Article — Marc, Institutiones Morales
ARTICLE III: On Prescription
- Definition. Prescription is a mode of acquiring ownership or a right, or of freeing oneself from some obligation, within a certain space of time, under conditions defined by law.10
Division. Prescription is: 1. By reason of effect, either acquisitive (usucapion); through this a right is acquired; or liberative: this exempts from some obligation or from a servitude.
- By reason of time, it is ordinary or extraordinary: a) Ordinary is that which is completed within the space of years below thirty. It is subdivided into prescription of long time, if it is prolonged for ten years (or above), of short time, if below ten years, or of shortest time, if below three years (in Germany, two years). - b) Extraordinary, or of very long time, is prescription if it reaches or exceeds thirty years.
(10) French Code, 2219; Italian, 2105; German, 194-225, 937-945 (cf. Austrian Code, 1451).
- Principle. Prescription is a legitimate mode of acquiring or of freeing oneself, having force in both the external and internal forum. This is the common opinion among jurists and theologians; and the reason for this is "because human law can well transfer ownership from one to another on account of the common good, for avoiding quarrels, and lest ownerships of things remain uncertain" (III, 504-517; H. Ap., X, n. 15). Wherefore the Angelic Doctor says: "If someone prescribes by possessing in good faith, he is not held to restitution, even if he knows after the prescription that the thing had belonged to another" (Quodl. 12, a. 24). Cf. Vermeersch, o.c., n. 270.
Note. 1. Since prescription rests on positive Law, it follows that it does not have force unless the conditions required by Law are accurately observed.
No one can prescribe against himself, because justice is toward another. Thus, for example, a beneficiary who for a long time has celebrated four Masses by error, although from the foundation of the benefice he is obligated to only two, will not therefore be held in the future to four (Scavini, II, 356).
Anyone capable of alienating can renounce prescription, not indeed future prescription, but completed or begun prescription, insofar namely as he can cede his own right. - But creditors and all others whose interest is involved can oppose a renunciation damaging to themselves.11
We shall treat separately of acquisitive and liberative prescription.
(11) French Code, 2225; Italian, 2112; Spanish, 1935. Not only direct ownership, but also usufruct and use, etc., can be constituted by prescription (cf. Spanish Code, 468).