Time Influence on Subjective Rights and Prescription

Posted on Sep 18, 2024 in Law & Jurisprudence

ITEM 12: Time – Its Influence on Subjective Rights

1. Time and Counting

Time is the environment where facts occur. It has capital importance in the field of law because it influences the acquisition of rights and the extinction of some of them. The law sets deadlines for both cases, depending on each right or legal relationship established. Thus, the computation of time is central to the figure of usurpation (such as adverse possession) and debt unclaimed for 15 years (the prescription of the right to collect them).

Finally, time is also important when resolving collisions between rights. In a clash of rights, the one earlier in time will always have better rights. This also applies to transitional law and the application of retroactivity in its three degrees.

Computation of Time

Time can be computed in two ways:

  1. A specific date in the calendar.
  2. A set period of time (three months, three years, etc.).

There are two ways of calculating deadlines:

  1. Natural Computation: From moment to moment (e.g., from 11:00 am on April 15th to 11:00 am on May 15th).
  2. Civil Computation: We count the days until 12:00 am. The general rule in Civil Law is that the opening day is not counted, and the final day must be fully complied with (Art. 1960). However, there is an exception in Art. 1130 of the Civil Code, which allows computation from the first day. (If the term of the bond is indicated by days from a given date, it will be excluded from the calculation, which should begin on the next day.)

The calculation of time is addressed in Art. 5 of the Civil Code:

1. Whenever not otherwise specified, when a period of time is expressed in days, counted from a given day, the day from which the count is to begin shall be excluded from the computation, which shall begin on the following day. If the period is expressed in months or years, it shall be computed from date to date. If in the month of maturity there is no corresponding day, it shall be understood that the period expires at the end of the month.
2. In computing a period, holidays shall not be excluded from the calendar.

Calculation of Age in the Civil Code

Art. 315 states: Majority commences at eighteen years of age. In computing age, the day of birth is fully included.

2. Prescription in General

(Arts. 1930 to end)

In Spain, we do not differentiate between types of limitations; we have a monistic system. However, other countries operate with a dual system of limitations. There are two types:

  1. Adverse Possession: Acquiring a real right by possessing it for a set time. After this period, the possessor acquires ownership. This is also called usurpation.
  2. Statute of Limitations: A way of losing a right of any kind when a certain period of inactivity of the right occurs.

Both models have in common fixed time periods, but their function is different. In adverse possession, the goal is to acquire the asset, whereas in the statute of limitations, the passage of time leads to the loss of a right.

3. Extinctive Prescription: Concept

Extinctive prescription is the loss of a right or legal authority due to its inactivity over a period of time without being exercised.

Essence of Extinctive Prescription

The essence of this figure is that it is a strong limit on faculties. One cannot exercise their right after the deadline; outside the timeframe, inactivity causes extinction.

Effect of Extinctive Prescription

The statute of limitations has an automatic effect once the established deadline is reached. However, to be effective, it must be alleged by a party; the judge does not apply it officially. If the creditor does not claim within this period, they lose the opportunity to exercise their action, that is, their right. This requirement that the right cannot be claimed automatically is one of the biggest differences between this legal figure and expiration (which can be claimed on the initiative of the judge).

In the event that a debtor has a guarantor, and after the statute of limitations has run, the debtor still wants to continue paying the debt but has no money or way to do it, the guarantor is not obligated to pay for them. Since the action has legally prescribed, wanting to pay would be an act of good faith not obligatory to any other party. Thus, a waiver of the requirement by the debtor does not affect the guarantor.

Prescription Benefits and Theories

Theories regarding the statute of limitations:

  1. Subjective Theory: Considers that the foundation of prescription is a presumption of waiver by the owner.
  2. Strict Theory: Considers the operational requirements regardless of the will of the right holder. It has nothing to do with whether or not the right holder knows about the statute of limitations because it applies equally. It relates to Art. 6 of the Civil Code, which states that ignorance of the law does not excuse from compliance. This theory bases its content on utility and social need, all to achieve stability and certainty in property law and legal certainty.

Regarding the debate on whether the statute of limitations is good or bad, the doctrine considers it positive. Although the law must always be exercised in good faith, timelessness does not guarantee legal certainty. Therefore, the legislature sets time limits, which are generous, for individuals to take action and not lose their rights. Outside of that time, their action has prescribed and may not be exercised.

Scope of Prescription

The scope of prescription includes rights and actions. As a general rule, all rights of a real nature (Art. 1930), such as property, are subject to prescription. On the other hand, inalienable personality rights, marital status, and family rights are not subject to prescription. In terms of marital status, there is a special rule for the prescription of Spanish nationality.

Starting Point of Prescription

The general rule is established in Art. 1960:

In computing the time necessary for prescription, the following rules shall be observed:
1. The present possessor may complete the period necessary for prescription by adding to his own possession that of his predecessor.
2. It shall be presumed that the present possessor who proves that he was in possession at a previous time, has continued to be in possession during the intervening time, unless the contrary is proved.
3. The day on which the time begins to run shall be counted, but the last day shall be fully completed.

Exceptions to this rule are contained in Arts. 1967, 1968, 1970, 1971, and 1972.

Interruption of Prescription

In prescription, interruption does not mean a stay or suspension of the action (as in expiration). If the prescription is interrupted (through established legal means), the counter starts from zero, and a new time period begins. This is established in Art. 1973 of the Civil Code, which states that prescription may be interrupted in three ways:

  1. The exercise of the right before the courts.
  2. An extrajudicial claim by the creditor (in writing before a notary or by burofax).
  3. Any act of acknowledgment of the debt by the debtor (before a notary, witnesses, etc.).

Legal Terms of Limitation

1. Real Actions

Real actions, such as actions for the recovery of property, have special deadlines. The limitation period for movable property is six years (Art. 1962 of the Civil Code), and for immovable property, it is 30 years (Art. 1963 of the Civil Code). There is a real action that has a special term: the action for foreclosure (20 years, according to Art. 1964 of the Civil Code).

2. Personal Actions

The general rule is covered in Art. 1964 of the Civil Code, which establishes a 15-year limitation period for these actions. For example, actions for credit that have no specific prescribed period have a limitation period of 15 years, unless the legislature sets a specific deadline.

Rules Relating to the Statute of Limitations

There are three main rules:

  1. Art. 1966: 5 years (five-year limitation period), for example, to satisfy the price of rent, whether of rustic or urban property, or to claim unpaid alimony.
  2. Art. 1967: 3 years (three-year limitation period), for example, the maximum term that a lawyer has to charge their clients.
  3. Art. 1968: 1 year (these actions include, for example, actions to recover or retain possession or to challenge a judicial decision).

4. Expiration

Conceptually, there is little difference between limitation and expiration, but a difference does exist in law. The fundamental difference between the two figures is that expiration applies to situations involving public order and the interest of the state. Therefore, it differs from limitation in two ways:

  1. It can be applied automatically.
  2. The deadlines are not interrupted but suspended. So, when an action is initiated, the deadline does not start from scratch but is suspended until the action ends.