Die Verjährung – von den Principles of European Contract Law bis zum Entwurf eines Gemeinsamen Europäischen Kaufrechts: Textstufen transnationaler Modellregeln

Abstract

Abstract: In the international discussion concerning the law of (liberative) prescription (or: limitation) the following model has, over the past twenty years, established itself as the new „mainstream“: (i) There is a general short period of prescription of (usually) three years, counting from the time when the creditor knew, or could reasonably be expected to have known, the facts on which his right is based. (ii) It is supplemented by a long period of usually ten or (concerning personal injuries) thirty years, the running of which does not depend on reasonable discoverability. (iii) Prescription does not extinguish the right concerned; rather the debtor is granted a right to withhold performance. (iv) There is a range of circumstances leading either to a renewal of the period of prescription, or to its suspension, or to a postponement of its expiry. (v) The parties may modify the rules on prescription, though only within certain limits. This model, originating in the Principles of European Contract Law, can be found in all transnational model rules based on those Principles, i.e. Draft Common Frame of Reference, Feasibility Study, and Draft Regulation on a Common European Sales Law, as well as in the Principles of International Commercial Contracts. It has also been influential on the level of national law reform. There are, however, many differences, as far as the details of implementing this model are concerned. The present essay critically examines the changes which the text of the Principles of European Contract Law has undergone on the way towards the Draft Regulation on a Common European Sales Law. It cautions against the assumption that the most recent text is the best text. Rather, the older texts – though they also require improvement – should continue to be the starting point for further discussions concerning the law of prescription at the national and international level.