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

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 qu'une créance est soumise à la loi du domicile du débiteur. Mais par arrêt du 31 janvier 1953 (73-1), la chambre civile a admis le débiteur à se prévaloir de la loi gouvernant le contrat, ses dispositions sur la prescription lui étant plus favorables que celles de la loi de son domicile. L'arrêt du 28 mars 1960 (R. 1960, 202, et la note) approuve purement et simplement l'application de la loi du contrat, sans que la question, il est vrai, ait été posée. La prescription de l'action en responsabilité délictuelle a été directement soumise à la loi applicable au délit (supra n. 557, note 4). Et la formule définitive a été donnée par deux arrêts de la première Chambre civile du 21 avril 1971 (73-2) affirmant que «la prescription extinctive d'une obligation est soumise à la loi qui régit celle-ci».

Cette solution paraît bien fondée. Effectivement si la prescription protège le débiteur, comme on le soulignait à l'appui de la compétence de la loi de son domicile, au moins plus favorable, ce n'est pas sa seule fonction, et le débiteur semble suffisamment protégé par la loi du contrat dont il a connu les dispositions; même en matière extra-contractuelle, on ne voit pas pourquoi un changement de domicile éteindrait à l'improviste les droits du créancier (74)."

The purpose of this rule is to prevent forum shopping, that is looking for and filing the lawsuit in a jurisdiction where the claim is not time-barred when it would be in the state governing the claim.  

In  common law provinces in Canada, the same rule was adopted by the Supreme Court of Canada in the case of Tolofson vs. Jensen [1994] 3 S.C.R. 1022.  Until then, limitation was considered largely a procedural issue and as a result, the courts had adopted the rule of lex fori. Here is how the Supreme Court expresses itself at p. 1027:

"The bases of the old common law rule, which held that statutes of limitation are always procedural, are out of place in the modern context. The limitation period in this case was substantive because it created an accrued right in the defendant to plead a time bar. The limitation defence was properly pleaded here and all parties proceeded on the assumption that, if Saskatchewan law applied, it was a valid defence. It should not be rejected by a British Columbia court as contrary to public policy. The extent to which limitation statutes should go in protecting individuals against stale claims involves policy considerations unrelated to the manner in which a court must  carry out its functions and the particular balance may vary from place to place."

This approach was followed by the Supreme Court in Castillo v. Castillo [2005] SCC 83.  In effect, the Supreme Court rejected the traditional common law classification of statutes of limitation: those which bar a remedy and those which extinguish a right.  It held that statutes of limitation are to be classified as substantive.

In England, the principle of the competence of the lex causae was adopted in 1984.  Prior to that, the position at common law created difficulties, as illustrated by the following excerpt of "Dicey, Morris and Collins on The Conflict of Laws", Vol. 1, Sweet & Maxwell, 2006, at p. 197:

"The lex causae and the lex fori may differ not only in their periods of limitation but also in the nature of their limitation provisions.  In considering foreign rules as to limitation the English courts have traditionally applied their own classification based on the distinction between barring a right and extinguishing a remedy.  The position resulting from this approach, which would still be adopted in countries following the English common law rules, can be illustrated by reference to the different situations which can arise: (i) if the statutes of limitation of the lex causae and of the lex fori are both procedural, an action will fail if it is brought after the period of limitation of the lex fori has expired although that of the lex causae has not yet expired 77; but will succeed if the period of limitation of the lex fori has not yet expired although that of the lex causae has expired.78  The first limb of this rule may still leave it open to the defeated claimant to seek his remedy in another jurisdiction.  But its second limb has been criticized in that it may in effect enable a creditor to enlarge his rights by choosing a suitable forum; and that it may cause injustice to a debtor who, in reliance of the lex causae, has destroyed his receipts.79  (ii) If the statute of limitation of the lex causae is substantive but that of the lex fori is procedural, the lex fori will probably apply if its period of limitation is shorter than that of the lex causae on the ground that it is inconvenient for the forum to hear what it considers to be stale claims.80  But once a substantive period of limitation of the lex causae has expired, no action can be maintained even though a procedural period of limitation imposed by the lex fori has not yet expired: in such a case there is simply no right left to be enforced.81  (iii) If the statutes of limitation of the lex causae and of the lex fori are both substantive, it is probable that the same results would follow as in the case just considered.82 (iv) If the statute of the lex causae is procedural and that of the lex fori substantive, strict logic might suggest that neither applies, so that the claim remains perpetually enforceable.  A notorious decision of the German Supreme Court once actually reached this absurd result.83  But writers have suggested various ways of escape from this dilemma,84 and it seems probable that a court would apply one statute or the other".

The 1984 Foreign Limitation Periods Act put an end to this position and adopted the general principle that the limitation rules of the lex causae are to be applied in actions in England.

In one reported case in Quebec, the court applied the statute of limitation of Ontario to an alimony order which had been rendered by an Ontario court.  The case is N.K. vs. K.S.M. (QSC [2002] R.D.F. 249.

Therefore, the accessory - limitation – must follow the principal – the law governing the merits of the claim, or the lex causae.

Hence where such a rule exists, it is important to first determine which law applies to the merits of the case.  Then find out what the term of limitation is under the law governing the merits.

In Quebec, the issue arises most commonly when the courts are asked to recognize a foreign judgment.  In Quebec, the term of limitation of a judgment rendered by a Quebec court is ten (10) years.  And in most modern jurisdictions, the term of limitation is the same.  In some, it could be shorter.  But under article 3131 of the Quebec Civil Code, the shorter limitation period of the lex causae would be applied.

Since limitation constitutes a powerful, and often lethal ground of defense which, in addition, can be raised at the very outset of a lawsuit, it is therefore important at the very beginning of the lawsuit, to know the limitation period applicable under foreign law, to the lawsuit filed in your jurisdiction, if this rule of private international law exists therein.

Another interesting issue in private international law also dealing with limitation, is whether or not the filing of a lawsuit in a foreign jurisdiction interrupts the running of the limitation, when it normally would if the claim were filed in the courts of one's own jurisdiction.  That will be the subject of a future article.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.