The Statute of Limitations
The Statute of Limitations
Letting bygones be bygones
Author’s note: here’s a crunchy post on law, vengeance, religion and society. Thanks to Rabbi Alex Tsykin and Associate Professor Neil Foster for their comments on religious law and other matters. All errors are mine.
In other news, this Substack will remain free, but if you ever feel like giving a tip, here’s a link by which you can do so.
In law, there is a concept that, after a certain time has passed, it isn’t possible to sue any more. Precisely what the rule is depends upon on the details of the cause of action, and the rules vary from place to place. In my home State of Victoria, for example, s 5 of the Statute of Limitations 1958 (Vic) provides that the general rule in contract and in tort is that one cannot sue after six years from the date the cause of action accrues. There are all kinds of exceptions and qualifications to this, but you get the general point. The cause of action still exists: it is just that the plaintiff is barred from suing after a specific point in time.
Roman law possessed this notion too. The jurist Ulpian said, “Vigilantibus et non dormientibus jura subveniunt” [“Law aids the vigilant, not those who sleep on their rights”]. If people did not move quickly enough, Roman law did not help them either.
Why do we have these legal rules? Insofar as the parties are concerned, the rule seeks to protect both plaintiff and defendant.
First, any lawyer who has practiced litigation has seen situations where a plaintiff becomes consumed by the wrong done to them. They can think of nothing else except that, and scarcely seem to live in the present moment. The limitation upon actions, although it has an arbitrary and capricious aspect, is an attempt to prevent that phenomenon by providing a bright line:1 if you do not do take legal action after this point in time, the court system cannot help you, and you have to drop your grievance. Let go of the anger and the hurt.
There is also a desire to protect the defendant, something which can be seen more clearly in common law systems with equitable remedies, where the doctrine of laches operates as a bar to relief. Mere delay is not enough to preclude the award of an equitable remedy,2 but the court may exercise its discretion not to award an equitable remedy if there is delay with acquiescence or delay with prejudice.3 Delay with acquiescence means that it appeared, until legal action was brought, that the wronged party was fine with the breach (acquiescence), and so the defendant went on with life and proceeded as if everything was fine. Delay with prejudice means that so much time has elapsed that the defendant is in some way prejudiced, perhaps because witnesses are dead or documents are unavailable.
The legal system therefore operates under the presumption that there is a point when, generally, the plaintiff must be deprived of any axe to grind, for the good of both parties involved. In regards to wrongs I have suffered in my own life, I have come to a position where I do not deny that bad things happened, but I try not to let them consume me. That was then, this is now.
Nonetheless, there is a general human tendency to dwell on past wrongs which means that the law is pushing water uphill. Indeed, not only do humans tend to hold grudges, they sometimes even hold grudges against the families and descendants of those who wrong them.
This goes to the broader community welfare considerations for putting time limits upon disputes: that we wish to prevent vengeance, blood feuds and inter-generational conflict, and that legal systems seek to take the heat out of disputes. Court hearings may appear boring to laypeople (or so I have been told by non-lawyers in my family) precisely because that is their very function: to reduce a heated dispute to something that is cool, analytical, and blessedly boring.
This desire to restrain vengeance is present in the Old Testament, an important text for two major world religions, and an influential one for a third. As the late Rabbi Sacks explains, the Jews (and later, the Christians) wrestled with two contradictory passages in the Pentateuch. In Exodus, after God hands the Ten Commandments to Moses, it is stated that:
The Lord, the Lord, compassionate and gracious God, slow to anger, abounding in loving-kindness and truth … but who does not acquit the guilty, holding descendants to account for the sins of the fathers, children and grandchildren to the third and fourth generation.”4
On the other hand, in Deuteronomy, it is stated:
Parents shall not to be put to death for their children, nor shall children be put to death for their parents. A person shall be put to death only for their own sin.5
How to reconcile these passages? King Amaziah decided that the passage in Exodus refers to God’s judgment, whereas the passage in Deuteronomy refers to human justice. Humans cannot judge people guilty for the sins of their family, and hence the children of assassins were not executed for their parents’ crimes.6
But even then, there was discomfort with the idea that God could judge subsequent generations. Hence, both the Prophet Jeremiah and the Prophet Ezekiel argue that God only judges the wrongdoer:
In those days people will no longer say, ‘The parents have eaten sour grapes, and the children’s teeth are set on edge.’ Instead, everyone will die for their own sin; whoever eats sour grapes – their own teeth will be set on edge.7
and
The word of the Lord came to me: “What do you people mean by quoting this proverb about the Land of Israel: ‘The parents eat sour grapes, and the children’s teeth are set on edge’? As surely as I live,” declares the Sovereign Lord, “you will no longer quote this proverb in Israel. For everyone belongs to Me, the parent as well as the child – both alike belong to me. The one who sins is the one who will die.”8
Ultimately, as Rabbi Sacks noted, the Rabbinical writings moved away from the idea of the sins of the father being visited on subsequent generations, and it was decided that the statements of the Prophets revoked the statement of Moses in Exodus.9 Children would only be held responsible for the wrongdoing of their parents if the children committed the same wrongs,10 or failed to prevent wrongdoing.11
Christian scholars and thinkers struggled with the same problem, given that they were relying on the same or similar texts, and also sought to limit the situations in which children might be responsible for the sins of their fathers.
Why have I gone from modern law to Roman law to Biblical law, apart from general legal nerdery? There is method to my madness, I promise. The discussion above shows that many of the problems we currently face are old, and that there is something to be learned from the past.
There are good reasons for not holding people responsible for the sins of their forebears, or their relatives. When a society lacks an overarching legal system to determine rights and duties, people must seek their own remedies for wrongdoing, through “self-help”.
We still retain vestiges of this in our current law in Australia: if someone’s tree is overhanging your property, you might, in some circumstances, be able to cut off the branches, as long as you give the branches back to your neighbour (abatement of a nuisance).12 But as the eminent textbook author Percy Winfield observed, “self-help has always been reckoned as a perilous remedy owing to the stringent rules against its abuse.”13 Consequently, we only allow people to take the law into their own hands if they are reasonable and proportionate. For example, cutting someone’s thumb deeply with a pair of hedge cutters for dropping hedge clippings on your driveway is not reasonable or proportionate, the New South Wales Court of Appeal has confirmed.14 In news that will surprise no one who has had a difficult neighbour, neighbour disputes can become extraordinarily heated.15
What happens if the law does not prevent us from taking action and we can exercise “self-help”? Ornithologist, geologist and author Jared Diamond relates an incident he witnessed in Papua New Guinea, after a driver named Malo accidentally struck and killed a boy named Billy.16 Malo and Billy were from different tribes and ethnic groups. In Papua New Guinea, drivers involved in an accident are allowed to flee the scene, and seek refuge in the nearest police station, because bystanders might drag them from their car and beat them to death.
In this particular instance, fortunately, the matter was resolved when Malo’s employer spoke to Billy’s father, offered to give food to Billy’s family, and gave a formal apology at Billy’s funeral. However, if this had been unacceptable, Billy’s family and tribe would likely have sought personal retribution against Malo’s family and tribe. These kinds of disputes can descend into blood feuds, and even into war between clans or tribes.
This kind of behaviour is not peculiar to Papua New Guinea: it is something which occurs in any society in any place or time where law enforcement is weak or non-existent, and where groups have formed clans, tribes or gangs. Think, in our own society, of disputes between urban gang members which result in repeated retaliatory killings. The phenomenon is identical.
Again, the Pentateuch covers this, with the rule stipulating that vengeance upon a wrongdoer is limited to the value of “an eye for an eye, a tooth for a tooth.”17 This was an attempt to forestall blood feuds: once proportionate retribution has been taken for the injury, the idea was that the matter ended there. These principles predate the Old Testament, and can be found in the Laws of Hammurabi.18 Roman law, too, had a notion of lex talionis, or proportionate vengeance. In many ancient legal systems, the law moved from the taking physical revenge upon the person, property or animals of the defendant, to the payment of blood money.19
When, in current day society, we talk of rightful vengeance, or of ensuring that a group pays for the wrongs done by their ancestors, we should be wary, regardless of who suggests it, and regardless of whether we sympathise with their cause or not.
We can see that in many societies and times, the law has a certain wisdom which butts up against our vengeful instincts and seeks to restrain us, and ensure that our passions cool. Sometimes, despite what our instincts are telling us, it’s best to put wrongs behind us. Axes should not be ground indefinitely, unless one wants to be embroiled in generations of conflict between groups. And those who seek vengeance should dig two graves: one for the victim and one for themselves.
See, for a discussion, N.H. Andrews, ‘Reform of the Limitation of Actions: The Quest for Sound Policy’ (1998) 57(3) Cambridge Law Journal 589.
Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221, 239–40
No. 68 Ltd v Eastern Services Ltd [2006] 2 NZLR 43, [56].
Sanhedrin 27b; Yalkut Shimoni, I:290
Lemmon v Webb [1895] AC 1. Even in New South Wales, where the action for nuisance has been abolished in respect of damage caused by encroaching trees, the right to abate a nuisance caused by overhanging still is in place: Trees (Disputes Between Neighbours) Act 2006 (NSW), s 5 and pt 2; Donnellan v Cadeddu [2021] NSWSC 1600, [24]-[30].
Percy H. Winfield, The Province of the Law of Tort (Cambridge: Cambridge University Press, 1931) 233.
Croucher v Cachia [2016] NSWCA 132.
I have a fascination with neighbourhood disputes and the law, sparked by this paper by Philip Britton.
Jared Diamond, The World Until Yesterday: What Can We Learn from Traditional Societies? (Penguin, 2012) 86 - 117.
Exodus, 21:22-24. See also Leviticus 24:19; Deuteronomy 19:21.
Laws of Hammurabi, §230.
Katy Barnett and Jeremy Gans, Guilty Pigs: the weird and wonderful history of animal law (Collingwood: Latrobe University Press, 2022) 128, in relation to vengeance meted upon animals. Yes. It’s a thing, hence the guilty pigs.
What a fertile topic! English law - and Scots law too - have got their judicial knickers in a real twist about adding extra potential time to the normal fixed limitation period, not to penalise a plaintiff/claimant/pursuer whose cause of action 'accrued' (so time started to run) before they were or could reasonably been aware of a possible claim. Symptoms which present themselves years later (cracks in the walls) of inadequate foundations in a building is the classic example, or physical symptoms long after - but provably caused by - negligent medical treatment. How to devise a test which defines how much knowledge (and, equally importantly, its significance and how a reasonable person ought to react: "I'd better get a surveyor to look at this right away") starts extra time running in order to mobilise towards litigation: astonishingly difficult.
I am fascinated by the apparent distinction between common law systems, where - as you say - time running out bars civil legal action, and systems derived from, or influenced by, Roman law. So Scots law, as well as the idea of limitation, also has the idea of prescription, where after five years (in the standard civil action), the obligation to provide reparation itself comes to an end. I suspect that in practical terms, it means that judges will of their own motion stop an action which is already prescribed, not relying on the defender to raise this as a defence. But conceptually?