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Waive the statute of limitations?

Radiance Capital v. Foster (Va. Oct. 24, 2019)

Two men guarantee a loan. The guarantee prospectively waives their right to raise statute of limitations as a defense. Is this waiver enforceable?

In general, people may contractually waive any rights conferred by law or contract. But waivers of the statute of limitations have special requirements. Under Virginia Code § 8.01-232, this sort of waiver must be:

  • made in writing,

  • made to avoid or defer litigation pending settlement,

  • made for an additional term not longer than the default term, and

  • not made at the same time as any other contract.

All four elements are required. In Radiance Capital, the waiver satisfies the first requirement (it is in writing), but not the others. So it is unenforceable.

Bottom line: If you want the court to enforce a statute of limitations waiver, make sure it satisfies all four requirements of Virginia Code § 8.01-232.

Bonus point: Under Virginia law, the general statute of limitations for breach of a written contract is 5 years; for an oral contract, it’s 3 years.


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