1. Introduction
In a time of rapid social changes, civil codes might seem like fossils. Although it is considered that they should be amended with a delicate touch, occasional reforms are inevitable in order to keep pace with modern challenges and to foster the transformative function of private law. Since the Slovenian Code of Obligations is of a relatively recent origin (2001), there are currently no reform proposals on the horizon. However, a closer look at its historical roots reveals that it is largely based on the Yugoslav Law on Obligations of 1978 (LO). Thus, behind a modern façade it is only an after-midnight Cinderella.
By almost copying the former Yugoslav law when adopting the Code of Obligations in 2001, the Slovenian legislator missed the opportunity for modernisation. As a result, some of its parts are outdated and in need of reform. The statute of limitations is one of such skeletons in the closet (as discussed at the round table chaired by Damjan Možina, professor of private law at the Faculty of Law, University of Ljubljana, at the Slovenian Civil law days in 2022).
This blog piece aims to shed some light on the role of the judiciary in overcoming the flaws of the current regime of limitation of actions. By doing so, it focuses on two prominent examples of judicial creativity in this regard: (i) broadening the scope of the doctrine of “irresistible obstacles” and (ii) redefining the moment relevant for the commencement of a general limitation period in cases of void contracts. Nevertheless, Slovenian judges might not be Dworkin’s Hercules (Ronald Dworkin, Law’s Empire (Harvard University Press 1986)), but – as argued in this post – they co-shape the statute of limitations to a significant extent and as legal formants (Rodolfo Sacco, ‘Legal Formants: A Dynamic Approach to Comparative Law’ (1991) 39(1) The American Journal of Comparative Law 1-34) that play an important role in the development of the law of obligations.
Harbingers of change; Picture credits: Smihael via Wikimedia Commons
2. Statute of Limitations in Slovenia: Where Are We and Where Are We Going?
In the past decades, several European countries have modernised their laws of limitation (for more, see Oliver Remien, Verjährungsrecht in Europa – zwischen Bewährung und Reform (Mohr Siebeck 2011)), either within the reforms of their national civil codes, laws of obligations or individual statutes. This was, for instance, the case in Germany, the Netherlands, Belgium, France and Switzerland, while, in Austria, the reform proposal still awaits implementation. The reforms have been mainly driven by the numerous problems that emerged in practice, and have been inspired by the model rules of European private law, such as the Principles of European Contract Law (PECL), the Draft Common Frame of Reference (DCFR), the proposal for a regulation on the Common European Sales Law (CESL) and (on the international level) the Unidroit Principles of International Commercial Contracts (Unidroit PICC).
While most of the recent reforms aimed to eliminate the over-complexity of prescription regimes and to shorten general limitation periods, the main shortcoming of the Slovenian statute of limitations (Arts. 335 – 370 CO) is the 5-year general limitation period that starts to run from an objectively defined moment (i.e. when the claim is due, actio nata; Arts. 336 and 346 CO). This often contravenes the Agere non valenti non currit praescriptio principle (No prescription runs against a person who cannot act), since the claim easily gets time-barred before the creditor even becomes aware of it. This has turned out to be problematic on several occasions since the statute of limitations has a constitutional and a human rights dimension. If a claim is time-barred and the creditor is unable to pursue it, this can affect their right of access to court. For this reason, the Slovenian courts have already shown a great degree of flexibility and creativity in the interpretation and application of the existing statutory rules, which is further discussed below.
3. Historical Background
To better understand the current regime of limitation of actions in the Slovenian law of obligations, it is worth taking a brief look at its historical roots.
The (Austrian) General Civil Code of 1812 (GCC) was the first codification of civil law which has been applied on the Slovenian territory for more than a century, first as a part of the Habsburg Monarchy and later as a part of Austria-Hungary (in contrast to the Napoleonic Code which only applied for a very limited time on the Slovenian territory. The statute of limitations therein was based on the general limitation period of 30 years that started to run from an objectively defined moment (§1478 GCC), while the exceptions thereof were rather rare. Interestingly, the Slovenian courts referred to these provisions even in the times of Yugoslavia (Nina Zupan, Kritična analiza zastaranja in prekluzije v zasebnem pravu (PhD Dissertation 2022) 42) until 1953, when the Yugoslav Law on the Prescription of Claims (drafted by Mihailo Konstantinović and inspired by Swiss law (Tot)) was adopted. The general limitation period was shortened to ten years (starting to run from an objectively defined moment – actio nata; see Arts. 2 and 14 of the Law on the Prescription of Claims), while a larger number of special (shorter) limitation periods was introduced. When the Yugoslav Law on Obligations was introduced in 1978, it repealed the Law on the Prescription of Claims (see also: Josipović in Oliver Remien, Verjährungsrecht in Europa – zwischen Bewährung und Reform (Mohr Siebeck 2011) 250) and adopted its provisions with some modifications, the most important of which was the shortening of the general limitation period to five years (Art. 371 LO), probably modelled after Hungarian law (Tot). Since the Yugoslav Law on Obligations is still in use in Serbia and had, similarly as in Slovenia, a strong influence on the new Croatian Obligations Act of 2005, Slovenians still share the Yugoslav private law legacy, including the statute of limitations, with their South Slavic brothers (as explained in detail by Tot in his BACL blog post).
After Slovenia gained independence in 1991, the statute of limitations of the Yugoslav Law on Obligations was, without any noteworthy changes, incorporated in the Slovenian Code of Obligations which is still in force in this form today. Although the history of Slovenians in the last two hundred years has been quite turbulent – both in terms of political and legal changes – the statute of limitations in today’s Code of Obligations originates from the times of Socialist Yugoslavia and is over 70 years old at its core.
4. Limitation of Actions in the Code of Obligations: Skeleton in the Closet?
To shed some light on the main shortcomings of the statute of limitations in the Slovenian Code of Obligations, this section gives a brief overview of its general features through the prism of international trends (for details see: Reinhard Zimmermann, Comparative Foundations of a European Law of Set-Off and Prescription (Cambridge University Press 2011)) that play an important role in the modernisation and the harmonisation of the laws on the limitation of actions across Europe and worldwide.
The first trend speaks in favour of a clear, simple and standardised system of limitation of actions in which a general limitation period plays the main role while special limitation periods are rather an exception. The Slovenian statute of limitations deviates from this trend. Namely, there are already more than ten special limitation periods in the Code of Obligations which itself is tied to different rules on commencement, not even to mention the variety of different rules on the limitation of actions in other pieces of legislation in the field of private law.
The second trend suggests a (relatively short) general limitation period between two and five years, which starts to run from a subjectively defined moment, i.e. when the creditor knew or should reasonably have known the identity of their debtor and of the facts giving rise to their claim (the third trend). While a 5-year general limitation period of the Slovenian Code of Obligations (Art. 346 CO) fully complies with the second trend, it is clearly at odds with the third trend since it starts to run with an objectively defined moment (when the claim is due, i.e. actio nata, Art. 336(1) CO).
The fourth trend complements the second and third trend and establishes a “two-tier” system of limitation periods. Namely, as a counterbalance to a relatively short general limitation period that starts running from a subjectively defined moment there, should also be a long stop period (between ten and thirty years), tied to an objective criterion, at the expiry of which prescription occurs in any case. Since the general limitation period is itself tied to an objective criterion, there is no objective long stop period in the Slovenian Code of Obligations.
Nevertheless, the Slovenian statute of limitations at least complies with the fifth trend that suggests a ‘weak’ effect of prescription: if the claim is time-barred, the debtor is merely granted a right to refuse performance while the right as such does not extinguish.
It may also be worth mentioning that Slovenian rules on the limitation of actions in the CO are mandatory: the parties cannot agree on a different limitation period or a different reason for stopping the statute of limitations than those provided for by law (Art. 339 CO).
To sum up, the 5-year general limitation period that is subject to an objective system of commencement is indeed a skeleton in the closet of the Slovenian law of obligations. Although it does not apply to non-contractual damages claims that are subject to a special regime (a combination of a 3-year subjective limitation period and a 5-year ‘long-stop’ period, Art. 352(1,2) CO), it causes numerous problems in practice since it clearly favours a debtor and easily violates the creditor’s right of access to court. Although it has not yet been exposed to public academic discourse abroad (for discussions in the Slovenian literature see Damjan Možina, ‘Zastaranje nepogodbenih odškodninskih zahtevkov’ (2015) Pravni letopis 227-245, 270-271; Nina Zupan, Kritična analiza zastaranja in prekluzije v zasebnem pravu (PhD Dissertation 2022) 42, Karmen Lutman, ‘Primerjalni vidiki zastaranja terjatev’ (2015) Pravni letopis 213-225, 268-269), the Slovenian legislator could have learned a lesson from some comparative observations of the Croatian statute of limitations which is, as aforementioned, based on the Yugoslav and almost a replica of the Slovenian (for comparative discussions on the Croation statute of limitations, see e.g. Josipović and Hoffmann in Oliver Remien, Verjährungsrecht in Europa – zwischen Bewährung und Reform (Mohr Siebeck 2011); Jens Kleinschmidt, ‘Oliver Remien (Hrsg.): Verjährungsrecht in Europa – zwischen Bewährung und Reform’ (2013) 213(3) Archiv für die civilistische Praxis (AcP) 452-462). Currently, there is no reform of the Slovenian Code of Obligations on the horizon, and so it seems that it will be up to the judges for a while yet to carry the burden of finding an appropriate balance between the interest of creditors, debtors and the principle of legal certainty when applying and interpreting the rules on the limitation of actions.
5. Judicial Interpretation and Creativity: Paths are Made by Walking
On several occasions, the Slovenian courts have already shown a great ability to mitigate the shortcomings of the Slovenian statute of limitations and have found creative ways to adequately protect claimants’ and defendants’ rights.
Landmark cases that have paved the way to greater flexibility and creativity of the courts when applying and interpreting the statutory rules on the limitation of actions is the series of cases decided by the Slovenian Constitutional Court which is referred to as the “Erased” (Decisions of the Constitutional Court of the Republic of Slovenia in cases Up-1177/12, Up-89/14 and Up-1195/12, Up-1141/12 and Up-124/14, U-I-45/14 of 28 May 2015; for more see Jan Zobec, ‘Procesni vidiki zastaranja’ (2015) Pravni letopis 264-265). The Erased (“Izbrisani”) is the name used in the media for a group of people in Slovenia who remained without a legal status after the declaration of the country’s independence in 1991 as they did not register themselves as ‘foreigners’ in time and were consequently removed from the registry of Permanent Residence, losing all social, civil, and political rights. After the Constitutional Court had declared the act of ‘erasing’ unconstitutional and annulled its legal consequences, several individuals commenced proceedings against the State demanding damages for pecuniary and non-pecuniary losses. Although dealing with claims in vertical relationships, in absence of lex specialis, the courts referred to the statute of limitations in the CO. According to it, damages in tort claims generally get time-barred in three years when the creditor gains knowledge of the damage and the tortfeasor and in five years when the damage occurs (Art. 352(1,2) CO).
In contrast to the reasoning of the Slovenian Supreme Court that strictly kept to the letter of the law and found such claims time-barred, the Constitutional Court emphasised that such interpretation unproportionately interferes with the claimants’ right to compensation and took a much broader and creative approach. It stressed that, although the applicants might had known the facts, which were relevant for the commencement of the limitation period, their chances to succeed with compensation claims were only hypothetical at that time. Inspired by the case law of the European Court of Human Rights (ECtHR), it emphasised that all circumstances of the case should be taken into consideration when interpreting the rules on the commencement of a limitation period. By doing so, the Constitutional Court referred to the doctrine of ‘irresistible obstacles’ (Art. 360 CO) that suspends the run of a limitation period. Interestingly, this provision has never been interpreted in such a way before. According to this view, the limitation period should have been suspended during the time the claimants had only a hypothetical chance of succeeding with their compensation claims. In this creative way, the Constitutional Court breathed life into the rigid rules on the limitation of actions in the Code of Obligations and prevented claimants from the unjust results that a traditional interpretation might have brought.
Another prominent example of judicial creativity is the application of a general 5-year limitation period to enrichment claims. In Slovenian law, the unwinding of failed contracts is mostly governed by the law of unjust enrichment, including limitation of actions. According to the general rule, a restitutionary claim gets time-barred in five years when the claim is due (in unjust enrichment cases, this is the moment when the legal ground for enrichment falls away). As already noted, the combination of a relatively short general limitation period which starts to run from an objectively defined moment is highly disputed since the claim can easily get time-barred before the creditor gains knowledge of it. For this reason, the Slovenian courts (mainly by the influence of the Court of Justice of the European Union (CJEU) and ECtHR case law) have already taken a more creative approach when interpreting the commencement of limitation period in cases of void contracts. For instance, according to the reasoning of the Supreme Court, the limitation period should not start to run before the creditor gains knowledge of the nullity of the contract (e.g. the Decisions of the Supreme Court of the Republic of Slovenia II Ips 229/2014 of 2 July 2015, II Ips 269/2015 of 10 March 2016. II Ips 226/2014 of 31 March 2016). Inspired by the CJEU case law, the Slovenian Supreme Court went even further in cases of void consumer credit loan agreements. Recently, it held that, in such cases, a general limitation period begins to run when the creditor (i.e. consumer) becomes aware of the nullity of a loan agreement, its legal consequences and their legal position (e.g. the Decisions of the Supreme Court of the Republic of Slovenia II Ips 14/2020 of 6 November 2020, II Ips 67/2021 of 21 July 2021 and II Ips 68/2023 of 21 February 2024). Such interpretation seems reasonable, but it is questionable whether and to what extent it exceeds the letter of the (Slovenian) law (on obligations) and interferes with the principle of legal certainty which is a cornerstone of the statute of limitations.
6. Conclusion: Slovenian Judges as Legal Formants
By breathing life into the outdated rules of the statute of limitations, Slovenian judges indeed play an important role in the development of the law of obligations in Slovenia. As presented hereinabove, their creativity in applying and interpreting the legal norms co-shapes the statute of limitations to a significant extent. Since the limitation of actions has also a human rights dimension, the interpretations of the Slovenian Constitutional Court and the ECtHR often radiate into private law (i.e. “constitutionalisation of private law”) and serve as guidelines for a more creative decision-making in the civil courts. In some cases, the creativity is invoked by the CJEU within the requirement to interpret national law in conformity with EU law. Nevertheless, when it comes to the statute of limitations, the principle of legal certainty plays an important role and, therefore, judicial creativity should have certain limits. Thus, it is high time for the Slovenian legislator to reconsider the adequacy of the current regime of limitations of actions in the Slovenian Code of Obligations and follow the international trends of modernisation of private law.
Posted by Karmen Lutman, Assistant Professor at the Faculty of Law, University of Ljubljana, and Researcher at the Institute of Comparative Law at the Faculty of Law in Ljubljana (karmen.lutman[at]pf.uni-lj.si).
This piece belongs to BACL’s “Judicial Creativity” series which shines a light on the role of judicial creativity in recent reforms of the laws of obligations around the world. The series is edited by Dr Radosveta Vassileva (Middlesex University), Dr Sirko Harder (University of Sussex), and Prof Yseult Marique (University of Essex). To access the other pieces from this series, either select the “Judicial Creativity and the Law of Obligations” category or click on the #Judicial Creativity & Obligations tag on the BACL Blog.
Suggested citation: K Lutman, ‘Limitation of Actions in the Slovenian Law of Obligations: Judges as Harbingers of Spring?’, BACL Blog published on 7th February 2025.
British Association of Comparative Law 
1 Comment
Comments are closed.