A thing I like to do is approach people at parties and other gatherings and ask them if they know they can use contracts to shorten some statutes of limitations. Usually I get quizzical looks, but I guess the context just worked better when I mentioned it while speaking at a recent event put on by the Kansas Bar Association. An especially attentive participant asked a good follow-up question that warrants some discussion: can you shorten the limitations period for fraud?
That’s a great question. As I’ve discussed here before, the Uniform Commercial Code allows you to shorten the limitations period, “by original agreement,” to a period of not less than one year, but it refers only to actions “for breach of any contract for sale [of goods].” Might it extend beyond that context?
I don’t think the UCC permits reducing the limitations period for fraud actions, but that doesn’t mean it can’t be done. In Kansas, for example, the law is fairly clear that, absent a strong public policy to the contrary, parties to a contract can agree to reduce limitations periods. As a general matter, I think reducing the limitations period for fraud actions is probably a thing you can do – and why not try? After all, it would be a shame to take the trouble to reduce your limitations period for a breach of contract action alone when that shortened limitations period could so easily be circumvented by styling the cause of action as something other than breach of contract.
Keep in mind, of course, that the provision won’t be enforced if assent to the provision was itself the product of fraud or duress. Consider also whether you are dealing with a consumer sale, where a reduced limitations period might be forbidden by the Magnusson-Moss Act or a state consumer protection statute.
In short, I say go for it. But make sure you have a good severability provision in case the limitation gets tossed by a court, so that your other limitations remain intact.