Interruption of the limitation period in enforcement proceedings

Under Article 116(c) of the Obligations and Contracts Act, taking action to enforce a claim interrupts the limitation period.

The rules for interruption by bringing a claim or taking another step under Article 116(b) differ from those for enforcement under Article 116(c). In the first case, no new period begins while the proceedings are pending. If the claim is not upheld, limitation is treated as never having been interrupted. If the claim is upheld, a new period begins when the final act establishing the claim becomes binding, since time has not run during the proceedings. The legislature dealt separately with enforcement under Article 116(c), without reproducing the rules on suspension or on loss of the interrupting effect in litigation. Those rules do not apply to enforcement: this is not because suspension has an irrevocable effect, but because the period is not suspended and interruption does not subsequently lose its effect. In enforcement, limitation is interrupted repeatedly: each time a distinct enforcement method is initiated and each time an enforcement step forming part of it is taken. A request for a specific enforcement method interrupts the period because the enforcement officer is bound to apply that method. The statute also expressly provides for interruption by each act of compulsory enforcement.

Enforcement does not exist in the abstract; it proceeds through one or more specific methods. To recover money, different methods may be used, several assets sold and several debts owed to the debtor by third parties collected. Any enforcement step within a particular method interrupts limitation, whether requested by the creditor or initiated by the enforcement officer. Examples include attaching assets or claims, imposing a restraint on immovable property, joining a creditor, assigning a claim for collection or in lieu of payment, inventorying and valuing an asset, appointing a custodian, scheduling and conducting a sale, through to receipt of the proceeds or of payments by third-party debtors. By contrast, opening an enforcement file, sending or serving an invitation to pay voluntarily, investigating the debtor’s assets, making inquiries, obtaining records or other papers, commissioning an expert calculation of the outstanding debt, drawing up a distribution and paying under a distribution that has become final are not enforcement acts and do not interrupt limitation.

A new period starts with each act of compulsory enforcement. Under the rule discussed here, time does not stop merely because enforcement is pending: an unpaid creditor can choose to seek further enforcement measures or to take no action. Where the creditor acting through counsel has requested no enforcement step for two years, Article 433(1)(8) of the Code of Civil Procedure provides for termination (maintenance cases are excepted). Legal scholarship and settled case law treat this lapse, known as peremption, as occurring by operation of law. Once the relevant facts are established, the enforcement officer can only declare that termination has already taken place. A new limitation period has been running since the most recent valid enforcement step. See Supreme Court of Cassation Interpretative Decision No. 2/2013 in interpretative case No. 2/2013.

This article does not provide a legal opinion or advice about any particular person or situation. For assistance with an individual case, consult a lawyer practising in civil law, particularly enforcement proceedings.