Section — Prümmer, Manuale Theologiae Moralis
§ 2. On The Conditions Required For Legitimate Prescription
Five conditions are commonly enumerated, expressed by these verses:
Not by use shall you take, unless there be for you such five things:
Let there be a suitable thing, faith, title, possession, time.
59. 1. A suitable or prescriptible thing generally is that which can fall under the dominion of the one prescribing. Therefore all those things which by disposition of law cannot fall under the dominion (of a private man) are generally imprescriptible (at least by a private man). But not only civil law, but also ecclesiastical and natural law hold certain things as imprescriptible. Not rarely in this matter there is a conflict between ecclesiastical law and civil law. Thus, for example, ecclesiastical law does not admit lay prescription in certain sacred things, which nevertheless civil law permits. In a case of conflict, ecclesiastical law certainly prevails of itself; nevertheless in practice it almost always is better to make a composition according to what is fair and good with the authority of the legitimate ecclesiastical superior.
Things totally or partially exempt from prescription:
a) All rights and obligations of natural and divine law are totally exempted. Hence, for example, there is no prescription against the obligation of receiving the sacraments, of honoring parents, of not dissolving marriage, etc.
b) Sacred things, i.e. things consecrated to divine worship and not yet deconsecrated or profaned, are partially exempted. But I say, "not yet deconsecrated or profaned"; for in certain cases determined by canon law78 consecrated things can be deconsecrated or profaned, and then they are again like other lay things. Sacred things pertaining to the Church cannot be acquired by prescription by private persons; but nothing prevents, α) that a sacred thing existing in the dominion of private persons (or even of a civil juridic person) be prescribed, for example, a layman having the privilege of a private oratory possesses several consecrated chalices; these chalices can be acquired by title of prescription, just as other movable lay things; β) that one church or ecclesiastical juridic person prescribe a sacred thing against another church or ecclesiastical person.79 Thus, for example, the oratory of some church, already from immemorial time existing in the use of some confraternity, can be acquired by title of prescription by that confraternity. Nevertheless there are several ecclesiastical things which can never be prescribed even among diverse churches, for example the certain boundaries of a parish or diocese, ecclesiastical benefices, and especially burdens of Masses, not satisfied even by the longest custom.80
c) Things deputed to public uses, as public roads, squares, bridges, etc., cannot be prescribed by private men; they can, however, be prescribed by one community against another. The reason of both is that those public things do not fall under the dominion of a private man, but of the community.
d) Things declared by civil or ecclesiastical law to be imprescriptible, for example goods of pupils, goods of those who are limited in the management of affairs,81 payment of the cathedraticum.
78 Cf. Cod. iur. can. c. 1170.
79 Ib. c. 1510.
80 C. 4 X; 3, 29; cf. St. Raymond of Peñafort, Summa, lib. 2 de praescr. et usucapione. Cod. iur. can. c. 1509.
81 Cf. Cod. civ. Germ. §§ 206, 207, 937, 939.
60. 2. Good faith is a judgment by which someone prudently judges that the thing which he possesses is his own. This judgment indeed is objectively erroneous, but arises from invincible ignorance and therefore inculpable ignorance. Bad faith is present when the possessor knows that the thing possessed belongs to another. Doubtful faith, however, is present when the possessor has a positive and founded doubt concerning the legitimacy of his possession. Good faith is distinguished as twofold: one positive, which has just been defined; the other negative, which is the persuasion of the one prescribing that he is doing and has done nothing against the right of another.
Good faith is altogether necessary for every prescription (whether acquisitive or liberative) to be begun and continued. Thus it is manifestly drawn from Rule of Law 2: "A possessor of bad faith prescribes at no time," and from the Fourth Lateran Council: "Since everything which is not from faith is sin, by synodal judgment we define that no prescription without good faith, whether canonical or civil, is valid, since generally derogation must be made from every constitution and custom which cannot be observed without mortal sin. Whence it is necessary that he who prescribes, in no part of the time, have consciousness that the thing is another's."82 - From this text it is held that good faith must necessarily be present during the whole time of prescription. Whence he who in good faith began prescription, but afterward becomes of bad faith, now cannot prescribe. He who at first was in good faith, but afterward seriously doubts whether he legitimately possesses the thing, must solve the doubt. But if he has culpably neglected this, the prescription now is not legitimate. If, however, with sufficient diligence having been applied, he could not solve the doubt, or if the doubt was not so grave, then it is to be spurned and the adage is valid: "In doubt the condition of the possessor is better."
In acquisitive prescription good faith is customarily required also by modern civil laws; in liberative prescription, however, negative good faith or the absence of fraud seems to suffice; i.e., prescription is valid if the debtor did nothing illicit, lest the creditor be able to vindicate his right.
Resolutions. Peter's field is burdened with a passive servitude in favor of Paul, who nevertheless does not freely use this servitude for many years. After the legitimate time of prescription has passed, the servitude of the field is extinguished, because Peter certainly was not bound to warn Paul about using the servitude. Theologians teach this rather commonly. The matter is not equally clear in the following example. Someone buys merchandise from another at the price of 100 marks. The seller not only does not urge payment of the price, but neither sends that which is called an account, commonly: a "bill to be paid." The buyer in conscience is not bound to warn the seller to send that bill. Whence at least within 10 years and perhaps even after five years he seems to prescribe against him and now not to be bound to paying the sum of 100 marks, although he well knows and always has known that the debt has not yet been paid. But the reason is that in this case the debtor had negative good faith, i.e. he employed no fraud and did nothing illicit, so that the creditor might vindicate his right; but civil laws can rightly establish that after so great an interval and so great negligence of the creditor, every debt of paying is now extinguished.83 Hence also no one disapproves the almost universal use of banking institutes (commonly Bank), which pay nothing to those presenting slips (commonly coupons) after five years have elapsed.
The good or bad faith of him who previously possessed the thing also in some way influences the prescription of him who afterward acquired the same thing.
a) If both predecessor and successor are in good faith, then the time of possession employed by both is computed together. For example, if Peter in good faith possessed for 20 years a thing which afterward his successor Paul possessed in good faith for 10 years, a prescription of 30 years coalesces. Thus the common opinion. But the reason is that the predecessor is judged to transfer to the successor, together with the thing, every right which he had concerning it.
b) If the predecessor was in bad faith, but the successor in good faith, then judgment must be made, even in the forum of conscience, according to the laws prevailing in the region. According to the old Roman law (which canon law also adopted), the bad faith of the predecessor impeded from prescription the immediate universal successor, but not a particular or mediate successor.84 The reason is that the immediate and universal heir by fiction of law was judged one and the same person with the deceased, and the possession of both one and the same possession. - But according to modern civil laws the bad faith of the predecessor is now not customarily injurious to successors, provided nevertheless that they themselves are in good faith.
82 Denz. 439. The Code of Canon Law c. 1512 establishes the same.
83 Thus also Lugo (De iust. et iur. disp. 7, n. 48 sqq.), Pichler (In ius can. l. 2, tit. 26, n. 32 sq.), Génicot (Theol. mor. I, n. 493), Vermeersch (De iust. n. 268 sqq.; cf. nevertheless below n. 64 sq., where there will be discussion of civil laws).
84 Cf. St. Alphonsus (Theol. mor. l. 3, n. 512), Lugo (De iust. et iur. disp. 7, n. 57 sqq.), Billuart (De iust. diss. 4, art. 3, § 9).
61. 3. Title is the cause on account of which someone possesses a thing, or is the reason on account of which the possessor thinks the thing to be his own. Thus, for example, a son possesses goods on account of inheritance or paternal donation. Therefore inheritance or donation in this case are titles of possession.
Five titles are customarily distinguished: true title, colored title, estimated title, presumed title, vicious title. A true title is that which in reality immediately transfers dominion in each forum, for example purchase, donation. - A colored title is said to be that action which seemed legitimately to place the possessor of the thing into true proprietorship, but which, on account of the hidden defect of some essential condition, in reality did not transfer ownership; for example a purchase, made in good faith, of some thing taken by theft. - An estimated title (also called putative) is not explained in the same way by all. It seems better that it is present then, when someone sincerely thinks that he has a right or dominion, but in truth does not have it on account of another's fault; for example a son thinks that a thing received from his father from inheritance is his own, when the father in reality did not possess that thing legitimately. - A presumed title is some fact which is presumed to have been present and to have effected dominion, but which on account of length of time cannot be proved. - Finally, a vicious title is that which from its very nature cannot transfer ownership, but only grants use or usufruct. It is sometimes also called a precarious title, because only precariously, i.e. in a transitory mode, does it bestow useful dominion of some thing. Whence, for example, a renter, borrower, depositary, curator can never prescribe the thing committed to him. For their title of possession is only precarious and vicious.
Note again that authors do not explain these diverse titles in the same way; whence confusion must be avoided, and it is necessary to attend rather to the sense of the words than to the words themselves.
According to natural law this principle must be kept before one's eyes: for legitimate prescription a true title is not required (inasmuch as it by itself alone, without prescription, transfers dominion; therefore prescription in this case is superfluous); a vicious or precarious title does not suffice (because it excludes good faith, concerning which above, n. 60); but a title either colored or estimated or presumed does suffice.
Modern civil laws speak otherwise concerning title, as will be clear below.
62. 4. Possession is the actual detention of a thing or the exercise of a right. Whence Rule of Law 3 in VI establishes: "Without possession prescription does not proceed." Possession adorned with the due qualities is the principal reason and foundation of prescription, since in it the whole right arises from possession. But the required qualities are the following: the one prescribing must possess the thing:
a) by title of proprietor, and not of depositary, usufructuary, lessor, etc. For there is question of ownership to be acquired. Moreover all who cannot possess anything, for example solemnly professed religious, or who possess some thing in another's name, as tutors, lessors, etc., cannot have the legitimate intention of acquiring it for themselves by simple detention. But it is not required that a man detain the thing by himself; for he can also occupy it through a servant, procurator, etc., because moral and not physical detention is necessary.
b) continuously, publicly, peacefully, certainly.
Possession must be continuous; for sometimes it "does not proceed" or "does not run," because it either "sleeps" or "has been interrupted." The statutes of the individual civil codes must be attended to.85
Possession must be public in this sense, that he against whom prescription proceeds can easily know it; wherefore, for example, if someone secretly usurps for himself the fruits of some thing for a long time, from this he does not yet prescribe against the proprietor. The reason is that clandestine possession is judged to have been done without good faith, which nevertheless is necessary for every legitimate prescription, as was said above.
Possession must be peaceful. Hence he who has occupied some thing by force, or against whom a lawsuit is moved in judgment, cannot prescribe.86
Finally, possession must be certain and not equivocal or doubtful. This is clear, because also in that case the good faith of the one prescribing can scarcely be present. But moral certitude suffices.
85 Cf. Cod. civ. Germ. § 939 sqq.; Cod. civ. Gall. a. 2228 sq.; Cod. obligationum Helv. a. 134.
86 Cf. Cod. Iur. can. c. 1725.
63. 5. Time required for prescribing is determined in diverse ways by ecclesiastical and civil laws. Ancient authors were accustomed to distinguish in prescription:
a) a very brief time, which is below two or three years;
b) a brief time, which is below ten years;
c) a long time, which exceeds ten years;
d) a very long time, which exceeds thirty years;
e) an immemorial time, of whose beginning no memory exists, for example a time of 100 years.
For recognizing how much time is required in prescription, prescription between those present and prescription between those absent is still customarily distinguished. Those are judged present who either live in the same territory, or who exist under the same governor or judge. But those are called absent in whom these conditions are not verified.
Ecclesiastical law in some cases differs from modern civil laws in determining the time required for prescription. Although civil laws are not accustomed to care much about the ordinances of canon law, nevertheless without any doubt in conscience ecclesiastical laws must be observed, at least if there is question of prescription of ecclesiastical goods. Whence, for example, the goods of some parish or monastery cannot be acquired by title of prescription, unless the statutes of ecclesiastical law have been observed. But it must be said otherwise if there is question of lay goods which some church or ecclesiastical juridic person acquires by title of prescription. In this case civil laws rather than ecclesiastical laws must be observed. But the reason is, 1. because lay goods are more principally ruled by civil laws than by ecclesiastical laws; 2. because ecclesiastical persons also are bound to observe just civil laws concerning contracts, concerning purchase, concerning sale, etc.
These are the more principal statutes of ecclesiastical law:
Acquisitive and liberative prescription, just as it is in the civil legislation of the respective nation, the Church receives for ecclesiastical goods, except in some cases,87 as has already been said above. Hence the Sacred Rota on June 21, 1924 admitted the five-year prescription established by Italian law also for ecclesiastical goods.87a
Immovable things, precious movable things,88 rights and actions, whether personal or real, which pertain to the Apostolic See, are prescribed by a space of 100 years; but those which pertain to another ecclesiastical moral person, by a space of 30 years.89 The same holds concerning the prescription of actions in contentious matters90 (commonly: Rechtsklagen).
Criminal actions are prescribed in 1 year, if there is question of injuries; in 5 years, if there is question of qualified delicts against the VI and VII precepts; in 10 years, if there is question of the delicts of homicide and simony.91
A benefice peacefully and without simony possessed by a cleric in good faith for 3 years is prescribed, even if he perhaps acquired it with an invalid title.92
Note. In practice, when a doubt arises concerning the prescription of ecclesiastical goods, it is better and safer to compose the matter according to what is fair and good, apostolic authority having first been obtained.
87 Cod. iur. can. c. 1508.
88 Precious ecclesiastical things are not only those which have a notable metallic value, namely 500 francs, but also those which have notable historical, artistic, or scientific value, for example a very artistic chalice, a rare manuscript, etc. (cf. Hollweck, Die kirchl. Strafgesetze § 158, note 6).
89 Cod. iur. can. c. 1511. The privileges conceded to some, for example to Mendicants, whose goods cannot be acquired by prescription before 60 or even 100 years have elapsed, have not been revoked.
90 Cod. Iur. can. c. 1701.
91 Ib. c. 1703.
92 Ib. c. 1446.