Five-Year Limitation Period: Does the Deadline Expire at Midnight or at 24:00? The Court of Cassation Decides

Imagine: you are the owner of a flat in Saintes, and you signed a preliminary contract of sale in June 2008. The buyer withdraws, you lose a significant sum. You take legal action in June 2013, thinking you are within time. But the court tells you: “Sorry, it is time-barred.” Yet you counted the days as for a procedural deadline, i.e., including the starting point. Fatal mistake. The limitation period, on the other hand, is calculated differently.

This situation, how many owners and creditors have experienced it? The question is simple: when a five-year period begins on 19 June 2008, does it expire on 19 June 2013 at midnight, or on 18 June 2013 at midnight? The stakes are high: a single day can make you win or lose a lawsuit, and sometimes thousands of euros.

The Court of Cassation, in a ruling of 12 December 2018 (No. 17-25.697), decided clearly: the rules for calculating procedural deadlines (Articles 641 and 642 of the Code of Civil Procedure) do not apply to limitation periods. For limitation periods, Article 2229 of the Civil Code provides that the period expires on the last day of the completed term. Concretely, if the period runs from 19 June 2008, it expires on 18 June 2013 at 24:00, not on 19 June. A nuance that cost the company BS Invest dearly.

The facts: a story like many others

In June 2008, the company BS Invest, a property developer, signed a preliminary contract of sale with an individual, Mr X, for a property located in Puilboreau. The preliminary contract includes a penalty clause in case of default by the buyer. But the deal goes wrong: the buyer does not follow through, and the sale does not take place. The company BS Invest considers that the penalty clause should apply and demands payment of a fixed sum.

The seller, however, disputes this. He argues that the penalty clause is not due, because it was the estate agent who negotiated the preliminary contract and that the breakdown arose from a failure to advise. But above all, he raises the limitation period: the action for payment of the penalty clause should have been brought within five years of the starting point, i.e., 19 June 2008. However, the company BS Invest served the seller on 19 June 2013. Is this within the time limit?

The court of first instance in La Rochelle ruled in favour of the company BS Invest, considering that the period expired on 19 June at midnight, because the starting point was 19 June 2008 and the period was counted from date to date. But the Court of Appeal of Poitiers overturned this judgment, applying the rules on limitation: the period expired on 18 June at midnight. The company BS Invest then appealed to the Court of Cassation, arguing that Articles 641 and 642 of the Code of Civil Procedure should apply. The Court of Cassation dismissed the appeal, confirming the Court of Appeal's decision.

The reasoning of the court — broken down

The heart of the debate concerns the distinction between procedural deadlines (for taking legal action, appealing, etc.) and limitation periods (for exercising a right, such as claiming a sum of money). The former are governed by Articles 641 and 642 of the Code of Civil Procedure, which provide that the period expires on the day of the same date as the starting point. For example, a 5-year period starting on 19 June 2008 expires on 19 June 2013, with the starting point included.

But limitation periods are governed by Article 2229 of the Civil Code: “the limitation is acquired when the last day of the term is completed.” This means that the period is calculated in days and expires at the end of the last day. If the starting point is 19 June 2008, the first day of the period is 19 June, and the last day is 18 June 2013 (because 5 years = 1826 days, including 19 June 2008). So the period expires on 18 June at 24:00.

The Court of Cassation was very clear: procedural rules do not apply to limitation periods. It also recalled that Article 26, II of the Law of 17 June 2008, which reduced the limitation period from 30 to 5 years, sets the starting point at 19 June 2008 for limitation periods already running. Thus, the five-year period for the company BS Invest began on 19 June 2008 and ended on 18 June 2013. The service of process on 19 June 2013 was therefore late.

This decision is a confirmation of previous case law. It does not create new law, but it reminds us of a rule often overlooked. The judges rejected the argument of the company BS Invest that the preliminary contract provided for staggered performance, which could have shifted the starting point. No, the starting point was the date of signature of the preliminary contract, because the penalty clause was due as soon as the default occurred.

What this means for you — concretely

For landlord owners: if you need to claim unpaid rents, know that the five-year limitation period runs from each unpaid instalment. For example, if a tenant does not pay the rent for January 2019, you have until the end of January 2024 to take action. But be careful: the limitation expires on the last day of the month at midnight, not on the first day of the following month. A claim filed on 1 February 2024 would be too late for the January 2019 rent.

For buyers: if you signed a preliminary contract of sale in Puilboreau in 2018 and the seller withdraws, you have 5 years to claim damages. But count carefully: if the preliminary contract was signed on 15 March 2018, the limitation expires on 14 March 2023 at midnight, not on 15 March. A concrete example: for a penalty clause of €10,000, losing a day could cost you that sum.

For co-owners: actions to recover co-ownership charges are subject to a 5-year limitation period from the due date of each charge. If your management company demands charges from 2019, it must act before 31 December 2024, but actually before 30 December 2024 at midnight, because the starting point is 1 January 2019. A nuance that management companies know well, but which can catch individuals out.

If you are in this situation, you must check the exact date of the starting point and calculate the last day of the period by counting days, not simply by using the “same date.” Note that public holidays or weekends do not postpone the limitation period, unlike procedural deadlines. So if the last day falls on a Saturday, you must act by Friday at the latest.

Four tips to avoid this type of dispute

• Mark the limitation date on a calendar as soon as your right arises. For example, if you sign a preliminary contract on 19 June 2008, note in red the 18 June 2013 as the deadline. Do not rely on your intuition.
• Consult a lawyer as soon as you consider legal action, at least 3 months before the presumed expiry of the period. A professional can calculate the exact limitation date and avoid nasty surprises. Better safe than sorry.
• If you are a creditor of a sum of money, send a formal notice by registered letter with acknowledgement of receipt. This can interrupt the limitation period and give you a new 5-year period. But be careful, the interruption is only valid if the formal notice is followed by legal action within 2 years.
• Keep all documents proving the date your right arose. Preliminary contracts, rent receipts, minutes of general meetings... Without proof, the starting point can be disputed. An example: an owner in Saintes was able to prove that the starting point was 1 January 2010 thanks to a tenancy agreement signed that day.

Further insights: related case law and developments

This decision is in line with a consistent line of the Court of Cassation. Already, in a ruling of 13 September 2017 (No. 16-20.420), it had held that the limitation period for an action for payment of lawyers' fees expires on the last day at midnight. More recently, the Commercial Chamber reiterated the same rule for actions for contractual liability (ruling of 20 January 2021, No. 19-16.230).

However, a divergence exists with procedural deadlines, where the calculation includes the starting point. For example, to appeal a judgment, the one-month period runs from notification and expires on the same date of the following month. This difference is a source of confusion, and some lawyers advocate harmonisation. But for now, the distinction is clear.

What does this case law mean for the future? It confirms that limitation periods are strictly interpreted. The legislator has not provided for a specific calculation rule, so ordinary law applies: the period expires at the end of the last day. The courts will not show leniency to negligent litigants. Hence the importance of not waiting until the last moment.

Summary and next steps

Here are the key points to remember:

• Starting point: the day the right arose (e.g., signature of the preliminary contract, unpaid instalment).
• Duration: 5 years for the five-year limitation period (action for payment, contractual liability, etc.).
• Expiry date: the last day at midnight, calculated by counting the starting point as the first day. Example: from 19 June 2008 to 18 June 2013.
• To do: act before this date, taking into account non-working days (the period is not extended).

If you are unsure about the limitation date of your action, do not wait. A quick consultation with a lawyer can save you. For example, an owner in Puilboreau recently narrowly avoided the limitation period by acting one month before the deadline, thanks to sound advice.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →