Back in 2015, a Naples court famously found former Italian Prime Minister Silvio Berlusconi guilty of paying off a senator forcing the collapse of government at the time. Despite being on the receiving end of a three-year prison sentence, PM Berlusconi would never actually serve a day in jail as the charges brought against him had exceeded the statute of limitations - or prescription as it is commonly known. He is certainly not the first or last person to be let off the hook because it was too late for justice to be applied, and prescription, if wielded correctly, can be a powerful tool.
Prescription is closely tied to time and can be acquisitive or extinctive. When prescription is "acquisitive", if no action is taken during the prescriptive period, a person may be entitled to acquire a right after the prescriptive period lapses. For instance, if a person lawfully possesses an immovable thing for a specific uninterrupted period that person may acquire the title of owner by acquisitive prescription.
On the other hand, "extinctive" prescription, shields a person from being sued should no action be taken against him before the statute of limitations lapses, thereby providing for closure. There are actions that expire after just one year and others that expire after ten years (or longer).
The prescriptive period is pre-determined by the Civil Code according to the type of action in question.
Acquisitive prescription can be of ten, thirty or forty years. The length varies according to what is being acquired and whether possession is in good or bad faith.
On the other hand, extinctive prescription varies according to the type of action being taken. Typically, an action for debt collection is extinguished after a period between one year and five years. On the other hand, a claim for damages can be barred by the lapse of two years if the damage does not arise from a criminal offence, otherwise it will be barred by the periods laid down in the Criminal Code.
Actions will be time-barred as soon as the uninterrupted prescriptive period lapses. Prescription is calculated in whole days and not in hours, therefore, prescription will end as soon as the specified number of months or years are reached, regardless of leap years. Nevertheless, the law states that if the last day falls on a Saturday or a public holiday, prescription will lapse at the end of the following day.
If an action becomes time barred, the person being sued has the right to set up the plea of prescription, in which case proceedings would have to be withdrawn. The creditor seeking to preserve a personal right or to place the defaulting party in bad faith must act in time to avoid having the rights extinguished.
According to Article 2137 of the Civil Code (Chapter 16 of the Laws of Malta), prescription applies in the very same moment where an action can be exercised, irrespective of the state or condition that person is in. Prescription will commence as soon as it becomes clear that there is a right to be preserved or an action to be taken. Moreover, the fact that the claimant or right holder is unable to exercise a right will not affect the commencement of prescription. Therefore, if for one reason or another, the person entitled to take action is unable to do so, that will not serve to prevent the commencement of prescription, provided that the reason is not one which is specifically mentioned in the Civil Code as one of the grounds for prescription to be suspended in favour of an individual - for instance in the case of minors.
Can the prescriptive period be renounced, interrupted, suspended or extended?
Prescription cannot be renounced beforehand, nor is it lawful to establish a time for prescription longer than that specified by law. However, prescription already acquired may be renounced, and there may be instances when prescription can be suspended or interrupted. Suspension and interruption may only take place in civil actions and not criminal actions.
Suspension of prescription occurs when certain specific instances prevent the individual from acting. For example, if a minor has a right to exercise an action but is prevented by the law to carry it out due to being younger than 18 years of age, prescription will not run against the minor until the age of majority is reached. With suspension, prescription is prevented from running for the whole duration of the period during which the cause suspending prescription exists. Prescription can either be suspended before it starts to run, prolonging its starting date, or it can also be suspended at any point during its course.
Conversely, the interruption of prescription occurs when a specific action causes prescription to stop running and from that moment onwards, prescription starts to run anew. For prescription to be interrupted, the action for interruption must be made before the action becomes time-barred, and can continue to be interrupted indefinitely, provided that it is interrupted before it lapses. The Civil Code refers to various elements which interrupt prescription, such as the filing and service of a judicial act, judicial demands, the acknowledgement by the debtor or possessor of the right or the payment on account of a debt. Once it is interrupted, the prescriptive period will start completely afresh, as though the day on which the action could have been exercised was the day when the interruption happened.
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.
