Extinctive prescription in private law : integrating factual circumstances

The extinctive prescription rules or statute of limitations are a legal tool to avoid the need for old disputes to be settled by a court. It is a difficult exercise, after all, having to decide a dispute that took place a long time ago. A central problem in this context is evidence. Due to the passage of time, written documents have disappeared or been destroyed, statements by the parties are doubtful or vague, witnesses can no longer be found, ... Extinctive prescription periods accommodate these problem by setting a deadline by which action must be taken.

However, in an ever-changing society, situations increasingly arise where people perceive the extinctive prescription rules as unfair. Consider the problems and damage caused by asbestos and PFAS. The facts that gave rise to the problems are long in the past, while the problems with asbestos and PFAS themselves appear much later in time. Another example is obtaining compensation for sexual abuse. Sexual abuse often leads to various psychological barriers for victims of the abuse, leaving the victims unable to talk about their problems for a long time, let alone act legally. Again, the extinctive prescription rules jeopardise litigation.

To address this, judges and legislators have tried to temper the extinctive prescription rules with corrections, so that the judge can still take into account certain facts or concrete circumstances. The corrections can thus ensure more fair solutions. Important for these corrections is that they legally fit into the extinctive prescription rules and do not undermine their very existence. The design of these corrections is therefore important. To achieve this, the research offers several proposals that vary in the degree of adaptation and change needed to the Belgian prescription rules.