Private International Law: Dealing In Your Jurisdiction With A Claim Governed By Foreign Law – Find Out What The Period Of Limitation Is!

Author:Mr Jean Robert
Profession:Lette & Associés S.E.N.C.R.L.

When a foreign plaintiff decides to file a lawsuit outside of his jurisdiction against a defendant in matters involving the extinguishing of a remedy by limitation, it is important for the defendant to know the term of limitation of the claim.  Is it the law of the seized jurisdiction or the law of the state governing the claim?  In Quebec, for example, a foreign seller claiming in Quebec the sale price from a Quebec purchaser under a contract of sale governed by foreign law, the limitation period is governed by the statute of limitations of the foreign state and not that of Quebec, under article 3131 of the Civil Code of Quebec which reads as follows:

Art. 3131. Prescription is governed by the law applicable to the merits of the dispute.

The rule set out in article 3131 adopted in 1994 subsequent to the reform of the Quebec Civil Code has the advantage of being simple.  Prior to that, one had to refer to article 2190 of the old Code which contained complex rules.  In certain circumstances, one could raise in defense the foreign statute of limitations and in others, the Quebec statute of limitations. It depended on whether the cause of action arose or the debt was payable in Quebec and whether the debtor had his domicile in Quebec.  Foreign limitation could be raised before the Quebec courts where the cause of action did not arise or the debt was not payable in Quebec and where the debtor was not domiciled in Quebec at the date the limitation period ran out.  Inversely, if the cause of action arose or the debt was payable in Quebec and the debtor was domiciled in Quebec when the limitation period ran out, one could raise the Quebec statute of limitations.

By the adoption of this article, Quebec was also following international development on this issue.

In France, the jurisprudence was to the same effect and applied its own statute of limitations if the debtor was domiciled in France, in order to protect him. But this has changed and its courts now apply the lex causae principle.  Here is what French authors H. Batiffol and P. Lagarde in their work "Droit International Privé," sixième édition1976, at page 303, had to say about this issue:

"Prescription extinctive. - La Cour de cassation a jadis décidé à plusieurs reprises que le débiteur est en droit d'invoquer les dispositions de la loi de son domicile sur la prescription «en tant qu'elles le protègent contre l'action dont il est l'objet» (73). On a pu voir la consécration de l'idée...

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