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une barrière à ses poursuites." Even Boullenois* properly remarks: "L'exception ne tombe que sur l'action et la procédure intentée." "Puisque," says Marcadé, " la prescription n'anéantit pas le droit du créancier par-elle-même et ipso facto, mais procure seulement au débiteur une exception qu'il lui sera facultatif d'opposer à l'action, c'est donc par la loi du lieu où ce débiteur doit être actionné, c'estrà-dire du Meu de son domicile, que la prescription doit tout naturellement se régler. Il n'importe pas qu'un autre lieu soit désigné pour le paiement, où ait été celui de la passation du contrat; car selon la pensée d'Huberus, la chose capitale à considérer, la chose à laquelle la prescription se rattache intimement, puisqu'elle vient en opérer l'extinction, c'est l'action et non pas telle on telle circonstance de la convention : jus ad actionem pertinet, non ad negotium gestuni.
The Court cannot supply a plea of prescription; it is personal to the defendant; and hence it must be ruled by the law of the place where he is served with process. "La prescription," says even Pardessus, "étant une exception qu'il est permis au débiteur d'opposer à la demande de son créancier, c'est naturellement dans sa propre législation qu'il doit trouver ce secours." f
In opposition to this plain, intelligible doctrine, Savigny, Massé and Westlake insist upon this last reasoning, that the lex loci contractus is the most reasonable rule, "because it excludes both the arbitrary power of the plaintiff to choose between competing forums that which allows the longest term of prescription, and the arbitrary power of the defendant to defeat his creditor by removing his domicile to the forum which allows the shortest term, and avoiding, while it runs, personal presence in the special forum of the obligation." |
Massé calls the result of such uncertainty une conséquence déplorable. But it is certainly more imaginary than real. No. man can presume that when one removes from one country to another, his aim is to defeat his creditor by acquiring a shorter term of prescription. As to the arbitrary power of the plaintiff to choose between competing forums, it is certainly not a hardship to him; and again with regard to the debtor, it suffices to remark that he is the best judge of his own interest, and to add with Story, §,579, that "if he choose to remove to any particular territory,
* Observ. 23, vol. 1, p. 530. f Félix, vol, 1, p. 121.)
% Westlake, p. 151.
he must know that he becomes subject to the laws of that territory as to all suits brought by or against him."
If, however, inconvenience can be urged as grounds of reasoning, it may be stated that if the lex loci contractus should be the rule in one country, for instance in Lower Canada, its citizens would in many instances be placed at a great disadvantage as regards their neighbours. In Ontario and in most of the bordering States, prescription in commercial matters is of six years; and in some of these States, the discharge of indebtedness under the Statutes of Limitations of foreign nations is not recognized; and we may at once suppose the case of a Lower Canadian removing to any of those countries, immediately after his liability on negotiable paper is terminated here by a prescription of five years. He would, therefore, notwithstanding his discharge here, remain liable to an action there, where the lex fori is the exclusive rule. This would be a more deplorable consequence than that pointed out by Savigny and Masse": it would be nothing less than a public inconvenience, and would be contrary to the policy of any commercial nation.
In the third place, what are the grounds of objection urged by Mr. Bateman, the American champion of the lex loci contractus? After admitting it to be well settled that the plea of limitations is a plea to the remedy, and consequently is governed by the lex fori, he makes this argument: "What is the essential or necessary difference between a discharge of the obligation of the contract, and a bar of the remedy upon it? In what manner are they related to each other? It is of the essence of the obligation that it Bhall be enforced ■ of moral obligation, that it shall be enforced by moral means; of legal or civil obligation, that it shall be enforced by such means as are given to courts of justice for that purpose. The exact relation o" the obligation and the remedy to enforce it, then, is that of an eud to be attained and the means of attaining it; not that of an end to be attained, and the means of preventing its attainment." *
Granting this to be so, as to the country where the contract is made; is it to be inferred that eveiy other country is bound to do likewise, even in opposition to its laws of public order and policy? It is chiefly because prescription is a law of public order and policy, that the lex fori should govern.
* Commercial Law, p. 105, § 143 el seq.
The maxim of the Roman law was Interest reipuhlicw ut sit finis litium, and it has been recognized by the jurisprudence of modern nations.
"Les prescriptions," observes Domat,* "ont 6t6 établies pour le bien public," and elsewhere he says, "afin do mettre en repos ceux qu'on voudrait inquiéter." f
Blackstone J: "The use of these statutes of limitatious is to preserve the peace of the kingdom."
Angell 11: "They are statutes, as has often been asserted by courts of justice. of repose. Without it, a right might travel for a very long period, in direct contravention of the intent and principles of these statutes. As has been asserted by Lord Eldon, in respect to real actions, it might travel through minorities for centuries."
Story §: "They go ad litis ordinationem, and not ad litis decisionem, in a just juridical sense. The object of them is to fix certain periods within which all suits shall be brought in the Courts of a State, whether they are brought by or against subjects, or by or against foreigners. And there can be no just reason and no sound policy in allowing higher or more extensive privileges to foreigners than are allowed to subjects. Laws, thus limiting suits, are founded in the noblest policy. They are statutes of repose to quiet titles, to suppress frauds, and to supply the deficiency of proofs, arising from the ambiguity and obscurity or the antiquity of transactions. They proceed upon the presumption that claims are extinguished, or ought to be held extinguished, whenever they are not litigated iu the proper forum within the prescribed period. They take away all solid grounds of complaint; because they rest on the negligence or laches of the party himself. They quicken diligence by making it in some measure equivalent to right. They discourage litigation, by burying in one common_ receptacle all the accumulations of past times, which are unexplained, and have now from lapse of time become inexplicable. It has been said by John Voet, with singular felicity, that controversies are limited to a fixed period of
* Liv. 1, tit. 7, sect. 4, § 2 (Rerny's ed. p. 211). t See also Pothier, Obligations, Nos. 676, 678; Broom's Legal Maxims, Am. ed. 1864, p. 600 et seq. % Vol. 3, p. 307. II § 197, p. 189, note 2. § Conflict of Laws, ch. 14, § 570.
time, lest they should be immortal, while men are mortal: Ac mitem lites immortalcs essent, dum litigantes mortales sunt."
Again (§ 578): "But if the question were entirely new, it would be difficult upon principles of international justice or policy to establish a different rule. Every nation must have a right to settle for itself the times, modes and circumstances, within and under which suits shall be litigated in its own Courts. There can be no pretence to say that foreigners arc entitled to crowd the tribunals of any nation with suits of their own, which are stale and antiquated, to the exclusion of the common administration of justice between its own subjects. As little right can foreigners have to insist that the times and modes of proceeding in suits, provided by the laws of their own country, shall supersede those of the nation in which they have chosen to litigate their controversies, or in whose tribunals they are properly parties to any suit."
"A person," said Lord Tenterden, "suing in this country, must take the law as he finds it: he cannot by virtue of any regulation of his own country enjoy greater advantages than other suiters." *
Laurent, j "Il va sans dire que les lois qui règlent la procédure sont applicables aux étrangers, car elles sont de droit public. C'est pour la même raison, à notre avis, que les lois sur la prescription sont des lois réelles auquelles les étrangers sont soumis comme les citoyens. Quand il s'agit de l'usucapion, l'intérêt public est évident; la loi sacrifie le droit du propriétaire au droit du possesseur, parce que le droit du possesseur se confond avec le droit de la société, qui demande la sûreté et la stabilité des propriétés. Quand à l'usucapion des meubles, elle s'accomplit, instantanément par application du principe qu'en fait de meubles possession vaute titre. C'est l'intérêt du commerce qui a fait établir ce principe, par conséquent un intérêt social. D'où suit que l'étranger y est soumis comme l'indigène. Il eu est de même de la prescription extinctive. La prescription met fin aux procès: voilà un intérêt social qui domine tous les intérêts individuels."
Before closing, we will briefly refer to the articles of the Civil
Code of Lower Canada, which have settled the question for the
future. Still as foreign notes due and payable before the coming
——.—-—. 1 ———
* De la Vega v. Vianna.
* Principes du Droit Civil 1869, vol. 1, p. 200.
into force of the Code (1866) can be sued in this province so long as the debtor is absent from the foreign country and his whereabouts remain unknown to his creditor, the question is and will be for years to come of great practical importance.
The Civil Code of Lower Canada has combined several systems; it admits:
1. Foreign prescription fully acquired in the foreign country, provided the obligation be not contracted nor made payable in Lower Canada.
2. Canadian prescription fully acquired in Lower Canada, provided the debt be contracted or made payable, or the defendant, at the time of the maturity of the debt, or during the whole currency of the Canadian prescription, be domiciled in Lower Canada.
3. Prescription resulting from the union of successive periods of time elapsed abroad and in Lower Canada.
The articles of the Code are worded as follows:
"As regards moveable property and personal actions, even in matters of bills of exchange and promissory notes and commercial matters in general, one or more of the following prescriptions may be invoked.
"1. Any prescription entirely acquired under a foreign law, when the cause of action did not arise or the debt was not stipulated to be paid in Lower Canada, and such prescription has been so acquired before the possessor or the debtor had his domicile therein.
"2. Any prescription entirely acquired in Lower Canada, reckoning from the date of the maturity of the obligation when the cause of action arose, or the debt was stipulated to be paid therein, or the debtor had his domicile therein, at the time of such maturity: and in other oases from the time when the debtor or possessor becomes domiciled therein.
"3. Any prescription resulting from the lapse of successive periods in the cases of the two preceding paragraphs, when the first period elapsed under the foreign law. Art. 2190.
"Prescriptions commenced according to the law of Lower Canada are completed according to the same law, without prejudice to the right of invoking those acquired previously under a foreigr law, or by a union of periods under both laws, conformably to the preceding article. Art. 1191.
From the foregoing remarks, the following conclusions may be drawn: