Statute of limitations (Germany)
Statute of limitations is a legal term used in civil law as well as public law (including tax law ) and criminal law, the nature and content of which is determined by the respective area of law and the legal consequences of which occur regularly after a certain limitation period has expired . In civil law, the expiry of the limitation period (i.e. the occurrence of the limitation period) results in the debtor being granted a right to refuse performance by law ( German Civil Code). The enforcement of this right to refuse performance by the debtor means that the obligee can no longer enforce his claim , although it has not expired. In public law , the statute of limitations also only leads to the granting of a right to refuse performance. Exceptionally, however, the start of the statute of limitations also leads to the expiry of the entitlement (e.g. Sections 228 ff., 232 Tax Code ). The criminal statute of limitations represents a procedural obstacle, that is, the criminal offense can no longer be prosecuted, correspondingly in the case of administrative offenses . A distinction is to be made between the limitation period and the forfeiture that is similar to it .
Statute of limitations
Only substantive claims are subject to the statute of limitations, regardless of whether they are of a contractual or statutory, property or non-property law nature. The statute of limitations is, however, excluded by law for some claims, the most important of which are certain family law claims, claims for correction against public registers (such as the land register ), dispute claims by communities (such as the community of heirs ), registered rights, the right to property , as well as some claims under neighboring law according to BGB .
The statute of limitations of the German Civil Code ( law to modernize the law of obligations (the "law of obligations reform"). The standard statute of limitations was shortened from thirty years to three years; Inhibition and a new beginning (earlier interruption) are newly regulated. The new version has been in effect since January 1, 2002. The transitional provision contains EGBGB .BGB) were changed by the
The regular limitation period is three years (BGB).
Important cases of different deadlines (both from the length of the limitation period and from the beginning of the same):
- Claims for the transfer of ownership of a property and for the establishment, transfer or cancellation of a right to a property or for changes to the content of such a right as well as the claims for consideration expire after ten years. BGB.
- Claims for damages based on willful injury to life, body, health, freedom or sexual self- determination, claims for surrender of property and legally established claims expire after thirty years, BGB.
- Claims for defects in the case of purchase expire in five years for a building , in two years for all other cases (especially for movable objects) ( BGB).
- Claims for defects in the contract for work expire in five years for a building ( Paragraph 1 No. 2 BGB); in the case of work services aimed at manufacturing, maintaining or modifying (e.g. repairing) an item, in two years ( Paragraph 1 No. 1 BGB); otherwise in three years ( Paragraph 1 No. 3 BGB).
- In the case of a travel contract, claims by the traveler expire after two years ( (2) BGB).
- In the case of the rental agreement, claims for compensation by the landlord due to changes or deterioration of the rental property and the tenant due to expenses expire after six months; the period begins for the landlord from the handover of the rented property, for the tenant from the end of the lease ( BGB).
- In the case of commercial transport contracts according to HGB, claims expire after one year ( para. 1 sentence 1 HGB). If there is willful or reckless behavior on the part of the debtor with regard to damage to the goods in transit or damage caused by delay, the limitation period (only) deviating from this is three years ( (1) sentence 2 HGB). These deadlines also apply to the relocation contract, the contract for multimodal transport (multimodal contract, HGB), the forwarding contract and the storage contract .
- The right to re-concede property after the perpetration of prohibited self-power expires one year after the perpetration, unless a lawsuit is filed beforehand. BGB
Start of limitation
Start of the regular limitation period (Section 199 Paragraph 1 BGB)
"The regular limitation period begins, unless another limitation period has been determined, at the end of the year in which the claim arose (Paragraph 1 No. 1 BGB) and the creditor of the circumstances giving rise to the claim and the person of the Knowledge of the debtor or would have to gain knowledge without gross negligence ( (1) No. 2 BGB). "
The start of the regular statute of limitations according to(1) BGB is determined in detail by:
- (1) the time at which the claim arose ( (1) no. 1 BGB);
- (2) Postponement of the start of the period to the end of the corresponding year ("Ultima rule") ( (1) Hs. 1 BGB);
- (3) the time of knowledge or grossly negligent ignorance of the circumstances giving rise to the claim and the person of the debtor ( (1) No. 2 BGB) (so-called “subjective limitation”);
- (4) Reasonability of filing a lawsuit (unwritten requirement).
- (1) Time at which the claim arises ( Paragraph 1 No. 1 BGB)
“A claim has arisen when it can be asserted by way of a lawsuit. This basically presupposes the due date of the claim, since only from this point in time (Paragraph 2 Hs. 1 BGB) the creditor can successfully demand the performance and, if necessary, prevent the expiry of the limitation period by filing a lawsuit ”.
- (2) Postponement of the start of the period to the end of the corresponding year ("Ultimate rule") ( Paragraph 1 Hs. 1 BGB)
According to(1) Hs. 1 BGB, the start of the period under (1) at any time in the year is postponed to the end of the corresponding year. The start of the deadline is therefore postponed to the end of the year in which all other requirements are met for the first time. This has mainly practical reasons and already applied to the statute of limitations according to the old law for claims according to §§ 196, 197 BGB a. F. This limitation period was demanded by the legal profession, among others, during the reform of the law of obligations. The claim is not statute-barred until December 31 of the respective year midnight and barred from January 1 of the following year at midnight. This period is known as the limitation period .
- Example: The wage entitlement of an employee from January 2012 expires on December 31, 2015, a Thursday.
(BGB applies to the expiry of the statute of limitations. If December 31 therefore falls on a Sunday, public holiday or Saturday, “the next working day takes the place of such a day” ( BGB)).
- (3) Time of knowledge or grossly negligent ignorance of the circumstances giving rise to the claim and the person of the debtor ( (1) No. 2 BGB)
When interpreting(1) No. 2 BGB, the case law of the Federal Court of Justice (BGH) on Section 852 BGB a. F. are used. A "required [d. H. sufficient] knowledge of the person of the debtor [is] generally available if the creditor can bring an action promisingly, if not without risk ”.
- In the event of a claim for damages, it is sufficient that the person concerned has knowledge of the damage at least in terms of the reason, of his own damage and of the person liable to pay compensation.
- “ Claims for enrichment become statute-barred after the regular statute of limitations of BGB in three years. The regular limitation period generally begins at the end of the year in which the claim arose and the creditor became aware of the circumstances giving rise to the claim or had to gain knowledge of the circumstances without gross negligence ( (1) BGB). The creditor of an enrichment claim from Paragraph 1 Clause 1 1 BGB is aware of the circumstances giving rise to the claim if he is aware of the performance and the facts from which the lack of the legal reason results (...). For reasons of legal certainty and equity , the start of the limitation period only requires knowledge of the circumstances giving rise to the claim. As a rule, it is not necessary for the creditor to draw the correct legal conclusions from the facts known to him ”.
" Grossly negligent ignorance is present if the creditor lacks knowledge because he has violated the due diligence required in the dealings to an unusually gross extent and has not made very obvious considerations or ignored what should have been obvious to everyone".
- (4) Reasonability of filing a lawsuit (in particular ignorance of the law "in the event of an uncertain and dubious legal situation")
"Ignorance of the law can ... in individual cases in uncertain and dubious legal situations postpone the start of the limitation period (...). In this case, there is a lack of reasonableness of bringing an action as an overarching requirement for the start of the limitation period ”. Unreasonableness can also exist if there is a firm opposing case law of a higher court (e.g. BGH , BAG etc.). This up to the “point in time” at which “a departure from the previous supreme court rulings [is] expected”.
The existence of this exceptional case is an individual question:
- Example: “The knowledge-dependent limitation period of (1) of the German Civil Code BGB) did not begin to run until the end of 2011 for claims for repayment due to processing fees in consumer loan contracts that were ineffective on the form according to German Civil Code. Previously, individual borrowers could not reasonably be expected to bring a claim for repayment. "
"If the start of the limitation period in accordance with(1) of the German Civil Code (BGB) is postponed by way of exception due to the obligee's ignorance of the law in cases of uncertain and dubious legal situations, the limitation period begins with the objective clarification of the legal situation. The knowledge or grossly negligent ignorance of the creditor of this clarification is irrelevant. "
Divergent start of the limitation period
- In the case of claims that are not subject to the regular statute of limitations, the statute of limitations begins, unless otherwise regulated, when the claim arises ( BGB).
- In legally established claims, for example, by judgment, the limitation period to the start legal force of the decision ( BGB).
- In the case of properties, the limitation period for claims for defects under purchase law begins with the handover, otherwise with the delivery of the item, i.e. not with the conclusion of the contract ( (2) BGB).
- In the case of a work contract , the limitation period for claims for defects usually begins with acceptance ( (2) BGB).
- In the case of a travel contract , it begins on the day on which the travel should end according to the contract ( (2) BGB).
- In the case of the rental agreement , the abovementioned short limitation period for claims by the landlord begins when he receives the rented property back, and for those of the tenant with the termination of the rental relationship ( BGB).
- According to the principle of unit damage, special features apply to the start of the limitation period for claims for damages.
- In the case of commercial transport contracts (and other similar contracts), the limitation period for claims begins with the delivery of the goods or the agreed delivery date ( (2) HGB).
Process and end
The course of the limitation period can influence:
The suspension : The period of limitation is suspended for the duration of the suspension, after the reason for suspension no longer applies, the remaining period continues ( BGB).
The statute of limitations starts again according toBGB
- Acknowledgment of the claim, as such, payment on account, payment of interest, among other things
- Applying for or performing a judicial or administrative enforcement act .
Absolute statute of limitations: "In any case", regardless of origin and knowledge, according to claims for damages due to injury to life, body, health or freedom from the commission of the act, breach of duty or other damage-causing event.Para. 2 BGB,
Other claims for damages shall become statute-barred, regardless of knowledge etc., ten years from their occurrence, regardless of occurrence and knowledge etc., thirty years from the event that caused the damage. The period that ends earlier is decisive ( Paragraph 3 BGB).
Claims other than claims for damages shall become statute-barred after ten years from their emergence regardless of knowledge etc. (Paragraph 4 BGB).
Burden of proof
The burden of proof to prove the start of the limitation period is not reversed by the mere passage of time.
Statute of limitations agreements
Agreements on the limitation period (shortening or extending the statutory deadlines) are generally permitted.
In the case of liability due to intent , the statute of limitations cannot be shortened in advance by means of a legal transaction according to (1) BGB . It is also inadmissible to agree a limitation period longer than thirty years ( (2) BGB).
In the case of general terms and conditions, there are prohibitions on shortening certain periods of limitation for sales and work contracts ( No. 8b lit. ff. BGB).
The procurement and contract regulations for construction work Part B (VOB / B) can still be agreed. Thereafter, shorter limitation periods apply ( No. 4 VOB / B).
When purchasing consumer goods, the contractor is permitted to shorten the limitation period for claims for defects by up to one year ( (2) BGB).
Effects of the statute of limitations
The debtor has a (permanent) right to refuse performance , the “defense of limitation” ( ex officio , but must be asserted by the debtor.BGB). Objection means that the statute of limitations is not taken into account
The statute of limitations does not lead to the loss of the claim. It remains in place and represents a legal reason for the service provided, which is therefore not without legal grounds in the sense of the provisions on unjustified enrichment and therefore cannot be reclaimed even if the statute of limitations is not known ((2) BGB).
With a stale claim can be offset , if the so-called set-off is already existed, was not yet time-barred when the claim ( BGB). However, it should always be noted whether the claim may not be offset for other reasons, for example due to a contractual or statutory offsetting ban.
Distinguished from statutes of limitations are time-limits , some of which are found in regulations (example: limitation period for deception or threat, BGB), are often but on contractual agreements, particularly in labor law are of great importance. Such preclusion periods for claims under labor law (but also for other rights, including organizational rights) can often be found in collective agreements and are also referred to there as "expiry periods", for example six months within the public service , regulated in the BAT / TVöD . While the expiry of a limitation period only establishes a right to refuse performance, i.e. only the corresponding objection has to be taken into account, when a limitation period expires, the right itself ends and must be observed ex officio (in the process by the judge).
Exclusion and limitation periods can coincide, for example, in the case of a travel contract, the traveler must assert his claim for lack of travel one month after the end of the trip (exclusion period), the claim itself becomes statute-barred in two years ( BGB).
Inconsistent statute of limitations
The legal institution of the unimaginable statute of limitations , which has not been included in the BGB, but applies in certain national regulations, has a completely different meaning. It has a legal character.
The statute of limitations for prosecution ( StGB ) excludes the punishment of an act according to the duration of the law. There is thus a procedural obstacle. If the proceedings are nevertheless opened, they must be discontinued. The statute of limitations for murder and genocide was discussed in the statute of limitations debate in the German Bundestag in 1965 , extended in 1969 and repealed in 1979. Otherwise, the limitation period is determined by the threat of punishment for the offense . The statute of limitations begins with the end of the crime.
Administrative offenses become statute-barred after six months to three years ( OWiG ) , depending on the amount of the threat of fines . For traffic offenses, an even shorter period of just three months applies instead of one year in accordance with (3) StVG , as long as no fines have been issued or public charges have been filed, after that six months.
The statute of limitations for enforcement ( Criminal Code) occurs when a legally enforceable penalty or measure under (1) No. 8 of the Criminal Code can no longer be enforced due to the passage of time. The preventive detention and life imprisonment no statute of limitations. The other limitation periods are determined by the imposed penalty . The start of the statute of limitations is the legal force of the respective decision or judgment.
A claim from an administrative act is also subject to the statute of limitations. Its limitation period is thirty years after the incontestability ( (2 ) of the Administrative Procedure Act ). If the administrative act grants entitlement to recurring services, the statute of limitations applies according to the German Civil Code. Claims from public law contracts also expire in accordance with civil law regulations.
Claims to social benefits become statute-barred four years after the end of the calendar year in which they arose ( SGB I ). The provisions of the Civil Code according to Apply mutatis mutandis to the suspension, the suspension of the expiry, the restart and the effect of the statute of limitations .
Entitlements to social security contributions expire after four years; however, if these were withheld intentionally, the thirty-year limitation period applies. ( SGB IV )
- Interactive table to determine the commencement of the statute of limitations according to German civil law (with the beginning of the statute of limitations according to Abs. 1 BGB) taking into account possible interim inhibitions due to (possibly multiple) negotiations ( BGB) or legal proceedings ( BGB). - via juratexte.de . Overview of the various limitation periods in Germany
- Helmut Grothe , in: Munich Commentary on the Civil Code, 8th edition 2018, § 214 Rn. 1.
- Helmut Grothe in: Munich Commentary on the Civil Code, 7th edition 2015, § 194 Rn. 2.
- Karl-Heinz Thume: New case law on the statute of limitations in transport law , transpr 2009 233rd
- BAG, judgment of 23 August 2012, Az. 8 AZR 394/11, full text , Rn. 28 = NZA 2013, 227.
- BGH, judgment of December 6, 2007, Az. III ZR 146/07, full text , Rn. 13 = NJW-RR 2008, 459.
- BGH, judgment of 23 September 2008, Az. XI ZR 395/07, full text Rn. 12 = ZIP 2008, 2167.
- For LG Erfurt , judgment of November 10, 2006, Az. 3 O 1072/06 description , juris Rn. 15; for § 852 Abs. 1 BGB a. F .: BGH, judgment of October 31, 2000, Az.VI ZR 198/99, full text = NJW 2001, 885 (886). Paragraph 1 No. 2 BGB:
- BGH, judgment of October 28, 2014, Az. XI ZR 348/13, full text Rn. 35 = NJW 2014, 3713 = JuS 2015, 168 (M. Schwab).
- BGH, judgment of 23 September 2008, Az. XI ZR 262/07, full text , Rn. 16 = ZIP 2008, 2164.
- OLG Frankfurt , judgment of October 22, 2004, Az. 2 U 12/04, full text - on the limitation of savings.