Calculation of the time limit by months - new case law of the Federal Supreme Court

In its decision 5A_691/2023 of August 13, 2024, the Federal Supreme Court had to deal with the question of the calculation of the forfeiture period for the granting of an action pursuant to Art. 209 para. 3 ZPO.

An authorization to file an action pursuant to Art. 209 ZPO is issued if no agreement is reached during the conciliation hearing. Para. 3 of this article stipulates the following: "After commencement, the authorization to file an action entitles the plaintiff to file an action with the court for a period of three months."

In the above-mentioned case, the Federal Supreme Court was faced with the question of whether this three-month period began to run on the day of service of the authorization to sue or only on the following day. The lower instances of the Federal Supreme Court applied the European Convention on Time Limits (SR 0.221.122.3; EuFrÜb) to calculate the time limit and thus came to the conclusion that the time limit began to run on the day of service of the action permit and that the action was therefore filed after the time limit had expired.

Decision 5A_691/2023 - Background

On Wednesday, January 26, 2022, the appellant was served with a notice of claim pursuant to Art. 209 ZPO, which means that this date is to be qualified as the date of the event triggering the time limit(dies a quo). In its decision, the lower court took the view that the time limit began to run on January 26, 2022: Since Art. 209 para. 3 ZPO expresses the time limit in months, the day on which the time limit expires is the day of the last month which corresponds to the dies a quo according to its number (i.c. "26") (Art. 4 para. 2 Brussels Convention). Consequently, the deadline would fall on Tuesday, April 26, 2022. Due to court vacations, the prosequencing deadline was extended by 15 days in this specific case. This means that the actual deadline is Wednesday, May 11, 2022.

However, the complainant in decision 5A_691/2023 only filed an action on Thursday, May 12, 2022. In order to justify why his action was filed in good time, he argued that Art. 142 para. 2 should be applied in conjunction with Art. 142 para. 1. He argued that although a time limit determined by months ends on the day that bears the same number as the day on which the time limit began to run (Art. 142 para. 2 ZPO), this is the day following an event or notification on the basis of Art. 142 para. 1 ZPO, in this case January 27, 2022.

Strictly speaking, several questions were raised before the Federal Supreme Court in the context of the decision 5A_691/2023 of August 13, 2024:

  • The question of the calculation of time limits in accordance with the European Convention on Time Limits.

  • The question of the applicability of Art. 142 para. 1 ZPO in the calculation of time limits for monthly time limits.

  • The question of determining the event triggering the deadline as the start of the deadline.

  • The question of the compatibility of Art. 142 ZPO with the European Convention on Time Limits.

In the following, the questions raised are first presented and discussed and then the new Federal Supreme Court case law is presented on the basis of the decision 5A_691/2023 of August 13, 2024.

Calculation of time limits in accordance with the European Convention on Time Limits

The European Convention on Time Limits aims to standardize the rules on the calculation of time limits and is directly applicable (BGE 124 II 527 E. 2b).

According to the Convention, all time limits begin at midnight on the day on which the time limit begins to run(dies a quo) and end at midnight on the day on which the time limit expires(dies ad quem; Art. 3 para. 1 Brussels Convention). As the time limit only begins to run at midnight of the dies a quo, this day is not counted (BGE 125 V 37 E. 4b). Only days that are fully available are counted. The European Convention on Time Limits does not contain any special provision for time limits expressed in days (unlike the ZPO in Art. 142 para. 1).

If a time limit is expressed in weeks, months or years, the day on which the time limit ends(dies ad quem) is the day of the last week / month / year which corresponds to the dies a quo by name or number. If a deadline begins on a Tuesday and is calculated by week, it also ends on a Tuesday in the corresponding (deadline) week. If a period begins on the 26th of a month and is calculated by months, the period also ends on the 26th of the corresponding (end of period) month.

Start of time limit according to the European Time Limit Convention...

It has been disputed in literature and case law to date whether the European Convention on Time Limits is also binding on the contracting states as to when a time limit begins to run or whether the contracting states are free to determine the date on which the time limit begins to run themselves. Although the European Time Limit Convention does not expressly stipulate that the day of the event triggering the time limit must also be the day on which the time limit begins to run(this a quo), this follows from the concept and purpose of the European Time Limit Convention. As mentioned, the main purpose of the Convention is to standardize the rules on the calculation of time limits. This is effectively only possible if it not only defines the way in which time limits are to be calculated, but also the beginning of the time limit.

In this regard, the Federal Supreme Court states in the present decision 5A_691/2023 in E.4.3.1.2: The intended standardization requires that if in all contracting states the dies a quo, i.e. the day on which the time limit begins to run, corresponds to the day of the event triggering the time limit. If a contracting state were to set the start of the time limit on the following day, in other words if the dies a quo were to be (at least) one day after the day of the event triggering the time limit, the time limit would then be longer than the (whole) days, weeks, months or years provided for by the Convention, as the time limit would in turn start at midnight on the dies a quo and the latter would therefore not be included in the calculation.

It follows from the above that, in application of the European Convention on Time Limits, the date of the event triggering the time limit (e.g. the date of service of the authorization to sue) must coincide with the date on which the time limit begins to run.

However, the European Convention on Time Limits does not specify the conditions under which a time limit is triggered or what is deemed to be a time limit-triggering event. In this indirect way, the contracting states are able to determine the point in time at which a time limit begins to run.

... or start of time limit according to Art. 142 para. 1 ZPO?

In its previous case law on Art. 142 para. 1 and 2 ZPO, the Federal Supreme Court has not commented on the relationship between Art. 142 ZPO and the European Convention on Time Limits. 

The central point concerns the question of whether the "day on which the time limit began to run"(dies a quo) under Art. 142 para. 2 ZPO is to be understood in conjunction with Art. 142 para. 1 ZPO, or whether Art. 142 para. 2 ZPO is to be considered separately from para. 1 of the same article. Art. 142 para. 1 ZPO provides that time limits that are triggered by a notification or the occurrence of an event only begin to run on the (following) day.

If the time limit is calculated in days, doctrine and case law unanimously assume the start of the time limit in accordance with Art. 142 para. 1 ZPO and then count the individual days (BGE 149 III 179). The day on which the time limit begins to run is included or counted. The wording of this provision therefore leads to the same result as if the time limit began to run on the day of the event triggering the time limit (notification or occurrence of an event), but the first day is not counted because it is not fully available. With regard to the calculation of the daily time limit, the result therefore does not differ regardless of whether Art. 142 para. 1 ZPO or the European Convention on Time Limits is applied.

However, this method of calculating the time limit does not lead to the same result if the time limit is determined by months. In this case, the time limit would begin on the day after the event triggering the time limit and continue until the day (in the last month) that bears the same number as the day on which the time limit began to run. This would give the party not only the intended number of (whole) months, but an additional day to take the required procedural action.

Following an extensive interpretation of Art. 142 para. 2 ZPO, which is well worth reading, the Federal Supreme Court came to the conclusion that the day on which the time limit began to run was not based on Art. 142 para. 1 ZPO, but on the day of the event triggering the time limit. This is the only way to guarantee an effective period of one month. For example, if the event triggering the time limit falls on the 26th of a month, the time limit begins to run at midnight on that day and ends at midnight on the 26th of the corresponding final month.

Decision 5A_691/2023 - Result

According to the above, the appellant has therefore missed the time limit for bringing an action pursuant to Art. 209 para. 3 ZPO both in application of the European Convention on Time Limits and in application of Art. 142 para. 2 ZPO: The event triggering the time limit, the service of the authorization to sue, took place on Wednesday, 26 January 2022. Art. 209 para. 3 ZPO expresses the time limit in months. Since, as explained, both the European Convention on Time Limits and (consequently) the ZPO equate the "day on which the time limit begins to run" with the day of the event triggering the time limit when calculating monthly time limits, this results in January 26 as the day of the event triggering the time limit and the day on which the time limit begins to run. The three-month deadline therefore ended on April 26, 2022. Due to the 15-day standstill around Easter, the deadline was extended and ended on Wednesday, May 11, 2022.

In this specific case, the appeal was nevertheless upheld on the basis of the principle of good faith, the contested decision was annulled and the case dismissed. The decision was based on the fact that the previous case law of the Federal Supreme Court on this issue was inconsistent and the legal position of the appellant was not obviously incorrect. The Federal Supreme Court therefore considered it inappropriate to make the appellant bear the consequences of the initial clarification of the interpretation of Art. 142 para. 2 ZPO.

Takeaway messages

  • The "day on which the time limit began to run" pursuant to Art. 142 para. 2 ZPO corresponds to the day of the event triggering the time limit and is not governed by Art. 142 para. 1 ZPO.

  • The calculation of time limits according to the European Convention on Time Limits does not differ from that according to the ZPO.

  • The following applies to monthly deadlines: The day of the event triggering the deadline or the start of the deadline is not counted towards the deadline as it is not available as a whole day. The deadline begins at midnight on this day and ends at midnight on the final day.

  • In accordance with this latest Federal Supreme Court case law, the time limit therefore begins months later on the day of service of the notice of claim - not on the following day!

  • However, this does not change the course and calculation of time limits. Art. 142 para. 1 remains fully applicable, as time limits of one day are calculated in the same way under both the Brussels Convention and the Code of Civil Procedure and any questions of priority can therefore remain unanswered.

With its decision 5A_691/2023 of August 13, 2024, the Federal Supreme Court has thus clarified its case law in an extremely important and practice-relevant area.

Balthasar Wicki and Vivien Keiser will be happy to answer any questions you may have on this topic.

Raël Fein