69. On Prescription

1. Dominica, abbess of nuns, found in the archive of the monastery an ancient document by which it is established that a Mass was founded in the church of the monastery, and was to be applied for the founder. Yet since this foundation had been given over to oblivion already from a very long time, Dominica is doubtful whether she ought to procure that the aforesaid Mass be celebrated, and that the Masses omitted up to now also be celebrated, or at least that a sanation be obtained for them from the Holy See. For there seems to be place for legitimate prescription.

Q. 1. What is prescription, and what is its object? 2. Whether burdens of Masses are subject to prescription?

R. To the first. Cf. I. M. 908, 913, 914. - To the second. It is controverted; nevertheless the negative opinion seems truer. The reason is that, if there is question of Masses to be introduced or increased, for example, if when 50 Masses were to have been applied, a beneficiary has up to now applied 100, the Masses applied beyond the intention of the constitutors are just as if they had not been applied. But no one prescribes against himself. Hence the same beneficiary will not be held in the future to apply 100 Masses. But if there is question of Masses to be deleted or diminished, for example, if when there were 100 Masses to be applied, the beneficiary applied only 50, the reason of the common good, the foundation of prescription, lest ownership be uncertain and lawsuits be lessened and settled, does not press here, as is clear. For the obligation merely regards the private conscience of each one. But if there is question not of ordinary or even extraordinary prescription, even forty-year prescription, but of immemorial prescription, this is almost in place of a title. Wherefore the archive of the monastery must be better examined, that it may be seen whether another document is had, from which the reason is established why the Mass was not applied. Likewise one must see from what time the application of that Mass was omitted. These things having been investigated, it will then be easy to resolve the proposed case. - La-Croix, l. 4, n. 852; Bened. XIV, de Syn., l. 3, c. 25; St. Alph., H. A., tr. 15, n. 74; tr. 20, n. 84; Ferrar., v. Usucapio, n. 17, § 1, n. 30; D'Annib., p. 3, n. 76, n. 14; S. C. C., 18 Feb. 1702, 18 Aug. 1845, 20 Dec. 1879; A. S. S., v. 13, p. 220 seqq.; Decr. Auth. S. R. C. 333; I. M. 913, 914.

2. Ernestus was bound to pay yearly to Marcellus a canon of 10,000 lire from a perpetual census. For thirty and more years, in good faith, they did not pay the canon, neither he nor his son Ernestinus, the universal heir. Nor indeed did either Marcellus or his son Marcellinus, the universal heir, make protest. But one day Ernestinus, reading through ancient papers of the private family archive, came to knowledge of the omitted payment. But since thirty years had now elapsed, he asks whether prescription has now legitimately been made.

Q. 1. What is required that prescription proceed? 2. What as to the case?

R. To the first. Cf. I. M. 915. - To the second. Prescription could not have been made, although thirty and more years have passed, and the payment of the canon was omitted in good faith. Wherefore Ernestinus is held to payment of the canon. The reason is that prescription begins to run from that point at which it can freely be opposed. If Titus, for example, borrowed from Sempronius, with an agreement of restoring the loan within five years, prescription, if he does not restore, does not begin except after the five-year period has elapsed. Hence the conclusion emerges that a perpetual census can never be prescribed; because the capital by which the revenue was constituted can never be reclaimed, and the right to exact the canon is not had except when each year has been completed. Wherefore Ernestinus is held henceforth to pay the canon to Marcellinus. I. M. 915.

But is Ernestinus also held to pay the canon of past years not yet paid? It does not seem that he is held to pay the canon not yet paid beyond thirty years ago. For in the space of thirty years actions, namely rights of pursuing and recovering in judgment what is owed to us, are prescribed, whether they are real or personal; real, for example, if there is question of vindicating for oneself an estate possessed; personal, for example, if there is question of reclaiming money given as a loan. Nor indeed can defect of title or bad faith be opposed to him who alleges prescription. C. I. 2135. But good faith is altogether required in the forum of conscience; this, however, was not lacking in the case. Wherefore, although the existence of that original debt is now brought forward, nevertheless it has now been altogether extinguished by this thirty-year prescription.

Indeed, neither does it seem that Ernestinus is held to pay the canon not paid in preceding years before five years ago. For it is openly had in C. I. 2144 that those things are prescribed in the space of five years which are owed yearly for perpetual or life revenues. I. M. 922.

And here it must be noted that, to impede prescription of some debt, he who is held to pay any annual prestation whatever which will endure beyond thirty years must at his own expense, after twenty-eight years have elapsed, give to the creditor, if he asks, a new document by which he acknowledges his debt. C. I. 2136. Caius, for example, pays Titus a thousand lire yearly for a debt which he has toward him, and in individual years receives from him a note testifying that payment was made; if Titus could not from Caius exact after twenty-eight years a new document, Caius could destroy the aforesaid notes and assert that, since he has paid nothing through thirty years, prescription has been made. It is enough that the debtor by another note declare that he has paid up to now and has received a note from the creditor testifying that payment was made, or that he simply declare his debt. But if the mortgaged estate has passed to a third party, a new authentic document is necessary; otherwise there would be a personal action against the first debtor, but by no means a real action against the third party. Indeed, even inscription and its renewal do not interrupt prescription of the mortgage. C. I. 2127.

3. To Ambrosius there had been handed over for keeping a certain chest containing several precious gems and various objects made of gold and silver. Ambrosius having died, his son, the heir, in good faith reckons the aforesaid chest among the hereditary things and keeps it for two or three years. But behold, one day Augustinus claims the chest as his own.

Q. 1. Of what sort must the possession required for prescription be? 2. Can the son of Ambrosius oppose prescription?

R. To the first. Cf. I. M. 916, 917. - To the second. Negatively. The reason is that the heir in the case represents the deceased, who had it by title of deposit, not of ownership. Wherefore, just as Ambrosius could by no means prescribe by that non-dominative possession, so neither can his son, the heir, who uses the same possession. I. M. 917.

4. Quidonius, an artisan, had made a portable watch for Remboldus at the price of 100 lire. Payment by Remboldus was deferred for several years. Quidonius, fearing Remboldus, a powerful man, omitted the demand for payment. Six years having now elapsed, Remboldus dies. Then Quidonius immediately seeks the price of the watch from his universal heir, who opposes prescription to Quidonius.

Q. 1. How great is the time required for prescription? 2. What as to the case?

R. To the first. Cf. I. M. 921, 922. - To the second. The debt in the case cannot be prescribed except in the space of 30 years and with good faith. Remboldus lacked both conditions, and therefore he by no means prescribed. Nor indeed could his universal heir prescribe. For the bad faith of Quidonius still stands in the way; for an heir of this sort is considered by law to make one moral person with the testator. But since Quidonius immediately sought the payment of the debt, the heir could by no means complete prescription in the case independently of the testator. For for this there is required prescription of the longest time, or 30 years. G. 538, 540, 541; I. M. 922, 930.

5. Silvester donated several gems to Silvestrinus. He now wishes to reclaim them, pretending that that donation had not been made by a legal act.

Q. 1. Whether for prescription a title is required, and of what sort? 2. Whether Silvestrinus can keep the gems by title of prescription?

R. To the first. Cf. I. M. 919, 920. - To the second. Affirmatively. For since certainly Silvestrinus possesses the aforesaid gems in good faith, he can altogether keep them. It would be otherwise if there were question of all the movables of some house; for then possession alone does not suffice, but the other conditions for prescribing are required. Besides, even by title of manual donation Silvestrinus can keep those gems; for the donation was altogether valid, and for it there is not required that it be made with legal solemnity, as is the most common custom of these donations. - C. I. 707; I. M. 922, 1011.

6. Eugenius knows that his father possesses another's field in good faith. But he himself is silent, and allows him to possess the aforesaid field for ten years. These being completed, the father dies.

Q. 1. Whether good faith is required for prescription? 2. Can Eugenius keep the field?

R. To the first. Cf. I. M. 911, 925. - To the second. Although Eugenius sinned against charity by not warning his father concerning the possession of another's thing, nevertheless now he does not sin against justice by keeping the field; for, the legitimate time having passed, the father truly prescribed in each forum. Wherefore the son receives from the father what was now truly the father's. I. M. 922.

7. Eugenius, a minor son, in good faith possesses a house bought in bad faith by his tutor. After nine years Hippolytus attacks the possession by a certain false document. Wherefore he obtains nothing from the judge. But after three years Gustavius also, son of Hippolytus, attacks the possession, who found an authentic document of his own title. But Eugenius opposes prescription. Is this by right?

R. Eugenius rightly opposes prescription. For he himself is the one who possesses, not the tutor; nor can the bad faith of the tutor buying weaken the good faith of the one possessing. Good faith is required in the possessor, not in another. But his prescription was not interrupted by the suit of Hippolytus, because Hippolytus suffered repulse from the judge. But the authentic title was brought forward by Gustavius when prescription was now complete. G. 536, 538; I. M. 917, 922, 923, 925.