Tolling (law)

Statutory tolling is expressly created by legislation, which specifies the events that suspend the limitations period. Common statutory grounds include the plaintiff’s minority, mental incompetence, imprisonment, or the defendant’s absence from the jurisdiction. For example, many U.S. states provide that the statute of limitations does not run against a minor until they reach the age of majority, and federal law tolls the deadline for filing a discrimination charge while the claimant is pursuing internal remedies with the employer.¹

Statutes may also toll the limitations period during wartime or while a state of emergency is in effect, as seen in various jurisdictions during the COVID-19 pandemic, when courts suspended filing deadlines. Statutory tolling is strictly construed: courts will not extend the period beyond the legislature’s explicit direction.

Equitable tolling is a judge-made doctrine that allows a court to pause the limitations period when the plaintiff has diligently pursued their rights but was prevented from filing by extraordinary circumstances beyond their control. Unlike statutory tolling, equitable tolling is discretionary and applied sparingly. The U.S. Supreme Court has recognized equitable tolling in federal cases, but has cautioned that it is reserved for rare situations, such as when a defendant’s fraudulent concealment of the claim or a plaintiff’s mental incapacity makes it impossible to sue.²

Equitable tolling is often distinguished from equitable estoppel, which prevents a defendant from asserting the statute of limitations as a defense when the defendant’s own misconduct induced the plaintiff to delay filing. The doctrine is also applied in immigration and habeas corpus cases, where deadlines for filing appeals may be tolled if the petitioner was unaware of the deadline due to attorney error or other exceptional circumstances.

Beyond the familiar grounds, tolling has several niche applications. In admiralty law, the “tolling of the statute” may occur when a vessel is absent from the jurisdiction, a rule rooted in the difficulty of serving process on a ship that leaves port. In criminal law, some jurisdictions toll the statute of limitations for offenses committed against minors until the victim reaches adulthood, a reform adopted in the 1990s in response to clergy abuse scandals.³

Another edge case is “tolling agreements,” private contracts between parties to suspend the limitations period while settlement negotiations proceed. These agreements are common in complex commercial litigation and are generally enforceable if they are in writing and supported by consideration. Additionally, the doctrine of “fraudulent concealment” tolls the statute only until the plaintiff discovers, or with reasonable diligence should have discovered, the fraud—a rule that balances fairness against the policy of repose.

Tolling is not unique to U.S. law. In civil law jurisdictions, the concept of suspension of prescription serves a similar function, though it is often codified in civil codes. For example, the French Civil Code suspends the prescriptive period during the minority of the claimant and between spouses. In common law countries like the United Kingdom, the Limitation Act 1980 provides for the extension of limitation periods in cases of disability, fraud, or concealment.⁴

International human rights law also recognizes the need for tolling in transitional justice contexts, where statutes of limitations may be suspended for gross human rights violations. The Rome Statute of the International Criminal Court provides that crimes within its jurisdiction are not subject to any statute of limitations, effectively rendering tolling moot for such offenses.⁵

Statute of limitations

A law that sets the maximum time after an event within which legal proceedings may be initiated.

Equitable estoppel

A doctrine that prevents a party from asserting a right or defense that contradicts their prior conduct, when that conduct induced reliance.

Prescription

In civil law, the acquisition or loss of rights through the passage of time, analogous to statutes of limitations.