Article IV: On Prescription

225. Prescription in juridical speech is the same as exception, that is, a legitimate reason opposed to another in order to exclude or delay his action, without nevertheless denying the foundation of the action itself; in the present case it is a peremptory exception by which, against an owner reclaiming a thing (or debt), possession through a certain time is opposed, solely from the very lapse of time defined by law, so that by force of law the right of another can even be extinguished and a right in the thing can legitimately be acquired for the one prescribing. Hence it is a mode of acquiring dominion through possession under conditions of time and mode determined by law; or of liberating oneself thus from an obligation.

Therefore a twofold prescription is given: acquisitive, by which a new dominion or right is acquired, which is called usucapion, because by it something is taken into one's own by use; and liberative, by which someone frees himself or his thing from a burden or obligation.

It arises from positive human law, by force of high dominion for the sake of the common good; yet it is consonant with natural law, which establishes it as suitable, without nevertheless having it as strictly necessary.

226. Principle I. Concerning acquisitive prescription. - Prescription, clothed with due conditions, is a legitimate mode of acquiring dominion, even direct dominion, in the civil forum and in the forum of conscience.

It is certain because 1) the legislator could and willed truly to transfer dominion:

a) He could, by reason of the common good.

Its motives are four: 1. lest for a long time and almost always the dominions of certain things be uncertain; 2. that there be some end of lawsuits; 3. lest possessions be held in nearly immortal fear; 4. that the carelessness and negligence of owners omitting to pursue their things be corrected, whereby they may be rendered more vigilant.

b) He willed to transfer dominion and not only to deny a civil action.

This is clear both from the indicated end of the law, which otherwise cannot sufficiently be obtained; and from the entirely general words and the obvious sense signifying this, which it uses without any restriction;¹ and from the interpretation of jurists.

¹ Thus already in ancient law; and in various modern codes, for example, French Code, a. 2219-2224.

2. The Church recognized this in Lateran Council IV, which for the value of prescription requires only good faith; and in her own law, which admits its legitimacy, in Decr. IX, t. 26, c. 3, and can. 1508.

Hence St. Thomas already concluded (Quodl. XII, q. 24) that one legitimately prescribing is not held to restitution, even if after prescription he knows that it had been another's.

Yet in order that prescription concede dominion, it must be accompanied by the due conditions, which are: an apt thing - possession - title - good faith - and the required time.

227. A thing apt to be prescribed, or prescriptible, whose dominion can be acquired, is every thing, whether corporeal or incorporeal, which by its nature is capable of private dominion, and is not otherwise excepted by some law; or every thing which comes under private dominion and commerce. Hence it is said: things which are not in commerce cannot be prescribed (C.C., a. 2226), whether they are so from their nature or from the disposition of law. Therefore from prescription are excluded:

1. from the nature of the thing, all things which are of natural right or positive divine right (can. 1509): thus there cannot be prescription against obedience owed to a superior, against the indissolubility of marriage or the obligation of receiving sacraments, against the independence of the Church from civil power;

2. from ecclesiastical law: a) by reason of the common good, these are not subject to prescription: certain and indubitable boundaries of ecclesiastical provinces, dioceses, parishes, apostolic vicariates or prefectures, abbeys or prelatures nullius - alms and burdens of Masses - an ecclesiastical benefice without title - the right of visitation and obedience, so that subjects would be under the visitation or obedience of no prelate - payment of the cathedraticum² - all things which can be obtained by apostolic privilege alone (for example, the right of patronage for a layman, the rights of a pontiff for one not a bishop) - and spiritual rights of which laymen are not capable, if there is question of prescription for the advantage of laymen (can. 1509);

² This does not exist in Belgium.

b) sacred things which are not in the dominion of private persons cannot be prescribed by a private person, but only by an ecclesiastical moral person against another ecclesiastical moral person. On the contrary, sacred things which are in the dominion of private persons can be acquired by prescription by private persons, who nevertheless cannot employ them for profane uses; but if they have lost consecration or blessing, they can freely be acquired even for profane uses, yet not sordid ones (can. 1510);

3. from civil law: a) things which are not capable of private dominion, but belong to public dominion and order, as public roads, rivers, squares, bridges, ports, citadels, and other things of this kind destined for public uses (a. 538 and 540); yet private goods of the State or of public institutions, because they are capable of private dominion, can be prescribed (a. 2227 and 541);

b) things which are of mere faculty or tolerance, as the right of building on one's own land, the tolerance of pasturing or passing through, and all non-continuous servitudes (a. 2232 and 691); likewise things possessed by force (a. 2233) or stealthily, but only as to those who occupied violently or stealthily (a. 2279);

c) things which belong to those who are impeded in the exercise of right or are specially protected: thus, for example, prescription does not run, during marriage, against dotal goods of the wife under the dotal regime (a. 2255 and 1561), nor generally against the goods of wards, minors, and interdicted persons (a. 2252), nor between spouses (a. 2253).

228. Prescriptive possession is the detention of some thing or the enjoyment of a right in one's own name, whether by ourselves, or by another in our name (a. 2228): for prescription is founded upon possession of another's thing, so that "without possession prescription does not proceed." It must be dominative - peaceful and continuous - indubitable and public (a. 2229):

1. Dominative, that is, held with the intention or title of an owner, not by a precarious or transitory title of deposit, lease, management, etc. (a. 2236), or of faculty or tolerance (a. 2232). Hence he who possesses a thing in another's name, as a tutor in the name of a ward, prescribes not for himself but for another, in the case the ward; on the contrary, he who detains a thing in his own name but through another, for instance through a servant or procurator, can acquire it for himself and not for another.

2. Peaceful and continuous, that is, held quietly, not violently, and undisturbed and uninterrupted. Hence prescription does not run:

a) in the case of violence, because this is not possession but invasion; and only when the violence ceases does useful possession begin (a. 2233);

b) in the case of suspension (tschorsing): for then prescription sleeps because of an impediment placed by law (for example, concerning the goods of minors or of a wife); but once the cause of suspension has ended and the impediment has ceased, it revives and is resumed so that the time preceding the suspension can be computed with the subsequent time for completing prescription (a. 2251);

c) in the case of interruption (stuiting'): for then, the required condition failing (for example, good faith ceasing or the owner reclaiming), prescription ceases definitively, so that the time elapsed before is held as nothing and cannot be computed, but the whole course of prescription must be begun anew (a. 2243 sq.).

From the disposition of our civil code, prescription is suspended according to the rule: "Prescription does not proceed against one unable to act": 1. against minors and interdicted persons, unless there is question of liberative prescription, or in the few cases excepted by law (a. 2252); 2. between spouses, that is, one does not prescribe against the other (a. 2253); 3. against a wife, while the marriage stands, as to alienation of land constituted as dowry under the dotal regime (a. 1561), and as to actions which the wife cannot exercise unless an election has been made concerning accepting or repudiating the community, or whenever the husband, who sells goods proper to the wife without her consent, is held to provide security for the sale, and in all other cases in which the wife's action would redound against the husband (a. 2255 and 2256); 4. against an heir for debts owed to him from an inheritance which he accepted with benefit of inventory (a. 2258); 5. when the thing possessed is not yet demandable, as in debts under condition or to a day (a. 2257).

On the contrary, it is interrupted naturally or civilly (a. 2242): 1. naturally, if the possessor has been deprived for more than a year of enjoyment of the thing by the former owner or by some third party, without having intended a possessory action (a. 2243); 2. civilly, if he is summoned into court concerning the thing which he possesses, even before an incompetent judge, unless however this action is denied, revoked, or null because of defect of form (a. 2244-2247); 3. if the possessor or debtor has acknowledged the right of another against whom he prescribes (a. 2248).

3. Indubitable and public, that is, not equivocal but shown by acts of true and exclusive ownership, so that anyone who wished could have noticed it; otherwise the principle is valid: prescription does not run against one unable to act. Thus, for example, for uncertain limits of a field, for undivided possession, for possession or enjoyment exercised secretly, for a discontinuous or non-apparent servitude (a. 691).

229. The title of prescription is a cause of itself capable of transferring dominion, or a reason sufficient of itself on account of which someone possesses a thing and at the same time thinks it to be his, for example, purchase or donation or inheritance. It is required for prescription, because no one can possess a thing in good faith unless he has, or at least thinks that he has, a title from which a right arises. Title is:

1. true, which on the part of the thing truly exists and validly transfers dominion, for example, a valid purchase or donation. This is not required, because of itself it transfers dominion and therefore prescription is useless;

2. vicious, which from its nature is not translative of dominion, but of itself inept, as showing the dominion of another remaining, for example, lease, commodatum, deposit. This harms prescription and renders it impossible, because with a vicious title good faith cannot exist, since from it it is clear that the possessor is not the owner; hence "it is better not to have a title than a vicious one";

3. apparent, which on account of a defect does not transfer dominion, but is judged to transfer it. This can be:

a) just (or colorate), if it has the species and legal form of a true title and from its nature is apt for transferring dominion, but does not obtain its force and does not transfer dominion, because it is null, yet because of an occult defect, and therefore not from a defect of form (a. 2267): thus a sale made by one who is not the owner of the thing, as having it by theft or by usufruct;

b) believed or putative, if it is believed to be present although in reality it is not present: thus one who possesses something by force of a revoked testament, or because he prudently thinks a thing was bought by his father or by a servant, which nevertheless in no way was done, since it had been taken away by theft;

c) presumed, if in reality it does not exist, but because of the fact of possession, especially long possession, it is supposed by law to exist.

Now in present-day law:

1. A just title is required and suffices for prescription of 10 or 20 years (a. 2265), a fortiori for the prescription of those movable things for which possession holds the place of title.

2. But for prescription of 30 years, no certain title is required, but a presumed or putative title suffices (a. 2262), because such long possession is equated by law to title.

3. The same seems true concerning those movable goods which can be transferred from hand to hand, because possession as to these holds the place of title (a. 2279).

230. Good faith of prescription is the right opinion of dominion acquired, or the practical judgment by which the possessor of another's thing prudently has persuaded himself that he possesses the thing justly as his own. One kind is moral in conscience and before God, whence by others it is called theological: it is a judgment objectively erroneous but pronounced from inculpable ignorance, by which someone sincerely thinks that he has the thing legitimately; another is juridical before the law, resting upon a real just title (a. 2265), which, although null because of an occult defect, does not labor under a defect of form, and because of which in the external forum good faith is presumed to be present (a. 2267-68). Now:

A. Moral good faith is required at the beginning and through the whole course of prescription, namely, for beginning and continuing it. This is clear:

1. From the declarations of the Church: of Alexander III and Innocent III, in Decr. l. II, t. 2, c. 5 and ult., and of Lateran Council IV: "We define that no prescription, whether canonical or civil, has force without good faith... Hence it is necessary that he who prescribes, in no part of the time have consciousness that the thing belongs to another." Hence the Code of Canon Law: "No prescription has force unless it rests on good faith, not only at the beginning of possession, but during the whole time of possession required for prescription" (can. 1512).

2. By reason: from natural law, fraud and bad faith can patronize no one; because that would be against good social order. It directly conflicts with justice that someone make his own a thing which he knows to be another's, since rather he is held to return it; nor can civil law licitly or validly favor iniquity or assist in bringing injustice.

3. From the declarations of jurists, indeed of those who proposed the law.³

³ Thus for French law, Bigot-Preameneu, Expose des motifs, apud Tanquerey, o.c., n. 255, note 3.

Hence a) he who from the beginning doubts whether the thing is his cannot begin prescription;

b) prudent judgment is lacking when someone has notably neglected diligently to examine the thing; on the contrary, invincible ignorance of law or fact does not impede moral good faith;

c) good faith is lacking as soon as the possessor notices that he possesses another's thing, or if, doubting about his own right, he nevertheless invades the thing: for he cannot invade the thing unless he is morally certain that it is his own. Doubt from the beginning of possession impedes good faith;

d) when doubt comes after possession begun in good faith, prescription is not interrupted, provided that in the meantime the possessor employs diligence to examine the matter and inquire into the truth. But if he neglects this, he becomes of bad faith and cannot prescribe; but if after diligent examination doubt persists, he can continue prescription and retain the thing, according to the certain principle of law: the condition of the possessor is the better. For although speculatively it is not certain that the thing is his, nevertheless practically it is certain that he possesses the thing justly.

B. Juridical good faith is moreover required at the beginning of possession, if civil law demands it. It is indeed not demanded in prescription of 30 years (a. 2262), but in prescription of 10 or 20 years (a. 2265), not for the whole time of prescription but at the beginning of possession (a. 2269). Hence:

1. it consists in this, that the possessor thinks that he from whom he received the thing by force of a title transferring ownership truly is the owner of this thing, although perhaps he was not;

2. ignorance of law, even inculpable, stands in its way, because the legislator must suppose each one to know the laws.

When civil codes say that for certain prescriptions good faith is not required, they exclude juridical good faith, but they do not deny that moral good faith, or good faith in conscience, is required; for that would be to favor fraud and injustice, and would be opposed to good social order, and thus would be against natural law.

231. The time required for acquisitive prescription is determined by positive law.

A. In many regions, especially of Latin law (France, Belgium, the Netherlands, Italy, Spain; also partly in Germany and Switzerland), it was determined thus by civil law:

1. All prescriptible goods, whether immovable or movable, are prescribed at least by a time of 30 years,⁴ without title or juridical good faith being demanded: namely, possession itself through 30 years is a presumed title (a. 2262).

⁴ In Germany 30 years are counted, not from the day of possession, but from inscription in the land-register (Grundbuch); from the day of possession they suffice with the sentence of a judge.

This can also be observed in conscience, provided there is moral good faith, or good faith in conscience.

2. Immovable goods acquired in good faith by a just title are prescribed by a time of 10 or 20 years.

Thus by French and Belgian law, they are prescribed by a time of 10 years if the true owner dwells in the territory of the same court of appeal in which the immovable good is situated; they are not prescribed except by 20 years if the owner dwells in the territory of another court; finally, if he has dwelt partly within and partly outside that territory, the time of absence must be double that which is lacking to the time of presence for completing the decade (a. 2265-2266). By Spanish law the same is established, but it understands the territory as the whole kingdom, absence as outside the kingdom. On the contrary, by Italian law it is uniformly established that prescription is made through 10 years even between absentees; likewise by Swiss law, but with inscription in the land-register and continuous good faith; by Portuguese law through 15 years, and by Dutch law through 20 years uniformly.

Austrian law admits prescription of immovables from title, after 3 years, but with inscription in public registers. On the contrary, German law admits no prescription of immovables except tricenary prescription, but has a prescription of 10 years made in good faith for movables.⁵

⁵ By English law, prescription for movables is not admitted; but for rights in another's land, for example, of servitude, revenue, or use, 30 years are required; sometimes 40 or only 20. In England there was not prescription for lands; but now, from the Act of 1874, certain immovables can be acquired by 12 years. American law is various; nevertheless, prescription of 10 or 20 years generally exists.

3. Single movable goods, which someone in good faith acquires from a third party who is not the true owner, are prescribed without any lapse of time. They at once become the goods of the acquirer, according to the adage: in movables possession in good faith holds the place of title (a. 2279), and is a presumed title; yet the owner of a lost or stolen thing can reclaim it, from him who detains it, for 3 years according to the French, Belgian, and Dutch Code, for 2 years according to the Italian code, but the detainer can have recourse against him from whom he received the thing. Nevertheless, according to a. 2280, from him who bought a lost or stolen thing in markets or shops or at auction or from a merchant who is accustomed to sell things of the same species, the owner cannot reclaim his thing, unless by paying the price which the possessor himself paid; and then he can reclaim the price from him who put the thing into circulation.

For this it must be noted: a) that here the matter concerns corporeal movables, namely, those which easily pass from hand to hand, to which nevertheless unnamed credits or titles which are called to the bearer (effets au porteur, aan toonder, al portatore) are assimilated, because they are accustomed to be sold and bought with the same facility as corporeal wares;⁶

⁶ Therefore in this way universals of movables cannot validly be prescribed; nor nominative titles; nor ships (Belgian Commercial Code, l. II, t. 1, a. 2), whose dominion is actually transferred by written act.

b) that no time of prescription is demanded in order to avoid difficulties often about to arise if movable things had to be returned to the former possessor; on the other hand, civil law does not deny a civil action against him who unjustly took away the thing;

c) that it is disputed whether those dispositions have force in conscience, or only deny a civil action. Most more recent theologians hold that they have force in conscience: for the civil law justly effects that transfer of dominion in order to favor the security of commerce in movable things and the stability of contracts; besides, the right of the prior owner is not abolished without fitting compensation.

In Germany civil law establishes still more broadly that a possessor in good faith definitively acquires dominion in certain things taken by theft, namely, in money, in monetary titles, and in things bought at a public auction, yet not in other stolen things (a. 935). In Austria, movable goods are not at once possessed legitimately, but 3 years are required; and for movables of the public treasury (the fisc) or of the Church, 6 or 40; in Spain, 3 with title and 6 without title; in Switzerland, 5 years of good faith.

B. By canon law it is established: prescription as a mode of acquiring and liberating oneself, just as it is in the civil legislation of the respective nation, is received by the Church for ecclesiastical goods, with the exceptions to be indicated or indicated above, n. 227, being saved (can. 1508). Specifically:

1. Immovable things, precious movable things, rights and actions, whether personal or real, which belong to the Apostolic See, are prescribed by the space of 100 years (can. 1511, § 1).

2. These same things, if they belong to another ecclesiastical moral person, are prescribed by the space of 30 years (can. 1511, § 2).

3. For other movable goods, the civil law of the respective nation is valid according to can. 1508.

4. A benefice, if a cleric has proved that he has peacefully been in possession of it in good faith for a whole three years, even perhaps with an invalid title, he obtains it by legitimate prescription, provided simony is absent (can. 1446).

5. Certain religious orders have the privilege of prescription of 60 or 100 years; thus, for example, prescription cannot be made against monasteries of Benedictines except by 60 years, against monasteries of Cistercians except by 100 years; and by communication of privileges the same is valid for mendicants. These privileges have not been abolished by the new law.

232. Question:* Whether the bad faith of a predecessor harms the successor, so that one who in good faith succeeds a possessor of bad faith cannot legitimately prescribe?

Resp.: 1) The bad faith of the prior possessor must not be admitted unless it is certainly proved: for no one is judged bad unless he is proved so (a. 2268).

2. But if it is certain, for completing the time of prescription the time in which the predecessor possessed the thing certainly cannot be computed, for example, an heir who knows the bad faith of the deceased before he himself has completed the time of prescription certainly cannot prescribe, since he has lost good faith.

3. But what if the bad faith of the predecessor becomes known when the successor has already prescribed the thing in good faith for a sufficient time? Then one must distinguish between a particular successor, such as a particular legatee, donee, buyer - and a universal successor, such as an heir properly so called or another who succeeds by a universal title. The bad faith of the predecessor does not harm the former, because by a fiction of law he is not one moral person with the predecessor, in the way a successor by a universal title is.

But if there is question of a successor by universal title:

a) for prescription of 30 years, the bad faith of the predecessor does not seem to harm him, because the successor was in theological good faith through the whole time of prescription; moreover, juridical good faith is not demanded in this case;

b) for prescription of 10 or 20 years, the bad faith of the predecessor harms him if he lacked the juridical good faith which the law requires; it does not harm him if the predecessor had juridical good faith and the heir thereafter in theological good faith completed the time of prescription of 10 or 20 years.⁷

⁷ Thus, unless civil law disposes otherwise; for by Spanish law, a. 442, every successor, even one by universal hereditary title, can begin prescription, unless he knows the bad faith of the predecessor.

233. Principle II. Concerning liberative prescription. — Prescription, clothed with the conditions due to it, is a legitimate mode of freeing oneself from a debt or obligation in the civil forum and in conscience.

For the legislator could and willed truly to free from a debt:

a) He could, by reason of the common good, on account of the arguments adduced above, n. 226.

To these special motives can be added: 1) the presumption of payment (or remission) of debts from that which generally happens: for creditors are not accustomed to wait long without demanding a debt; 2) exemption from the grave burden of preserving for a longer time testimonies of payment or receipts; 3) as to payments to be made periodically, the avoidance of the accumulation of debts, lest afterwards, compelled to pay a great sum, they be reduced to want.

b) He willed, at least sometimes, as is clear from his intention or from various signs. To understand this it must be considered that the continuous time required for liberative prescription is determined very variously: either longer, or short, or very short; for example:

1. all actions, both real and personal, are prescribed by 30 years (a. 2262);

2. after five years have elapsed (elsewhere six or four), all things which must be paid yearly or at shorter periods are prescribed, for example, the interest or usury of borrowed money (a. 2277);

3. finally, in the civil code prescriptions of the very shortest time are set forth.

Thus, for example, after 6 months the action of teachers for lessons which are accustomed to be compensated by each month is prescribed; likewise the action of innkeepers for lodging and food is prescribed, and of workmen for their wages (a. 2271); after a year the action of physicians for visits is prescribed, of surgeons for amputations, of pharmacists for medicines, of merchants for wares sold at least to those who are not merchants (a. 2272).

Now liberative prescriptions generally have force in conscience; yet with the exception of the last, of the very shortest time, which from the intention of the law does not deny the civil action of the creditor, except insofar as it is presumed that payment has already been made. Hence those pleading prescription are held to swear that they have really paid the debt⁸ (a. 2275), and if by oath or in another way it is proved that payment has not been made, the debtor is compelled to pay. Therefore the right of the creditor is left intact. — On the contrary, in longer prescriptions no proof in favor of the creditor is admitted; and therefore the diverse intention of the law seems to be clear.

⁸ For widows and heirs it is established by law: if payment of a debt which the deceased is said to have contracted is demanded from them, the judge can impose on them an oath by which they assert that they are ignorant of such a debt (a. 2275); which oath they can offer whenever they do not have a morally certain reason for thinking that the debt exists. But if afterwards they discover that they have erred, they are more probably held to pay, because a clear contrary disposition of the law is not had; some, however, judge that they are not strictly held to pay, because the law probably requires nothing else for prescribing than that oath offered in good faith. Thus Van Egeren and Waffelaert.

Thus in French law and in others which were derived more immediately from it.⁹ But it is doubtful for German law, in which there are biennial prescriptions for debts of commerce, lease, and wages, which, "with good faith acceding," according to some, "perhaps can be applied in practice" (Prümmer, Th. M. II, n. 64).

⁹ Namely Belgian, Dutch, Spanish, Italian, Portuguese, and of Latin America. — Yet these are only the principal dispositions, because there are many particular dispositions. And also they are various in various law. Thus in Germany: 4 years for revenues, 2 for debts of commerce, lease, and wages. In Switzerland: all actions by 10 years, except hypothecary debts, which are never prescribed; 5 years for debts of lease, interest, and wages; lapses of the very shortest time (for example, 1 month, 3 m., 6 m., 1 yr., 3 yrs.), especially in banking matters to be received. In Austria, besides 30 years: 3 years for actions concerning debts of commerce, services, census. By English and American law 20 years are regularly required.

234. Certain special determinations of time are established in canon law, can. 1701 and following:

1° "In contentious matters, actions both real and personal are extinguished by prescription according to the norm of c. 1508-1512; but actions concerning the state of persons are never extinguished" (c. 1701).

2° "Every criminal action is extinguished by the death of the accused, by condonation of the legitimate power, and by the lapse of the useful time for proposing a criminal action" (c. 1702).

"With the prescription of can. 1555, § 1 remaining firm concerning delicts reserved to the Sacred Congregation of the Holy Office, the useful time for proposing a criminal action is three years, unless there is question: 1) of an action for injuries, which is extinguished by one year; 2) of an action on account of qualified delicts against the VI and VII divine precept, which is extinguished by five years; 3) of actions on account of simony or homicide, against which criminal action endures for ten years" (c. 1703).

3° "When the criminal action has been taken away by prescription: 1) the contentious action, perhaps arising from the delict, for repairing damages, is not by that very fact taken away; 2) the Ordinary can still use the remedies established by can. 2222, § 2" (c. 1704).

4° "Prescription in contentious matters runs from the time when the action could first be proposed by right; in criminal matters, from the day of the committed delict.

If the delict has, as they call it, a successive course, prescription does not run except from the day on which the course of the delict ceased.

In a habitual or continued delict, prescription does not run except after the last act; and the defendant, on account of some criminal act not prescribed, is held concerning the older acts which are connected with the same act, even if, taken singly, they would be excluded by prescription" (c. 1705).

5° For the interruption of liberative prescription, ordinarily the civil law of the respective nation has force (c. 1725, 4° and 1508).

235. The conditions required for liberative prescription are not altogether the same as in acquisitive prescription. Certainly the required continuous time and a prescriptible thing must be present, according to what was said in n. 227; but there is not required:

a) possession properly so called, since there is no question of acquiring dominion, but of liberation from a right which another possesses, and of the non-exercise of the creditor's right, whence already the possession of liberty is obtained, by which a person or thing is not held to serve for the utility of another;

b) nor juridical title, because it is rather possessed against the title of the creditor;

c) nor positive good faith, that is, persuasion resting upon a juridical title at least supposed, or the supposition of freedom from a debt, but negative good faith suffices, or the absence of fraud or of bad faith, namely:

1. in liberative prescription from a debt, against an action to be furnished by the debtor, the absence of bad faith, or inculpable ignorance, or inadvertence or forgetfulness of the debt to be furnished, so that one is not in culpable delay in fulfilling the obligation; or

2. in liberative prescription from being subject to another's claim, against an action of the creditor to be undergone, the absence of fraud, so that nothing is done by which another is impeded in exercising his right: for to such a prescription it suffices that the other does not use his right, or the mere negligence of another. Thus in liberation from a passive servitude, one is not held to warn another concerning the right of servitude which will shortly be extinguished; likewise, in fines to be paid by reason of a penal sentence, the debtor can wait until the fine is demanded.

The same could not generally be admitted for ordinary debts, unless somewhere it had been established by law or general custom that they are to be demanded before they ought to be paid; as, for example, in those things which are paid by banks upon the received presentation of the note. But this cannot generally be supposed; on the contrary, regularly: he who ought to pay is held to pay, even when not asked. Hence there is no parity with passive servitude: in this case nothing is to be done, but the one prescribing can conduct himself passively; but he who is conscious of a debt, if he does not pay but conducts himself merely passively, does not act when he ought to act.

Therefore the absence of bad faith is required and can be lacking where there is something to be done or omitted, for example, that one pay or not build higher. But where an act is not required, but it suffices that another not use his right, properly there is no question of good or bad faith. For the obligation to do something, or to omit something, is one thing; the obligation to tolerate or permit something is another. For prescribing in the first case inculpable ignorance, or absence of bad faith, is required; for prescribing in the second case the negligence of another suffices, provided it was not obtained by fraud or by some other unjust means.