Statute of limitation means that a legal claim is no longer enforceable in court after a certain period of time has elapsed. Dutch law is based on the idea that a claim can only be enforced in court for a certain period of time. The legal claim means the possibility to enforce your claim against a third party by appealing to a judge or an arbitrator.
However, the ability to file an action may be lost due to statute of limitations. Then the right remains, but it is no longer legally enforceable. What legal experts call a “natural obligation” then remains. It can still be fulfilled (voluntarily). In that case, that fulfilment is not unobligatory and therefore does not result in an unduly payment.
The statute of limitations can be prevented by stopping it: so-called interruption. The law also regulates, by what means the statute of limitation can be interrupted. The person who wants to invoke the statute of limitation of a right of action, however, will have to state and prove, that the conditions for statute of limitation are met. The commencement of the statute of limitations is important here, and in a number of situations also the injured party’s knowledge of the damage and the liable party. In principle, a court does not itself test whether a claim is timstatute-barred. This must be explicitly invoked.
The idea behind statute of limitation is to create clarity about the legal relationships (rights) that exist within society and the economy. The legislator wants, that rights to which the entitled party no longer wants to claim, are “cleared up”. As a result, the person against whom a right can be invoked obtains clarity: he no longer has to take into account that the right can still be invoked. Thus, statute of limitation serves legal certainty. Whoever has a right must actively ensure its preservation, is the legislator’s thought.
Also playing a role is the need to preserve evidence. Incidentally, care must be taken when destroying documentary evidence. Also to be considered is the possibility of gathering evidence by, for example, witnesses. As time passes, this becomes more difficult. It is commonly thought that the maximum preservation period is the tax preservation period, which is 7 years. In civil legal relationships, however, the statute of limitations can be much longer, and preserving evidence for a longer period is important. This, of course, also applies when a current statute of limitations has been interrupted.
Long and short limitation periods
The law has various periods of limitation, depending on the nature of the law to which the legal action relates. The various limitation periods can be found in Art. 3:306 through 3:325 of the Civil Code.
It is also possible to deviate from the statutory limitation or expiration periods and agree on a shorter period. Then everyone has certainty faster. However, you must be careful with statute of limitation periods that are too short, especially with consumers. Thus, with respect to consumers you may not shorten the statutory limitation or expiration period to a period of less than one year.
General (catch-all) term
Insofar as no other (shorter) limitation period applies, every legal claim expires after 20 years. The long limitation period is more the exception than the rule: as a rule, the shorter period of five years applies. And for obligations with a shorter term even a shorter period. Especially in transport law, you should take shorter limitation periods into account.
Legal action for fulfillment out of a contract
A very common legal claim is that for fulfillment out of a contract or an obligation out of a contract. The limitation period for such a claim is 5 years following the day on which the claim became due and payable. It must be an obligation to “give” or “do” something.
Thus, if an invoice is sent on April 30, 2022 with a payment period of 14 days, the statute of limitations begins on May 15, 2022 and ends 5 years later.
In the case of an obligation to perform after an indefinite period of time, the statute of limitations does not start until it is claimed. In that case, however, a maximum limitation period of 20 years from the time when the claim could have been enforced applies.
Claim from undue payment
This claim also expires with a period of 5 years, but some peculiarities arise. That is why article 3:309 of the Civil Code provides its own regulation.
Point of commencement of undue payment claim
The key question is when the limitation period starts. This can be divided into two elements. The moment at which the creditor becomes aware of the existence of his claim and also of the person of the recipient. Here, the creditor’s subjective knowledge of the undue payment is decisive. Thus, it is not a question of “having to be presumed to be known,” but of “actually becoming familiar with.”
- Awareness of the claim
It is quite conceivable, that the person who has this claim does not (yet) know that it can be reclaimed. After all, the claim may also arise because a payment turns out to be void, which one did not know before. Or that an agreement on which a payment is based is annulled at a later date. The statute of limitations then commences from the moment the entitled party knows that he can bring a claim for undue payment.
- Knowledge of the debtor
It is also possible that the entitled party knows that he has such a claim, but does not know from whom. In that case, the statute of limitations starts from the moment he or she finds out about it. In any case, the claim expires 20 years after it arises.
Point of commencement of limitation for claims for damages or fines
The point at which the limitation period commences depends on the knowledge of the person entitled to compensation. Here too the limitation period commences at the moment the injured party is aware of both the damage (and thus the right of action) and the person liable for it. Thereby, the starting point may differ for each item of damage. It may be that a certain item of damage has only arisen later, so that the statute of limitation period for that item starts later.
In any case, the claim for damages expires 20 years after the occurrence of the loss. This long period is no longer an issue once the injured party is familiar with the damage as the liable person: then only the short period is important. The starting point of the long period is linked to the actual moment of the event causing the damage, and in this sense is therefore objectively determined.
The rules for interrupting the limitation period can be found in art. 3:316 B.W. to art. 3:319 of the Civil Code
Main rule for interruption: instituting proceedings
Art. 3:316 subsection 1 Civil Code stipulates:
The statute of limitation of a legal action shall be interrupted by filing a claim, as well as by any other act of prosecution on the part of the entitled party, performed in the required form.
This entails, that in order to prevent statute of limitation , in principle proceedings must be initiated within the limitation period.
Interruption by letter
Interruption by letter claims for fulfillment of an obligation
Section 3:317 (1) of the Dutch Civil Code states that for claims for fulfillment of an obligation, interruption by letter is also sufficient. Fulfillment must be clearly reserved. Whether interruption by email is sufficient is not certain. Presumably this will become more and more acceptable, as long as it can be proven. In legal practice, even communication via Whatsapp is increasingly accepted as evidence. This could also be assumed for interruption. The law imposes no form requirement except “in writing.” Now that sending letters is increasingly being replaced by digital communication, it is plausible that digital interruption will also be accepted by the court. After all, what matters primarily is the demonstrability of the interruption and that it has reached the addressee.
Interruption by acknowledgment
Article 3:318 of the Civil Code stipulates that recognition of the claim also interrupts the limitation period. Such recognition may be evidenced, for example, by fulfilling a payment schedule.
Start of new period after interruption
After interruption of a current limitation period – not being the commencement of proceedings – a new limitation period starts.
If a binding opinion has been requested, the new limitation period commences on the day following the day on which the binding opinion was issued.
Duration of the new limitation period after interruption
The new limitation period is equal to the original one, but not longer than five years. (
Under no circumstances will the limitation period start at an earlier point in time than at which the original period would also have expired without interruption. Thus, if interruption is made before the end of the period, this cannot shorten the limitation period.
Extension of the limitation period; grounds for extension
Nevertheless, a ground for extension of the limitation period may occur. When this occurs, the limitation period is extended until six months have elapsed from the disappearance of that ground.
Grounds for extension are regulated by law and refer to special circumstances in which the statute of limitation should not be able to exercise its discharging effect.
Special grounds of limitation
Art. 3:321 paragraph 1 B.W. lists a number of statutory grounds for extension in the following legal relationships:
- between non-divorced spouses;
- between a legal representative and the incapacitated person he represents;
- between an administrator and the entitled person for whom he is administering the dministration, in respect of claims relating to this administration;
- between legal entities and its directors;
- between a beneficiary estate and an heir;
- between the creditor and his debtor who intentionally conceals the existence of the debt or its claimability;
- between registered partners.
According to paragraph 2, extension sub b and c is suspended until after the final settlement of the administration.
Ground for extension of limitation in bankruptcy
Article 36 paragraph 1 Bankruptcy Act stipulates, that a current statute of limitations is suspended during the bankruptcy. Thus, a new period does not start as with statute of limitation, but the current period is suspended until six months after the end of the bankruptcy.
Judge may not apply statute of limitation ex officio
According to art. 3:322 paragraph 1 Dutch Civil Code, the judge may not apply the statute of limitations ex officio. The party wishing to invoke the statute of limitations will have to bring this up and state and prove the facts relevant to the statute of limitation . If no appeal is made to statute of limitation then the court should not make a judgment on this matter on its own.
Waiver of statute of limitation
Waiver of statute of limitation is effected by a statement by the person who can invoke the statute of limitation. This can be done only after the statute of limitation has been completed.
Limitation of legal verdicts
The law provides separate rules for the statute of limitation of judicial and arbitral judgments.
The limitation period of the authority to enforce judgments and arbitral judgments is in principle 20 years. Even if a shorter limitation period applied for the statute of limitation of the underlying claim.
The enforcement, thus also the limitation period of art. 3:324 DCC, only concerns those judgments that contain a condemnation. Judgments of a declaratory nature retain their validity (and thus their res judicata, which may be important for other proceedings).
The statute of limitations commences “after the commencement of the day” following that of the judgment. If for the enforcement of the judgment there are requirements, the fulfillment of which does not depend on the will of the person who has obtained the judgment, then the period begins from the beginning of the day following the day on which these requirements are fulfilled.
The extract of the record of a claim admitted at the meeting of creditors in a bankruptcy (not disputed by the bankrupt) has the same force as a judgment. Thus, its limitation period is also 20 years.
If an appeal is filed, then the statute of limitations does not begin until that appeal is decided. Provided that this legal remedy is filed before the end of the statute of limitations.
Statute of limitations recorded in court settlement report
The limitation period of a judicial settlement recorded in the form of an enforceable title is not the same as a judgment. The grosse of such a record is not a court judgment, but the recording of an agreement between the parties. If an obligation to pay is agreed upon herein, it means that the short statute of limitations of 5 years applies. Therefore, an official report in executory form is not subject to the 20-year statute of limitations as applies to judgments, whereby, incidentally, a 5-year period does apply to interest.
Statute of limitations for shorter-term obligations (such as interest)
For claims that must be paid at shorter notice, the statute of limitations is five years for what must be paid at the year or shorter notice pursuant to the judgment. These are those cases where there are periodic payments stipulated in a judgment, such as rent or lease, or an additional obligation, such as the obligation to pay interest.
By this, the legislator wants to prevent interest and other additional claims for the debtor from rising to unreasonable levels when they are not paid.
Limitation of periodic penalty payments
A penalty payment is time-barred by the expiration of six months from the day it was forfeited.
Interruption of the statute of limitations of a judgment
Under the law, the interruption of the statute of limitations of a judgment must be made by:
- service of the judgment or written summons;
- recognition of the obligation stated in the judgment;
- any act of enforcement, provided that notice thereof is given to the other party within the time prescribed by law or, in the absence of such regulation, with due speed.
The extended limitation period of judgments after interruption is shorter: only 5 years.
Somewhat regulatory law
The regulation on limitation is of regulatory nature. It should be noted, however, that deviation is not always possible. For example, agreeing on a limitation period longer than 20 years was not the legislator’s intention.