Abstract

Pursuant to Art. 117 § 2¹ of the Civil Code (CC), introduced by the Amending Act of 13 March 2018 , in the case of claims against consumers it is not possible to demand satisfaction of such claims after the limitation period has expired. This new provision is most frequently explained by stating that since its entry into force epiration of the limitation period for a claim against a consumer is taken into account by the court ex officio, without the need for the consumer to raise the defence of limitation. An analysis of the case law of common courts shows, however, that as a matter of fact the consequences of this amendment go much further. It turns out that not only there is no need for the consumer to invoke the statute of limitations in civil proceedings, but also there is no need to to prove that the claim being pursued by the creditor has been barred. The burden of proof rests on the creditor who in order to obtain a judgment awarding him a claim against the consumer has to prove an additional premise for the legitimacy of his claim, namely that he “may demand satisfaction of the claim” against the consumer (Art. 117 § 2¹ CC). This means that the creditor also has to provide evidence as to the circumstances showing that the claim is not related to their business activity (cf. the first sentence of Art. 118 CC), or the circumstances showing that there are no grounds for applying special provisions specifying a shorter limitation period than provided for in general Art. 118 CC. These changes are far-reaching compared to the rules of proving the statute of limitation in cases where it is taken into account as a result of a defence of limitation. They put a creditor who is an entrepreneur in a decidedly unfavourable procedural situation.