Section — Koch–Preuss
Section 2: The Derivative Titles of Ownership
The derivative titles of ownership or secondary modes of acquiring property are: prescription, hereditary succession, and cession by means of various kinds of contracts.
- PRESCRIPTION (praescriptio) or acquisition by means of prescription (usucapio) is the legal provision by which a man in course of time acquires an object or a right (praescriptio acquisitiva) or is freed from an obligation (praescriptio liberativa sive extinctiva). Though it has its origin in the civil law, prescription binds in the internal forum (in foro conscientiae) because it is necessary for the common welfare. Every man must devote proper care to the conservation of his property, and there would be no end to quarrels and lawsuits if the time for arguing and deciding them were unlimited.1 The legal and Moral conditions of prescription are contained in the following memorial verses:
1 Gury, Comp. Theol. Mor., Vol. I, n. 568: “Human law can, by the force of prescription, transfer ownership of things from one person to another even without the owner’s consent. For such a transfer is very useful, indeed morally necessary for the common good of society, since it is required to prevent or settle disputes which otherwise would arise rather often from an uncertain right of possession. Moreover, it is not contrary to natural equity, since the law was established before any event and by that very fact offers to all and each an equal chance of gain or loss.”—M. Cronin, The Science of Ethics, Vol. II, p. 148; C. S. Devas, Political Economy, pp. 490 sq.
You will not acquire by prescription unless these five things are present for you: Let the thing be suitable, good faith, title, possession, time.
Or:
Equitable good faith, a just title, a thing not defective, That you possess the thing, and time also be continued.
Prescription, therefore, presupposes:
a) A res praescriptibilis, i. e., an object which, either by its nature or by common law, is fit to be possessed by this particular person. Hence no right of prescription can be invoked in the case of sacred things (res sacrae) and stolen goods (res vitiosae), nor can public property (res publicae) pass by such right into private ownership.
b) Good faith (fides bona sive aequa), i. e., an erroneous judgment by which one prudently holds that an article in his possession is really his. Without good faith one cannot legitimately begin prescription, and if bad faith destroys good faith before the expiration of the time set by law, the prescription is interrupted. Should the civil law require prescription in the beginning only, such a provision would not avail in conscience.
c) A just title (iustus titulus), i. e., a legal provision or external fact creating a conviction of the legitimacy of his ownership in the possessor. A legal title (titulus verus) is in the nature of things not necessary, for such a one actually confers the right of ownership; all that is required is an apparent title (titulus coloratus sive existimatus), which can reasonably be held to be a true one, but a merely presumptive title (vitiosus sive tantum praesumptus) is not sufficient.2
2 Gury, op. cit., n. 572: “Title is said to be a cause sufficient of itself to transfer ownership, e. g., purchase, donation, etc. A true title is not indeed required, as is evident, for otherwise the possessor would not need prescription to acquire the thing; but a colorable title is required, that is, one which bears the appearance of a true title, although it is false in itself.—For prescription of thirty years no title is required, but possession alone suffices even in conscience, provided there is good faith; or rather, a presumptive title is then had in the very fact of peaceful possession over so long an interval of time.” Cfr. J. E. Ross, Christian Ethics, p. 291.
d) Possession,3 i. e., the actual and continuous holding of an object, accompanied by the intention of retaining it as one’s own.
3 Reg. Iuris in VI° Decr. Bonif. VIII, n. 3: “Without possession prescription does not proceed.”—J. P. Gury, op. cit., n. 571: “Possession is said to be the holding of a thing or the exercise of some right. This possession is required for prescription. . . . Possession, however, must enjoy various conditions. For it must be: 1. Dominative, or held with the intention of an owner, not of a depositary, etc.; 2. Public, that is, not clandestine, so that it could have become known to him against whom prescription is made; 3. Peaceful, that is, excluding every act of violence; 4. Certain, that is, not equivocal; 5. Continuous or uninterrupted, until the required time is completed.”
e) The time required for prescription (tempus requisitum) is not determined by natural, but left to human law. This differs according to the objects in question. Moralists distinguish: tempus breve, a period of from three to ten years; tempus longum, a period of ten or twenty years; tempus longissimum, a period of twenty or thirty years; tempus immemoriale, a period the beginning of which no living person can remember, usually one hundred years, more or less. A distinction is also made between movable and immovable objects. Rights inherent in objects, movable or immovable, or the young whilst yet unborn, become subject to prescription. Once fruits are detached from their objects, they change ownership by prescription just like movable objects.4
4 Göpfert, Moraltheologie, Vol. II, 7th ed., p. 125.—Cfr. Gury, Comp. Theol. Mor., Vol. I, n. 573 sq.
It is the common teaching of moralists that prescrip- tion of less than three years does not bind in conscience, because the legislators do not intend that it shall.5
5 Ross, Christian Ethics, p. 292.
- Bequest is the right to take possession of the whole or part of an estate left by a deceased person (successio hereditaria). It is a natural right, contained in the very idea of ownership and conferred by a legally executed “last will and testament,” or by an ante-mortem agreement made in conformity with the law, or by the law itself. The conditions of validity for a last will and testament are laid down by positive law.6 If a man dies intestate, i. e., without leaving a will, the State takes charge of his estate and distributes it according to the statutes, which is called intestate succession (successio ab intestato).7 The law of inheritance, as it has been developed through many centuries, is attacked by the Communists. Catholic moralists uphold it because of its high importance for the individual citizen, for the institution of the family, and for the entire social order.
6 Cathrein, op. cit., II, 346 sqq.
7 Th. Meyer, S. J., Inst. Iuris Nat., Vol. II, pp. 196 sqq.—St. Ambrose, De Officiis, l. III, c. 9, n. 58: “[Without] those placed at the end of life having their own judgment, so that they may freely testify to what they think.” (Migne, P. L., XVI, 192). Cfr. Périn, Christliche Politik, pp. 200 sqq.; Schaub, Die Eigentumslehre nach Thomas von Aquin, pp. 374 sqq.
A man may dispose of his property in a twofold way, either by means of a declaration as to who shall be his heirs, called last will or testament, or by an ante- mortem agreement with his heirs, called testamentary contract. If this contract involves only part of an estate, it is called donatio mortis causa. This must be distinguished from donatio inter vivos, by which a man gives away part of his property during his life-time, either unconditionally or on condition that he receive an income from it till death.8
8 Cathrein, Moralphilosophie, Vol. II, 5th ed., p. 340.
Per se no one is obliged to make a will because the law provides sufficiently for the distribution of the property of those who die intestate; but circumstances may make it a duty. This is the case:
a) When there are debts to be paid which will probably not be settled unless mentioned in the last will or testament; b) If there is restitution to be made, which the heirs will presumably not make unless they are held to do so by the terms of the will; c) If the testator foresees serious quarrels in connection with the division of his property, and can easily obviate them by means of a will; d) If the merits of his children differ, so that one is in justice entitled to a larger share of the estate than the others, or if one of them is likely to squander or misuse the property left to him; e) If the guardianship of an immature child would be entrusted to an unreliable person, unless due provision against such a mistake is made by will.
It is proper, too, that the testator should provide for the repose of his soul by appropriate directions in his will. In this sense confessors may and should admonish the dying to attend to their temporal affairs and provide for the repose of their souls, without, however, exercising any undue influence or, what would be even worse, taking selfish advantage of the situation.9
9 Göpfert, Moraltheol., Vol. II, p. 136.
The Code expressly declares that “whoever is able, by natural and ecclesiastical law, to dispose freely of his property, can devote it to pious causes (ad causas pias), either by donation while he is still alive, or by last will and testament (sive per actum inter vivos sive per actum mortis causa).”10
10 C. I. C., can. 1513, § 1.
The Code also says that in the making of a will by which the Church is benefitted, all legal formalities should, if possible, be observed, and that, if these formalities have been omitted, the heirs should nevertheless carry out the wishes of the testator.11
11 Can. 1513, § 2.
The executors of all pious bequests, testamentary and otherwise, are the Ordinaries, who are exhorted to see to it that these bequests are faithfully carried out; clauses attached to a will contrary to this right of the Ordinaries are declared null and void.12
12 Can. 1515.
Priests have full liberty of disposing of their belongings, but they should remember the Tridentine decree13 which admonishes them to will the bona superflua derived from ecclesiastical benefices either to the Church or to the poor. This obligation, however, is merely one of obedience (ex lege ecclesiastica), not of justice (ex iustitia).14
13 Conc. Trid., Sess. XXV, c. 1, De Ref.
14 Conc. Vienn. a. 1858, t. 7, c. 5; Conc. Prag. a. 1860, t. 8, B, c. 4 (Collectio Lacensis, Vol. V, 217, 593).
Aside from the minimum established by law, parents may give a larger share of the property of which they have free disposal to one child than to another, but should do so only for a just cause, such as: special merits, poverty of one and unworthiness of the other, etc. Where no just reason for discrimination exists, charity and prudence counsel equal distribution, because an unequal division easily causes dissatisfaction and quarrelling.
Brothers and sisters who are in real need must (sub gravi) be preferred to other poor persons, and even to pious causes, at least to the extent that their immediate needs are satisfied. Towards other relatives there is indeed an obligation, but it is not grave. Where the law does not protect the interest of man or wife, there is a certain natural obligation of giving him or her at least a portion of the testator’s property, or the usufruct thereof. Noldin,15 following De Lugo, holds that this obligation indirectly touches the property itself, and therefore binds the heirs.16
15 Summa Theol. Mor., Vol. II, p. 574; cfr. Th. Meyer, S. J., Inst. Iuris Nat., Vol. II, p. 194.
16 Cfr. Göpfert, Moraltheol., Vol. I, p. 140.
The portion due to a deceased child may not be appropriated by the brothers and sisters, but, unless the civil law provides otherwise, should be given at least in part to the poor, for Christ, who, according to St. Augustine,17 is a member of every Catholic family, has destined His share for the poor. Some monasteries have the beautiful custom of leaving the place of a deceased member vacant for a while and giving his portion of food and clothing to beggars.
17 Serm., 86 (al. 43 De Diversis), n. 11–13 (Migne, P. L., XXXVIII, 528).
- Cession (traditio) is the transfer to another by mutual agreement of ownership in an object. This brings us to the discussion of contracts.
READINGS.—Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., pp. 609 sqq., 706 sqq.—St. Alphonsus, Theol. Mor., l. III, n. 503–517.—F. X. Linsenmann, Lehrbuch der Moraltheologie, pp. 531 sqq.—J. Schwane, Die Gerechtigkeit, pp. 30 sqq.—Th. Meyer, S. J., Inst. Iuris Nat., Vol. II, pp. 192 sqq.