Statute of limitations sets a time limit for filing a lawsuit. Fair toll allows for a delay or suspension of the time limit if a plaintiff could not discover the harm until after the time limit has expired. This principle is applied in civil cases through civil procedure rules. Equitable tolling applies when a defendant dismisses a case due to the plaintiff’s failure to comply with rules or meet the time limit, and the court may enforce fair toll if the plaintiff can show good cause for exceeding the time limit.
A statute of limitations establishes a maximum time after an injury or felony has occurred to bring a lawsuit or related charges. When a prescription is suspended, it is said to be “pedated”. The fair toll is a legal doctrine which allows for a delay or suspension of the expiry of the time stipulated by a prescription.
A statute of limitations is intended to protect a defendant. Toll provisions are intended to help a plaintiff by extending the time frame within which he or she is allowed to file a lawsuit. The fair toll corresponds to the same principle; it is a legal doctrine that is mainly found in the law on civil liability and in the civil procedure that allows the suspension of the limitation period.
The term “fair” derives from a set of legal principles married in the law of equity. Equity law represents what is right and just; smooths out stringent rules of law where applying them could cause an overly harsh outcome. Thus, in civil law, fair toll simply means that a statute of limitations will not preclude an action if a plaintiff – in due diligence – has not or could not discover the harm in question until the statute of limitations has expired. The best example of this principle is in a context of medical malpractice. If a surgeon leaves a surgical sponge inside a patient but the patient does not discover the lesion until the statute of limitations expires, the patient may file an equitable medical malpractice claim; to deny the claim would be unfair.
In civil or collective cases, the fair toll is usually applied through the rules of civil procedure. Civil procedure is a body of law relating to the rules that courts follow when adjudicating civil cases. The rules of civil procedure govern the methods of constitution of the lawsuit, the times and/or methods of depositions, applications and briefs. Once a civil suit or class action has been filed, the statute of limitations has expired.
The doctrine of equitable tolling generally applies in the context of a civil action where a defendant has decided to dismiss the action on the basis of the plaintiff’s failure to comply with the rules of civil procedure or has failed to meet the statute of limitations for the action in question. For example, a defendant may decide to dismiss a case arguing that the plaintiff violated a legal time limit for filing a lawsuit, filing a motion, or adding a necessary part. In such a case, a court may enforce the legal remedy of fair toll if the plaintiff can show good cause for exceeding the statute of limitations. Examples of good cause for exceeding the statute of limitations could include failure to discover an injury or indispensable part of the lawsuit within the statutory time frame, or an earlier filing of an identical civil action in a different jurisdiction.
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