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Statute of Limitations

Waiving The Defense

A court cannot force a defendant to use a statute of limitations defense, but it is usually in the person's best legal interests to do so. Nevertheless, defendants do sometimes waive the defense. The defense may be waived by an agreement of the parties to the controversy, provided that the agreement is supported by adequate consideration. For example, a debtor's agreement to waive the statute of limitations in exchange for a creditor's agreement not to sue is valuable consideration that prevents the debtor from using the defense.

A defendant may be unable to use the limitations defense due to her agreement, conduct, or representations. To be estopped, or prevented, from using this defense, a defendant need not have signed a written statement, unless required by statute. The defendant must, however, have done something that amounted to an affirmative inducement to the plaintiff to delay bringing the action. Statements that only attempt to discourage a person from bringing a suit or mere negotiations looking toward an amicable settlement will not estop a defendant from invoking the statute of limitations.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Special power to Strategic Lawsuits against Public ParticipationStatute of Limitations - Criminal Actions, Civil Actions, Recovered Memory: Stopping The Clock, Waiving The Defense, Tolling The Statute