§ 1. On The Notion, Division, And Value Of Prescription

57. Definition. Prescription is the acquisition of dominion through continued possession for a certain time defined by law.⁶⁹

It Is Explained. Prescription is the acquisition of dominion, and therefore is not only a pure exception against an action brought by another, or more clearly: prescription not only effects that another cannot thrust me down from possession of some thing or right through the sentence of a judge, but also legitimately grants dominion in the forum of conscience, as will be said below, n. 58. But the law which determines the titles of legitimate prescription and especially the mode and duration of the required possession is positive law (whether ecclesiastical or civil). For although prescription is most conformable to natural law, and therefore is said by certain authors to have been introduced by the law of nations (which is as it were a conclusion of the law of nature), nevertheless natural law does not determine the individual conditions necessary for legitimate prescription, but this has been left to the determination of positive civil or ecclesiastical law. By the words of the definition: "through continued possession," etc., are indicated the conditions required for legitimate prescription, concerning which there will be discussion below, n. 59 sqq.

Division. Prescription is customarily distinguished as twofold: one acquisitive, the other liberative. Acquisitive prescription, which by jurists is customarily called usucapio,⁷⁰ is a mode of acquiring a new right, for example a right of passing through another's field. But it is beautifully called usucapio, because through use something is taken as one's own. Liberative prescription,⁷¹ however, is a mode of freeing oneself or one's thing from some burden, for example from some passive servitude.

By some authors, especially ancient ones, the word "usucapio" is also taken in other senses.⁷² Thus, for example, Schmalzgrueber⁷³ writes: "From this distinction, that usucapio properly affects only corporeal things, but prescription also incorporeal things, another distinction arises, that usucapio does not proceed without possession (as the very etymon of the word itself indicates): but not rarely prescription does so, if namely it tends to incorporeal things, of which there is not true possession, but quasi-possession." - We always take prescription and usucapio in the juridical sense explained above. In general it is useful to note here that there is a rather great confusion in the assumption of words in this matter among diverse authors; whence Waffelaert⁷⁴ already wisely warned: "In reading authors one must diligently attend to the mode of speaking: for they do not define the terms in one manner."

Certain authors furthermore bring forward two other distinctions. They divide prescription 1. into memorial, whose beginning still exists in the memory of men, and immemorial, whose beginning surpasses the memory of men living today; 2. into ordinary, which is completed in a space of 3 or 10 or at most 20 years, and extraordinary, which requires 30 or more years. - Both of these divisions are of little utility and are not customarily acknowledged by modern civil codes.

⁶⁹ Cf. L. 3, Dig. 41, tit. 3.

⁷⁰ Ersitzung.

⁷¹ Verjährung.

⁷² Cf. Billuart, De iure et iust. diss. 4, a. 3, § 1.

⁷³ Ius can. l. 2, tit. 26, n. 1.

⁷⁴ De iust. I, n. 2328.

58. Value Of Prescription. That prescription, furnished with all conditions, is a legitimate mode of acquiring dominion both in the public forum and in the forum of conscience, is now admitted by all theologians. For the common good evidently requires this. For:

a) Otherwise possessions would often remain uncertain and exposed to perpetual lawsuits. For it not rarely happens that a man cannot otherwise prove the ownership of some thing except by a long-standing and peaceful possession that has been exercised. For example, a farmer from immemorial time led cows through some private road. But he cannot prove that he has a strict right to this. Unless the remedy of prescription were present, he could suddenly be impeded in his mode of acting. Besides, if there is question of very ancient and doubtful possessions, there would be lawsuits without end, if from other titles it had to be proved who was the legitimate owner.

b) Otherwise some owners would be too sluggish in vindicating their own rights. But now, since they know that their own rights can be lost by prescription, they guard them more diligently.

c) To these arguments taken from Roman civil law⁷⁵ is added the authority of ecclesiastical law, in which the value of legitimate prescription in each forum is manifestly acknowledged: "Prescription, as a mode of acquiring and of freeing oneself, just as it is in the civil legislation of the respective nation, the Church receives for ecclesiastical goods (with the prescription of the canons that follow being saved)."⁷⁶

Corollary. He who, by legitimate prescription having been completed, has acquired a thing or right against another, is not bound in conscience to give up the thing or right, even if the former owner claims it back. Thus St. Thomas teaches.⁷⁷ Indeed prescription once legitimately completed is computed backward with respect to all fruits received from the first day on which the prescription began to proceed. Wherefore such fruits are not to be restored to the former owner.

⁷⁵ L. 1, Dig. 41, tit. 3; l. 23, Cod. VII, 40.

⁷⁶ Cod. iur. can. c. 1508; cf. c. 3, X 2, 26.

⁷⁷ Quodl. XII, a. 24. St. Raymond of Peñafort (Summa, de praescript. et usucapione) and several others remained doubtful.