Point III. On Prescription

580. • Prescription is some positive reason or right of acquiring dominion, or of freeing oneself from some obligation through a certain lapse of time, the conditions prefixed by law having been posited (C.C. 2219).

Hence a twofold prescription must be distinguished: one acquisitive, through which some thing or some right is acquired; the other liberative, which frees from some servitude or some burden.

581. • Principles. I. Human law can, by force of prescription, transfer the dominion of things from one to another, even without the consent of the owner. The reason is that this is not only useful, but plainly necessary for the common good of society, namely for preventing or settling lawsuits which otherwise would more often arise from the uncertain right of possession. On the other hand, it is not repugnant to natural equity, since the law has been established before every event, and by this very fact it presents to all and each an equal lot of gain or loss. - Thus generally the Canonists and Theologians. - Gousset. - Bouvier.

II. Prescription furnished with the due conditions transfers dominion in conscience. This is evident from the genuine sense of the words by which the law is enacted. For it is said that dominion is transferred, acquired, etc. On the other hand, human authority would in no way obtain the intended end, namely public security and the peace of consciences. It is evident besides from Canon Law, which recognizes the force of prescription even for the forum of conscience.

III. These five things are required for prescribing legitimately, namely: a prescriptible thing, possession, the required time, title, good faith. Hence the common little verses:

You will not take by use, unless these five things are yours:
If the thing is apt, faith good, and the title also just,
You possess justly when the time of the law has been completed.

We shall say a few things concerning each.

582. • Generally, all and only those things are prescribed which come under private dominion and commerce, and for whose acquisition there can be given a legitimate title (C.C. 2226). - For since the end of prescription is to transfer dominion by the authority of law, such a transfer cannot be made concerning a thing which by its nature, or by the disposition of the laws, cannot come into the dominion of private persons. - Hence sacred things, such as churches, cemeteries, ecclesiastical rights, and also those things which are of public dominion strictly taken, such as squares, roads, etc., cannot be prescribed ¹.

¹ Thus the laws, which add to things not apt to be prescribed also a free man (Inst., § 1, De Usucap.): Sometimes also, even if someone has possessed a thing in the highest good faith, nevertheless usucapion does not proceed for him at any time; as if someone should possess a free man, or a sacred or religious thing...

To these, from common law, must be added stolen things or things possessed by violence. Thus the Laws (Inst., § 2, De Usucap.): Stolen things also, and things possessed by violence, even if they have been possessed in good faith for the aforesaid long time, cannot be usucapted. For the law of the Twelve Tables and the Atinian law prohibit the usucapion of stolen things; the Julian and Plautian law prohibit that of things possessed by violence.

But that the Author is silent about this defect of stolen things or things possessed by violence must be attributed to the character of the French code, which (whether wisely or not, let others judge) decreed that the damage inflicted by thieves is to be borne by the legitimate owner of the thing rather than by its last possessor.

Nor is this to be understood only of thieves, but also of others to whom stolen things have come. Thus Inst., § 3, De Usucap.: But what has been said, that the usucapion of stolen things and things possessed by violence is prohibited by the laws, does not pertain to this, that the thief himself, or he who possesses by violence, cannot usucapt them (for usucapion does not belong to these for another reason, because, namely, they possess in bad faith), but so that no other, although he has bought from them in good faith or has received from another cause, may have the right of usucapting. Hence that saying, that the thing is defective, and that the defect passes with the thing (L. 11, C. De acquir. et retin. Poss.). Defects of possessions contracted by ancestors persist; and the fault of his author accompanies the successor.

Possession is said to be the detention of a thing in one's own name, or the exercise of some right ². This possession is required for prescribing ³. It is evident from Civil Law, both Roman and French. A proof drawn also from Canon Law accedes to this. For thus rule 3 in the Sext lies: Without possession prescription does not proceed.

² This is what is commonly accustomed to be called improper possession, or quasi-possession; for properly possession is customarily said only of corporeal things, not of incorporeal things, such as, for example, the right of electing, hunting, servitudes, etc.

³ A threefold possession is distinguished by the Doctors, namely natural, civil, and mixed. Natural possession is (as Schmalzgrueber has exactly, lib. 2, tit. 12, n. 4) when someone indeed possesses a thing by the support of body and mind (namely, he apprehends the thing and stands upon it, so that he takes and has it as his own); nevertheless someone else besides retains the civil possession of the thing.

Civil possession, as separated from natural, is when someone continues to possess by the support of the mind a thing once possessed naturally, though not by act of the body, either by himself or through another.

Mixed possession is when someone actually possesses a thing by the support of body and mind in such a way that no other retains the civil possession of the same thing. This is the most perfect possession.

Among interpreters of law, mention is also made of most civil possession, namely when by disposition of the laws dominion and possession are transferred without any act of the body (that is, without an act of apprehending), whether true or fictive. To this purpose belong C. Ecclesia 3, De Causa Possess. et Propriet., and C. Contingit 9, De dolo et contumacia.

Moreover, for beginning prescription there is necessary not only natural possession, since without actual apprehension of the thing, true or fictive, possession itself is not even begun, but civil possession is also required, inasmuch as one intends both with an opinion of dominion and with the will to possess the thing as his own. Nevertheless, the asserted necessity of natural possession does not exclude that most civil possession suffices; for since by disposition of the laws this is judged true possession, as to effects it ought to differ in nothing from true natural and civil possession. See Reiffenstuel, lib. 2, tit. 26, n. 190.

But possession must enjoy various conditions. For it must be 1. dominative, or the thing must be had with the mind of an owner, not of a depositary, etc.; 2. public, that is, not clandestine, so that the thing is not purposely hidden from him against whom it is prescribed ⁴; 3. tranquil, so that no joining of issue about the thing has intervened; 4. certain, that is, not equivocal; 5. continued, or not interrupted, until the required time is completed.

⁴ This second condition, which the illustrious Scavini also mentions (De Praescript., q. 4, n. 4), is taken from the French Code, art. 2229. But it is manifest that it pertains to the external forum; for as to the forum of conscience it does not bear on the matter. And indeed, whoever is going to prescribe as to the internal forum must be ignorant in good faith that the thing is not his, and must retain it as his own. To what purpose, then, the warning not to possess clandestinely? It will be valid for the thief, who hides for this reason, that he not be disturbed from tranquil possession until he can complete the time of prescription.

583. • Title is said to be a cause sufficient of itself for transferring dominion, for example, purchase, donation, etc. From Roman Law a fourfold title is customarily distinguished, namely true, colored, putative or estimated, and presumed.

A true title is not indeed required, as is plain; otherwise the possessor would not need prescription for acquiring the thing. Therefore a colored title suffices, that is, one which bears before itself the appearance of a true title, although in itself, on account of a hidden defect, it is not true ⁵. - For prescription of thirty years no title is required, but possession alone suffices even in conscience, provided good faith is present; or rather, then a presumed title is had in the very fact of tranquil possession through so great an interval of time.

⁵ Even a merely putative or estimated title suffices, namely when it is probably believed that a title intervened which nevertheless in fact was not present; for example, if an heir hands over a thing to someone as bequeathed to him by testament, which nevertheless in truth was not bequeathed. Concerning which matter L. 5, ff. Pro Legato says thus: The thing which has been handed over in the name of a legacy, although its owner lives, nevertheless is usucapted in the name of legacies (L. 6, ff. same title), if he to whom it was handed over thought the owner to be dead. Nevertheless it is required that the title be reasonably estimated to have been present.

But from French Law no title is required for prescribing movable things ⁶. Hence the saying: For movables, possession is equivalent to title (C.C. 2279). Whence he who detains the thing is judged its owner, unless the contrary is proved.

⁶ This will be able to hold for the external forum, in which indeed the thing is presumed to pertain to him who affirms it to be his; although otherwise possession of a thing determines nothing, since both true owners and also thieves and robbers possess things in their keeping, as frequent experience testifies.

But that possession so understood, namely without any title, can be valid in the forum of conscience is a plainly absurd hypothesis. For in the forum of conscience prescription without good faith is repugnant. But good faith is the judgment by which we believe that to be ours which we wish to possess as ours. But it is repugnant that we should think something to be ours if there is no cause why we should think it, namely if no title is present. Therefore without title it is impossible to begin possession of good faith; namely, even that very possession which they say holds the place of title is impossible, since without title I cannot even begin to have the thing as mine, or possess it for mine.

584. • I. As regards acquisitive prescription:

1. For immovable things possessed without special title, thirty years are required for prescribing. - But with a special title, ten years are required and suffice if the true owner is present, that is, if he dwells in the same province in which the estate subject to prescription is situated; but if the true owner is absent, the years of absence are doubled. But this province is determined by particular laws.

In France the true owner is said to be present if he has domicile in a place subject to the same superior Court (Cour d'appel) in whose territory the estate lies.

2. All actions, both real and personal, are prescribed through 30 years without title.

3. Active servitudes, if they are continuous and apparent, are prescribed with title like immovable things, and therefore in thirty years if a special title is lacking. But active non-apparent servitudes are not subject to prescription without title. But those are called non-apparent which are not plain of themselves, as, for example, a prohibition of building on such an estate, or of raising a building beyond such a height. - But whether they can be prescribed with title in ten years as immovable things is disputed.

4. For movable things under Roman Law three years are required with title, but thirty without title. - But under French Law, three years without title for stolen and found things; but as to the rest, possession alone suffices (art. 2279).

5. If another's thing has been possessed successively by several, the last possessor, for prescribing, can compute all the time in which it was detained in good faith by others, even if he has had it for only a few days when the time of prescription is completed.

6. In Roman and Canon Law 40 years are required for prescribing ecclesiastical goods; and 100 for the goods of the Roman Church, or of St. John Lateran. But French Law does not distinguish ecclesiastical goods from others ⁷.

⁷ Here you have a trace of the depraved sense into which the age that authored these laws betrays that it had been handed over. For that some special homage or reverence is owed to things sacred to God, even the very dictate of natural reason suggests, so that we find this received in every age and among all peoples, however pagan and barbarous.

Add that some singular privilege for ecclesiastical goods had seemed necessary to ancient wisdom also for this reason: since those goods are administered by those who do not have dominion of them, they therefore rightly seemed to be equated to the goods of pupils and minors, whose singular care the laws have never failed to assume, although otherwise they are not destitute of tutors or curators.

Bouvier (De Iur. et Iust., c. 2, § 4, sect. 3, punct. 2, prop. 2) well limits that the prescription of ecclesiastical goods is made in the same way as that of others, at least in the external forum. For in reality civil laws cannot derogate from the natural rights of the Church, except among pagan legislators.

II. As regards liberative prescription:

1. Passive servitudes, ground-rents, and all debts, good faith being supposed, are extinguished after thirty years. - St. Lig., n. 513. - Lugo, etc. - (C.C. 2262).

2. From French Law five years suffice for prescribing pensions due from ground-rents, alimentary pensions, the price of the leasing of houses and estates, and whatever must be paid yearly, or after a shorter time (art. 2277). - There are also other shorter prescriptions: thus, for example, only six months are required for wages of workmen, innkeepers, etc.; one year for fees of physicians, servants, etc.; two years for fees of procurators, once the case is finished ⁸. - (Art. 2271 and following).

⁸ As to these things each person must consult the laws of his own region.

585. • Questions. Q. 1. When is prescription said to be interrupted?

Resp. When, because of an impediment interposed, it ceases in such a way that it must be begun again. But this can happen in a twofold way: 1. naturally, if the one prescribing loses possession for a time greater than a whole year, or if bad faith supervenes; 2. civilly, if a lawsuit is moved juridically concerning the possession, and the interpellation has not been rejected by the judge. Thus Roman and French Law.

Q. 2. When is prescription said to be suspended?

Resp. When an impediment is opposed to it so that it does not proceed further; namely, 1. while courts cannot be exercised, for example in time of plague, of war; 2. against the Church, while it lacks a rector or superior; 3. against pupils during the whole time in which they remain pupils ⁹; 4. against anyone who cannot prosecute his right. Thus the laws more commonly.

⁹ Against the goods of pupils prescription can neither be begun nor continued, if it was begun against a predecessor; and this, from common law, is valid both concerning ordinary prescription and concerning extraordinary and longest prescription, namely that of thirty years. But the condition of minors differs, because against their goods a prescription of ordinary time can indeed neither be begun nor continued, yet a thirty-year prescription can be begun and run.

586. • Q. 3. Whether prescriptions of three years for stolen and found movable things are valid in conscience, as French Law bears?

Resp. 1. As regards stolen things. 1. A thief, or a possessor of bad faith, can never prescribe, even if by lapse of time he has forgotten that he accepted the thing unjustly, since he began possession in bad faith. 2. But a buyer or donee who accepted the thing in good faith from a thief can prescribe, if the other conditions required for prescription are present ¹⁰.

¹⁰ Two articles of the French Code gave occasion to this controversy, namely 2279 and 2280, which afterward, even after the French invasion ceased, certain codes of Italy retained, such as the Piedmontese, Parmesan, Modenese, and Sicilian.

Article 2279 has itself thus: As regards movable goods, possession produces the same effect as title. Nevertheless, he who has lost some thing, or from whom it has been taken by theft, can reclaim it within the space of three years, to be computed from the day of the loss or theft, from him with whom he finds the thing, while the action of this one against him from whom he received it is preserved.

But article 2280: If the actual possessor of a thing taken by theft or lost has bought it at fairs or in a market, or on the occasion of a public auction, or from a merchant who sells goods of that sort, the original proprietor (owner) cannot reclaim it for himself unless he pays the possessor the price for which he acquired it.

Therefore the question is whether those dispositions as regards stolen things are valid also in the forum of conscience, or whether they are to be held in the same place as liberative prescriptions, which look merely to this, that for diminishing the number of lawsuits an action is denied to the creditor in the external forum. And the Author, as is plain, adheres to the opinion which admits those dispositions also for the internal forum; which opinion has pleased also some other writers of our age, against the certain sentence of all the older writers, who receive this only as regards prescription of the longest time, that is, thirty years, by which all actions are extinguished.

Nevertheless it must be said that this opinion of the more recent writers on the one hand rests on reasons not sufficiently firm, and on the other hand is pressed by grave difficulties. And indeed they bring forward as reason, some that the mind of the legislator seems to be that that law should obtain in conscience; but others that the law must be held as just, because it is most useful for commerce, the public good, peace, and the tranquillity of possessions. This latter is that of the Most Reverend Bouvier.

But as to the first reason, it must be wholly denied that those dispositions can obtain in conscience from the mind of the legislator. And indeed, since the law 1. requires no good faith, 2. requires no title of possession besides possession itself, and 3. merely requires that the stolen thing not be found by the owner before three years; certainly the authors of the law, unless we imagine them most stupid, could easily have seen that it can happen that by force of the law a stolen thing must be adjudged through prescription to thieves and robbers themselves.

Nor does it seem to profit sufficiently that those writers with the Author add that they posit the condition, provided the other conditions required for prescribing are present, or that according to the Piedmontese code possession has the force of title only in favor of a third party. For here the question ought to be whether the force of transferring dominion can be attributed to the law considered in itself and as it lies. But the law, as it lies, does not demand the conditions which those writers add, but permits the thing to be prescribed even by a thief. Therefore. But the limitation placed in the Piedmontese code does not prevent a third party who is conscious that the thing is stolen from being able to prescribe. For this reason the Austrian Code (§ 367) wisely took care at least expressly that this third party be a possessor of good faith.

And indeed strength accedes to these things from comparison with the articles of the same code which establish liberative prescriptions, and also with article 2269, which decrees that for prescribing immovable goods it suffices that good faith was present at the time of acquired possession. For in the same way, by force of prescription, the thing is adjudged to the possessor. Yet even the writers themselves deny that liberative prescriptions are valid in conscience; and they must establish the very same thing about him for whom good faith, which was not lacking at the time of acquisition, is afterwards lacking before the time for prescribing has been completed.

The question therefore is brought to this: whether a law can seem just which as it were supposes that dominion can be transferred by a thief to a buyer at fairs, etc. And common law indeed always denied that dominion is transferred; and therefore it preserved for the owner a right and action against the thing itself, by which he could vindicate it for himself, whoever at last, whether thief or another, now detained it. For this reason it plainly provokes laughter that either the compilers of the French code, or I know not who else, set under this law certain allegations from Roman common law, where it treats of the usucapion of another's thing, which, for example, is sold in good faith by one not the owner, or by one interdicted from alienating. For one must be stupid, or entirely a foreigner in Roman law, who confuses another's thing with a stolen thing. Nay rather L. 10, ff. De usurp. et usucap., which they also alleged, proves the opposite, while it says that another's thing can be usucapted, but denies that a stolen thing can be usucapted.

Moreover, since Roman law is plainly conformable to the law of nature, to which it is plainly repugnant that the owner be compelled to buy his own thing; and since French law also supposes that dominion of the thing is preserved for the owner when before the completed three years it gives the owner the right of reclaiming the thing for himself, provided the possessor has not acquired it at fairs, etc.; it would certainly be necessary that what is generally established concerning the justice of prescriptions according to natural law, civil common law, and canon law should also be valid in the case, namely that there be present so grave a reason why his own thing should be taken away from the owner that it would make necessary this spoliation of the owner. And to this matter the Most Reverend D. Bouvier has drawn forth the utility of commerce and the tranquillity of possessions.

But that there is present that urgent reason of necessity is cast into great doubt by the fact that through so many ages no one perceived it; indeed, they saw that it was necessary that the law of nature be observed in that case. Nor will anyone be able to object the diverse circumstances of times; nay rather, the more corrupt society appears, and the more cunning and bold the art of doing harm, the more grave will press the necessity that the republic protect the rights of property by laws.

But as to the reasons drawn forth by Bouvier, has commerce up to this age, or in places where that law is not in force, been so impeded that the free and safe exchange even of stolen things is manifestly to be desired? Or are we accustomed to be deterred from buying things which stand for sale at fairs or among merchants, or to tremble concerning the tranquil possession of things thus bought?

But on the contrary, what is that microscopic convenience of commerce worth in comparison with the grave inconveniences flowing from the same law? And certainly a most grave inconvenience is that by the wrongdoing of others the owner falls not only from the possession of his things, but entirely from dominion and every right. Nor should you say that the buyer of a stolen thing is placed in an equal condition if the thing is evicted by the owner. For the owner evicts what by natural right is his; but the buyer, on the contrary retains what by natural right is not his, but another's, and compensates the damage inflicted on him by the fraud of the thief by the unjust spoliation of another innocent person.

Likewise, the law introduces a very grave inconvenience to society, since it brings in a most ample favor to thieves. For thus an easy way is supplied for enjoying the fruits of thefts, when, after partnership has been entered into with men of the same flour, it suffices for a most safe protection of stolen things that the stolen thing has come into another's hands at fairs.

Resp. 2. As regards found things. A second possessor, or the successor of the finder by title of purchase, donation, etc., can prescribe, as was said concerning the successor of a thief. - But whether the first possessor of a found thing can be said to be of good faith, due diligence having first been used for finding the owner, and thus can prescribe, is disputed. But it seems that it must be affirmed; because if, after the circumstances have been considered and due diligence has been used, the owner cannot be found, nor does any hope shine forth of finding him, he falls from the dominion of the thing in such a way that the thing is judged to belong to no one, and therefore becomes the property of the first occupant. Therefore the finder in that case can begin possession of the thing with the intention of retaining it as his own. - Elbel, n. 172. - Sporer, de inventione, n. 187.

But as regards article 2280, which establishes that a stolen thing cannot be recovered by the owner unless he redeems it for as much as someone bought it at fairs or from a merchant, etc., in reality this does not pertain to the argument of prescription. For it sanctions that this must be observed at any time even within the three years, so that it could happen even two days after the theft, for example, if the thief on the next day after the theft sells a stolen calf or horse at the fairs of another village.

587. • Q. 4. Whether other movable things can be prescribed in conscience by the sole title of possession ¹¹ according to French Law?

¹¹ Above (in the note to n. 583) we have already warned that the hypothesis of good faith necessary for prescribing in the internal forum is repugnant when any title is lacking on account of which someone believes that some thing is his, which he wishes to retain as his own. Therefore we said that that saying, that possession as to movables is valid for title, merely serves in the external forum for presuming in favor of legitimate possession in order to introduce prescription, as article 2230 of the same code also insinuates.

Consequently, the question here would be made more suitably: how much time is required for prescribing other movables (namely those which can be called neither found nor stolen things), if the other necessary conditions are not lacking? On which matter perhaps the Author less suitably gives examples of a rented or deposited thing (for even according to the French code, art. 2236, the tenant and depositary of another's thing can in no way prescribe it at any time), unless those examples are understood of a thing rented or deposited which by error has come in good faith into the hands of another by some title.

Moreover, as to what the writers mentioned by the Author suppose, namely that the new French law was wholly silent about movables which they think are by no means contained under the count of lost or stolen things: this indeed seems to depart from probability. Nevertheless, on this hypothesis, the opinion which the Author reports last would certainly seem the more reasonable, not insofar as it establishes that the title of possession suffices (which words can have no probable sense there), but insofar as it admits that three-year possession with good faith suffices for prescribing even in conscience. For the privilege which the same code does not deny even to stolen things would absurdly be denied to these movables. But, as has been said, this hypothesis does not seem probable. And if indeed it is lawful to opine in a matter which could seem obscure, I would have thought that movables of this sort also are contained in the French code under the name of lost things. For the division of things is not obscure, so that some are withdrawn from the possession of owners without the wrongdoing of another, but others from the wrongdoing of another. And just as in Law a stolen thing is taken in a very broad sense for any thing whatever which, without the will of the owner, someone knowing it to be another's, and therefore through wrongdoing, has handled or alienated (Instit., De Usucap., § 3; L. 2, C. De Usucap. pro donato; L. 1, C. De Usucap. pro empt.); so in a broad but true sense a lost thing can be called whatever thing, without the will of the owner and without anyone's wrongdoing, but by chance or unknowingly, passes into the possession of another, although not every thing lost in this sense can in an equally proper sense be called found as regards him who begins to possess it. And in reality it is easily plain also from common law that the word "losing" is used in this broader sense (see ff., lib. 8, tit. VI, Quemadmodum servitutes amittuntur, and lib. 41, tit. II, De adquirenda et amittenda possessione).

Resp. It is disputed. Some require thirty years, because no time is established by law, nor does the sole title of possession seem sufficient. This can be true, inasmuch as through 30 years all actions are extinguished, even when a special title is lacking. Others require only three years. For the new French Law is silent. But the old was abrogated. Yet this, as it seems, can be admitted. For if the law admits a three-year prescription for stolen and found things, it ought to admit it also for others. - Others more probably admit that the title of possession is sufficient of itself. Nor do there seem to be such great inconveniences in this opinion; because, besides stolen things and found things, which are prescribed in three years, cases of possession of another's thing are very rare, for example in a thing rented or deposited; and since possession must be strong by various conditions, which cannot be fulfilled in a single instant, this prescription will more often fall back into three-year prescription, which can be admitted in conscience.

588. • Q. 5. Whether liberative prescriptions of five years under French law are valid in conscience?

Resp. 1. Negatively, if it is a matter of the first debtor, because in him good faith cannot be supposed, which wholly requires ignorance of the debt.

Resp. 2. Affirmatively, as regards the successors of the first debtor at least by particular title, according to what will be said below, n. 590, if they were ignorant of the debt of the author. - Gousset, n. 719.

Q. 6. Whether liberative prescriptions of French Law shorter than three years are valid in conscience?

Resp. Negatively, because in such prescriptions the legislator does not have the intention of transferring dominion. Thus article 2275 of the Civil Code clearly supposes; according to it, those who oppose prescription are held to swear that they have truly paid the debt.

589. • Good faith in this matter is a firm persuasion by which someone prudently judges that the thing possessed by him is his.

I. This good faith is altogether necessary for acquiring dominion from prescription. The reason is that whoever notices that he possesses another's goods by that very fact immediately contracts the obligation of restitution, since another's thing, both by natural and also by positive right, whether divine or human, can knowingly neither be snatched away nor retained. This is evident also from the Fourth Lateran Council, and also from the second rule of Law in the Sext, which has itself thus: A possessor of bad faith does not prescribe at any time. Whence the dispositions of civil law, insofar as they do not demand good faith, or demand it only at the beginning of possession, are not valid for the internal forum, and are to be held as merely a denial of recourse, that is, of action, against another.

II. But good faith is required not only for acquisitive prescription, but also for liberative prescription, because for both the same reasons and authorities press equally.

Nevertheless, according to many theologians and jurists, good faith is not required for freeing oneself from some passive servitude; or rather one must say that good faith consists in this, that no obstacle is placed by which another is impeded from the use of his right. The reason is that the one prescribing is bound by no debt toward him against whom he prescribes; nor is he held, while the time of prescription is running, to warn another to use the right of servitude against him. Yet others deny this. - See Bouvier ¹², etc.

¹² Bouvier (De Iure, etc., part I, cap. 2, art. 1, sect. 3, punct. 2) merely says that Pothier seems to have thought otherwise. But this man, if indeed he dissented from the common sentence (for the things which Bouvier indicates from him are ambiguous), otherwise uses an argument which would be a mere begging of the principle.

Moreover, it ought to have been observed that according to the common sentence of Theologians and Jurisconsults, what is said, that good faith is not required for extinguishing a servitude by prescription, is valid only as regards the servitudes of rural estates; for this prescription no act of the one prescribing is required, but only the non-use of him to whom the right of servitude belongs. But otherwise one must speak in urban servitudes; against these, since prescription is not made without some positive act of the one prescribing, it is required that this be placed with good faith, by which someone thinks himself free from the servitude; otherwise that positive act would be done unjustly and would not grant place to prescribing.

But Bouvier perhaps, no otherwise than the Author, omitted those things because the French code distinguishes nothing between urban and rural servitudes; and besides in this also it differs from Roman common law: that the former (art. 642 and 706) requires the longest space of thirty years both for acquiring the right of servitude and for extinguishing servitudes by the help of prescription; but the latter predefines the same time as for prescribing immovables, namely (L. 13, C. De Servit.), ten years among those present, twenty among those absent.

590. • Questions. Q. 1. Whether an heir prescribes who doubts concerning the good faith of his predecessors?

Resp. Affirmatively, because bad faith of itself and ordinarily ought not be presumed, since no one is presumed bad unless it is proved. - Thus commonly.

Q. 2. Whether the bad faith of the predecessor always impedes the successor from prescription?

Resp. 1. Affirmatively, if the heir succeeds by universal title, at least for ordinary prescriptions, or of 10 or 20 years; because by a fiction of law the heir is judged to be one moral person with the author ¹³.

¹³ Concerning the force of this reason, Lugo speaks excellently thus (De Iust., disp. 7, n. 59): The common reason is customarily brought forward, namely that one and the same possession is reckoned to be that of the deceased and of the heir; and since that one possession had a defective beginning, the whole possession is, by fiction of law, reckoned defective. Yet this reason, if it is taken bare, seems weak. And he gives the reason, because if the deceased in the very first year had bad faith, and in the time following had good faith, the preceding bad faith would not harm the possession of the same man with good faith for the following time, but he could from then begin prescription. Then he continues (n. 60): Therefore the reason for this decision ought to be that the universal successor, that is, the heir, so represents the person of the deceased that he succeeds into all obligations and burdens. Since, therefore, the predecessor, on account of bad faith and unjust taking and retention of the thing, contracted the obligation of restoring and of impeding the prescription of that thing, and of repairing all damages, the heir succeeds in this very obligation; and therefore he cannot cooperate with prescription which he himself is held to impede, for which he ought to restore. In this sense the common reason adduced above can be understood; not because the possession of the heir and of the deceased is in some way the same, but in such a way that the heir always represents the deceased with all his vices; wherefore just as the deceased with his bad faith could never prescribe, so the heir, who represents him such as he died with that bad faith, is judged to retain the same representatively, and therefore cannot prescribe.

And hence there is the reason why the same Lugo denies that the heir can enjoy even the benefit of thirty-year prescription, since that good faith is always judged to be lacking which is required even for prescription of the longest time. This sentence, indeed, plainly conformable to Roman law, is common and received, as Laymann says (lib. 3, De Iust., tr. 1, cap. 8, n. 18), who proceeds: An example is if a thing was handed over to the deceased for the sake of custody; afterward the heir in good faith numbered it among hereditary things. He can never prescribe it, so that after two hundred or three hundred years, if the possession has never been transferred by a particular disposition, but has always up to this time passed in the name of inheritance, it can be vindicated from that possessor. And for this reason the opposite opinion, to which the Author below inclines after Gousset, seems to rest neither on any reason nor on the articles of the French code.

Hence also it is that Lugo (l.c., n. 61) and Laymann (l.c.), against others (whom the Author follows), judged that not even a mediate successor can prescribe a thing of this sort; because, as Lugo says, the reason adduced above seems equally to proceed concerning a mediate universal successor. For the creditor does not act against the heir, but against the mediate deceased, who from his own delict and injury contracted a real obligation of satisfying for the injury brought in, and of repairing all damages which will follow from that injury, whether they are afterwards inflicted by others in good or in bad faith. Since, therefore, the universal heir is held to all the debts of the deceased, at least according to the resources of the inheritance, it follows that even a mediate universal heir is held to these debts of the deceased, notwithstanding his good faith. For he does not restore because they have been consumed by himself, but because the deceased antecedently obligated himself to impede and repair all subsequent damages.

Resp. 2. Negatively, if he succeeds by particular title, because then he is not judged to constitute one person with the predecessor. The same must be said of things acquired by purchase or by another contract. - St. Lig., n. 516.

Q. 3. Whether the bad faith of the predecessor harms a universal successor, even as regards prescription of 30 years, that is, if the heir in good faith has entered upon the inheritance and then possesses for 30 years?

Resp. More probably negatively, because civil law says that all obligations, both real and personal, can be prescribed through 30 years. Thus Gousset, n. 720, and explanation of the Civil Code, art. 2236, against others who say that such an heir cannot pursue prescription. - Billuart. - Lugo, etc.

Q. 4. Whether the bad faith of the predecessor harms a mediate heir?

Resp. More probably negatively, because he is not judged to make one person with the predecessor. - Thus commonly. - See Casus, n. 434 and following.