Article Fifth. On Prescription

399. Definition. Prescription can be defined: a mode of acquiring ownership through possession continued for the time and in the mode defined by law.

a. Prescription is sometimes, especially by theologians, taken for the same thing as usucapion, but sometimes is distinguished from usucapion. But in assigning the distinction between the two, authors do not agree.¹

b. The term ownership in the definition must be taken generally: for the right which is acquired by prescription is diverse: either full ownership, or direct ownership, or useful ownership, or servitude, or liberation from servitude.

c. The law which determines the mode and duration of possession required for prescribing is positive law, whether ecclesiastical or civil. Therefore, according to the variety of laws, the time necessary for legitimate prescription is also diverse.

¹ C. A., Section 1451, uses these terms in such a way that it calls acquisitive prescription usucapion (Ersitzung), but liberative prescription simply prescription (Verjahrung). In a similar way C. G., Section 194 ss. and Section 937 ss.

400. Division. Prescription is divided: a. Into acquisitive, by which someone acquires a new right, for example, of passing through another's field; and liberative, by which someone liberates himself or his thing from some burden, for example, himself from the burden of paying a debt, or a field from the burden of suffering another to be able to pass through it.

b. Into memorial, whose beginning does not go beyond the memory of men, and immemorial, whose beginning goes beyond the memory of men now existing.

c. Memorial prescription is divided into ordinary, which is completed in the space of three or ten years, and extraordinary, which requires thirty or more years.

d. By reason of time, into prescription of very short time, which is below three years (in Germany two years); of short time, which is below ten years; of long time, which is below thirty years; of the longest time, which exceeds thirty years.

e. By reason of persons, into prescription among those present and prescription among those absent.

Those are called present, according to the disposition of law, who dwell in the same territory, or who exist under the same judge or governor; those are called absent who dwell in diverse territories or exist under a diverse judge or governor.

401. Nature of prescription. 1. Prescription is a legitimate title of acquiring ownership: for prescription by its nature consists in this, that possession by the very course of time, if the required conditions are present, transfers ownership of the thing possessed to the possessor. It has the force of transferring ownership from human law: for human law, by force of high ownership, can transfer ownership from one to another, even against the will of the owner, on account of grave reasons of the common good; but grave reasons of the common good demand this.

a. The reasons on account of which prescription has been introduced are: alpha. lest ownership of things be uncertain for a long time; beta. that disputes may more easily be ended or altogether avoided; gamma. that doubts of conscience and fears of losing things possessed may be removed; delta. that the diligence of men in preserving things and prosecuting their rights may be sharpened. - For liberative prescription this twofold reason is brought forward: alpha. presumption of payment on the part of the debtor, because creditors are not accustomed to neglect for a long time the payment of a debt; beta. immunity from the burden of preserving testimonies of payment forever.

b. Both ecclesiastical and civil law use prescription.¹ Where human law in reality intends to transfer ownership by prescription, the law of prescription has value also in the forum of conscience. Therefore he who legitimately prescribes against another makes his own, by force of law, the thing which he possessed for a certain time; hence if, after prescription has been completed, he learns that the thing was another's, he is not bound to restore it, even if the former owner demands it back.

2. The five conditions which are required for legitimate prescription are contained in the following verse:

You will not usucapt unless such five things are yours: Let there be an apt thing, faith, title, possession, time.

¹ C. Quoniam fin. (20), De praescript. (II, 26).

402. An apt thing, or one capable of prescription, is generally a thing whose ownership can be acquired. But a thing which, whether by its nature or from the disposition of law, cannot come into another's ownership is incapable of prescription, because by prescription ownership of the thing is transferred to another.

a. Sacred things, that is, things consecrated to divine worship, such as churches, chapels, altars, cannot be prescribed by laymen; but they can be prescribed by those who can have their ownership. Thus, for example, a cemetery can be prescribed by one church as a juridical person against another church; but a private man can prescribe only the right of burial in a determined place of the cemetery, because he can acquire this alone. In the same way a private man can prescribe sacred utensils which are in the ownership of a private man.

b. Sacred rights of themselves can be prescribed just as sacred things can; thus an ecclesiastical benefice, the right of conferring a benefice, and the right of electing to a prelature can be prescribed only by a cleric, because they can be possessed only by a cleric; but the right of patronage can be prescribed even by a layman, because it can also be possessed by a layman.

c. Public profane things can be prescribed by a community against a community, but not by a private person, because they cannot be possessed by a private person, such as public roads, bridges, fountains, ports, etc.

d. Stolen things indeed cannot be prescribed by the thief because of defect of good faith, even if by lapse of time he had forgotten that he possessed the thing unjustly, unless the defect has been purged. But it is purged by possession of 30 years if the matter concerns a movable thing, 40 years if the matter concerns an immovable thing. Whether they can be prescribed by another who received them from the thief in good faith depends on the disposition of law. And modern codes indeed nearly establish that he who in good faith received the thing from the thief (by donation, purchase) can prescribe. The same is valid concerning a found thing if the finder omitted due diligence of finding the owner.

e. Finally, among things which cannot be prescribed must be referred those whose prescription law impedes. Ecclesiastical law impedes that the boundaries of parishes or dioceses once constituted, conditions attached to pious foundations, or burdens of Masses¹ can be prescribed; but civil law impedes prescription against dotal goods, goods of wards, etc.²

¹ Council of Trent, sess. 25, c. 5, De reform.; S. C. C., 18 Aug. 1813; 20 Dec. 1879. Cf. Acta s. sedis, XIII, p. 220.

² C. A., Section 1455-1459.

403. Good faith is an erroneous judgment by which someone prudently, that is, with moral certitude, judges that the thing which he possesses is his own. Therefore he who doubts from the beginning whether the thing is his own cannot begin prescription.

a. By liberative prescription a burden or obligation is extinguished. But obligations are of two kinds: active, which are referred to a personal or real action, such as of paying from purchase or loan; and passive, which are referred only to a burden to be undergone, for example, of suffering passage through one's own land.

b. Likewise good faith is one thing positive, which is the persuasion of the prescriber or debtor that he has no obligation; another negative, which is the persuasion of the prescriber that he does nothing against the right of another. This therefore requires that he not impede another in the use of his right, but does not require that he warn him about the use of the right.

1. Good faith is required for beginning and also for continuing every prescription, both acquisitive and liberative: for it is repugnant to justice that someone should make his own a thing which he knows to be another's, since rather he is bound to render it; nor can civil power through the law of prescription help anyone in inflicting an injury. Therefore the Church altogether requires good faith for legitimate prescription.¹

a. Therefore prescription begun in good faith, to which bad faith supervenes, is interrupted; but if to prescription begun in good faith there supervenes a doubt which cannot be laid aside after moral diligence has been employed, prescription can be continued. Indeed, even if investigation of the truth is culpably neglected, prescription itself, which has been begun in good faith, is not impeded; but the one prescribing contracts an obligation of restitution insofar as the presumed owner is deprived of hope of recovering his own thing.

beta. If there is any prescription for which the law requires either no good faith or only good faith in the beginning, it has no value in conscience. Therefore a law of this kind must be understood in such a way that it only denies judicial action (das Klagerecht), but not in such a way that it transfers ownership itself.

2. For active liberative prescription, positive good faith is required, even if civil law should establish otherwise. Therefore, if positive good faith is lacking, this prescription has no value in conscience. But for passive liberative prescription, negative good faith is required and suffices. But if civil law admits the prescription of him who impeded another in the use of his right, prescription has no value in conscience.

3. The good faith of the predecessor always benefits a successor, both universal and particular, who himself is in good faith. Therefore if someone, after the completed time of prescription begun by the predecessor and continued by himself, learns that the thing is another's, he is not bound to return it. The reason is that the predecessor hands over the thing to the successor with every right which he himself has.

Whether the bad faith of the predecessor impedes prescription of the successor, if he himself is in good faith through the whole time required for prescription, depends on the disposition of law, by which one can stand also in conscience: a. Roman law, and canon law, which adopted it, establishes: the bad faith of the predecessor impedes prescription in the immediate universal successor, but not in the particular successor or in the mediate universal successor. b. Modern civil law admits prescription even in the universal and immediate successor or heir, so that he prescribes the inheritance, provided he has possessed it in good faith for 30 years (according to other codes for 10 years).²

alpha. A universal successor is called one who, from a universal title, succeeds into a universal right, whether there is one heir or several, whether he succeeds by force of a testament or ab intestato. A particular successor is called one who by a particular title, whether of legacy, purchase, donation, etc., succeeds another in possession of a determined thing. A successor or heir is one thing immediate, who succeeds the deceased himself; another mediate, who is heir of the immediate successor.

beta. A universal successor or heir in Roman law is considered as one person with the deceased; therefore just as the predecessor who is in bad faith cannot prescribe, so neither can the successor. But the successor of this one, that is, the mediate universal heir, can prescribe if his own predecessor was in reality in good faith; for a mediate heir is not the heir of the first deceased, who was in bad faith, but of the immediate heir, who is supposed to have been in good faith. A particular successor can prescribe notwithstanding the bad faith of the predecessor, because he does not represent the person of the predecessor; wherefore the latter does not communicate to him personal defects, of which sort bad faith is.

¹ C. Quoniam fin. (20), De praescript. (II, 26), where the words of the Fourth Lateran Council are had: "By synodal judgment we define that no prescription, whether canonical or civil, has value without good faith." Reg. iur. 2 in 6: "A possessor of bad faith prescribes in no time."

² C. A., Section 1463, 1493; C. G., Section 194, 195.

404. Title is the cause on account of which someone possesses a thing, for example, purchase, donation. Therefore title at the same time is that reason on account of which the one prescribing judges that the thing is his own.

Title is universally divided into true, which in reality transfers ownership, and apparent, which does not transfer ownership. Apparent title, which comes here to be considered, is either colored or believed or presumed. Colored title is a cause truly indeed existing, but invalid by reason of a hidden defect, as if someone buys a thing from a thief. Believed title is called a cause which is thought to exist, but in reality does not exist, as if a master who had handed money to a servant for buying a thing thinks that the thing was bought by the servant, which nevertheless was not bought by him but taken away by theft. Presumed title is called a cause capable of transferring ownership, which never intervened nor was thought to have intervened, but on account of the long duration of possession is supposed by law.

1. True title is not required for prescription, but apparent title is required and suffices, whether it is colored or believed. a. If true title which transfers ownership were present, prescription would be superfluous. b. Apparent title is required, because without a title from which the possessor judges that the thing is his own, prescription cannot be begun in good faith. c. Not only colored title but also believed title suffices, because each can found good faith.

Therefore if by law a just or legitimate title is required for prescribing, a title is understood which by the disposition of law suffices for prescribing.

2. In extraordinary prescription, presumed title suffices: for the long duration of possession founds the presumption of title.

Therefore he who can demonstrate possession of the longest time is not bound to allege and prove the title, but in this case title is presumed from long possession. Yet if the adversary can demonstrate absence of title, possession even of immemorial time has no value: for presumption yields to truth.¹

¹ C. A., Section 1472.

405. Possession. 1. For prescribing, legitimate possession is required: for possession is the foundation of prescription; wherefore from the rule of law, without possession prescription does not proceed.¹

a. Possession in acquisitive prescription consists in the holding of a thing or in the exercise of a right, according as a thing or a right is prescribed; but in liberative prescription it consists in possession of liberty, by which the person or thing is not held to serve for the utility of another who does not use his right.

Since this liberty is possession very improperly so called, others simply teach that no possession is required for liberative prescription, but that the right (for example, of demanding payment) which is not exercised within the time determined by law is extinguished by its own nature.²

b. He who possesses a thing in his own name also prescribes in his own name; he who possesses another's thing in another's name also prescribes in another's name. Thus a tutor who possesses in the name of a ward prescribes not for himself but for the ward.

2. Possession which is required by law for prescribing ought to be continuous. Prescription already begun sometimes does not proceed or does not run, either because it sleeps or because it is interrupted.

Prescription is said to sleep when on account of a supervening impediment it is suspended. But when this impediment is removed, it proceeds in such a way that the subsequent time can be computed with the preceding. It is said to be interrupted when on account of a supervening impediment, for example, because bad faith supervenes or possession is lost, it is altogether extinguished.

¹ Reg. iuris 3 in 6.

² Cf. Holzmann, Theologia moralis, t. 4, n. 136.

406. The time necessary for prescribing is determined by law.

The time required for prescribing is diverse in diverse laws. Prescription of goods of the Church which has value in conscience is governed not by civil laws, but by the laws of canon law (which are the laws of Roman law with peculiar privileges added); all other prescriptions are subject to the laws of their own province.

1. Concerning ecclesiastical prescription.

a. Immovable and precious movable goods are prescribed in 40 years.

alpha. It is not necessary to warn that among ecclesiastical goods are also referred the goods of monasteries and of any pious places whatsoever which have been erected by ecclesiastical authority.

beta. The Roman Church enjoys a privilege by force of which its immovable goods are not prescribed except in 100 years. A similar privilege has been granted to certain monasteries. Thus the goods of the Order of St. Benedict are not prescribed except in 60 years; the goods of the Cistercians and Mendicants are not prescribed except in 100 years.

b. Movable goods not precious are prescribed in 3 years with title, in 30 years without title.

c. Servitudes inhering in immovable goods are equated with immovable goods themselves. Therefore, that ecclesiastical goods may be burdened with servitudes, the time indicated above is required; but that they may be freed from servitudes, the time of civil prescription suffices if prescription is made against a profane person or profane goods, but the time of ecclesiastical prescription is required if prescription is made against ecclesiastical goods.

2. Concerning civil prescription. The time required in civil prescription must be taken from the civil code of the region.¹ In this place only the question must be treated whether those things which modern laws establish concerning liberative prescriptions, especially active ones, have value in the forum of conscience.

¹ From C. A., movable goods of private persons are prescribed by the course of three years (Section 1466), but movable goods of the fisc, communities, and the Church by the course of six years (Section 1472); concerning immovable goods several things are established in Sections 1467-1472. From C. G., the ordinary time of prescription is ten years for movable things (Section 937), thirty years for immovables (Section 195, 900); yet there are things which are prescribed by the course of two years (Section 196), and others by the course of four years (Section 197).

407. On the value of liberative prescription. 1. All concede that liberative prescriptions of long and a fortiori of the longest time have value in conscience from the general motive of prescription. Therefore if, for example, after ten years a creditor demands from another a debt which the latter thought extinguished through that time, he is not bound to pay the debt, provided the civil code declares this time sufficient for extinguishing the debt.

2. Authors commonly affirm that liberative prescriptions of very short time do not have value in conscience; for those prescriptions, from the very mind of the legislator, do not intend to transfer ownership or extinguish the debt, but only to deny judicial action (das Klagerecht), and if they wished to extinguish the debt, they could not do it.

Prescriptions of this kind are, for example, payments owed to physicians, servants, teachers or instructors, workers, merchants, innkeepers, etc., which, if they are not demanded within the time determined by law (half a year, a year, two years), are held as extinguished before a judge. Therefore these debts are not extinguished in conscience where it is certainly established that payment has not yet been made, because prescriptions of this kind, which provide to the powerful a means of defrauding the weak of their goods, do not benefit the common good but harm it.

3. Authors dispute concerning the value of prescriptions of short time. Therefore it is difficult to determine whether, for example, the debts enumerated above or yearly rents, after three or four years have elapsed, are still to be paid in conscience, or whether the debtor is immune in conscience from the obligation of paying, even if it is established that payment has not yet been made. But if it can certainly or at least probably be shown that the intention of the legislator was not only to deny action, but to extinguish the debt itself after that time has elapsed, the debtor, with good faith supposed, can be considered immune from the obligation of paying.¹

It is clear that good faith can scarcely be present in the first debtor; but his successor, if he is in good faith, can use this prescription. Yet there are those who think that even for active liberative prescription negative good faith suffices, which consists in the absence of fraud, although there is certain persuasion that the debt has not yet been paid. Therefore they think that he who does not pay rent or the price of a lease through the time apt for prescription can with a safe conscience deny payment, especially if the payment was not made from the creditor's negligence. For since the whole force of prescription depends on civil law, where civil law does not require positive faith, it is licit to stand by it also in conscience. Nor can a law be called unjust which tends to this, that creditors be rendered more diligent and more attentive.²

¹ Neither from the Austrian code nor from the German code is the mind of the legislator concerning the force of this prescription certainly established.

² Cf. Conferenzblatt (Brixen: Weger, 1895), p. 105 ff.; C. A., Section 1432. Cf. Lehmkuhl, Das burgerliche Gesetzbuch^2 (Freiburg: Herder, 1900), p. 59 ff.; C. G., Section 222.