Court can now raise statute of limitations ex officio in favour of consumer

Statute of limitations is a defence that a debtor can raise against a creditor who has been idle for too long. Every creditor must pursue his claim within a certain period determined by the legislator, otherwise the creditor loses the possibility of enforcing the debtor to fulfil his obligation.

The basic principle (contained in article 2223 old Civil Code) has always been that prescription is a defence available to the debtor being sued, but that the defence must be raised by that debtor himself. The creditor may remain silent about the fact that a debt may be time-barred and the court may not ex officio assist the debtor unless it would concern a matter of public policy (such as on tax matters).

Some cracks had already appeared in this basic principle in recent years. In a judgment of 13 January 2023, the Belgian Supreme Court emphasized that the court also has the obligation to apply the rules of law ex officio to the facts in particular raised by a party in support of its defence. This confirmed that, in specific circumstances, the court has the possibility to conclude, for example, that a party expressly relying on the old character of a claim had the intention of triggering the limitation period. However, this is still an exceptional situation and the rule of article 2223 old Civil Code remains in full force.

The legislator has now intervened with the Act of 15 May 2024 containing the measures in the fight against over-indebtedness and protecting companies in difficulty. With effect from 1 October 2024, the court now has the possibility to raise the remedy of prescription ex officio in proceedings in which a company (within the meaning of Article I.1, first paragraph, 1° CEL) recovers a monetary debt from a consumer (within the meaning of Article I.1, first paragraph, 2° CEL).

As a result, the consumer, who may not have been assisted by a lawyer, will have additional protection in that the court will help guard the possible prescription that a consumer may raise against a recovery of a monetary debt by a company.