§ 2. On Liberative Prescription

899. Things to be noted beforehand. 1. There are laws that deny only judicial action, and there are others that declare that the right has been extinguished.

2. Liberative prescription profits someone in a twofold mode: a) either on his part there are true debts, or also an obligation of suffering a servitude, and then liberative prescription prevents the other from being able in conscience to reclaim his right; - b) or he himself committed only juridic faults, and then liberative prescription closes every way to him who would wish to seek indemnity.

3. For liberative prescription (as also for acquisitive) good faith is required: a) If true debts are present, positive good faith must be present. - b) As regards claims that are founded on juridic fault, in a petitory action before a judge (or that suppose the use of some servitude continued after another), negative good faith suffices; in other words, it is enough if you impede the other neither directly nor indirectly from the exercise of his right of making a claim. But you are not obligated to warn him that he should use his right.

4. Legitimate time is also required. Authors, especially modern ones, distinguish: a) Prescription of very long time, or thirty years, by which all debts not reclaimed for thirty years are extinguished, likewise usufruct when he who had the right does not use it for thirty years. Rents can also be extinguished, not only as regards annual revenues, but also as regards the right itself or capital (in Austria,¹⁶ however, forty years are required against the fisc and corporations). - b) Prescription of long time, or ten years, by which actions for nullity or rescission of contract are extinguished, when law does not establish a shorter term.¹⁷ - c) Prescription of short time, or five years (in Germany four years, in Austria three years), which regards sums to be paid periodically by way of civil fruits.¹⁸ - d) Prescription of shortest time, for example two years for the stipends of procurators, the case being finished; one year for the stipends of physicians, servants, merchants, etc.; six months for the stipends of workers, guests, etc.¹⁹ These are especially various in various regions. In German Law²⁰ no prescription is admitted against rights related in the land register, or against family rights.

900. I. Liberative prescriptions both of very long and long time, and of short time, have force in conscience, provided good faith has persevered through the whole time. Thus commonly, from the reasons adduced for prescription in general (III, 517). Cf. above n. 890.

Note. As regards prescription of short time, controversy is not lacking. Cf. Tanquerey, II, n. 262; Lehmkuhl, Das Burgerl. Gesetzbuch, ad § 194 and 929.

901. II. Prescriptions of shortest time do not have force in conscience, nor do they constitute anything except a presumption of payment made, as all confess. - Reason: 1. because from the laws themselves it is clear that the legislator did not have the intention of transferring ownership, but only of denying action in the external forum, lest the administration of justice be rendered too difficult; - 2. the legislator cannot have this intention, because as regards these prescriptions of shortest time good faith is often lacking, nor is the reason of the common good present, since this would conduce to oppressing the weak and poor.

"A debtor, therefore, who is certain that payment has not been made, is in no way exempted from the obligation of payment," except after prescription certainly sufficient, which must be judged from the individual Codes and jurisprudence (III, 515). - If someone, however, for example a successor in good faith, after the time assigned by law has passed, begins to doubt, for example, whether his author paid, he can use the presumption of law, unless omission of payment is duly proved. Noldin, II, n. 407; Pelt, o.c., p. 112.