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Extinctive prescription

Does the word prescription ring a bell? Let’s hope it does, because it is a fundamental concept within Quebec’s legal system. In fact, it is a way to gain or lose a right simply based on the passage of time[1].  With that in mind, we believe everyone should have a certain awareness of the rules surrounding this mechanism.  

There are two types of prescription: acquisitive prescription[2] and extinctive prescription.  For the purpose of this article, we will only discuss extinctive prescription.

The Civil Code of Quebec defines extinctive prescription as a means of extinguishing a right owing to its non-use or of pleading a peremptory exception to an action[3].  Concretely, this legal jargon means that a person can lose their right to sue by simply not doing so in the timeframe provided by law. 

Several delays are provided by law based on the nature of the right.  For example, an action to enforce a personal right or movable real right, without a doubt the most frequently used, is prescribed by three years[4].  However, the prescription can be shorter or longer depending on the judicial application.  It is therefore important to qualify the nature of the right a person wishes to claim in order to calculate the prescription to which they are subject.

Several other elements must be considered in order to determine if a legal claim is prescribed.  The facts of each case must be studied in depth in order to evaluate if the right is prescribed, particularly by pinpointing the starting point of the prescription or by establishing if the parties have renounced, interrupted or suspended the prescription.

To summarize, it is difficult and complicated to understand all the rules surrounding prescription, and therefore, it is always recommended to consult with professionals who will be able to advise you in order to ensure that your right is not lost by the mere passage of time.



[1] Article 2875 C.c.Q.

[2]For more information on acquisitive prescription please click on the following link : http://www.bernierbeaudry.com/en/publications_acquisitive-prescription_162.html

[3] Article 2921 C.c.Q.

[4] Article 2925 C.c.Q.

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