Computation of Time Limits
1. Subject and purpose
Time limits play an important role in private and commercial transactions. They can be based on contract, statute or court decisions. They can be decisive for the creation and enforcement of rights; they can also delimit a time period in the course of which an act is to be done. The manner of computing a time limit is not self-evident. For example, should the first or last day of a time limit be counted, how far should Sundays and public holidays be taken into consideration, and what exactly is meant by a month? The function of rules applicable to the computation of time periods is to avoid such doubts in interpretation and to establish legal certainty. As early as in Roman law the need arose to establish rules for computing time limits. In fact, the principle known to most modern legal systems today, that the first day when an event triggering the commencement of a time limit occurs is not counted for purposes of computing the time limit, is derived from the Digest: dies a quo non computatur. However, as more general, uniform standards for the computation of time limits were not established in either the Roman sources or during the age of the ius commune, the codifications strove to define more systematic rules on this subject. Early models for the computation of time limits can be found in commercial law and in codes of procedure, where similar problems arose in this respect. Fundamental for the computation of time limits is also the computation of time based on the Gregorian calendar that was introduced in Europe by Pope Gregory XIII in 1582.
2. The system established in European legal systems
To date, computation of time limits has received little attention in scholarly literature; no significant efforts to change the existing standards can be observed today. The various legal systems take systematically different approaches to the computation of time limits for private law and beyond it. In some cases, the computation of time limits is treated as a subject in its own right and receives a general regulation within the respective codification of private law; in other cases, it is dealt with only in specific private law contexts or in codes of procedure. General private law provisions on the computation of time limits exist in the German Bürgerliches Gesetzbuch (BGB) (§§ 186 ff), the Austrian Allgemeines Bürgerliches Gesetzbuch (ABGB) (§§ 901 f), the Swiss Code of Obligations (OR) (Art 75) and the Greek Civil Code (Arts 240 ff). Sometimes, as in the BGB and the Greek Civil Code, these provisions are applicable to the time limits established by statute, contract and judicial order. By contrast, the Code civil determines only in the specific context of prescription (Art 2260 f) that, in accordance with the Roman concept of civil computation, the period is to be computed on the basis of full days, not hours, and is completed at the end of the final day of the prescription period (ad dies numeratur, civiliter computatur). The opposite ap-* proach is the so-called natural computation, in terms of which a period of time is measured ‘naturally’, ie determined according to hour and minute (ad momenta or a momento in momentum computatur). On the other hand, the French Code of Civil Procedure (Arts 641 f CPC) contains more extensive rules on the computation of time limits; the same is true for Belgium (Arts 48 ff Code judiciaire).
3. Basic principles applicable throughout Europe
Regardless of the systematic context, certain basic principles regarding the computation of time limits can be indentified which are widely recognized in European legal systems. One such principle is the one mentioned above, ie that for time limits expressed in days, the day of occurrence of the event triggering the commencement of the time limit is not counted. It can be found in the general private law provisions applicable to the computation of time limits, it is recognized in the French law of civil procedure, and it can also be found in England on the basis of case law. As has been noted for a long time, this principle is based on equitable considerations. If, in accordance with the above-mentioned principle of civil computation, a time limit is measured in full days, and if the event triggering the commencement of a time limit occurs in the middle of a day, the inclusion of the remainder of that day in the computation would effectively shorten the time limit. In many legal systems in Europe a time limit expressed in weeks, months or years is considered to have expired at the end of whichever day in the last week, month or year corresponds to the day during which the event triggering commencement of the time limit occurred (cf §§ 187(1) and 188(1) BGB, § 902 ABGB; Arts 241 f Greek Civil Code; Art 52(1) Belgian Code judiciaire; Art 279 lit c Portuguese Código civil; see also Art 80 of the Code of Procedure of the European Court of Justice (ECJ) and the conclusions of Advocate General Mancini concerning ECJ Case C-152/85 – Misset [1987] ECR 223; Art 58 Code Européen des Contrats (Avant projet)). Under another widely observed rule, the time limit is extended to the next working day whenever the final day of a time limit is a public holiday or non-working day (eg § 903 ABGB; Art 53 Belgian Code judiciaire; Art 642 French CPC; Art 279 lit e Portuguese Código civil; see also the Dutch Algemene termijnenwet; in England, this rule generally applies only to actions to be performed by or before a court).
4. Early European unification projects
At the European level, the problem of time limits was addressed in two important documents adopted in the early 1970s, which have had a lasting influence on subsequent legal developments. The first of these documents is Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits. According to its Art 1, this regulation applies to legal acts enacted or to be enacted in the future by the European Council and Commission on the basis of the EC Treaty or Euratom Treaty. In terms of their content, the rules contained in the regulation are very similar to the general provisions on the computation of time limits contained in the civil law codifications, and especially to §§ 186 ff BGB. In recent times, the provisions of Art 3 of the regulation were incorporated almost verbatim into Art I.-1:110 of the DCFR (see 6. below).
Around the same time as Reg 1182/71, the Council of Europe (harmonization of private law) adopted the European Convention on the Calculation of Time-Limits of 16 May 1972, following a survey conducted in the Member States. To date, it has been ratified in Liechtenstein, Luxembourg, Austria and Switzerland and is therefore directly applicable in those countries. The objective of the Convention is to establish closer ties among its Member States by harmonizing the rules applicable to the computation of time limits, both for domestic and international purposes. The European Convention on the Calculation of Time-Limits is not restricted to the determination of time limits established by contract; it also applies to the computation of time limits established by statutes, courts, administrative authorities or arbitration tribunals (Art 1(1)). Like Reg 1182/71, the European Convention on the Calculation of Time-Limits incorporates the central principles of computing time limits that are recognized in most European legal systems, regardless of their systematic place. This applies to the rules concerning the dies a quo (Art 3(1)) as much as to the rules concerning time limits expressed in weeks, months or years (Arts 4, 3(1)) and public holidays and non-working days (Art 5).
5. Rules of the PECL and the UNIDROIT PICC
Both the Principles of European Contract Law (PECL) and the UNIDROIT Principles of International Commercial Contracts (PICC) contain separate articles on the subject of computing time limits (cf Art 1:304 PECL; Art 1.12 UNIDROIT PICC). Because both sets of model rules deal with contract law, these articles refer to time limits fixed by the parties to a contract. Article 1.12 UNIDROIT PICC specifically determines that it does not extend to statutory time limits or time limits fixed by judicial orders. The provisions on time limits are rules of interpretation that are to be applied only if the parties have not dealt with the matter in their contract. Both sets of rules, on the one hand, provide that official holidays or official non-working days are included in calculating the period of time; on the other hand, they also provide, in conformity with the above-mentioned rules in the above-mentioned legal systems, that the time limit will be extended until the first following working day when the last day of a time limit is an official holiday or official non-working day. In accordance with their international orientation, both the PECL and the UNIDROIT PICC take account of the fact that different holidays may be applicable in different places; accordingly, the determining place is the place of the address of the recipient or the place where the prescribed act is to be performed (Art 1:304(2)2 PECL), or the place of business of the party that is supposed to perform the act (Art 1.12(2) UNIDROIT PICC). The UNIDROIT PICC, in addition, determines that the relevant time zone is that of the place of business of the party that fixed the time limit (Art 1.12(3) UNIDROIT PICC); this regulation is especially significant in the case of transcontinental transactions.
While the rule contained in the UNIDROIT PICC is limited to the regulation of these issues, the PECL take a more ambitious and systematic approach. In particular, they incorporate a rule that is common throughout Europe, according to which time limits begin from the beginning of the next day and run until midnight of the last day (Art 1:304(3)); however, the PECL also provide that an act to be done must be completed by the normal close of business of the final day (see also Art 52(2) Belgian Code judiciaire; § 358 HGB). The model for this rule, as was said above, is Art 3 of the European Convention on the Computation of Time Limits. Unlike that Convention, however, the PECL leave open how the end of a time limit expressed in weeks, months or years is to be determined.
Finally, Art 1:304(1) PECL on the commencement of time limits has to be mentioned. It is supposed to address the problem of delays between the dispatch and receipt of a document. In the standard case, the starting date is the date stated as the date of the document; in the absence of such an indication, the time of receipt by the addressee is relevant. This practically significant rule was subsequently incorporated into the Draft Common Frame of Reference (DCFR).
6. Computation of time limits under the DCFR
The Draft Common Frame of Reference (DCFR) contains, in Art I.-1:110, an extensive provision on the computation of time limits which is closely related, in terms of its content, to Art 3 of Reg 1182/71. The scope of the provision’s application encompasses the computation of all time limits that can be relevant for purposes of the DCFR, including time limits fixed by contract and probably also the time limits prescribed in the DCFR itself. In conformity with Art 3 of Reg 1182/7, some of its key provisions correspond to the general European standard, ie the day during which an event triggering commencement of the time limit occurs is not counted (Art I.-1:110(3)); time limits normally end at the end of the final day (Art I.-1:110(2)); if the last day of a time limit expressed otherwise than in hours falls on a Saturday, Sunday, or public holiday, the time limit lapses at the end of the following working day, except in cases where the time limit is calculated retroactively from a given date or event (Art I.-1:110(6)). A modern feature of the DCFR’s regulation is a provision applicable to time limits expressed in hours. Even in this case, the period is not counted ‘from moment to moment’; instead, the hour during which the event triggering commencement of the time limit occurs is not counted unless the time limit commences from a specified time, when the period is considered to begin at the specified time (Art I.-1:110(2)(a), (3)(a), (4)(a); see also Art 3(1), (2)(a) of Reg 1182/71).
The provision governing the end of a time limit leaves some room for doubt. In that respect it is stated that a period expressed in weeks, months or years ends with the expiry of the last hour of whichever day in the last week, month or year is the same day of the week, or falls on the same date, as the day from which the period runs (Art 1-l:110(2)(c), likewise Art 3(2)(c) of Reg 1182/71). Where the time limit commences with the occurrence of an event or the performance of an act and where the day of the event or act is therefore not to be counted, the DCFR would thus appear to envisage that a time limit triggered by an event or act occurring on 16 January would end only on 17 February, which appears to be counter-intuitive and does not conform to the rule applied in most national legal systems (see the references cited under 2. above). Under the DCFR, a time limit calculated on the basis of parts of a month must be determined on the basis of a thirty day month (Art 1.-1:110(2)(d), in line with Art 3(2)(d) of Reg 1182/71).
7. Other international provisions
The UN Convention on Contracts for the International Sale of Goods does not contain an express regulation on the computation of time limits. This gap is to be filled by application of the general principles on interpretation contained in the Convention (see Art 7(1), Art 8, Art 20(2)). A detailed regulation on the computation of time limits applying to court proceedings is contained in Arts 80 ff of the Code of Procedure of the European Court of Justice.
Literature
Ole Lando and Hugh Beale (eds) The Principles of European Contract Law Parts I and II, prepared by the Commission on European Contract Law (1999); Joseph Chitty, On Contracts (1989); Hardinge Halsbury (ed), Halsbury’s Laws of England, vol 45; Stefan Vogenauer and Jan Kleinheisterkamp, Commentary on the UNIDROIT Principles of International Commercial Contracts (2009).
