Even though the New Civil Code does not deliberately offer a definition for the extinctive prescription, by analyzing the provisions from the article 2500 paragraph (1), can be said that the extinctive prescription represents a civil law penalty which consists in extinguishing the material right to action unexercised within the term imposed by the law.

Regarding the material right to action, it represents the right to force an individual or legal entity to execute a particular benefit, to respect a certain situation, to offer, to do or not to do a certain thing, helped by the state’s coercive force. In other words, the material right to action is the prerogative of the holder of a subjective right to introduce a demand for calling to trial against one or more individual or legal entities.

Therefore, in the conditions in which the holder of the subjective civil right did not file the trial request in the extinctive prescription timing given by the law, the obliged party can refuse executing his obligation and the subjective right holder’s action might be rejected as prescribed. “Might”, because unlike the old implementation, (Decree no 167/1958), where the extinctive prescription was a public order legal institution, the New Civil Code gives it a private character sequence, which assumes the fact that the competent jurisdiction authority (the judge) does not have the right anymore to invoke the exception of the extinctive prescription automatically, as this right belongs only to the person interested (the person in whose benefit the prescription is used having the possibility to benefit from it or not). More than that, article 2512 paragraph (3), stipulates deliberately that the prescription cannot be deliberately invoked by the judge, but only by the person interested, not even in those situations in which this would be in the benefit of the state or the administrative units.

Also, regarding the private order character of the extinctive prescription, the new settlement, allows the people who have full decision capacity (over 18 years old), to modify, through concluded agreement, the length of the limitation periods, or the progress of the prescription, by fixing its starting period, or by modifying the legal causes for suspension or interruption. This thing could not have been possible in the old regulation, because in the first article, last paragraph, from the Decree No 167/1958, stipulated that “any clause which does not follow the legal regulation of the prescription is invalid”. For example, totally invalid, would have been declared the clauses inserted in a contract signed before entering in effect of the New Civil Code, through which might be stipulated another prescription term than the one established by the law, or other causes of interruption or suspension of the prescription progress than the ones established by the law, through which the moment when the progress of the prescription might follow other rules than the ones established by the legal regulations, can be determined.

Regarding the modification of the prescription terms through the concluded agreement of the parties, the law stipulates that the terms can be reduced or increased but there are certain limits: when the legal extinctive prescription terms shorter than 10 years, their new term, established by the parties cannot be lower than 1 year, nor over 10 years, and when the prescription terms are over 10 years, their new length can be established till 20 years.

Regarding the suspension or interruption causes, it is needed to be clarified that the parties can only modify and not suppress what the Civil Law allows. Also, if the parties establish another rule regarding the beginning of the extinctive prescription, it is necessary not to conclude that the right to these actions can be exerted anytime, because, in this case the respective clause will be declared absolutely null.

But there are exceptions when the parties do not have the possibility to modify the extinctive prescription terms or its progress: it’s the case when the parties cannot dispose of the right to act, in case of actions resulting from adhesion contracts, insurance contracts, and also the contracts subjected to the legislation regarding consumer protection.

Another new and important aspect of the institution of the extinctive prescription is the possibility to quit the prescription itself. Therefore the law allows to the part in whose benefit the prescription progressed or progresses, to renounce at the benefit offered by the time elapse caused by the unfulfilled prescription after initially been started, or, by case, to renounce at the prescription which had already been fulfilled, renouncement which can be express or silent, the latter needing to be undoubted and unequivocal. The effects are various as it can be distinguished between the renouncing at the already fulfilled prescription, in this case a new and identical prescription starts its progress, and the renouncing at the benefit of the elapsed time for the prescription which remained in progress but not fulfilled, case in which the rules regarding the interruption of the prescription by recognizing the right, are applicable.

It is important to keep in mind that the renouncing has effects only regarding the one who filed it, and it cannot be invoked against the united co-debtors, or against an indivisible obligation. The latter, can invoke the extinctive prescription even if one of the debtors had neglected doing it or gave it up.

 

The Terms of Extinctive Prescription

 

1.  1. The general term of the extinctive prescription for 3 years, which is applicable in

     all cases in which the law does not state another specific term.

1.  2. Special terms:

The prescription for 10 years term (art. 2518 NCC): are prescribed in 10 years:

–          The real rights which are not stated by the law, indefeasible, or not having other prescription terms;

–          Repairing the moral or material damage caused to a person through torture, barbaric acts, violence, or sexual aggressions against an underage, or against someone who does not have the possibility for defense or for expressing own will;

–          Repairing the damage caused to the environment

The 2 year prescription term (art 2519 NCC): are prescribed in 2 years:

–          Law based on a report of insurance or reinsurance;

–          Paying remuneration payable for the intermediaries for the intermediation services

The 1 year prescription term (art 2520 NCC): is prescribed for 1 year the right to action for:

–          Public teachers and hoteliers for the services they provide;

–          Teachers, school masters, artists and maestros, for the lessons given by the hour, by day or by month;

–          Doctors, midwives, nurses, and pharmacists for their visits, surgeries or medicines;

–          Retailers for the payment of the sold merchandise;

–          To craftsmen and artisans for their work remuneration;

–          To lawyers against clients, for fee and expense payment, in case of finalizing the work or mandate revocation. In case of  unfinished business, the prescription term is of 3 years, from the date of the last performing;

–          To public notaries and bailiffs for receiving the amounts they need for the service provided according to their function;

–          To engineers, architects, geodesists, accountants and other freelancers for the payments of the amounts which are their due.

 

Other cases (art 2521 NCC):

 

–  Repayment of the amounts received from the ticket sale for a spectacle which never took place;

–  The action caused by a goods carriage contract against the carrier, only if the law does not expressly provide otherwise. If the carriage contract involves a successive or combined execution, then the prescription period of time is of 3 years.

 

Non-prescriptibility occurs when(art 2502 NCC):

 

–          Where the action for defending a patrimonial right is necessary, unless the law provides otherwise;

–          In case of an ascertaining action regarding the existence or non-existence of a right;

–          In case of finding absolute nullity in a legal document;

–          In case of finding absolute nullity in an heir certificate if its subject represents either establishing the estate, either the inheritance division under the condition of accepting the heritage within the period provided by the law.

 

 

 

 

 

 

~Article published by Lavinia Catalina Boştină~

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