Limitations Waiver Unenforceable
Updated: Apr 17, 2020
The Virginia Supreme Court has decided that contractual waivers of the statute of limitations that do not meet specified statutory requirements are unenforceable under Virginia law. The statute says that unless failing to enforce a promise to waive a statute of limitations defense would be a fraud, a written promise not to use the statute of limitations defense is valid and enforceable only when (i) it is made to avoid or defer litigation pending settlement of any case, (ii) it is not made contemporaneously with any other contract, and (iii) it is made for an additional term not longer than the applicable limitations period.
WHY THIS IS IMPORTANT...Statute of limitations waivers are found in many contracts including commercial loan documents. This ruling effectively makes those waivers useless in Virginia and for any contract subject to Virginia law.