Limitation of Actions
LIMITATION OF ACTIONS
The Concept and its Substance
In the talmudic period, Jewish law generally did not recognize the principle that the right to bring an action could be affected by the passage of time (i.e., extinctive prescription); in the post-talmudic period, it came to be recognized as a principle that there was a limit to the claimant's right of instituting action on account of the passing of time, without extinction of the underlying right itself. In Jewish law, the principle of limitation of actions is grounded on the reasoning that delay in instituting action serves to cast doubt on the reliability of the claimant's evidence. Consequently, prescription serves to deprive the plaintiff of a remedial action only if the defendant denies the existence of the right forming the subject matter of the action, but not if he admits its existence.
In the Talmudic Period
In the Talmud, the principle of limitation of actions – apart from two exceptional cases – was wholly unrecognized: "a creditor may recover his debt at any time, even if it has not been mentioned" (Tosef., Ket. 12:3; cf. the version in tj, Ket. 12:4, 35b and tb, Ket. 104a).
the widow's claim for her ketubbah
One exception to the general rule is the claim of a widow for her *ketubbah, which becomes prescribed under certain circumstances. In a dispute with R. Meir, the scholars held that "a widow, as long as she lives in her husband's house, may recover her ketubbah at any time; when, however, she lives in her father's house [and not with the heirs, and is therefore not inhibited from claiming her ketubbah from them], she may recover her ketubbah within 25 years only" (from the date of her husband's death; Ket. 12:4). Thereafter, her right to recover the ketubbah is extinguished, on the assumption that she has waived it, taking into account the great delay in instituting action and the fact that the ketubbah "is not like a loan and therefore she has not suffered any loss" (Ket. 104a and Rashi ad loc.). R. Meir expressed the contrary opinion that, as long as she lives in her father's house, she may recover her ketubbah at any time, but as long as she lives in her husband's house, she may only recover her ketubbah within 25 years, for "25 years suffices for her to extend favors in exhaustion of her ketubbah" (as it may be assumed that during this period she made use of the assets of the estate to render favors (gifts) to her neighbors in an amount corresponding to the value of her ketubbah: Ket. 12: 4 and Rashi ad loc.). In the opinion of R. Ishmael, the period is three years only (Tosef., Ket. 12:3). The halakhah was determined according to the first view (Yad, Ishut, 16:21–24; Sh. Ar., eh 101:1–4). In talmudic times, this limitation of action in the case of a widow seeking to recover her ketubbah after the lapse of 25 years from the date of her husband's death already applied only where she was not in possession of the ketubbah deed; there was no limitation of action if she was in possession of such a deed at the time her claim was brought. Similarly, her right of action for recovery of the ketubbah remained intact even though she lived in her parents' home after her husband's death, provided that the attitude of the heirs toward her was particularly favorable ("delivering her maintenance to her on their shoulders"), on the presumption that the nature of this relationship had served to inhibit her from demanding her ketubbah from them (Ket. 12:4; 104b). On the widow's death, her heirs too could recover her ketubbah only within 25 years (Ket. 12:4), commencing, according to some of the posekim, from the date of their succeeding to her right, i.e., on her death (Tur and Sh. Ar., eh 101:1), and according to others, from the date that the cause of action arose, i.e., on the death of the husband (Rashi and Hananel, Shevu. 48a; Beit ha-Beḥirah, Ket. 104b).
the widow's claim for maintenance
Another exception to the general rule is to be found in a halakhic ruling from amoraic times stating that a delay of two years on the part of a poor widow – or three years on the part of a rich one – in claiming *maintenance from the estate of the deceased husband barred her from recovering maintenance for the period which had elapsed (Ket. 96a; tj, Ket. 11:2, 34b has two or three months, respectively). The reasoning behind this quasi-limitation of action is likewise based on the assumption that the widow, by virtue of her delay, has waived her claim for maintenance (Rashi Ket. 96a; Beit ha-Beḥirah ibid.; Yad, Ishut, 18:26; Tur and Sh. Ar., eh 93:14). If, during the aforesaid period, the widow has borrowed for her maintenance or if she has been in possession of a *pledge, she cannot be presumed to have waived her claim for maintenance and it does not become prescribed (tj, loc. cit.).
Roman Law
Roman law of that period also did not recognize the principle of limitation of actions, although there were the actiones temporales, which had to be brought within a fixed period, mostly within one year (the annus utilis). However, the reason for the limitation of those actions lay in the fact that they were founded on a right "granted" by the praetor, who limited in advance the period within which an action could be brought for enforcement. Consequently, once this period had elapsed, the remedial action, as well as the underlying right itself, became extinguished. In contradistinction to this, actions based on civil law (actiones civiles), as well as those praetorian rights in respect of which the praetor had not determined any fixed period for instituting action, were numbered among the actiones perpetuae, which could be brought at any time (save for a number of exceptions). It was only in 424 c.e., in a law of Honorius and Theodosius, that the principle of prescription was recognized in respect of all actions. The general period of prescription was fixed at 30 years and, in certain exceptional cases, at 40 years (R. Sohm, Institutionen (19497), 709–15).
In the Post-Talmudic Period
From the beginning of the 13th century, Jewish law began to give limited recognition to the principle of limitation of actions. While the principle was preserved that limitation of the right of action could not extinguish the underlying right itself, the doctrine evolved that delay in bringing an action served to cast doubt on the credibility of the evidence adduced in proof of the claim.
effect of delay on credibility of claimant's evidence
Thus, at the end of the 13th century, Asher b. Jehiel, dealing with a claim based on old deeds, expressed the fear that an unduly long silence might serve as a subterfuge to enable deceit to go unnoticed or to be forgotten; he accordingly demanded that a suit of this nature be thoroughly investigated if the defendant should plead that he paid the debt or should deny its very existence and, "if I assess as a strong probability (umdenah de-mukhaḥ) that the suit is a fraudulent one and unfounded, I say that no dayyan in Israel should grant relief in this suit, and this I write and sign for delivery into the hands of the defendant" (Resp. Rosh, 68:20; 85:10). However, this view was not generally accepted at once, and in the 14th century *Isaac b. Sheshet of Spain and North Africa gave his opinion that a plea by a defendant based on the plaintiff's long delay in bringing his action was "an idle plea, lacking in substance, and served neither to prove nor disprove the existence of the debt" (Resp. Ribash no. 404). In time, however, Asher b. Jehiel's view on the effect of delay in bringing an action came to be generally accepted, and even supplemented by various further details. In the 15th century, Joseph *Colon (of northern Italy) decided that overlong delay carried with it a suspicion of fraud, which obliged a careful investigation of the matter, even if it was written (in the deed) that the defendant would "raise no plea against the deed and took this upon himself on ban and oath" (Resp. Maharik no. 190; Darkhei MosheḤm 61, n. 5: RemaḤm 61:9). The halakhah was decided accordingly by Joseph *Caro and Moses *Isserles (Sh. Ar., Ḥm 98:1–2). In the 16th century Samuel di *Medina (of the Balkan countries and Turkey) decided that where no reasonable justification could be found to account for the delay, the court should endeavor to effect a compromise between the parties (Resp. Maharashdam, Ḥm 367), while Isaac *Adarbi, Medina's contemporary and compatriot, charged the court with compelling the parties to a compromise in a suit based on a long-delayed claim (Divrei Rivot no. 109). Until this time, i.e., the beginning of the 17th century, no fixed period of prescription had been determined and the court would investigate and determine each case on its merits.
fixed periods for limitation of actions
From the beginning of the 17th century, the need became increasingly felt for precise legal directions concerning the period within which a defendant could expect a particular action to be brought against him. Jewish law accordingly came to recognize the principle – by way of takkanah and custom (see *minhag) – that the mere lapse of time sufficed to impugn the credibility of the evidence in support of the claim, without the need for any particular investigation by the court. Consequently, if the defendant denied the existence of the debt, he was absolved from liability when he delivered an oath as to the truth of his plea. At the same time the substantive principle, basic to prescription in Jewish law, that the lapse of time did not operate to extinguish the underlying right itself, was preserved, so that a debtor who did not deny the existence of the debt – and certainly one who admitted it – was obliged to make repayment notwithstanding prescription of the right of action. The period of prescription was determined in advance – generally three years and in certain cases six (Pinkas ha-Medinah, Lita, ed. by S. Dubnow (1925), Takkanah 205 of 1628; Benjamin Ze'ev Wolf, Misgeret ha-Shulḥan, 61, n. 16; Ẓevi Hirsch b. Azriel, Ateret Ẓevi, to Sh. Ar., ibid.; Jacob Lorbeerbaum, Netivotha-Mishpat, Mishpat ha-Kohanim, n. 18). Once more, this new development with regard to the law of prescription was not immediately accepted by all the halakhic scholars. Thus Abraham *Ankawa (19th century, Morocco), in commenting on this development in Polish and Lithuanian Jewish centers, remarked that it was "a great innovation, and presumably a takkanah they enacted for themselves, although contrary to the law, for whatever reason they had at the time" (Kerem ḤamarḤm no. 33). So too, at the beginning of the 18th century, Jacob Reicher (Galicia) had decided in accordance with the principles laid down in the Shulḥan Arukh, in a matter concerning an old deed (Shevut Ya'akov, vol. 3, no. 182). His younger contemporary, Jonathan *Eybeschuetz expressed the opinion that "at this time much scrutiny is required to keep the court from giving effect [in the case of an old deed] to a fraudulent suit" (UrimḤm 61, n. 18). In the course of time, however, this development came to be accepted as part of the law of prescription, and was even refined and supplemented by certain additional rules, namely: if the debt cannot be recovered from the debtor on account of his impoverishment, prescription is interrupted for the period of his impoverishment; prescription does not apply during the period in which either the plaintiff or defendant is a minor; prescription does not bar the institution of an action if the debtor has waived such a plea in writing, in clear and unequivocal terms, even after completion of the period of prescription (Kesef ha-Kedoshim 61:9).
In the State of Israel
A substantial number of the various provisions of the Prescription Law, 5718/1958 accord with the principles of prescription in Jewish law, including the principle that "prescription shall not per se void the right itself" (sec. 2). On the other hand, this law includes the provision that an admission by the defendant of the plaintiff's right shall only have the effect of nullifying the period of prescription already accrued if the admission is not "accompanied by a plea of prescription" (sec. 9). This provision is at variance with the Jewish law principle that the defendant – if he has admitted the existence of the plaintiff's right – is not entitled to void the claim by pleading that the period within which the action may be instituted has lapsed.
For prescription with regard to immovable property, see *Ḥazakah.
[Menachem Elon]
In the Rabbinical Courts the question of the limitation of actions has also been raised in the context of "the law of the kingdom is law" (*Dina de-Malkhuta Dina), viz., whether Rabbinical Courts must abide by existing state law or custom under which certain actions are limited, when this would negate the option of taking legal action.
Rabbi Ben-Zion Ouziel is of the opinion that Jewish Law only recognizes the principle of a passage of time limiting a right with regard to evidence, e.g., to disqualify a document, and only if other corroborative evidence impugned the authenticity or validity of the document, raising the possibility of a miscarriage of justice. Accordingly, he rejected unqualified compliance of Rabbinical Courts with state law in this context. In his opinion, limitation of actions cannot be regarded as a custom (and hence binding), because the binding nature of a custom is only applicable with regard to the accepted modes of acquisition, which the merchants have agreed to be bound by. By contrast, a promissory note in the hand of the creditor is proof of debt, and the argument that due to the custom of limitation the creditor has waived his claim supports the "robbery" of the debtor, and "robbery cannot be permitted on the basis of custom" (Mishpetei Ouziel, Ḥm 28. 8)
In the Israeli Supreme Court the aforementioned position of Jewish Law on limitation of actions prompted the Supreme Court (Justice Menachem Elon), at the end of its decision in the Boyer case (ca 216/80 Boyer v. Shikun Ovdim, 38 (2) pd 561, 569) to make the following recommendation to a litigant who won his case exclusively on the basis of the claim of prescription (i.e., the passage of time invalidating the rival party's claim): "this is a classic case in which it is proper and desirable to go beyond the strict letter of the law (lifnim mi-shurat ha-din). For a detailed discussion of the matter, see *Law and Morality, and the Supreme Court decisions cited (ibid).
Moreover, the position taken by Jewish Law on limitation, which accepts the doubtful veracity of the evidence without negating the substance of the claim, was instrumental in establishing and confirming the position of the Israeli Supreme Court on this matter. It ruled that the laws of limitation should be interpreted so as to give priority to clarifying the truth rather than bestowing immunity on the litigants (ca 4114/96 Hameiri v. Hachsharath Hayishuv, pd 52(1) 857, Justice Tirkel).
bibliography:
I.S. Zuri, Mishpat ha-Talmud, 7 (1921), 15f.; M, Elon, in: Ha-Peraklit, 14 (1957/58), 179–89, 243–79; idem, in: ilr, 4 (1969), 108–11; Z. Warhaftig, Ha-Ḥazakah ba-Mishpat ha-Ivri (1964), 263–85. Add. Bibliography: M. Elon, Ha-Mishpat ha-Ivri, (1988), 1:827; 3:1450f.; idem, Jewish Law (1994), 2:1013; 4:1724f.; E. Shochetman, Sidrei ha-Din (1988), 178.