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RDG
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Matthew Scully
wrote:
AA had said: ;
the statute of limitations is a defense, and
its assertion by the debtor precludes any judicial finding that the debt
ever existed: it is uninteresting to say that the debt persists, as it
cannot be judicially established that it ever was MS:
This is why we cannot refer to the debt as a legally
enforceable obligation. The concept of natural obligation is put forward
as a means of allowing discharge of a "debt" which is legally unenforceable
(either because of a procedural bar such as the Statute of Limitations
or because the "debt" only exists as a moral obligation such as the
obligation to provide for retired parents (to borrow an example from
French Law)) to be good consideration. The Statute of Limitations does not preclude any judicial
finding that the debt ever was. it is much less sophisticated in its
operation. It simply precludes recovery. It does not extinguish the
indebtedness, it extinguishes the cause of action to enforce the indebtedness.
Why else can one simply "affirm" one's indebtedness and thereby waive
one's right to rely on the time bar? AA: i did not make myself clear i expect we will agree that the statute
of limitations precludes any finding that the debt existed in the proceeding
in which the running of the statute is established. such a finding would
defeat one of the higher purposes of the statute, which is to preclude
affirmative proofs of an obligation when time has likely eroded such contradictory
evidence as the defendant might have adduced. anyway as a matter of procedure,
if the running is established, the court simply has no occasion to rule
on any aspect of the debt. so i wonder at your first sentence: 'that is
why we cannot refer to the debt as a legally enforceable obligation':
if the statute is established, we cannot refer to the debt as a 'debt'.
MS
In what other areas of law can a simple affirmation
of indebtedness suffice to create a binding obligation to pay? AA: any other time a debt is alleged by a plaintiff, and admitted by
the defendant
my point was that discussions about the debt continuing, but being unenforceable
simply make no contribution to understanding of the results: if the debt
is denied and the statute asserted, judgment for defendant: if the statute
[tho having run] is not asserted, judgment for plaintiff if there is no
other defense.
what is added to legal understanding of these results by higher thought
about the unenforceability but persistence of time-barred transactions??
by the way, another formulation which might pop up in american legal
thought:
it is the sensible legislative intention behind the statute of limitations
that it simply offers an option to the defendant to bar proof of the debt,
and has no other operation with respect to the early transaction
[again a formulation which eschews the higher thought].
_________________________________
i hope you are interested in these considerable differences between us
in conceptualization: there are certainly many american lawyers and academics
who would describe the matter as you do, but many would talk about it
as i have.
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