Civil Law provides for various statutes of limitations. As a rule, and unless otherwise provided, civil claims become time barred 10 years after their due date (articles 127 and 130(1) of the Swiss Code of Obligations (SCO)). However, there are some exceptions to this rule (eg, doctors' or attorneys' fees become time barred after five years, pursuant to article 128(3) of the SCO).
There are several accepted circumstances within which the statute of limitations may be interrupted within civil claims, such as filing a claim with the court or conciliation authority. However, the statute of limitations cannot stay interrupted forever.
Pursuant to article 138(1) of the SCO, a new limitation period commences when a dispute has been "concluded before the competent court". Until recently, legal doctrine and jurisprudence have disagreed on the interpretation of this provision as it does not seem to clarify when exactly the conclusion of the dispute before the competent court occurs and the statute of limitations begins to run anew. Previously, some argued that this happened when the decision entered into legal force (ie, formal res iudicata). Meanwhile, others referred to the date that the parties were notified by the court of the final decision. However, some legal experts were of the view that the statute of limitations period restarted at the time that all channels of appeal had been exhausted.
The Federal Supreme Court provided clarity on this issue in its decision of 1 April 2021.(1)
The relevant issue to be decided within this judgment was an objection raised by the claimant before the Federal Supreme Court stating that the statute of limitations of the claim filed by the respondent had expired. It was undisputed between the parties that the statute of limitations of the claim had not expired when the first-instance court issued its judgment. However, the claimant argued that pursuant to article 138(1) of the SCO, the relevant limitation period in the present case had then started to run again, and since there had been no further interruption of the limitation period during the appeal stage, the limitation period had expired before the appellate court had rendered its judgment (consid 5.1).
In its judgment of 1 April 2021, the Federal Supreme Court explained the regulations in neighbouring countries and referred to its own case law (consid 5.4 and 6.1). In doing so, the Court noted that this specific question had not yet been answered. The Court analysed article 138(1) of the SCO closely and considered its history and purpose (consid 6.3). After evaluating the different opinions in legal doctrine, the Court clarified the following (consid 7.3):
- A legal dispute before the competent court is concluded within the meaning of article 138(1) of the SCO and the limitation period begins to run anew once the appeal process has been exhausted. As soon as the court in question has made a final decision that can no longer be challenged by appeal or complaint, the limitation period starts from the beginning.
- If an appeal or complaint has been filed against a decision, the statute of limitations does not start anew, regardless of who has filed the appeal.
- The statute of limitations does not start anew if the Federal Supreme Court refers the matter back to a lower-instance court since, in this constellation, the appeal process has not yet been exhausted (due to the usual legal remedies once again being available against the new decision of the lower-instance court).
- Extraordinary legal remedies such as revision or explanation through the court do not have an influence on the statute of limitations; otherwise, the statute of limitations could be postponed indefinitely (consid 7.3).
According to the Federal Supreme Court, this is the only way to prevent a claim becoming time barred during pending civil proceedings (consid 7.2.3). The Court opined that other legal doctrine views do not offer satisfactory solutions; if the focus was on formal res iudicata occurring, this could mean that the statue of limitations would start to run anew despite the claim having not yet been judged by an appellate court.
Therefore, in the light of the above, Swiss civil claims cannot become time barred during civil proceedings.
Although most proceedings do not last longer than five years, the Federal Supreme Court decision is correct as it provides for the predictability of legal decisions. It is worth noting that the principles outlined above apply only in civil and not criminal proceedings.
For more information please contact Susanne Brütsch at Lenz & Staehelin by telephone (+41 58 450 80 00) or email ([email protected]). The Lenz & Staehelin website can be accessed at www.lenzstaehelin.com.
(1) Federal Supreme Court decision of 1 April 2021 [4A_428/2020].