Last updated: December 2005

The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette.

Question

I would like to know the statute of limitations for a claim in Small Claims court.

Answer

Small Claims court does not have a statute of limitations. The different kinds of cases that can be filed there do, but Small Claims court just has a size limitation--$10,000 and under (the amount was $5,000 for cases filed before 1/1/06). The kind of legal claim, not its size, determines the statute of limitations.

The rule defining Small Claims court says it’s for civil cases “based either on tort or contract for money not in excess of $10,000.” While you might think this means there’s just two possible statutes of limitation—one for torts, and one for contracts—it doesn’t. There’s different kinds of torts and contracts, with different statutes of limitations.

Tort cases based on personal injuries have a 2-year statute of limitations, but most of those won’t be in Small Claims court. Tort cases based on just property damage have a 5-year statute of limitation, and some of those will be. 

Most sales contract cases will have a 4-year limit. That comes from the Uniform Commercial Code, which covers most sales. Claims over home construction or improvements also have a 4-year limit.

Then there’s a 5-year limit on oral contracts, and a 10-year limit on written contracts.

Most Small Claims cases, then, will have a 4, 5 or 10-year statute of limitations. But not all, since some legal claims have their own particular statute of limitation.

For example, there’s a 3-year limit on bad checks. That means you have to file your bounced check collection case within 3 years of when it started bouncing.

And if you sue a collection agency or a finance company over violations of federal law, the statute of limitations is just one year.
 
What happens if you filed your case after the statute of limitations expired? Nothing, unless your opponent catches on and raises it as a defense. A statute of limitations is an “affirmative defense,” which the Defendant must use or lose. With an affirmative defense, the Defendant basically admits the facts (I haven’t paid you your money), but says you lose for some other reason (time’s up).

If you’re a Defendant, and want to counter-sue, the statutes of limitation don’t apply. That prevents someone from waiting until you’ve lost your legal claims to sue you.

Statutes of limitation are supposed to protect against “stale” claims. The general idea is to decide cases when the evidence is still fresh and available.
 

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