The Supreme Court of Cassation has adopted the following Interpretative Decision, which partly states that “to have the limitation period under Article 116(a) of the Obligations and Contracts Act suspended, the debtor’s statement, or act which shows the acknowledgement of the claim, will have to be addressed to the creditor or to a creditor’s representative in such a manner that, in the given circumstances, will normally ensure that the acknowledgement will come to the creditor’s attention”.
The need for decreeing this Decision was highlighted by Interpretative Lawsuit No 4/2019 of the General Assembly of the Civil and Commercial Chambers (GACCC) of the Supreme Court of Cassation (SCC). The Lawsuit concerns a dispute between a bank and an insurer as to whether the limitation period for the bank’s claims was suspended or expired, given that the claims had been acknowledged by the insurer in its own statement to a third party. The Supreme Court Justices were split over the verdict – one group were of the opinion that in order to have the limitation period suspended, it was necessary that the debt acknowledgement be made to the creditor, while the other group held that it did not matter to whom the debt acknowledgement was made, i.e., it may be made to any third party, and that the limitation period was suspended, provided that such acknowledgement was in effect.
The Interpretative Decision has flatly adopted the first opinion – that the debt acknowledgement should be addressed to the creditor or a creditor’s representative, however, it hsd emphasised that “the debtor’s statement, or act which shows the acknowledgement of the claim, will have to be addressed to the creditor or to a creditor’s representative in such a manner that, in the given circumstances, will normally ensure that the acknowledgement will come to the creditor’s attention”. The Decision does not provide details of the manner which will normally ensure that the acknowledgement will come to the creditor’s attention, and it is apparently expected that case law will provide an answer in future cases.
At the beginning of the Interpretative Decision, the Supreme Court of Cassation has specified what is to be understood by the acknowledgement of the claim pursuant to Article 116(a) of the Obligations and Contracts Act: “A statement of a certifying nature or an act of the holder of the obligation by which the latter confirms to a creditor, categorically and unequivocally, the existence of a specific obligation which has not yet been fulfilled” For this reason, the limitation period will be suspended and the debtor will lose the debtor’s right to plead the expiry of the limitation period. The acknowledgement itself “may be expressly made (albeit without any requirement of form) or made by implied acts, however, the acknowledgement should be, at the time it is made, a clear and unequivocal statement by the debtor regarding the existence of a specific debt”.
As for how the debt acknowledgement should be addressed, it does not have to be necessarily made in the presence of the creditor. The Supreme Court Justices have added that: “suspending the limitation period under Article 116(a) of the Obligations and Contracts Act shall be any act of the debtor which in itself clearly and unequivocally manifests the debtor’s awareness of the existence of the debt, if the manner and the circumstances in which it is made imply by their nature that the acknowledgement will come to the creditor’s attention”.
The majority of the Supreme Court Justices at the Supreme Court of Cassation agree that “in view of the relative nature of the legal relationship and in so far as the existence of a dispute regarding the debt or otherwise is relevant only to the counterparty to the legal relationship, it logically follows that the statement or act for the acknowledgment is directed to the creditor or a creditor’s representative”.
It is also argued that “any other statement about the existence of a specific debt made to a third party, which is devoid of the debtor’s intention for the acknowledgement to come to the creditor’s attention, is only a statement of a fact that is disadvantageous to the debtor, which in itself, however, cannot cause the limitation period to be suspended pursuant to Article 116(a) of the Obligations and Contracts Act”.
Moreover, the day of receipt of the statement, including the moment the statement comes to the creditor’s attention, is of no legal significance for the suspension of the limitation period. The starting point for the suspension of the limitation period is the actual statement or act of the debtor in which the acknowledgement is made.
Furthermore, the majority of the Supreme Court Justices that took part in decreeing this Interpretative Decision emphasise that the creditor bears the burden of proving the fact of and the time when the acknowledgement was made, as well as the circumstances from which it can be inferred that the debtor’s statement or act was addressed to the creditor or a creditor’s representative.
The Interpretative Decision was signed with a dissenting opinion by six Supreme Court Justices, upholding the view that the debt acknowledgement do not necessarily have to be addressed to the creditor, with reference to the mandatory provision of Article 116(a) of the Obligations and Contracts Act, which mandatory provision imposes no additional conditions
