A possible evolution in Monaco ?
The interruptive effect of summary procedure ("référé") on the ten-year limitation period with regard to construction companies's liability is long-established in France, since Act No. 85-677 of 5 July 1985, known as the "Badinter" Act, and codified in Article 2241 of the French Civil Code consolidating the former position of the Cour de Cassation.
While articles 2062 and 2065 of the Monegasque Civil Code recognise the interruptive effect of a legal claim, an order, a protective measure or an enforcement measure, they do not expressly specify whether this is the case for a summary procedure. The question thus arise of the transferability in Monaco of the interruption of the limitation period rule, adopted initially by the French courts, then codified for the first time in the former article 2444 of the French Civil Code by adding to the other causes of interruption (summons to court, order or seizure) the summary procedure.
Although the Monegasque courts have already been called upon to decide on the conditions for application of the interruption of the limitation period, they have for now constantly specified that the ten-year limitation period cannot be suspended or interrupted by a summary procedure initiated for the purposes of appointing a judicial expert, nor by the magistrate's order apointing an expert, nor by the submission of the expert's report1.
In this respect, the Court of Appeal has specified that only an order, a protective measure, or an enforcement measure, and even a legal claim brought before a court declining jurisdiction, can interrupt the limitation period2.
However, with the recent reform of civil procedure introduced by Law No. 1.511 of 2 December 2021 amending civil procedure, the legislator has just recognised the possibility of ordering investigative measures by way of unilateral application and summary procedure for the purpose of safeguarding or establishing evidence before any trial.
In particular, the legislator gave a suspensive effect to this measure, by specifying that the limitation period is suspended when the judge orders an investigative measure until the date of implementation of the investigative measure, namely at the time of submission of technician's report.
In these circumstances, it can only be recommended, in the presence of a dispute that have arisen or may arise on the decennial liability of one or more parties, to pay particular attention to the suspension and interruption means of the limitation period.
Footnotes
1. The Court of Appeal 19 February 1974 Hoirs B. c. P., S.I.M H., J. et J. N. et autres.
2 The Court of Appeal 26 September 2019, Société E.C.M. c. k.AL A.
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