Restitution Discussion Group Archives
| Sender: |
Allan Axelrod |
| Date: |
Thu, 10 Feb 2000 21:24:01 -0500 |
| Re: |
Query |
Matthew Scully
wrote:
If I buy a desk in a furniture store and forget to
pay for seven years and nobody sues me, but then I remember and pay,
believing wrongly that the limitation period in contract cases is
10 years instead of the six that is under the Limitation Act 1980
section 5 can I recover? If recovery was allowed in Nurdin
& Peacock v Ramsden, where the mistake was one as to the existence
of a right to recover, then it is difficult to see why it should not
be allowed in this case. However, in Nurdin, the overpayments had not
been due in the first place. In Duncan Sheehan's scenario, the price
of the desk was due but the right to sue for the price was extinguished
by the expiration of the limitation period. The concept of "natural
obligation" (purists will shudder) may be of use here in denying the
right to recover the price of the desk which was paid after seven years.
As a matter of obligation, the money is always owed
even if, as a matter of procedure, it cannot be sued for. maybe we can keep the purists, not to mention legal realists [if there
is a difference] from shuddering via the following:
the statute of limitations is a defense, and its assertion by the debtor
precludes any judicial finding that the debt ever existed: it is uninteresting
to say that the debt persists, as it cannot be judicially established
that it ever was
if however the debtor admits the debt after the statutory date, as in
the hypothetical. it can be thus established, in which event it is uninteresting
to say that it had ever expired
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