In the previous publication of this section we talked about the reasons why it is necessary to make an extrajudicial claim before starting the preparatory steps of the lawsuit, and one of them is because it is an ideal way to interrupt the prescription period of the possible legal actions to be exercised.

At Albos Law, when any client provides us with the necessary documentation to study the viability of the particular case that has been presented to us, one of the first actions that we carry out in the framework of the study is to verify that we are in time to be able to exercise the legal actions that we consider appropriate for the claim.

For this purpose, it is necessary to identify the legal action to be brought, and its time limitation or prescription period for its exercise; and it should be taken into account that there are actions subject to a time limitation period, and this, unlike the prescription, is not interruptible.

By way of example, the action for annulment of a contract due to vices in the consent or misconduct (article 1301 CC) whose time limitation period is 4 years, or the action for cure due to hidden defects that expires after six months, counted from the delivery of the thing sold (article 1490 Spanish Civil Code), among many others.

It is important to bear in mind that in the civil field in Catalonia there is a preference for the application of the Catalan Civil Code, which provides for time limitation and prescription periods different from those established by the Spanish Civil Code.

As an example for the time limitation, since January 1, 2018, with the approval of the Sixth Book of the Catalan Civil Code, the action for hidden defects disappeared for sales and purchases leaving place to the action for lack of conformity. Although the requirements are similar to hidden defects, the buyer in Catalonia has more time than a buyer who has carried out the transaction based on the Spanish Civil Code, and specifically two deadlines: when the defect appears, the buyer has two years to notify the seller of the lack of conformity; and, once the defect has been notified, the buyer has three years from the date on which it was made to exercise the appropriate legal actions.

Likewise, as far as the prescription is concerned, the actions that do not have a specific time limitation, prescribe in Catalonia after 10 years (art. 121.20 Catalan Civil Code), while, by the Spanish Civil Code these have established a prescription period of five years (art. 1964). Another case of difference in the prescription is the actions derived from non-contractual negligence, while art. 1968 of the Spanish Civil Code establishes a one-year prescription period, art. 121.21 of the Catalan Civil Code establishes a three-year prescription period.

Regarding the differences between time limitation and prescription, case law has established the following:

– The time limitation operates with the mere passage of time, while the prescription starts from the presumption of abandonment by the holder, who in a prudential time established by law has not exercised the corresponding legal action.

– As we pointed out, the prescription can be interrupted -for example, through a reliable communication to the defendant, the extrajudicial one that we pointed out in our previous post-, while the time limitation is not interruptible and is extinguished by the passage of time.

– Within the framework of the corresponding judicial proceedings, the time limitation must be invoked at the request of a party, unlike the prescription, which can (and must) be assessed ex officio by the Court in charge of the trial.

It is therefore evident that it is crucial for the viability of the case to carry out an initial study of the time limits, and, once it has been confirmed that we are within the time limit for the exercise of the legal actions that we consider appropriate to the case, the next step is to thoroughly review all the documentation provided by the client, in order to determine the legal viability of the case in terms of substantiation and proof of the facts that have occurred.