Limitation of Enforcement – Practical Guide
Before we discuss the statute of limitations on enforcement, we must look at enforcement.
What is enforcement?
Enforcement is one of the remedies provided by law for situations where the debtor fails to fully and timely perform the obligation established by a court judgment or other enforceable title.
However, the right to obtain enforcement is a statute of limitations, which means that the creditor can only initiate such a procedure within the general 3-year period, which starts to run from when the right to obtain enforcement arises. In matters of rights in rem, the period is ten years.
The consequence of making such a request after the expiry of the time limit is that the debtor can no longer be required to perform.
Therefore, if a creditor (debt collector, bank, NFI) starts an enforcement procedure against you as a debtor without respecting these mandatory deadlines, the right to enforce your debt is time-barred, and you can no longer be obliged to pay the debt.
It is important to note that in its materiality, the claim still exists, as it is still inevitable, liquid, and payable, and the creditor’s right to receive it is legitimate.
However, once the limitation period has expired, you will no longer be obliged to pay. It is important to note that the statute of limitations on the right to request enforcement cannot be invoked ex officio, so you must gather it in time.
Expiry of the Limitation Period for Enforcement
What does this mean?
Let’s consider the hypothesis that you owe your bank, non-bank financial institutions (e.g., Provident, Ferratum, etc.), or even debt collectors certain sums of money, based on credit agreements, debt instruments, or final court decisions.
From the moment payment is due or the right to claim enforcement arises, these entities, as holders of the subjective right, can take all necessary steps to collect their debt within three years.
If, however, they choose to remain passive and do not take advantage of the legal procedures available to them, allowing the legal time limit to run out, you can defend yourself by invoking the expiry of the limitation period for enforcement.
In this way, unless you pay voluntarily, creditors cannot use any legal means to force you to pay.
Essentially, it is essential that if you receive a demand for payment of money that you know is from the distant past, accompanied by the “threat” that if you refuse payment, the state will use coercive force, the first thing to do is to check whether the claim is already time-barred.
However, to be sure, it is recommended to consult a lawyer to determine precisely whether or not you are susceptible to foreclosure.
Most creditors resort to this intimidating ploy to get a direct voluntary payment from you as the only way to recover their money.
This is because any legal operation no longer protects them from forcing you to make payment because the statute of limitations on enforcement penalizes them precisely for their passivity.
So, even if they go to court, the plea of prescription will be successful.
What you need to know is that if you have agreed to proceed with payment anyway, you can NOT subsequently invoke the statute of limitations on the claim because your payment is one due under an obligation that has been transformed from a perfect one (characterized by offensive legal means for its realization) to a natural one (existing but not necessarily subject to any legal action) and can be received by the creditor without any further claim for its restitution.
What is the procedure for invoking the limitation period?
In the event of the commencement of enforcement of a time-barred claim, your defense must consist of Contesting enforcement.
This procedure involves submitting to the competent court an action for annulment of all the enforcement acts, stating that they are based on a time-barred claim and abuse on the creditor’s part.