of December 2, 2005 No. 29
About some questions connected using terms of limitation period
For the purpose of ensuring uniform application by economic courts of the Republic of Belarus regulations of the civil legislation on terms of limitation period the Plenum of Supreme Economic Court of the Republic of Belarus, being guided by articles 14-16 of the Law of the Republic of Belarus of December 9, 1998 "About economic courts in the Republic of Belarus" (Vedamastsi Natsyyanalnaga to descent of Respubliki Belarus, 1999, No. 2, the Art. 32),
1. Draw the attention of economic courts of the Republic of Belarus (further - economic courts) that in case of the solution of question of use of limitation period it is necessary to be guided by regulations of Chapter 12 of the Civil code of the Republic of Belarus (further - group of companies), the legal acts providing special terms of limitation period for separate types of requirements and also the international treaties of the Republic of Belarus containing regulations about limitation period.
2. The aggregate term of limitation period established in three years (Article 197 of group of companies) extends to all types of the requirements following from civil legal relationship, except for concerning what legal acts establish the reduced or longer terms in comparison with aggregate term of limitation period or to which limitation period does not extend (Article 209 of group of companies).
3. Requirements, in particular, belong to the requirements considered by economic court concerning which groups of companies are established special terms of limitation period:
about factual determination of negligibility of the transaction and about application of effects of its invalidity within ten years from the date of when its execution (Item 1 of Article 182 of group of companies) began;
about recognition of the debatable transaction invalid or about application of effects of its invalidity within year from the date of the termination of violence or threat under the influence of which the transaction was made or from the date of when the claimant learned or shall learn about other circumstances which are the basis for recognition of the transaction invalid (Item 2 of Article 182 of group of companies);
about transfer of the rights and obligations of the buyer in case of sale of share in the right of common property with violation of the privilege of purchase within three months (Item 3 of Article 253 of group of companies). According to Item 5 of Article 253 of group of companies three-months term is applied also in case of alienation of share under the agreement of exchange;
shown in connection with inadequate quality of the work performed on the works agreement, except for requirements for buildings, constructions, constructions within one year (Item 1 of Article 678 of group of companies);
following from cargo hauling, within one year since the moment determined according to the legislation (Item 3 of Article 751 of group of companies).
4. By hearing of cases according to requirements about factual determination of negligibility of the transaction and about application of effects of its invalidity economic courts should consider regulations of Item 1 of article 1143 of group of companies about use of terms of limitation period only to those claims which the presentation terms provided by earlier existing legislation did not expire till July 1, 1999.
5. Draw the attention of economic courts that article 17 of the Bank code of the Republic of Belarus according to requirements of banks and non-bank credit and financial organizations to borrowers in case of improper execution of conditions of credit agreements establishes the special five-year term of limitation period which is applied to the legal relationship which arose after entry into force of the Bank code.
6. Owing to Article 6 of group of companies of regulations on terms of limitation period, containing in the international treaties of the Republic of Belarus which became effective are part of the civil legislation existing in the territory of the Republic of Belarus and are subject to direct application, except cases when follows from the international treaty that application of such regulations requires the publication of the interstate act.
7. In case of application of article 8 of the Convention on limitation period in the international purchase and sale of goods concluded in New York on June 14, 1974 in edition of the Protocol on change of the Convention on limitation period in the international kupleprodazha of goods signed in Vienna on April 11, 1980 (further - the Convention), it must be kept in mind that the Convention which became effective for the Republic of Belarus on August 1, 1997 establishes the four-year term of limitation period for the requirements of the buyer and seller following from the agreement of the international purchase and sale of goods or connected with its violation, the termination or invalidity.
According to article 3 of the Convention it is applied only in that case:
if at the time of the conclusion of the agreement commercial enterprises of agreement parties of the international purchase and sale of goods are in Contracting states; or if according to regulations of private international law to the purchase and sale agreement applicable law of the Contracting state.
In this connection economic court, having established by consideration of the dispute following from the agreement of the international purchase and sale of goods signed between subjects of business and other economic (economic) activity of the Republic of Belarus and the state not being the participant of the Convention that applicable law to the disputable relations is the legislation of the Republic of Belarus according to the statement of the party in dispute applies the special four-year term of limitation period according to the Convention.
8. In case of calculation of term of limitation period according to the requirements following from the transportation agreement, to which extends action the Convention on the agreement of international delivery of loads signed in Geneva on May 19, 1956 and which became effective for the Republic of Belarus on July 4, 1993, economic courts shall be guided by Item 1 of article 32 of the specified Convention which establishes year of limitation period, having at the same time in type that in case of intentional wrongful acts or such improper execution of obligations which according to the law applied by the economic court considering case is equated to intentional wrongful acts, the term of limitation period is established in three years.
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