(NOTE: This article was completely re-revised on 1 February 2010, all original content was changed).
The retention – and eventual disposal – of records is a common business practice, despite occasional concerns about what gets destroyed. Justice Scalia, in Arthur Andersen LLP v United States (No. 04-368, 2004) said as much about the destruction of records relating to Enron by Arthur Anderson ‘… we all know that what are euphemistically termed “record-retention programs” are, in fact, record-destruction programs, and that one of the purposes of the destruction is to eliminate from the files information that private individuals can use for lawsuits and that Government investigators can use for investigations.’
A key factor in all records disposal programs is determining how long records should be kept. In many parts of the English speaking world, seven years is frequently cited as the minimum period that records must be kept. But what is the origin or significance of this period of time?
It seems, based on the available evidence, that the seven year period is based on an arbitrary period or time limit of six years, set in 1623. Some jurisdictions with English legal traditions around the world have retained the same minimum six year period, for example, ‘An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.'(s4(2) Limitation Act 1950 (New Zealand)). Others have decided to go with seven years, based on (it would seem) the expiry of the six year period.
It has been claimed by some commentators that the seven year period is based on Deuteronomy 15:1 – 2, which refers to the release of debts after a seven year period, and Deuteronomy 31:10 which has similar references. There is also, as we will see, Jewish influence on English property law during the same period which set the scene for the eventual creation of statutes of limitations, but these links do not provide credible links to the specific period of time that was chosen. If anything, the origins of a set timeframe for (legal) actions can be traced to Roman Law but, again, the links with early English property law is not strong.
Roman law, as outlined in the Twelve Tables (see, for example, http://www.unrv.com/government/twelvetables.php
), included the principle for property related matters of usucapio, literally ‘taking by use’ (Table VI.5). ‘Usucapio of movable things requires one year’s possession for its completion; but usucapio of an estate and buildings two years.’
The concept of usucapio is in many respects the basis for the English expressions ‘possession is nine-tenths of the law’, and ‘finders keepers’. The timeframes defined in the original tables were eventually extended by Justinian but ‘it remained in principle a method of acquiring ownership’. (House of Lords, R v Oxfordshire County Council and Others, 24 June 1999).
Roman law also established the concepts of possession (possessio) and ownership (dominium). (see http://penelope.uchicago.edu
reference in sources).
Of interest is that Henry de Bracton, a Royal judge during the time of Henry II, wrote considerably on Roman Law, although his writings and the value of them have been disputed (see Wikipedia article).
English law, on the other hand, never accepted the idea that long possession of property was the basis for ownership or acquiring title. Instead, the continual possession of property over a passage of time removed the original owner’s right to claim it back.
Blackstone’s Commentaries on the Laws of England (1765-1769) notes that William I introduced feudal tenures into England after 1066. An essential part of this new governance model was that ‘the king is the universal lord and original proprietor of all the lands in his kingdom; and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feodal fervices’. This meant that the tenant’s possessory right in land was limited to usufruct, as granted by the King, who retained absolute dominion over the land.
Usufruct means that the tenant, or ‘fief’ was required to render service to the sovereign in return for the privilege of using the land.
According to Judith Shapiro, William also brought with him Jews who were owned by him and became his moneylenders. Jews could not own land, but they could lend money using land as the collateral security, and presumably over a period of time. While the contracts established at the time (‘shetar’, also known as ‘Jewish gage’) did include a clause from the bible (Deuteronomy 24:10-11) protecting debtors, it is highly doubtful that they released debt at the end of 7 years – in fact, Deutoronomy 15:3 clearly distinguishes ‘foreigners’ from this requirement.
According to the UK Law Commission April 2009 report ‘Why does the present law need reform’, the first limitation periods applied only to land-related actions.
Henry I succeeded William in 1100 and reigned until his death (of gluttony) in 1135. Henry I brought about many changes to English feudal law recognised in documents such as ‘Leges Henrici Primi’ (written around 1115) and ‘Quadripartitus’. One important change introduced was a limit on the date by which a ‘disseisor’ (that is, a person claiming ownership of land as a result of adverse possession (‘assize of novel disseisin’)) could claim ownership.
In R v Oxfordshire County Council and others, 1999, it is noted that ‘… the medieval real actions for the recovery of seisin were subject to limitation by reference to past events.
Shapiro (ibid) notes that, during Henry II’s reign (1154 – 1189), ‘… the King’s court assumed an increasing share of litigation that had previously only been heard in local courts. This was done through the issuance of Royal writs, including the new ‘writ of debt’, used to collect loans of money.
Writs of Entry were also created during this period, according to Joseph Biancalana. Writs of entry were used to allege that a defendant had no entry into land other than by a transaction or taking that did not authorise him to hold the land, for a period of years (‘ad terminum qui preterit’), defined in three degrees.
Biancalana claims that the timeframe set out in the three degrees was developed from the writs of ‘gage’ (debt).
Shapiro claims that, eventually, the Jewish moneylending practices became ‘a weapon of socio-economic changes that tore the fabric of feudal society and established the power of liquid wealth in place of land holding.’ Riots broke out in 1190 and many of the original documents were destroyed (leading, incidentally, to the creation in 1200 of local Archives (Archae) and duplicate copies).
The UK Law Commission report noted above states that,
- Before 1237, ‘… plaintiffs could not claim land on the basis of seisin before the day in 1135 when Henry I died.’
In 1237, the Statute of Merton, 20 Hen III (1235) stated that a writ of right for land-related claims could not refer back to any time before the coronation of Henry II in 1154.
In 1275, the Statue of Westminster, 3 Ed I c 39 moved this date forward to the coronation of Richard I in 1189.
These dates were not changed again until the 1540 Act of Limitation, which prescribed 60, 50, and 30 year limitation periods for land-related writs of right, writs of morts d’ancestor, and claims based on possession of the claimaint, respectively.
In R v Oxfordshire County Council, it further notes that ‘as time went on, proof of lawful origin … became for practical purposes impossible … the evidence was not available …’ to assess claims of novel disseisin. Judges apparently instructed juries that ‘if there was evidence of enjoyment for the period of living memory, they could assume that the right had existed since 1189’. As time wore on, it clearly became impossible to prove.
Finally, the Statute of Limitations Act 1623 fixed a 20 year period for ‘writs of formedom’ (UK Law Commission report).
However, these changes still proved difficult in practice and often relied on ‘legal fictions of presumed grants’ (R v Oxfordshire) effectively based on ‘time immemorial’ (that is, since 1189).
Until the passage of the Act in 1623, no limitation periods existed for other, non land-related claims. (UK Law Commission report) The new Act included limitation periods for non-land-related claims as follows:
Two years: Actions for slander
Four years: Actions of trespass to the person, assault, menace, battery, wounding and imprisonment
Six years: Actions on the case (other than slander); actions for account, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants; actions of trespass, detinue, action sur trover, and replevin for taking away of goods or cattle; actions of debt grounded upon any lending or contract without speciality; and actions of debt for arrears of rent; actions of trespass to land.
The 1623 Act also provided for an extension of time where the plaintiff was under the age of 21, a married woman (‘feme covert’), mentally disabled (‘non compos mentis’), imprisoned, or ‘beyond the seas’.
The UK Law Commission states, on page 5 that ‘we have been unable to trace any information on the reason why the six year period was thought appropriate’. They add that ‘No limitation period applied to contracts under seal (that is, specialties), actions of account between merchants, their servants or factors, actions brought for debt under a special statute, or actions brought on a record’.
Limitation periods for land related actions were reviewed by the Real Property Commissioners in 1829. The Commissioners recommended the retention of the 20 year period, implemented in the Real Property Limitation Act 1833 and the Prescription Act 1832. The Commissioners also found that no limitation periods applied in some cases, including where seisin did not need to be alleged. And, there were no statute of limitations applied to actions by the Church. The 20 year period was then reduced to 12 years by the Real Property Limitation Act 1874. (UK Law Commission report)
Limitation periods were further reviewed in 1936 and recommendations made. These included:
That a single limitation period of six years should apply to actions in simple contract, and actions in tort.
A new limitation period of 12 years (down from 20) was created for actions on a specialty.
According to the UK Law Commission report, the six year period ‘which at present applies to the majority of such actions … is familiar to the general public’.
‘The Shetars Effect on English Law – A Law of the Jews becomes the Law of the Land’ by Judith Shapiro in The Georgetown Law Journal Vol 71, pages 1179 – 1200
‘The Origin and Early History of the Writs of Entry’, Joseph Biancalana. Law and History Review. Vol 25, No. 3, Fall 2007.
‘Final Report on Limitation and Notice of Actions’, Western Australian Law Reform Commission, 1997.
‘Ownership and Possession in the Early Common Law’, by Joshua C. Tate, Southern Methodist University (SMU) – Dedman School of Law, American Journal of Legal History, Vol. 48, pp. 280-313, 2006 SMU Dedman School of Law Legal Studies Research Paper No. 5
- UK Law Commission, ‘Why does the Present Law need Reform?’, April 2009
- Blackstone’s Commentaries on the Laws of England (1765-1769) http://avalon.law.yale.edu/subject_menus/blackstone.asp
- ‘A Man and His Money’, Harvey Reeves Calkins , 1915.
- ‘A treatise on the law of actions relating to real property’, Henry Roscoe, 1825