Limitation period not interrupted due to instituting a provisional examination of witnesses

The core of the dispute

BessTrade has bought a reconditioned baler, which was delivered by OMC. After the commissioning thereof problems arose with the baler. OMC has visited several times to remedy the problems and to deliver materials. BessTrade refuses to pay the costs charged for this by OMC. BessTrade argues that the delivered baler does not correspond with the agreement, so that, as the purchaser, it can claim repair and compensation of the damage suffered.

Obligation to complain and time limit

The first complaint made by BessTrade was dated 18 November 2019. The time limit started formally thereby. In accordance with the law BessTrade had the time until 18 November 2021 to enforce its right to performance or compensation, unless the time limit was interrupted.

Interruption of the time limit

BessTrade undertook various actions to interrupt the time limit, including sending a letter on 24 May 2020 and submitting an application for a provisional expert opinion on 1 July 2020. The court assessed these actions in the context of Section 317, subsection 1, Book 3 of the Civil Code, which determines the requirements for a successful interruption of the time limit.

Assessment by the Court

The court held that the attempts by BessTrade to interrupt the time limit did not fully meet the legal requirements. The court refers for this purpose to the established case law of the Supreme Court, which sets out the following requirement for an act of interruption:

“The time limit for a legal action for performance of an obligation can be interrupted inter alia by means of a written notice in which the creditor unambiguously reserves his right to performance (Section 317, subsection 1, Book 3 of the Civil Code). This written notice must contain a sufficiently clear warning to the debtor that, even after the expiry of the time limit, he must take into account the fact that he must keep his information and evidence at his disposal, so that he can properly defend himself against a claim that the creditor may then still institute. For the assessment of whether the notice meets the requirements set out by Section 317, subsection 1, Book 3 of the Civil Code, the wording thereof is not the only thing that must be considered, but also the context in which the notice is made and the other circumstances of the case.”

According to the court an unambiguous warning to OMC that BessTrade would enforce BessTrade’s right to performance or compensation was absent. A provisional examination of witnesses is insufficient for this purpose. As a result thereof it was concluded that the claims of BessTrade were precluded by lapse of time with effect from 24 May 2022.

Conclusion

This case emphasises the significance of precise attention to statutory periods and the complexity of the interruption process.