“Ignorantia iuris nocet” (old Roman proverb meaning “Not knowing the law is harmful”)
Most of us know how important it is to sue our debtors well before prescription permanently takes away our right to claim.
But what if you did nothing until it was too late because you didn’t even know you had a claim in the first place? As a recent Constitutional Court illustrates, the answer depends on what the nature of your ignorance in this regard is.
A damages claim for unlawful arrest
If your ignorance is factual…
Prescription only starts to run when you have “knowledge of the identity of the debtor and of the facts from which the debt arises”.
So ignorance of the facts underlying your claim will delay prescription until you become aware of them. Just note that you can’t act unreasonably here – you are “deemed to have such knowledge if [you] could have acquired it by exercising reasonable care.”
But what about ignorance of legal consequences?
The claimant here did not, he said, know that he had a legal remedy against the Minister until it was too late. He didn’t know the law around the 48 hour limit on detention. He was “innocent, ignorant and uninformed about the legal conclusions or consequences of facts” in his possession.
That ignorance – that the police’s action was “wrongful and actionable” – was, held the Court, not ignorance of a “fact” but ignorance of a “legal conclusion”. And since ignorance of the law doesn’t stop prescription running, his claim had prescribed.
That sounds like hard law and perhaps it is in an unfortunate case such as this, but the reality is that such time limits are necessary to bring “certainty and stability to social and legal affairs”. The highest Court in the land has spoken – you can’t hide behind ignorance of your legal rights when it comes to prescription.
There’s only one remedy – don’t delay in getting legal advice!
This article is for general information purposes and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us At DKVG Attorneys for specific and detailed advice.
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© DotNews, 2005-2018. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)