Paul Ferrer—Senior Attorney

     The common law is, by definition, judge-made law. See, e.g., Ballentine’s Law Dictionary (3d ed. 2010) (defining “common law” as “[t]hose principles, usages and rules of action . . . which do not rest for their authority upon any express or positive statute or other written declaration, but upon statements of principles found in the decisions of the courts”). The Supreme Court of Virginia has long expressed that “[o]ne of the great virtues of the common law is its dynamic nature that makes it adaptable to the requirements of society at the time of its application in court.” Surratt v. Thompson, 212 Va. 191, 193, 183 S.E.2d 200, 202 (1971) (quotation marks omitted). The court has consistently expressed this understanding of the protean nature of the common law despite a Virginia statute mandating that “[t]he common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.” Va. Code Ann. § 1-200. Thus, the court has indicated that Code § 1-200 “does not mean that common law rules are forever chiseled in stone, never changing. The common law is dynamic, evolves to meet developing societal problems, and is adaptable to society’s requirements at the time of its application by the Court.” Cline v. Dunlora S., LLC, 284 Va. 102, 106-07, 726 S.E.2d 14, 16 (2012) (quotation marks omitted). And yet, in Under Wild Skies, Inc. v. NRA of AmericaUnder Wild Skies, Inc. v. NRA of Am., 304 Va. 310, 319, 915 S.E.2d 514, 519 (2025), the court declined to incorporate the universally well-regarded doctrine of adequate assurance into the Virginia common law, ostensibly because “[t]he decision to adopt a new doctrine applicable to all contractual disputes is a policy decision that is more appropriately left to the legislature.”

Paul Ferrer—Senior Attorney, National Legal Research Group

            In a decision with far-reaching implications in the commercial world, the Virginia Supreme Court has decided that contractual waivers of the right to plead the statute of limitations that do not meet specified statutory criteria are unenforceable under Virginia law. See Radiance Capital Receivables Fourteen, LLC v. Foster,  ___ Va. ___, 833 S.E.2d 867 (2019), available at http://www.courts.state.va.us/opinions/opnscvwp/1180678.pdf. The statute in question provides that unless the failure to enforce a promise not to plead the statute of limitations would operate as a fraud on the promisee, a written promise not to plead the statute of limitations 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." Va. Code Ann. § 8.01-232(A).