases and any other payments to be made for years or more installments shall lapse five (5) years (Article 1966).

The action to claim payment of services provided by lawyers, registrars and notaries barred after three (3) years (Article 1967).

The action to claim payment of the price of the goods sold to others who are not, or to be so engaged in different traffic prescribed to three (3) years (Article 1967).

b) Limitation of contractual actions envisaged in other laws

- Commercial Code

In addition, the Commercial Code establishes different limitation periods, among which include:

The action assisting partner to society, or vice versa, shall lapse three (3) years, depending on the case, since the separation partner, exclusion, or the dissolution of the company (Article 947).

The action to claim dividends shall lapse five (5) years from the appointed day to start your collection (Article 947).

- Capital Companies Act

The action contesting the social agreements expire within one (1) year unless RESULTING contrary to public order, in which case the action will not expire or lapse (Article 205).

The liability action against the directors, whether social or individual, shall be extinguished after four (4) years, counting from the day that could be exercised (Article 241 bis).

- Foreign Exchange and Cheque Law

The exchange action against the acceptor expire after three (3) years from the due date. However, the action of the holder against the endorsers and against the drawer shall prescribe at (1) year. Also, the action of endorsers against each other and against the drawer barred after six months (Article 88).

- Insurance Contract Law

The action arising from the insurance contract prescribed in two (2) years if it comes to damage insurance and five (5) years if the insurance is people (Article 23).

- Contract Lei land transport by road

The action which may result in transport regulated in this law shall prescribe within one (1) year or two (2) years if action is derived from willful misconduct (Article 79).

- Planning Act to Building

The action to enforce liability for damage arising from faults or defects shall prescribe within two (2) years from which such damages, without prejudice to any action that might remain to claim damages for breach of contract (Article 18).

c) Prescription of tort action

The action of tort liability for fault or negligence prescribed by (1) year, since he knew the victim (Article 1968 of the Spanish Civil Code).

2. Inalterability regime limitation of actions established in the Catalan Civil Code

The novelty in the prescription of five years for contractual obligations have not appointed another term, does not affect the powers of the Autonomous Communities activity that could legislate on the specialties of civil law. In this sense, Catalonia has its own regulations regarding limitation periods in Book I of the Civil Code of Catalonia, having the following features:

Within the general requirement is ten (10) years instead of five years (before fifteen) established by the Spanish Civil Code.

Moreover, the Catalan Civil Code establishes a limitation period of three (3) years for debt claims arising from a contract of execution of works or provision of services.

Also, demand action on periodic payments to be made for years or shorter deadlines prescribed to three (3) years instead of the five years set the Spanish Civil Code.

Finally, tort action barred after three (3) years, while the Spanish Civil Code reduced, as we have seen, a year.

3. When should we apply the state legal rçegimen prescription and when the regional legal regime?

Submitted a legal question to analysis, first, we must establish what legal regime applies, in order to know, among other issues and as regards the issue we are now dealing with, whether the requirement that we must consider is that It envisaged by state standards or in regional or provincial laws.

To do this, we must not forget that Article 149.1.8º of the Spanish Constitution provides that the State has exclusive jurisdiction to resolve conflicts of laws - as well as power to establish rules concerning the application and effectiveness of legal norms, bases of contractual obligations and determination of the sources of law, with respect, in the latter case, the rules of statutory or special right -.

In furtherance of the above, Article 16.1 of the Spanish Civil Code states that conflicts of law that may arise from the coexistence of various civil laws in the country will be resolved according to the rules contained in Chapter IV (including Article 10.5) although it regarded as personal law determined by civil neighborhood.

Article 10.5 of the Spanish Civil Code, applied therefore to resolve conflicts that arise in the application of different national legislation, states that shall apply to contractual obligations, the following law:

1º.- The law to which the parties have expressly submitted, provided you have some connection with the business in question;

2º.- Failing that, the law of the common neighborhood parties;

3º.- A lack thereof, of the common habitual residence and,

4º.- Ultimately, the law of the place of conclusion of the contract.

Notwithstanding the above provisions, to contracts relating to immovable property, and in the absence of express submission, the law of the place where such property is situated applies. With regard to sales of movable conducted in commercial establishments, the law of the place in which they apply radiquen.

4. Other features

Note, finally, that prescription, unlike expiration, can be interrupted and therefore will need to be computed the period during which the claim will remain enforceable.

The application to the specific case of this prescriptive issue is not always easy, due mainly to the coexistence of different standards of national and regional or leasehold area and the existence of different limitation periods scattered in different laws, so, for a clearer view, we recommend you consult a lawyer or legal expert.

Moisés Murcia Priego 
Lawyer specializing in Business Law, SF Lawyers