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The Committee that acted for the National Conference of Commissioners on Uniform State Laws in preparing the Uniform Conflict of Laws - Limitations Act was as follows:

ROBERT A. LEFLAR, University of Arkansas, School of Law, Fayetteville, AR 72701,

Chairman

FRANCISCO L. ACEVEDO NOGUERAS, GPO Box CH, San Juan PR 00936

HARVEY BARTLE, III, 3400 Centre Square West, 1500 Market Street, Philadelphia,

PA 19102

JACK DAVIES, William Mitchell College of Law, 875 Summit Avenue, St. Paul,

MN 55105

PETER J. DYKMAN, 211 North Capitol, Madison, WI 53702

LIONEL H. FRANKEL, The University of Utah, College of Law, Salt Lake City,

UT 84112

JAMES A. MARTIN, University of Michigan, School of Law, Ann Arbor, MI 48109,

Reporter

JOHN C. DEACON, P.O. Box 1245, Jonesboro, AR 72401, President: 1979-1981

(Member Ex Officio)

M. KING HILL, JR., Sixth Floor, 100 Light Street, Baltimore, MD 21202,

President: 1981-1983 (Member Ex Officio)

CARLYLE C. RING, JR., 308 Monticello Boulevard, Alexandria, VA 22305,

Chairman, Executive Committee

WILLIAM J. PIERCE, University of Michigan, School of Law, Ann Arbor, MI 48109,

Executive Director

HARRY B. REESE, Northwestern University, School of Law, 357 East Chicago Avenue,

Chicago, IL 60611, Chairman, Division C: 1979-1981 (Member Ex Officio)

GENE N. LEBRUN, P.O. Box 8110, Rapid City, SD 57701, Chairman, Division E:

1981-1982 (Member Ex Officio)

CHARLES W. JOINER, P.O. Box 7880, Ann Arbor, MI 48107, Chairman

GEOFFREY D. CANT, Department of Legislative Reference, 90 State Circle, Annapolis,

MD 21401

FRANK W. DAYKIN, Legislative Building, Capitol Complex, Carson City, NV 89710

PETER I. OSTROFF, American Bar Association

Copies of all Uniform and Model Acts and other printed matter issued by the Conference may be obtained from:

Traditionally, statutes of limitations have been characterized as "procedural" laws, for conflict of laws purposes, so that the limitation periods prescribed by the forum state's laws were applied. This result was reached despite its substantive effect of determining which party won the lawsuit. Forum shopping by delay-prone plaintiffs, or by their attorneys, with suits filed in states with long limitation periods, inevitably occurred.

One consequence was that the courts developed some rather inexact "exceptions" to the "general rule." These included one that treated as "substantive" any limitation period that was "built into" the very statute, such as a wrongful death act, that created the cause of action sued on; another called the "specificity test" that treated a limitations statute as "substantive" if it was directed specifically to the sort of claim sued on; and possibly others less commonly employed. See Grossman, Statutes of Limitations and the Conflict of Laws: Modern Analysis, 1980 Ariz.St.L.J. 1.

Another consequence was that about three-fourths of the states enacted so-called "borrowing statutes" which followed no regular pattern but required application of a limitation period other than the forum state's if some stated aspect of the cause of action occurred in or was connected with another state. These borrowing statutes are often difficult to interpret and apply. They have been the source of considerable judicial confusion.

In 1957 the Conference promulgated a Uniform Statute of Limitations on Foreign Claims Act which was designed to replace these variant borrowing acts. It achieved no general adoption, and was officially withdrawn in 1978. The major difficulty with it was its abrupt harshness. It cut all sorts of Gordian knots by providing simply that the governing law, as between that of the forum and of the state "where the claim accrued," should be the one that prescribed the shorter period - "whichever bars the claim." That turned out to be not acceptable. The present committee was set up to draft a different "limitations borrowing statute." The consensus was that limitations laws should be deemed substantive in character, like other laws that affect the existence of the cause of action asserted.

Section

1. Definitions.

2. Conflict of Laws; Limitation Periods.

3. Rules Applicable to Computation of Limitation Period.

4. Unfairness.

5. Existing and Future Claims.

6. Uniformity of Application and Construction.

7. Short Title.

8. Severability.

9. Repeal.

10. Time of Taking Effect.

§ 1. Definitions. As used in this [Act]:

(1) "Claim" means a right of action that may be asserted in a civil action or proceeding and includes a right of action created by statute.

(2) "State" means a state, commonwealth, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, a foreign country, or a political subdivision of any of them.

Under the definition of "state," the United States, though included in similar definitions in other uniform acts, is not included here because federal law will control federal limitations problems.

Under the definition of "State," claims based upon the law of governmental units within a State are included within the coverage of the Act.

§ 2. Conflict of Laws; Limitation Periods.

(a) Except as provided by Section 4, if a claim is substantively based:

(1) upon the law of one other state, the limitation period of that state applies; or

(2) upon the law of more than one state, the limitation period of one of those states chosen by the law of conflict of laws of this State, applies.

(b) The limitation period of this State applies to all other claims.

This section treats limitation periods as substantive, to be governed by the limitations law of a state whose law governs other substantive issues inherent in the claim. This is true whether the limitation period of the substantively governing law is longer or shorter than that of the forum's law.

The current judicial trend is in this direction. Cases illustrating this approach include Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412 (1973); Air Products & Chemicals, Inc. v. Fairbanks Morse, Inc., 58 Wis.2d 193, 206 N.W.2d 414 (1973); and Henry v. Richardson-Merrell, Inc., 508 F.2d 28 (3d Cir. 1975). In none of these cases did the forum court seem to be averse to applying the other-state substantive law merely because the consequence would be to apply the other-state limitation period also.

This act does not lay down general conflict of laws rules to govern an adopting state's choice of law. Each enacting state will have its own choice-of-law law, its own conflict of laws law, as each state does now. The current conflict of laws trend is away from older mechanical choice-of-law rules and toward more modern approaches combining most significant relationships, governmental interest analysis, and choice-influencing considerations. It is possible that this combination of modern approaches will gain general acceptance. This act, however, does not rely upon that development. It provides that the enacting state, as forum, will apply its own conflicts law, whatever it may be, to select the substantive law that governs the litigated claim. If different issues involved in a single claim are found to be governed by the substantive laws of different states, the governing limitations law will be that of the one of those two or more states chosen by the conflicts law of the forum, or enacting, state. Thus the forum state's own conflicts law will always choose the limitations law that is substantively governing.

The term "limitation period" refers only to the commencement of an action and does not refer to requirements for giving notice of claims (e.g., to a unit of government or the executor of an estate) as a condition to bringing an action.

§ 3. Rules Applicable to Computation of Limitation Period. If the statute of limitations of another state applies to the assertion of a claim in this State, the other state's relevant statutes and other rules of law governing tolling and accrual apply in computing the limitation period, but its statutes and other rules of law governing conflict of laws do not apply.

The phrase "governing conflict of laws" applies to both "statutes" and "rules of law."

This section treats all tolling and accrual provisions as substantive parts of the limitations law of any state whose law may be held applicable. They are part of that state's law as that state would apply it. The limitation period of another state, however, does not include its rules as to when an action is commenced. These rules are part of the procedural law of each forum state.

The final clause in Section 3 constitutes the standard means of avoiding renvoi problems.

It should be noted that Section 3 could conceivably give rise to application of the "unfairness" exception in Section 4, for example, if a state tolls the running of its limitation period because of a defendant's physical absence from the state even though he is at all times subject to service under a longarm statute. Tolling under such circumstances is unfair, and should be eliminated. Reliance upon the Section 4 exception seems preferable, however, to complete disregard of tolling provisions. Most of them, like accrual provisions which determine when a cause of action comes into existence, are reasonable and not outmoded.

§ 4. Unfairness. If the court determines that the limitation period of another state applicable under Sections 2 and 3 is substantially different from the limitation period of this State and has not afforded a fair opportunity to sue upon, or imposes an unfair burden in defending against, the claim, the limitation period of this State applies.

This section provides an "escape clause" that will enable a court, in extreme cases, to do openly what has sometimes been done by indirection, to avoid injustice in particular cases. The "strong public policy" of a forum state can be effectuated. The section should rarely be employed, but will be useful if harsh results should in any case ensue from rigid application of the preceding sections. One illustrative possibility is noted in the Comment following Section 3, above.

Litigants will not often be able to take advantage of the "escape clause." It is not enough that the forum state's limitation period is different from that of the state whose substantive law is governing; the difference must be "substantial," and the "fair opportunity" provision constitutes a separate and additional requirement. An "escape clause" is needed, but it is not designed to afford an "easy escape".

§ 5. Existing and Future Claims. This [Act] applies to claims:

(1) accruing after the effective date of this [Act]; or

(2) asserted in a civil action or proceeding more than one year after the effective date of this [Act], but it does not revive a claim barred before the effective date of this [Act].

This section is designed to avoid any unfairness that might occur because of reliance on prior conflicts law.

§ 6. Uniformity of Application and Construction. This [Act] shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this [Act] among states enacting it.

§ 7. Short Title. This [Act] may be cited as the Uniform Conflict of Laws - Limitations Act.

§ 8. Severability. If any provision of this [Act] or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the [Act] which can be given effect without the invalid provision or application, and to this end the provisions of this [Act] are severable.

§ 9. Repeal. The following acts and parts of acts are repealed:

(1)

(2)

(3)

If the State has adopted the Uniform Statute of Limitations on Foreign Claims Act, promulgated in 1957, it should be repealed.

§ 10. Time of Taking Effect. This [Act] shall take effect on ________.