Borrowing statute
| Conflict of laws and private international law |
|---|
| Preliminaries |
| Definitional elements |
| Connecting factors |
| Substantive legal areas |
| Enforcement |
Within the United States, a statute of limitations is typically deemed to be a procedural law, meaning that a state will ordinarily apply its own statute of limitations to any case that is filed within its courts.[1] A borrowing statute, is a statute under which a U.S. state may "borrow" a shorter statute of limitations for a cause of action arising in another jurisdiction. The purpose of borrowing statutes is to prevent plaintiffs from engaging in forum shopping in order to find the longest available statute of limitations.
A borrowing statute is applied where a plaintiff sues in a state different from the state where the act that is the basis of the lawsuit occurred.[2] For example, if a person is injured in a car accident in state A, that person may sue the at-fault driver in state B (presuming state B has jurisdiction, usually because it is the driver's home state). If the state in which the lawsuit is filed has a borrowing statute, that state will usually apply the other state's statute of limitations, as long as it is a shorter statute of limitations than that of the borrowing state.[3]
In determining which state is the one in which the cause of action arose, states will apply various choice of law principles, which may be very complicated.[1] States that do not have borrowing statutes may apply their own statutes of limitation to most or all lawsuits filed in their state courts, although at times they may apply an out-of-state limitations period based upon a choice of law analysis.[4]
In some states, the borrowing statute will only be applied if the plaintiff was not a resident of that state at the time the cause of action accrued;[5] in others, it will only apply if the defendant was not a resident. Some states limit the use of borrowing statutes to specific types of cases, such as breach of contract actions.[6]
References
[edit]- ^ a b Wani, Ibrahim J. (1988). "Borrowing Statutes, Statutes of Limitations and Modern Choice of Law". University of Missouri-Kansas City Law Review. 57. Retrieved 6 November 2017.
- ^ "West Virginia Code, Chpt. 55, Art. 2A, Limitation on Foreign Claims". West Virginia Legislature. Retrieved 6 November 2017.
- ^ See, e.g., "The Michigan Borrowing Statute". Michigan Legislative Council. State of Michigan. Retrieved 6 November 2017., "MCL 600.5861 Cause of action accruing without state; limitation on commencement of action". Michigan Legislature. State of Michigan. Retrieved 6 November 2017.
- ^ Herma, Kay (31 August 2007). Gilbert Law Summaries on Conflict of Laws (18 ed.). p. 84. ISBN 978-1634591683. Retrieved 6 November 2017.
- ^ Cornicello, Anthony J. (June 2012). "CPLR 202: When Cause of Action Accrues in Another Jurisdiction Longer New York Statute of Limitations Will Not Apply if Plaintiff Is Only a Domiciliary and Not a Resident". St. John 's Law Review. 59 (3). Retrieved 6 November 2017.
- ^ See, e.g., "Code of Virginia, § 8.01-247. When action on contract governed by the law of another state or country barred in Virginia". Legislative Information Service. Commonwealth of Virginia. Retrieved 6 November 2017.. In Virginia, if the contract was breached in another state where it was supposed to have been performed, or validity of the contract is contested in another state where the contract was formed, then a court will apply the statute of limitations of the other state as long as it is shorter than their local statutes of limitations.
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