1. Introduction
Prescription and limitation are two different concepts in law. Both are governed by the Prescription and Limitation (Scotland) Act 1973 (the ‘1973 Act’). ‘Prescription’ is the term for the principle whereby a right or liability is extinguished by a lapse of time. ‘Limitation’ is different in that it refers to the period in which certain actions must be raised. ‘Extinguished’ means that the right or liability no longer exists and the creditor has no debt to pursue.
The 1973 Act is complex legislation that directly impacts the advice that should be given to clients. A key aspect of the 1973 Act is ‘negative prescription’. This deals with the lapse of time on rights and obligations and the effect this has on a creditor’s right to pursue a debt.
This chapter looks at prescription and the rules for short (five years) and long (20 years) negative prescription.
Terms like ‘statute barred’ are used throughout the chapter, the meaning is the same as ‘prescribed’.