The Limits of Statutes of Limitation
![handle is hein.journals/swulr16 and id is 11 raw text is: THE LIMITS OF STATUTES
OF LIMITATION
James M. Fischer*
I. INTRODUCTION
Legal systems uniformly have seen fit to adopt time periods within
which lawsuits must be commenced. These time periods have acquired a
variety of names. In American and English legal jurisdictions we have
distinguished between fixed time periods, which are generally known as
statutes of limitation,' and fluid time periods, known as the doctrine of
laches. The line dividing fixed periods of limitation and laches, however,
is not clearly drawn. Courts have affixed so many exceptions and caveats
to the fixed periods that they are only relatively fixed. Nonetheless, the
distinction is convenient and generally followed by courts.
Limiting the ability to commence litigation by interposing a time bar
is not unique to modem legal systems. Roman law, for example, which
nominally listed many actions as having no time limitation,2 developed
informal time limitations3 long before it adopted legislation removing the
incident of perpetuity.4
What are the factors that lead societies to limit access to judicial
* Professor of Law, Southwestern University School of Law.
1. The student authors of this issue use the term statute of limitation to refer to the fixed
period, beginning on date of accrual of the action, within which the action must be commenced or it
will be time barred. For example, the one year period of CAL. CIv. PROC. CODE § 340.3 (West
1982) for personal injury actions, and the four year period of § 337 for breach of written contract
actions are treated as statutes of limitation. Absolute periods of limitation which bar actions if not
commenced within a fixed period of a date certain are treated as statutes of repose. Examples of
these include the 10 year period provided by § 337.15 for actions against developers of real property,
the three year period provided by § 340.5 for actions against health care providers, and the four year
period provided by § 340.6 for actions against attorneys.
2. W. BUCKLAND, TEXTBOOK OF ROMAN LAW 683-84 (1921).
3. Id. at 251.
4. Roman law was not unique. At early common law actions were perpetual, and it was not
until the Limitation Act of 1623 that periods of limitation were engrafted onto the forms of action.
See Developments in the Law-Statutes of Limitations. 63 HARV. L. REV. 1177, 1177-78 (1950)
[hereinafter cited as Developments]. The perpetuity concept still exists in very limited form today.
See CAL. CIV. PROC. CODE § 348 (West 1982) (action to recover money or property deposited in a
bank or savings and loan); CAL. CIV. CODE § 3490 (West 1970) (public nuisance). See generally 3 B.](ViewImageLocal?handle=hein.journals/swulr16&div=8&collection=&method=preview&ext=.png&size=3)
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The Limits of Statutes of Limitation
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