On Certain Issues of "Unfair" Delay Incompatible with the Principles of Good Faith and Fairness

Abstract

Delay in asserting a claim or exercising a right has basically two legal consequences: prescription and forfeiture. A time limit has as a conseqence forfeiture if the law clearly states this. However, civil law also recognises other effects of delay, which may have the effect of extinguishing rights. This is known as disappearance of the right, where the claimant delays in exercising the right in an unjustified and unacceptable manner. This passivity may, depending on the circumstances, infringe the requirements of good faith and fairness, which are fundamental principles of civil law, and may also run counter to the requirement of reasonable behaviour. Where appropriate, passivity may also imply a waiver of rights. This "presumption" may be justified by the legitimate interest of the third party concerned, the safety of the circulation of goods and rights or the need to avoid uncertainty.