Official Comments
 Article #  

 
10.8
(Suspension in case of force majeure, death or incapacity)

(1) Where the obligee has been prevented by an impediment that is beyond its control and that it could neither avoid nor overcome, from causing a limitation period to cease to run under the preceding Articles, the general limitation period is suspended so as not to expire before one year after the relevant impediment has ceased to exist.
(2) Where the impediment consists of the incapacity or death of the obligee or obligor, suspension ceases when a representative for the incapacitated or deceased party or its estate has been appointed or a successor has inherited the respective party’s position. The additional one-year period under paragraph (1) applies accordingly.


 
Official Comment
 1. Effects of impediments

Most legal systems take into account impediments that prevent the obligee from pursuing its rights in court, as does the UN Limitation Convention (see Articles 15 and 21). It is a basic policy concept that the obligee must have the possibility to pursue its rights before it can be deprived of them as a result of the lapse of time. Practical examples of impediments include war and natural disasters that prevent the obligee from reaching a competent court. Other cases of force majeure may also prevent the pursuance of a right and at least cause the suspension of the limitation period. The impediment must be beyond the obligee’s control. Imprisonment, therefore, would suspend the limitation period only where it could not have been avoided, such as in the case of a prisoner of war, but the imprisonment of a criminal would not. Only the general limitation period is suspended, however. If the maximum period has elapsed before the obligee could pursue this right, the obligee is subject to the defence of the expiration of the maximum limitation period.

Illustration

1. A’s lawyer plans to file a complaint against B, an engineering firm, for alleged professional malpractice by B’s employees. The limitation period will expire on 1 December, and A’s lawyer has completed the complaint on 25 November, intending to file it by express mail or in person with the clerk of the competent court. On 24 November, terrorists attack A’s country with biological weapons of mass destruction, causing all traffic, mail service, and other social services to completely cease, thus preventing the timely filing of A’s complaint. The limitation period ceases to run and will not expire until one year after some means of communication has been restored in A’s country. If, however, the disruption of all means of communication in A’s country lasts ten years, A’s right is barred by the maximum limitation period.

2. Additional period of deliberation

Since impediments beyond the control of the obligee may occur and cease to exist towards the end of the limitation period, it is possible that after the ceasing of the impediment only a very short time or no time at all might be left for the obligee to decide what to do. This Article therefore provides for an additional one-year period of time from the date on which the impediment ceases to exist with a view to enabling the obligee to decide what course of action to take.

3. Incapacity and death

Incapacity and death of the obligee or of the obligor are but special examples of impediments to an effective pursuance of the obligee’s
right. Paragraph (2) provides for the same solution as in the case of general impediments.

Illustration

2. A lends B money which is due to be repaid on 1 January. A does not seek repayment for a long time and dies thirty-five months after the date for repayment. The law of succession applicable to A’s estate requires that an administrator appointed by the court administer the estate and collect outstanding debts. Since the docket of the competent court is overcrowded, it takes two and a half years for an administrator to be appointed. The administrator has one month left of the three-year general limitation period plus an additional one-year period to pursue the deceased party’s claim against B before the limitation period expires.