Verjährung: Grundgedanken und Besonderheiten bei Ansprüchen auf Schadensersatz (Prescription: General Framework and Special Problems Concerning Damages Claims)
Tradition mit Weitsicht, Festschrift für Eugen Bucher zum 80. Geburtstag, pp. 861-926, Wolfgang Wiegand, Thomas Koller and Hans Peter Walter, eds., Schulthess Verlag, 2009
Posted: 17 Sep 2010 Last revised: 21 Aug 2012
Date Written: 2009
In spite of its enormous practical significance, the law of extinctive prescription (or: limitation periods) has for a long time led a backyard existence. That has changed dramatically in the course of the last three decades. The present article, at first, provides an overview of national reform legislation and pertinent international instruments, and it analyses characteristic trends of the legal development as well as the relevant policy considerations. The attention is then turned to specific problems relating to damages claims. First, it has to be determined when prescription begins to run. The damage for which compensation is sought can occur some time after the act giving rise to liability has been committed. Which of these two events, as a general rule, is relevant as far as commencement of prescription is concerned? Second, there is the problem that the damage may only materialize successively: the defendant’s act first gives rise to damage A and, at some later stage, also to another unexpected consequence B. Does that matter, as far as the period of prescription for the victim’s damages claim is concerned? These two questions mainly concern the regular (three-year) period of prescription. In the third place, certain types of cases will have to be examined, where there is a very long latency period between the act giving rise to liability and the damage and where, therefore, the existence of the maximum period (long-stop) has been at the centre of attention. And, finally, it has to be asked whether the general prescription regime can adequately deal with cases where certain psychological processes prevent a person from pursuing his or her claim; the sexual abuse of minors provides the most prominent example.
Please note that this is an article published in German.
Keywords: asbestos related diseases, commencement of prescription, concept of unitary damage, damages claims, discoverability, latent damages, limitation of actions, long-stop, occurrence of damage, personal injury claims, prescription, sexual abuse, suspension of prescription
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