1. Scope of prescription

The differences between the civil law or continental legal systems and the systems of common law origin and in respect of the regulation of prescription start with their very name and the nature that is attributed to the institution; such differences are represented in the Caribbean region.

In the OHADAC environment, the systems of the continental or civil law or continental tradition, especially the tributaries of French law, collectively approach the treatment of “acquisitive or positive” prescription, and “extinctive, negative or discharging” prescription”.

The Anglo-American legal systems vary each one with distinct expressions of the impact that time has in the legal relationships. The expression “prescription” is reserved, in general, for the phenomenon of consolidation of ownership or other in rem rights through the passage of time (Prescription Act, Chapter 158, of Bahamas; Prescription Act, Chapter 192, of Belize; Limitation and Prescription Act, Chapter 252, of Barbados; Prescription Act, Chapter 7:02, of Dominica; Prescription Act of 1973 of Jamaica). To indicate the defensive or inhibitory effect of prescription, which permits a subject to adopt a negative attitude towards a claim, based on the mere passage of time, the terms limitation actions or limitation periods are commonly used. In these systems its regulation, from a more procedural perspective, remains on the fringes of substantive private law regulations [Limitation Act 2000, Chapter L60, of Anguilla; Limitation Act 1997 of Antigua and Barbuda; Limitation Act 1995, Chapter 83, of Bahamas; Limitation of Actions Act, Chapter 173, of Grenada; Limitation Act, Chapter 7:02, of Guyana; Article 2.047 Saint Lucian Civil Code, Revised laws of Saint Lucia, 2006, Chap 4.01; The limitation of Actions Act, particle IV (Debt and Contract) of Jamaica; Limitation Act, Chapter 2.12, of Montserrat; Limitation Act, Chapter 90, of Saint Vincent and Grenadines; Limitation of Certain Actions Act, Chapter 7:09, of Trinidad and Tobago; and Limitation of Actions Act, of Jamaica].

In these Principles the term “prescription” (without qualifiers) indicates the effect that the prolonged inactivity over time has in the exercise of the rights and actions derived for each party from the conclusion of the contract. Its regulation in the Principles, as a private regulation, aims to guarantee the promptness and security of legal transactions. The coexistence in the international sphere of a multitude of systems with different regulation alternatives and options that affect the thematic nuclei of the prescription (object, objective or subjective framework in the calculation of the time limits, interruption versus suspension, default of time periods, extinctive or merely defensive effect, scope of the private party autonomy, effectiveness in relation to the guarantees that protect rights...) constitutes a serious constraint on and obstacle to international commerce, making necessary a convergence between systems, fundamentally between the civil law or continental model and the Anglo-American model, through the proposal of uniform provisions which can essentially be shared by all the legal families that make up the OHADAC territory.

This convergence between the systems is affected by the debate about the procedural or substantive nature of prescription and the imperative or dispositive character of its regulatory standards. The clear tendency in international contracts is towards a substantive qualification, as a “contractual” matter, as deduced from Article 12 of Regulation (EC) 593/2008, of the European Parliament and of the Council, of 17 June 2008, on the Law Applicable to Contractual Obligations (Rome I).

2. The object of prescription in the national systems of the OHADAC

The rules on prescription raise an initial doubt regarding its object: if they are claims (créance, in French, rechtsvordering, in Dutch) or rights (droits in French, rechts, in Dutch). If the centre of gravity is located in the rights, prescription provokes its extinction; if the focus is on the authority to exercise them, prescription only permits the adoption of a negative attitude towards the untimely claim by the holder, i.e. the obligor continues to be obliged although the law suits have been undermined by the claim for the loan. In accordance with the first of the perspectives, prescription affects the same right by provoking its extinction, and in addition, the automatic mechanism or extinction ipso iure of the same right is defended. On the contrary, to maintain that what it prescribes is not the right but the claim which acts as a cover for enforcing it in law means that, once the prescription is verified, the subjective right will continue to exist, although deprived of any possibility find protection before the courts.

In common law the very expression limitation actions, which focuses on the procedural nature of the institution, emphasises the general position in the Anglo-American legal system, in which it is recognised that prescription is aimed not at the subjective right, but the claim, understood as the right to claim from whoever is responsible for the observance or satisfaction of the subjective right through determined active or passive conduct [English Limitation Act 1980 and paragraph 2.93 of the Report of the English Law Commission, presented to the Parliament in 2001 (The Law Commission - Law Com, num 270-, Limitation of Actions. Item 2 of the Seventh Programme of Law Reform-]. This focus involves the continued existence of the subjective right after the consummation of the prescription, although the beneficiary through this can refuse to perform the service or object in a different way to the exercise of the right (thus, also § 194.1 and § 214.1 German Civil Code [BGB]). However, in the United Kingdom, the Prescription and Limitation Act 1973 of Scotland differs from this conception.

The tributary territories of Dutch law have a regulation resulting from Article 3:306 Dutch Civil Code, which relates the prescription to the exercise of the rights through claims (Article 3:306 Suriname Civil Code).

The solution is different in some Spanish-speaking legal systems and in OHADAC territories that are tributaries or directly under the influence of French law. These express prescription as a method of extinction of claims or rights (Articles 1.625 and 2.512 Colombian Civil Code; Articles 633, 865, 866 and 868 Costa Rican Civil Code; Article 112 Cuban Civil Code; Article 2.219 French and Dominican Civil Code; Article 1.501 Guatemalan Civil Code; Article 2.263 Honduran Civil Code; Article 1.684 Honduran Commercial Code; Article 1.698 Panamanian Civil Code, Article 1.830 Puerto Rican Civil Code, Article 1.069 Saint Lucian Civil Code) or a mechanism for being discharged from the performance of obligations (Article 1.135 Mexican Civil Code, Articles 868 and 869 Nicaraguan Civil Code, Article 1.952 Venezuelan Civil Code and Article 2.047 Saint Lucian Civil Code).

3. Prescription in international texts of harmonisation of contract law

The suitability of establishing a regulation of prescription invariably appears in all international texts of unification of contract law as a mechanism for resolving the conflicts that arouse the divergences between the legal systems in international commercial transactions as regards the conceptual basis, time periods and effects of the prescription.

In these texts prescription is presented as a figure that does not automatically produce an extinctive effect, but which permits the beneficiary to utilise it as a means of defence against the claim or the procedural exercise of the claim on the part of the obligee. This is the case of United Nations Commission on International Trade Law (UNCITRAL) Conference on Prescription (Limitation) in the International Sale of Goods of 1974 (hereinafter Convention on Prescription), which establishes uniform rules on the period in which the parties in a contract of the sale of international goods of commodities can assert a claim resulting from the contract, in connection with its non-performance, revocation or validity. It must be taken into account, however, that the Convention, whose entry into force occurred on 1 August 1988, has a limited validity in the geographical sphere of OHADAC, given that it has been ratified by few states (Cuba, United States., Mexico and Dominican Republic), which introduces elements for incorporating a specific treatment of the matter into the OHADAC Principles.

Prescription is the object of specific attention in Chapter 10 of the UNIDROIT Principles, in Part III of the PECL and in Chapter 7 of Book III of the DCFR which, with slight variations, includes the provisions of the PECL. All of these texts openly opt for what one might call the defensive conception of prescription. It is the criterion of the UNIDROIT Principles which configure prescription as a limit to the exercise of rights (Article 10.1) and expressly affirm that the expiry of the limitation period does not extinguish the right (Article 10.9); the PECL (Articles 14:101 and 14:501) and the DCFR (Article III-7:101). Terminologically, the PECL alludes to “claims subject to limitation”, while the DCFR uses as a general heading “rights subject to limitation”.

This same conception is derived from the Proposal for Regulation of the European Parliament and of the Council on a Common European Sales Law (2011) by providing, as an effect of prescription, that “the debtor is entitled to refuse performance of the obligation in question and the creditor loses all remedies for non-performance except withholding performance” (Article 185 CESL).

4. The scope of prescription proposed in the OHADAC Principles

Once the different conceptual perspectives of prescription are analysed, without doubt, the most striking aspect of the debate is not what it is about, but the consequences that are derived from it. And it is certain that, sometimes, the effects that are derived from each one of the conceptions maintained (waiver of prescription gained, admissibility or not of the repetition of the spontaneously satisfied prescribed debt, enforceability of the loan prescribed through set-off, ex oficio assessment or not of the prescription...) do not always maintain the required consistency.

On the one hand, if prescription is conceived as a phenomenon which provokes the extinction of rights, it is difficult to justify certain provisions such as the necessity of its assertion, the possibility of waiving the consummated prescription and subsequent re-establishment or reappearance of the prescribed right or the non-repeatability of the sum paid after the consummation of the prescription.

On the other hand, if prescription is configured as a merely defensive instrument, which can only be assessed at the instance of a party, it cannot very easily prohibit the alteration through an agreement on the limitation periods or apply the principle of being an accessory, so that if the prescription of the principal claim is claimed, its effect is spread to the claims due to accessory services.

The proposed provision, faithful to the minimum requirements of these Principles, responds to what can be considered the basis or common nucleus of the institution in the countries that make up OHADAC: prescription is directed at the specific powers resulting from the conclusion of the contract, which each of the parties can exercise in relation to one another. The rule relates prescription to the exercise of the rights and claims derived by the parties from the conclusion of the contract, including, not only the principal rights which, in accordance with these Principles, are incumbent on the parties to the contract (claim for performance, exercise of any of the remedies resulting from non-performance, assertion of the invalidity of the contract), but also in relation to those that arise from the contractual agreement for each one of them, such as, e.g. the compliance with a penalty clause.

Example: In a contract for the provision of consultancy services between consultant A and company B, dedicated to the manufacture of IT products, a confidentiality clause is included through which A undertakes not to disclose any information on the production process of the company B, stipulating for the case of non-performance, in addition to the corresponding compensation for damages, the payment of one million euros. Both the action for damages as well as the action for the claim for the penalty will be subjected to the limitation period.

1. The limitation period and free will in the national systems of OHADAC

There are three key elements of the configuration of prescription in any system, namely: the duration of the limitation periods; the time from when they begin to run; and the room for manoeuvre that is given to free will for modifying them.

In a good part of the Spanish-speaking national systems that make up OHADAC or in those with a civil law or continental influence a plurality of limitation periods proliferate, although there is a general period, which has as its starting point an objective criterion, the rule of the actio nata, namely, the time when the right or claim can be exercised or is enforceable. In general, in these systems, the alteration of the framework through the will of the parties is not permitted.

The duration of the generally established periods is indeed different: 3 years (Article 1.151 Nicaraguan Commercial Code); 4 years (984 Costa Rican Commercial Code); 5 years (Article 2.536 Colombian Civil Code; Article 868 Costa Rican Civil Code; Article 114 Cuban Civil Code; Article 943 Cuban Commercial Code; Article 1.502 Guatemalan Civil Code; Article 1.708 Honduran Commercial Code; Article 1.650 Panamanian Commercial Code); 10 years (Article 2.292 Honduran Civil Code; Article 1.159 Mexican Civil Code; Article 1.047 Mexican Commercial Code; Article 1.977 Venezuelan Civil Code; Article 132 Venezuelan Commercial Code); and finally, 15 years (Article 1.864 Puerto Rican Civil Code). In some cases, the period in civil contractual matters is greater than in commercial matters. This is the case of the 7 years established in Article 1.701 Panamanian Civil Code (compared to the 5 years provided in its Commercial Code); or 10 years provided in Article 2.292 Honduran Civil Code compared to the 5 years of its Commercial Code.

The start of the calculation, in general in these systems, tends to be established starting from the time when the claim could be exercised (Article 2.535 Colombian Civil Code; Article 874 Costa Rican Civil Code; Article 969 Costa Rican Commercial Code; Article 2.297 Honduran Civil Code; Article 1.685 Honduran Commercial Code; Article 1.159 Mexican Civil Code; Article 1.040 Mexican Commercial Code; Article 1.650 Panamanian Commercial Code) or, concerning a claim exercised in a proceeding, from the time when the court judgment becomes final (Article 873 Costa Rican Civil Code; Article 986 Costa Rican Commercial Code Article 120.1 and 2 Cuban Civil Code; Article 2.299 Honduran Civil Code; Article 1.871 Puerto Rican Civil Code). In certain cases, for certain actions for invalidity or non-contractual damage, the start of the calculation is made to depend on the knowledge of the cause of invalidity or the damage (Article 120.3 and 4 Cuban Civil Code).

In the majority of these Spanish-speaking national systems no rule, either prohibitive or permissive, is expressly formulated on the scope of free will with regard to prescription, and consequently it tends to be understood that the validity of agreements is subject to general contractual clauses (good faith, public policy), which creates a distinction between contractual clauses which provide for an extension of the time periods and contractual clauses that restrict the legal duration. As regards the former, the principle of irrevocability of future prescription applicable in some systems leads them to consider agreements of imprescriptibility or the prolongation agreements, whose disproportionate prolongation in practice represents an authentic imprescriptibility, as contrary to public policy and, ultimately, prohibited. On the other hand, the agreements to curtail or reduce time periods are considered to be valid, provided that they meet the requirements of good faith and the right balance of the performance, so that they do not involve deprivation of the possibility to act for the plaintiff of the claim or holder of the right. However, no national system expressly enshrines the prohibition of amendment of the time periods through an agreement between the parties. This is the case of Article 119 of the Cuban Civil Code and Articles 1.158 and 1.686 Honduran Commercial Code.

In the territories under the influence of French law extended deadlines tend to be provided, similar to the Code before its reform operated by Loi no. 2008-561, du 17 juin 2008, portant réforme de la prescription en matière civile. This is the case of the 20 years established by Article 2.262 Dominican Civil Code and Article 2.030 Haitian Civil Code. However, the new regulation of the French Civil Code, operated by Law 2008-561, of 17 June, introduces significant innovations in the regulations governing prescription. In the foreground, it sensibly reduces both the duration as well as the number of prescriptions and the multiplicity of periods. Secondly, as regards the calculation, it adopts a subjective starting point: the day when the holder of the right has known or ought to have known the facts that permit it to exercise it (vid. Article 2.224 French Civil Code, for actions concerning persons and moveable properties, and Article 2.227 French Civil Code, for ad personam or in rem claims), with some exceptions (Articles 2.225, 2.226 and 2.232 French Civil Code). In any case, Article 2.232 French Civil Code aims to delimit the maximum duration by indicating that neither the subjective criterion stipulated as a starting point nor the suspension or the interruption of prescription, can lead, apart from a few exceptions, to the limitation period exceeding the twenty years from the time when the right arises. Finally, a broad sphere of action is granted to free will (Article 2.254 French Civil Code).

In the sphere of common law, commercial transactions tend to be accompanied by brief limitation periods. This is the characteristic situation of the OHADAC territories that are tributaries or directly subject to the influence of English law, whose special legislations in relation to limitation actions provide for periods between 4 and 6 years from the time when the right could be exercised (Articles 3.4 and 7 Limitation Act 1997 of Antigua and Barbuda; section 3.1 Limitation of Certain Actions Act of Trinidad and Tobago; section 7 Limitation Act of Bermuda : section 4 Limitation Act of Montserrat) or the court decision is final (Article 2.10.a Limitation Act 1997 of Antigua and Barbuda; section. 3.2 Limitation of Certain Actions Act of Trinidad and Tobago; section 26 Limitation Act of Bermuda ). Hence, the criterion enshrined in the Limitation Act of England of 1980 is followed, which establishes a period of 6 years from the date when “the cause of action accrued” for cases of non-performance or damage. It is the prevailing general rule in common law which, however, for certain claims, opts for the subjective criterion. The English Limitation Act requires knowledge or the possibility to know the dates when this concerns actions in respect of personal injuries (section 11), actions related to defective products (section 11 A) or the actions under fatal accidents legislation (section 12) or in the cases of fraud, concealment or mistake (section 32). In the same sense, section 12 Limitation Act of Bermuda : section 5 Limitation of Certain Actions Act, Chapter 7:09, of Trinidad and Tobago; section 11 Limitation Act of Guyana; section 36 Limitation Act of Bahamas; section 29 Limitation Act 1984 of Bermuda; section 21 Limitation Act, Chapter 2.12, of Montserrat.

The English Law Commission (paragraph 3.5 of Report no.270- Limitation of actions) proposes to generalise the establishment of the “the date of knowledge” (subjective criterion) as a starting point of prescription, underlining, also, the dates that the plaintiff must know, although the limitation period will not be able to be extended beyond 10 years from the time when the claim arises (except in relation to personal injuries claims). In any case, the Law Commission opts for the admissibility of amendment of the framework of limitation by an agreement (paragraph 3.175), although subject to certain limits, not so as to include the minimum and maximum duration of the periods, but derived from the rules on consumer protection.

In the United States the time periods resulting from non-performance of the contract differ from one state to another, fluctuating between periods of 3 to 15 years. In the majority of the States, there tends to be a distinction between a shorter limitation period for verbal contracts and a longer period for written ones. Generally, the calculation of the limitation periods is based on an objective factor: once the facts giving rise to the exercise of the claim occur, without addressing the matter whether they are or are not known. However, what is known is the evolution of the North American system to subjective criteria, through the case law doctrine of “delayed discovery doctrine” or “discovery rule” which entails that the claim is not considered to have arisen until the plaintiff discovers or ought to have discovered certain facts that permit it to lodge the claim. This is the criterion of Section 2-725 of the UCC, in connection with the claim of non-performance of any contract for sale, whose period is established as 4 years, although it grants the parties the possibility to reduce this to no less than 1 year, although its extension through an agreement is prevented. The admissibility of the contractual amendment of the periods in commercial transactions is the object of favourable court judgments in some States, as is the case of the pronouncements of the Supreme Court of Massachusetts in the case Creative Playthings Franchising Corp v Reiser (SJC-11026, Mass. November 21, 2012), in which it is considered that contractual agreements related to the curtailment of the limitation periods are not contrary to public policy provided that they are “reasonable”.

The tributary territories of Dutch law also have a regulation derived from the Dutch Civil Code, which has reduced the maximum period of thirty years to twenty (Article 3:306 Dutch and Suriname Civil Code) and generalised the period of five years (Articles 3:308, 3:309, 3:310 and 3:311), in particular for the obligations resulting from non-performance of the contract (Article 3:307), unless the right is derived from a court judgment or arbitral decision, in which case the period is increased to 20 years from the day following the date of the signing of the decision (Article 3:324). The criterion of actio nata is generally adopted, namely, the time when right or claim is enforceable (Articles 3:307, 3:308, 3:313, 3:314 and 3:315), although the calculation of the period is excepted from this rule for the claim for compensation for damages which depends on a subjective criterion (Article 3:310: 5 years from when it has knowledge both of the damage and of the identity of the liable person), although in any case it is limited by a preclusive period of 20 years from the day when the event causing the damage occurred.

2. Limitation periods and free will in the international texts

In the international texts of unification of contract law there is an appreciable clear tendency towards the simplification and reduction of the periods. In this way it is sought to clarify the regulations governing prescription by unifying periods and reducing their duration. In general, relatively brief general or ordinary limitation periods are established: 3 years (Article 10.2 UP; Article 14:201 PECL; Article III-7:201 DCFR) or 4 years (Article 8 UNCITRAL Convention on Prescription). However, in the PECL and in the DCFR, the period is extended to 10 years if this concerns claims established judicially or through arbitration (Article 14:202 PELC; Article III-7:202 DCFR).

As regards the dies a quo for the calculation of the period, with a marked objective taint, in the international sphere, the UNCITRAL Convention (Articles 9 to 12), generally establishes the start of the limitation period on the date when the claim can be exercised, although they can also be subjective periods (e.g. date when there was fraud or this may reasonably have been discovered). In any case, Article 23 of the Convention establishes a general limit: the limitation period in any case will expire at the latest after the passage of ten years from the date of its commencement. However, the most current tendency in the international texts involves the combination of a relative, brief and subjective period (based on the plaintiff's or affected holder's knowledge of certain information that makes up the claim) with an absolute period, longer and absent in objective parameters, called preclusive period, whose objective is to prevent the prescription from being excessively prolonged for the purpose of the subjective calculation of the periods or the overlapping of causes of interruption or suspension (Article 10.2 UP; Article 14:301 PECL; Article III-7:301 DCFR Article 180 CESL).

If the time periods and the calculation are established, the scope reserved for free will differs from one text to another. The UNCITRAL Convention on Prescription expressly enshrines the prohibition of amendment of conventions on the rules governing prescription (Article 22.1). This is a provision to be taken into account in connection with the provisions in paragraph III of the Preamble of these Principles, since it affects the validity of subjecting the parties to the regulations governing prescription established in these Principles if they concern international sales and purchases of goods and the courts or the legislation of the Caribbean States party are affected: Cuba, United States, Mexico and Dominican Republic. Subjecting the parties to the Principles, however, must be understood as an express exclusion by the parties of the application of the Convention, in accordance with its article 3.2º.

On the contrary, the most recent international texts show an option clearly favourable to the moderate admissibility of the agreements on prescription appears, although with a different scope (Article 10.3 UP; Article 14:601 PECL; Article III-7:601 DCFR; Article 186 CESL).

3. Time periods, calculation and free will in the OHADAC Principles

The proposed regulation in the OHADAC Principles on international commercial contracts responds to the need to discover a meeting point between systems which guarantees the greatest degree of promptness of international commercial transactions, which requires a reduction of the limitation periods provided in some systems and a greater degree of security for international operators.

It has been considered improper to follow the line marked in some national laws which establish excessively long limitation periods; this legal possibility is the source of insecurity in international commercial transactions, and in addition, clashes head-on with the legal culture of the tributary countries of common law.

Some greater degrees of legal security are obtained through the combined set of two periods (a general period and maximum period) which permit, in view of the different calculation criteria provided, a balance of the interests of parties in conflict. The start of the calculation of the general or voluntary period from the time of having knowledge or the possibility to know certain elements (criterion of the possibility of knowledge by using reasonable diligence) guarantees the position of one of the contracting parties but presents a greater degree of insecurity for whoever pleads the prescription and obliges it to provide proof of the event which constitutes its starting point, given the difficulties that can be offered by the determination of the dies a quo and proof of the knowledge of certain circumstances by the other party. However, the balance is obtained with the provision of a longer period whose calculation is made leaving aside knowledge or not of the existence of the claim by its holder or of its personal situation. The objective of this maximum period consists in avoiding that prescription is excessively prolonged on grounds of the subjective calculation, suspension or renewal of the period, and thereby impacting the legal security. Prescription will take place in any case once this maximum period has passed, hence it is destined to rebalance the uncertainties that can be provoked by the subjective elements introduced in the regulations governing the prescription.

It can be discussed if the duration provided in the Principles for the general time period (three years) and for the maximum period (fifteen years) is the most appropriate. In principle, both periods appear sufficient, reasonable and adequate for a regulation intended to guarantee transparency and the promptness of cross-border legal transactions in the region.

Example: On 10 May 1995 the company A commissioned the construction and installation of industrial equipment from the company B, stipulating in the contract damages if its production is less than 200.000 units at a certain level of quality at any time of the useful life of the equipment. On 10 May 2005, as a result of an annual audit of quality, it was detected that the level of quality of the units produced does not conform to what was agreed. A can claim the agreed damages in the period of 3 years from 10 May 2005, a time when it knows the facts, although the lack of quality of the unit was earlier.

It does not appear advisable, however, to impose this regulation strictly. It is considered more appropriate to leave the parties certain freedom to modulate the general period, guaranteeing the contractual balance and legal security through the establishment of a minimum and maximum period.

RECOMMENDED CLAUSES

Clause amending the general period in an engineering contract

“No action or proceeding under this contract will be able to be lodged against the provider of services or contractor after: (a) the period of one year from the date of the complete termination of the services; or (b) if this does not occur, the period of one year from the date when the last of the services related with the project is carried out.”

1. The break of the limitation period: interruption, suspension and extension

In all of the systems certain facts or circumstances are provided which affect the course of the limitation periods, although their occurrence can provoke different effects, which occur either through a mere extension of the initially provided period, or through the commencement of a new period.

The civil systems of the civil law or continental tradition traditionally distinguish two basic forms of break of the limitation period: interruption and suspension. While interruption determines the futility of the limitation period that has passed and the commencement of a new period, in general, of identical duration to the original, suspension only paralyses or stops the running of the limitation period, which is resumed and continues to run once the determining cause ceases the suspension. The difference between the suspensive event and the interruptive event underlines, then, the fact that while the former provokes the “resumption” of the limitation period, the latter originates its “recommencement”.

To a large extent, the interruptive circumstances or events coincide in the OHADAC territories of the continental civil law or continental tradition. Principally, these are the judicial exercise of the law and the recognition of the obligee's right by the obligor.

The suspension, with weaker effects on the limitation period, means that it is a legal occurrence more broadly considered by the different systems which, in this manner, have conferred a special force to the expressed rule by the aphorism “contra non valentem agere non currit prescritio”, whose meaning is clearly included in the reform (2008) article 2.234 of the French Civil Code.

Although the causes of suspension provided by the different systems are multiple and varied they tend to obey cases in which, for some sufficient cause, the holder cannot exercise its claim effectively. Firstly, there are objective circumstances or impediments outside of the control of the plaintiff, which prevent it from exercising this, principally force majeure (Article 2.234 French Civil Code; Article 2.530 Colombian Civil Code; Article 123 Cuban Civil Code). A second frequent motive is the uncollected or recumbent inheritance or succession (Article 2.237 French Civil Code; Article 880 Costa Rican Civil Code; Article 10.8 (2) UP). Thirdly, subjective, personal or family circumstances of the holder of the claim or plaintiff that make difficult its exercise, such as: minority or incapacity without legal representation or, being subjected to legal representation, for the reciprocal claims between representatives and represented parties are considered [Article 2.235 French Civil Code and Article 59 Draft Project of Reform of the French Law of Obligations of 2013; Article 2.530 Colombian Civil Code; Article 880 Costa Rican Civil Code; Article 976 Costa Rican Commercial Code; Article 2.252 Dominican Civil Code; Article 1.505 Guatemalan Civil Code; Article 1.691 Honduran Commercial Code; Article 2.020 Haitian Civil Code; Article 1.166 Mexican Civil Code, Article 931 Nicaraguan Civil Code; Article 2.093 Saint Lucian Civil Code; Article 1.965 Venezuelan Civil Code]. The existence of marriage or de facto cohabitation, in connection with the reciprocal claims between spouses or live-in partners (Article 2.236 French Civil Code; Article 123 Cuban Civil Code; Article 1.505 Guatemalan Civil Code; Article 1.691 Honduran Commercial Code; Article 1.167 Mexican Civil Code; Articles 2.094 to 2.096 Saint Lucian Civil Code); the fact of subjecting certain goods or relations between the legal persons and their directors or representatives to administration, in connection with the reciprocal relations between persons whose goods are administered and whoever administers them or between the legal persons and their representatives (Article 976 Costa Rican Commercial Code; Article 1.691 Honduran Commercial Code); the obligee's ignorance or lack of knowledge of the identity of the obligor or the circumstances on which the claim is based (Article 14:301 PECL; Article III-7:301 DCFR); the fraudulent concealment of the debt (Article 880 Costa Rican Civil Code; Article 976 Commercial Code Costa Rican; Article 1.691 Honduran Commercial Code; Article 931 Nicaraguan Civil Code).

The postponement of the maturity (extension of the maturity, extension of the prescription) is a distinct figure upon the interruption and the suspension, which has been gaining ground in some systems. Its effect is not the break of the period, but the extension or prolongation of the time of expiry of the limitation period, in a manner that the limitation period ends only after the expiry of a certain time period added to the initial period. It is the solution opted for the Dutch Civil Code (Articles 3:320 and 3:321) for the majority of the causes of suspension that we have just considered above. The extension (verlenging van de verjaring) means that the concurrence of some of these subjective or objective circumstances at the time of the expiry of the limitation period or in its final six months determines its extension until six months pass from the end of the cause of extension. The extension is equally the formula proposed by Section 28 of the English Limitation Act for cases of incapacity, and the mechanism used in the territories under its influence for the case of death (section 11 Limitation Act Guyana), incapacity or minority (section 11 Limitation Act of Guyana; section 42 Limitation of Actions Act, Chapter 173 of Grenada; section 36 Limitation Act of Bahamas; sections 29 Limitation Act 1984 of Bermuda; section 21 Limitation Act of Montserrat; section. 11 Limitation of Certain Actions Act of Trinidad and Tobago).

2. Suspension as the general rule in the international texts

Interruption, suspension and extension appear with different degrees of intensity in the texts of harmonisation of the contract law. These recognise a certain margin to the extension of the limitation period or postponement of the maturity. The extension is provided, firstly, for the case in which the parties are negotiating on the claim or the circumstances that could give rise to the origin of a claim, so that the limitation period will not expire until when one year has passed from the time of the final communication made at the time of the negotiations (Article 14:304 PECL; Article 182 CESL); secondly, for cases of incapacity if no representation exists, in which the limitation period for or against the said person will not be exhausted until one year has passed from the time of the disappearance of its incapacity or from the time when they have been appointed as representative (Article 14:305 PECL; Article III-7:305 DCFR); and, finally, for the case of death of the obligee or the obligor, a case in which the limitation period of a loan for or against the inheritance will not be extinguished until one year from the time when it may be exercised for or against an heir or a representative of the hereditary estate has passed (Article 14:306 PECL; Article III-7:306 DCFR).

What stands out in these texts is that they generally convert the suspension of the prescription in view of its interruption, establishing as cases of suspension: cases of force majeure, death or incapacity, (Article 10.8 UP; Articles 14:303 PECL; Article III-7:303 DCFR; Article 21 Convention UNCITRAL); cases in which the obligee does not know or may reasonably not know the obligor's identity or the facts that have given rise to the origin of the loan, including, in the case of compensation for damages, the type of damage caused (Article 14:301 PECL; Article III-7:301 DCFR); the commencement by the obligee of a judicial or extrajudicial proceeding for the claim of its loan (Article 13 UNCITRAL Convention; Articles 10.5 and 10.6 UP; Article 14:302 PECL; Article III-7:302 DCFR) or the proceedings directed at avoiding the insolvency of the obligor (Article 10.5 UP and Article 181 CESL).

The interruption and subsequent recommencement of the period plays a residual role for the cases of recognition of the debt by the obligor (Article 10.4 UP; Article 14:401 PECL; Article III-7:401 DCFR; Article 184 CESL) and the obligee's intent to obtain the performance by enforcement proceedings (Article 14:402 PECL; Article III-7:402 DCFR).

3. Suspension in the OHADAC Principles

Regardless of the effect in the limitation period, there is one aspect in common between all the systems: both the judicial, arbitral or other alternative dispute resolution proceedings, as well as those subjective or objective events which, escaping its sphere of control and not being foreseeable, prevent one of the contract parties from exercising its rights, have an impact in the course of the limitation period. The rule contained in article 9.3 tries to reconcile harmoniously the regulations on the break of the limitation periods in the civil law or continental and common law legal systems present in the Caribbean, recognising the impact of these circumstances in the limitation periods.

Out of the possible options (interruption/suspension/extension), the one adopted in the proposed regulation obeys the necessity of drafting an acceptable rule in all the systems of the OHADAC area and is an adequate solution for a regulation aimed at facilitating cross-border legal transactions in the region. It is not recommended to attribute interruptive validity to these events, since this declaration with retroactive effect is excessively onerous for the obligor. The existence of a judicial proceeding or other type of proceeding, or the concurrence of an outcome that escapes the plaintiff's control, will produce merely suspensive effects. This same validity expressly recognises the negotiations between the parties.

As regards the first group of causes which, in accordance with the Principles, provoke the suspension (the commencement of a judicial, arbitral, mediation or any other type of proceeding), has been preferred for recognising suspensive validity at the start of any of these proceedings in accordance with the provisions in the lex fori, including if the claim exercised in rejected through a procedural exception, which does not permit it to know the merits of the case, either due to being defective, a lack of jurisdiction, due to the abatement of the instance or due to the withdrawal of the actor. This aspect is expressly excluded in some systems, in which the judicial claim provokes the interruption (Article 877 Costa Rican Civil Code; Article 977 Costa Rican Commercial Code; Article 944 Cuban Commercial Code; Article 2.243 French Civil Code; Article 1.506 Guatemalan Civil Code; Article 2.015 Haitian Civil Code; Article 3:316.2º Dutch and Suriname Civil Code; Article 1.692 Honduran Commercial Code; Article 1.649A Panamanian Commercial Code; Articles 2086 and 2087 Saint Lucian Civil Code; Article 17 UNICITRAL Convention). The reason for the option welcomed in these Principles is that, even though the proceeding has not ended with a termination based on the merits, its commencement by one of the parties shows its intent to exercise its right, including in the cases of the plaintiff's withdrawal or abatement of procedure, in which the procedural impulse to the proceeding in question has ceased to be realised; such attitudes must not be considered as an act of waiver of the prescription, since there is no express intent aimed at achieving that purpose. The suspension will be prolonged until the proceeding reaches its end in accordance with the determinations of the procedural law of the forum.

Example 1: The multinational insurance company A undertakes to provide medical assistance services to the employees that the consultant B has in the entire Caribbean region for 10 years from the date of the conclusion of the contract on 1 September of 2005. On 10 July 2010 the insurance entity decides to close its clinics in Guatemala and Mexico due to low profitability. The consultant B commences a judicial proceeding for non-performance of contract on 1 January 2013, which terminates through a judicial ruling, on 15 December 2013, in which the executive body abstains from knowing due to lack of jurisdiction. The period between 1 January and 15 December will not be calculated for the purpose of the general or voluntary limitation period.

Another group of causes, provided in paragraph 2 of article 9.3, covers the traditional suspensive events considered in the majority of the legal systems; cases in which the holder of the right considers itself unable to act, to exercise its right, either for personal reasons, or for reasons beyond its control. Included here are cases like those of minors and persons lacking in capacity without legal representation, who do not have legal mechanisms for exercising their rights; claims against and for the existing inheritance, in which the suspension operates as a form of protection of the interests of the future successors; or cases of force majeure, unlike what occurs in systems like the tributaries of common law , fraudulent conduct by one of the parties that cause concealment or deception on certain aspects for the exercise of its right by the counterparty will not be considered as suspensive causes in these Principles, given the criterion of the knowledge or possibility to know adopted (Article 9.2 OHADAC Principles) concerning the commencement of the calculation of the general period.

Finally, the recognition of suspensive effect to the negotiations conducted between the parties prevents, on the one hand, them from being against the holder of the right as a mechanism for delaying the performance of the obligation due and to exhaust the limitation period and, on the other hand, which can be catalogued as an interruptive case in accordance with the provisions in the following article of these Principles, preventing the assimilation that could occur with the recognition of the debt, which would not benefit at all anyone who arrives to deal with the claim with its obligee informally.

The effect of the suspension implies the failure of the commencement of the limitation period, in some cases, or its temporary paralysation for the period of duration of the cause of the suspension. In accordance with the provisions in these Principles, it will be sufficient for the cause of suspension to take place within the limitation period for the suspension to come into play, and the said period is paralyzed. Reasons of convenience, connected to the swiftness of commercial transactions, mean that it is imperative not to adopt that criterion welcomed by some systems for the purpose of specifying the time when the event generating the suspension must occur, as occurs with the systems that require the event to occur at a time prior to the expiry of the period (Article III-7:303 DCFR) or the suspension to be prolonged for a certain time after the end of the suspensive event. The underlying motive in the systems that impose that limitation (to prevent an excessive prolongation of the limitation period after the suspension) is addressed in the OHADAC Principles with the maximum period provided in article 9.2.

Whatever event interferes in the passage of the limitation period, the suspension affects the ordinary or voluntary limitation period. The certainty and diligence required by cross border transactions require that the plaintiff can enforce the expiry of the maximum limitation period against the holder of the claim if such a period has passed before it can exercise it.

Example 2: The same events as in example 1. The multinational insurance company A and the consultant B conduct negotiations for establishing the amount of the damages for non-performance which are prolonged until 20 July 2024. Once judicial proceedings have commenced on 1 August 2025, the insurance company A will be able to claim validly the passage of the maximum limitation period.

1. The scope of the interruption-renewal of the limitation period

Article 9.4 reflects on one of the cases that provoke the so-called “interruption” of the prescription in the territories of the civil law or continental tradition, known as “renewal” in the common law system. Interruption or renewal prevents prescription from occurring, by eliminating and making useless the useful period passed until then and giving a commencement to the calculation of a new limitation period of identical duration to the annulled period.

In a good part of the national systems that make up OHADAC a wide margin tends to be given to interruption of prescription. This is the characteristic situation of the territories that are subject directly to the influence of French law, in the Spanish-speaking legal systems and in the tributary territories of Dutch law. The circumstances or events that provoke it are, principally: the judicial exercise of the right (Article 2.539 Colombian Civil Code; Article 876 Costa Rican Civil Code; Article 121 Cuban Civil Code; art 944 Commercial Code Cuban; Article 2.244 Dominican Civil Code; Article 2.241 French Civil Code; Article 1.506.1 Guatemalan Civil Code; Article 2.012 Haitian Civil Code; Article 3:316 Dutch and Suriname Civil Code; Article 2.301 Honduran Civil Code; Article 1.041 Mexican Commercial Code; Article 927 Nicaraguan Civil Code; Article 1.711 Panamanian Civil Code; Article Puerto Rican Civil Code 1.873; Article 2.085 Saint Lucian Civil Code; Article 1.969 Venezuelan Civil Code); the obligor's recognition of the obligee's right (Article 2.539 Colombian Civil Code; Article 876 Costa Rican; Article 2.242 Dominican Civil Code; Civil Code Article 2.240 French Civil Code; Article 1.506.2 Guatemalan; Article 2.016 Haitian Civil Code; Article 3:318 Dutch and Suriname Civil Code; Article 2.301 Honduran Civil Code; Article 1.041 Mexican Commercial Code; Article 927 Nicaraguan; Article 1.711 Panamanian Civil Code; Article 1.873 Puerto Rican Civil Code; Article 2.088 Saint Lucian Civil Code); the extrajudicial claim of the obligee (Article 977 Commercial Code Costa Rican; Article 1.711 Panamanian Civil Code; Article 1873 Puerto Rican Civil Code; Article 1.973 Venezuelan Civil Code); the written communication in which the obligee reserves its right to receive performance (Article 3:317 Dutch and Suriname Civil Code); and the payment of interest or amortisations by the obligor, as well as the partial performance of the obligation on the part of the obligor (Article 1.506.3º Guatemalan Civil Code).

In the sphere of common law, “renewal” or “fresh accrual action” is a figure practically circumscribed for the recognition by the obligor of the obligation and the payment or partial performance (section 29 Limitation Act of United Kingdom; sections 29-31 Limitation Act 1997 of Antigua and Barbuda; section 10 Limitation Act, Chapter 7:02 of Guyana; sections 38-40 Limitation Act of Bahamas; section 30 Limitation Act 1984 of Bermuda : section 37 Limitation of Actions Act, Chapter 17 of Grenada; section 22 Limitation Act, Chapter 2.12 of Montserrat; section 12 Limitation of Certain Actions Act, Chapter 7:09 of Trinidad and Tobago).

This is the direction taken, closer to the common law model, in the international texts of harmonisation of the contract law. In the international texts there is a clear preference for the mechanism of the suspension in view of the recommencement of the limitation period, which is relegated to the recognition made by the obligor (Article 20 UNCITRAL Convention; Article 10.4 UP; Article 14:401 PELC; Article III-7:401 DCFR; Article 184 CESL). Articles 14:402 PELC and Article III-7:402 DCFR also provide for the renewal of period for the judicially established loans, each with reasonable intent of execution by the obligee (renewal by attempted execution).

2. The commencement of a new limitation period in the OHADAC Principles

The formulation of the article 9.4 permits the convergence between the model provided in English law and the civil law or continental legal systems in the scope of cross border commercial transactions, when ascribing the causes that provoke the commencement of a new limitation period only to the recognition made by the obligor of the right of the obligee. This limited effectiveness of the interruption-renewal of the limitation period seeks to reach a balance between the requirements of promptness imposed by the functioning of commerce in the region and in order to ensure legal security. Once prescription is established in the need to provide certainty to the situation of the passive subject of the claim faced with a prolonged silence by the holder of the right, there is no reason for protecting the confidential situation in which the prolonged silence of the holder of the right could have been created if the obliged party itself demonstrates expressly or tacitly that it knows and expects the claim.

The recognition has to be unequivocal. It is not considered adequate to impose formal requirements for its validity, as is done in the tributary systems of common law. A declaration or action of the obliged subject whom the prescription has to favour, unequivocally indicative of its conformity with the existence, validity and appurtenance of the right in question, prevents whoever carries it out from invoking the time passed from the commencement of the calculation of the limitation period for its benefit. As an illustration, paragraph 2 of article 9.4 mentions, as conclusive conducts that unequivocally emphasise and reveal the obligor's conformity with the existence and appurtenance of the right, the performance or partial payment, payment of interest, provision of a guarantee or set-off, in line with article 184 CESL. Such acts do not exhaust the list of what can be considered as recognition made by the obligor; everything reveals the obligor's willingness to perform will have to take this into consideration, e.g., request for deferment of the payment. In any case, regardless of the form, express or tacit, written or oral, through which the obligor shows the knowledge and acceptance of the obligee's right, this demonstration will be regarded as recognition, and proof of its realisation is incumbent on the holder of the right favoured by the commencement of a new limitation period.

The recognition affects the general period or, where applicable, the voluntary period established by the parties, in accordance with the provisions of article 9.2 of these Principles, although it will not be able exceed in any case, not even as a consequence of multiple recognitions, of the maximum period of fifteen years.

Example: The 1 April 2008 the company A commissions the construction of an industrial plant from the company B undertaking to deliver to it on 1 October 2008. The delivery is delayed by 6 months. A claims extrajudicially, on repeated occasions, the damages for delay (2010, 2015, 2018 and 2021), the debt in all of them being recognised by the company B. On 2 October 2023 the limitation period will have expired, without the final recognition made, the company B in 2021 can bring about an extension of the maximum limitation period.

1. Defensive validity of prescription in the OHADAC Principles

The article is focused on the defensive or inhibitory effect of prescription which permits one of the contract parties to adopt a negative attitude towards a claim, based on the mere passage of the time, but without ascertaining the impact that the phenomenon of prescription has on the rights. It is so-called “weak” validity, which considers the institution as a means of defence for late and untimely claims, without affecting the right. This conception is characteristic of the procedural perspective of the institution in the common law model [Rodriguez v Parker (1967), 1 QB 116, (1966) 2 All ER 349], and the conception welcomed in the international sphere (Articles 10.1 and 10.9 UP; Articles 14:101 and 14:501 PECL; Article III-7:501 DCFR, Article 185 CESL). However, it cannot be denied that in the OHADAC sphere certain tributary systems of French law confer extinctive or “strong” validity to prescription, considering that, once the limitation period has passed, the right is extinguished (Article 2.219 French Civil Code)

Although the Caribbean legal systems adopt different conceptions as has been indicated in the commentary at article 9.1 of these Principles, the results or effects tend to be consistent in these three aspects: necessity of assertion by the beneficiary party, no repetition of the amount paid voluntarily in the performance of the prescribed debt and the possibility of waiver of consummated prescription.

2. No ex oficio assessment of the prescription

Whatever the basis (implicit presumption of abandonment of rights or protection of security and legal certainty) or the effect of the prescription (extinction or survival of the right, action or claim), is commonplace in the Caribbean systems that the prescription does not operate automatically (ipso iure) and the courts cannot accept it or assess it ex oficio by rejecting the claim although it turns out that the limitation period has passed without interruption or suspension.

The necessity of assertion, characteristic of the proceduralist perspective of the institution in the tributary systems of common law [Ronex Properties Ltd v John Lang Construction Ltd (1983), 1 QB 404], one finds expressly enshrined in some OHADAC systems (Article 2.513 Colombian Civil Code; Article 973 Commercial Code Costa Rican; Article 2.223 Dominican Civil Code; Article 2.247 French Civil Code; Article 1.991 Haitian Civil Code; Article 3:322.1 Dutch and Suriname Civil Code; Article 1.688 Honduran Commercial Code; Article 876 Nicaraguan Civil Code; Article 1.956 Venezuelan Civil Code), and in the international texts (Article 24 UNCITRAL Convention; Article 10.9 (2) UP).

3. Legitimation for invoking prescription

Only if it is promptly invoked, direct legitimation for asserting prescription is incumbent on the contract party favoured by it. However, although not clearly admitted in all of the Caribbean systems, some systems, for the purpose of avoiding damage to whoever is affected by the mere passivity of whoever can invoke it in its own right or through its waiver, expressly recognise the legitimation of certain third parties for invoking or excepting the prescription. In detail, some Spanish-speaking legal systems and OHADAC territories that are tributaries or directly subject to the influence of French law allow prescription of the obligees of the obligor favoured by the prescription and any person affected or with a legitimate interest (Article 974 Costa Rican Commercial Code; Article 2.225 Dominican Civil Code; Article 2.253 French Civil Code; Article 1.993 Haitian Civil Code; Article 1.689 Honduran Commercial Code; Article 1.143 Mexican Civil Code; Article 877 Nicaraguan Civil Code; Article 1.837 Puerto Rican Civil Code; Article 2.051 Saint Lucian Civil Code; Article 1.958 Venezuelan Civil Code). The OHADAC Principles are without prejudice to the possibility of invoking prescription on the part of third parties no reached by the optional and material nature of the present regulation. The said question must be resolved by the national law applicable in accordance with the rules of private international law.

4. No repetition of the sum paid voluntarily in performance of a prescribed debt

This effect is a consequence of the fat that the prescription, in accordance with the Principles, does not extinguish the right and only operates if it is invoked by the subject that it favours. Hence, if whoever can oppose it pays or performs instead of invoking it the payment will not be improper or by mistake (although the effect of the passage of the time is denied by the obligor), but that will indeed be done by whoever has declined to be defended, thus having a private interest. It will be a non-recoverable payment, and the exercise of an action for enrichment without cause will not [Mill v Fowkes (1839), 5 Bing NC 455].

Some systems justify this effect by considering that, after the observance of the limitation periods, the obligation is transformed into a legally imperfect natural obligation, insofar as its performance should not be imposed on a compulsory basis, but that the legal system excludes restitution (soluti retentio) due to there being a moral duty to pay the prescribed debts (Article 1.527 Colombian Civil Code; Article 1.372 Honduran Civil Code). Without resorting to this justification, many systems expressly recognise the honourability of the sum paid in performance of a prescribed debt, although it has been made in ignorance of the prescription (Article 975 Costa Rican Commercial Code; Article 113 Cuban Civil Code; Article 2.249 French Civil Code; Article 1.690 Honduran Commercial Code; Article 26 UNCITRAL Convention; Article 10.11 UP; Article 14:501-2 PECL; Article III-7:501 (2) DCFR).

Example: The company A, a supplier of prosthetic material and equipment to the company B, with the objective of maintaining the commercial ties pays damages for defective prosthetic equipment once more than 3 years have passed from the date of delivery and discovery of its defects. After the break of the commercial relations through disagreements occurred 2 months afterwards, will not be able to claim the return of the damages for unjust enrichment or undue payment, arguing they have paid it once the limitation period had expired.

1. Renunciation of consummated prescription

The configuration of prescription as an institution which authorises the contract party that has benefitted to use it as a means of defence against the claim or the procedural exercise of the action on the part of the obligee admits that, by affecting available rights and interests, the interested party can renounce the economic advantage entailed by the prescription itself. The validity of this renunciation will require that the entire limitation period has passed, its interruption already not being possible. The renunciation entails the start of a new, general or voluntary, limitation period. From the proceduralist perspective of common law, the renunciation will be translated into a simple lack of opposition proceedings to the judicially exercised action. The abandonment of this defensive medium permits that an untimely claim can obtain a favourable termination of the right of whoever promotes it.

The proposed provision does not impose any formalism for the validity of the renunciation, admitting, as established by the majority of the systems of the Caribbean region, both express as well as tacit renunciation (Article 851 Costa Rican Civil Code; Article 2.514 Colombian Civil Code; Article 2.221 Dominican Civil Code; Article 2.251 French Civil Code; Article 1.504 Guatemalan Civil Code; Article 1.989 Haitian Civil Code; Article 2.268 Honduran Civil Code; Article 1.687 Honduran Commercial Code; Article 1.141 Mexican Civil Code; Article 874 Nicaraguan Civil Code; Article 1.835 Puerto Rican Civil Code; Article 2.049 Saint Lucian Civil Code; Article 1.957 Venezuelan Civil Code). The express renunciation can derive from a declaration of unilateral intent of the party favoured by the prescription as well as from an agreement or covenant with the other party, through which prescription is renounced in exchange for a consideration. Among the expressive acts of a tacit renunciation are payment of the prescribed debt, its recognition by the obligor, the offer of payment to the obligee, the request of a deadline for making it valid, the negotiations on the amount to be paid or the submission of its determination at the discretion of a third party [Lubovsky v Snelling (1944), KB 44; Wright v John Bagnall & Sons Ltd (1900) 2 QB 240; Rendall v Hill's Dry Docks & Engineering Company (1900) 2 QB 245].

If a plurality of subjects exist in any of the contracting parties, the effects of the renunciation formulated only by some or regarding some of the subjects that combine the active or passive side of that relationship (loan or obligation) will be determined by the specific rules so that the specific type of obligation is governed (solidarity, association) in accordance with the provisions of these Principles. To avoid the treatment based on prescription of the impact that the plurality of subjects causes in any of the contract parties based on the assertion, suspension, recognition or renunciation of the limitation period provides clarity to the system (Article 177 of the Draft Project of Reform of the French Law of Obligations developed in 2013).

2. Legitimation

The Principles only regulate the effects of the renunciation between the contracting parties. They do not prejudice any third party rights of aggrieved parties in their legitimate interests for objecting to the renunciation to the consummated prescription (Article 2.225 Colombian Civil Code; Article 974 Commercial Code Costa Rican; Article 2.253 French Civil Code; Article 1.993 Haitian Civil Code; Article 2.270 Honduran Civil Code; Article 1.689 Honduran Commercial Code; Article 877 Nicaraguan Civil Code; Article 1.837 Puerto Rican Civil Code; Article 2.090 Saint Lucian Civil Code, Article 1.958 Venezuelan Civil Code), which will eventually be determined by the applicable national law in accordance with the rules of private international law.

3. Renunciation of future prescription

Through the influence of the French Civil Code (Articles 2.250 to 2.253), the majority of the Caribbean systems of the continental or civil law or continental tradition expressly reject the admissibility and validity of anticipated renunciation by covenant between the parties or by unilateral declaration by the affected party (Article 2.514 Colombian Civil Code; Article 850 Costa Rican Civil Code; Article 970 Commercial Code Costa Rican; Article 2.220 Dominican Civil Code; Article 1.503 Guatemalan; Article 1.988 Haitian Civil Code; Article 2.268 Honduran Civil Code; Article 1.687 Honduran Commercial Code; Article 3:322.2 and 3 Civil Code Dutch and Suriname; Article 1.141 Mexican Civil Code, Article 873 Nicaraguan Civil Code; Article 1.835 Puerto Rican Civil Code; Article 2.048 Saint Lucian Civil Code, Article 1.954 Venezuelan Civil Code).

The irrevocability to the future prescription is based on the objective foundation of the institution, vetoing the legal transactions aimed at making imprescriptible the exercise of rights that the law declares prescriptible and in this way imposing limits on free will. Its basis is found in preventing an excessive prolongation of the periods, which could convert a prescriptible claim into an imprescriptible one.

In these Principles, given the limited admissibility that is realised by the agreements aimed at amending the general limitation period (Article 9.2), it is considered unnecessary to declare the nullity of the anticipated renunciation of the prescription, since it is more reasonable to showcase its consideration as a case of (tacit) recognition by the obligor of the obligee's right in accordance with the provisions in article 9.4.

Example: 2 years after the delivery of the defective goods, the buyer and the seller agree that the seller renounces to assert the limitation period of the action for damages due to a lack of conformity, which the buyer can exercise. This agreement will serve to commence a new general limitation period.