Section — Prümmer, Manuale Theologiae Moralis
§ 3. Statutes Concerning Prescription According To Certain Modern Laws
I. Germanic Law.
64. 1. Germanic law very precisely distinguishes between usucapio (Ersitzung), which is acquisitive prescription, and liberative prescription (Verjährung).
2. Immovable goods cannot be acquired either by usucapio or by prescription.
3. Movable goods can be acquired through ten-year usucapio, made in good faith.93
4. The ordinary time of prescription is 30 years;94 nevertheless most debts of commerce, lease, and wages are prescribed in two years: "In 2 years the claims of merchants, manufacturers, craftsmen, and of those who carry on an industrial art are prescribed, for delivery of goods, execution of works, and management of another's affairs.... In 4 years claims for arrears of interest are prescribed...."95
Theologians do not agree whether these two-year prescriptions are valid in conscience. Aertnys,96 Göpfert,97 and Marc98 deny it, but with Lehmkuhl99 and Noldin100 it is better affirmed. Thus Noldin rightly writes: "Therefore first of all it must be inquired whether the positive law truly intends to extinguish the debt or only to deny an action in judgment. But if it can be shown certainly or at least probably that the intention of the legislator was to extinguish the debt entirely after that time had elapsed, the debtor, with good faith supposed, can be considered immune from the obligation of paying.... Nevertheless 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 held a certain persuasion that the debt has not yet been paid; therefore that he who has not paid a rent or the price of a lease through the time suitable for prescription can with a safe conscience deny payment, especially if payment has not been made because of the negligence of the creditor. For since the whole force of prescription depends on civil law, where civil law does not require positive faith, it is lawful even in conscience to stand by it. Nor can a law be called unjust which tends to this, that creditors be rendered more diligent and more alert." - The civil code of Germany (just as generally all modern civil codes) does not care much about obligation in conscience, but generally imposes its own norms. It cannot be denied that these two-year prescriptions sometimes are very good. For from them many ambiguities are avoided; contracted debts are paid more quickly, and commerce is fostered rather than impeded. Besides, negative good faith can be present not so rarely. How often does it happen that someone thinks he has already paid the price for merchandise previously received, and yet in reality he has not paid! Therefore, with negative good faith acceding, the two-year prescriptions contained in § 196 perhaps can be applied in practice.101
II. French Law.
93 Cod. civ. Germ. § 937.
94 § 195.
95 § 196.
96 Theol. mor. III, n. 278.
97 Moraltheol. II, n. 80.
98 Inst. mor. I, n. 901.
99 Das Bürgerl. Gesetzbuch 60 sq.
100 De praeceptis n. 407.
101 Aloysius Piscetta teaches nearly the same thing excellently and defends it with arguments drawn from Lugo (De iust. et iure disp. 7, n. 48), Theol. mor. III, Augustae Taurin. 1907, n. 153 sqq.
65. 1. For legitimate usucapio there are required: a) continuous, peaceful, public, not equivocal, and truly proprietary possession ("To be able to prescribe, there must be a continuous and uninterrupted, peaceful, public, not equivocal possession, and under title of proprietor");102 b) a time defined by law, namely, α) for acquiring immovable goods, 10 years, if the proprietor lives in the same district (within the jurisdiction of the imperial court in the extent of which the immovable is situated), and 20 years, if the proprietor does not live in the same district.103 In these cases, however, a legitimate title and good faith are required; if these are lacking, 30 years are required.104 β) For acquiring movable goods no time is required, but that famous principle is valid: "In the matter of movables, possession is worth title."105 Yet this principle is often understood falsely. Its sense is: "He who possesses a movable good is judged to possess it by just title, until the contrary is proved. But if the contrary has been proved, the possessor is bound to hand over the thing, and indeed, if the things were lost or taken by theft, still after 3 years. But if he bought things of this kind in good faith in a public market or from a merchant publicly selling things of this kind, he has the right of claiming from the proprietor the price given for those things."106
2. For legitimate liberative prescription a) the time of 30 years always suffices, without either title being required or bad faith being able to be opposed;107 b) by a time of 5 years all annual or periodic prestations are prescribed ("everything which is payable by the year or at shorter periodic terms");108 c) by a time of six months, one year, and two years several other smaller debts are prescribed, concerning which Picot rightly writes:109 "They must not be considered as true ways of extinguishing obligations, but only as presumptions of payment; for this reason (excepting one exception, art. 2277) the oath can be deferred to him who invokes them. These presumptions of payment of debts, which in usage are called 'crying debts,' are introduced in the interest of debtors and especially of their heirs; they are founded upon the ordinary need of creditors of such obligations, upon the habit of debtors of paying promptly these thousand little daily debts without witnesses and without receipts."
III. Swiss Law.
102 Cod. civ. Gall. n. 2229.
103 Art. 2265.
104 Art. 2262.
105 Art. 2279.
106 Art. 2279, 2280.
107 Art. 2262, 617, 706.
108 Art. 2277.
109 Code Napoléon expliqué II, a. 2270.
66. 1. Swiss law concerning this matter is found partly in the civil code, partly in the code of commercial obligations.
2. For legitimate usucapio Swiss law establishes these things:
a) Immovable goods are acquired by usucapio after 30 continuous years have elapsed and in peaceful possession of the thing;110 but after ten years, if the immovable good has been entered in the land register (Grundbuch) and has been possessed peacefully, continuously, and in good faith.111
b) Movable goods are acquired by usucapio after 5 continuous years have elapsed and in peaceful possession of the thing, if nevertheless good faith was present.112
3. For legitimate liberative prescription these things are established:
a) Debts for which a hypothec has been given are never prescribed.113
b) Generally prescription has place after 10 years.114
c) After 5 years, however, very many debts are prescribed, for example the price of lease, interest, salaries of physicians, workmen, servants, etc.115
d) After one year or six months actions for obtaining indemnification are prescribed.116
Besides these prescriptions there are still others, for example of one month, of three months, of three years, etc., which principally have place in banking houses (commonly Bank).117
In the forum of conscience usucapiones and prescriptions seem to be valid after the elapsed time of at least 5 years, always with the good faith (positive or at least negative) of the one prescribing or acquiring by usucapio presupposed. This opinion is confirmed from the sentence of the Sacred Rota alleged above in n. 63. But shorter prescriptions do not seem to be valid in conscience.
IV. Italian And Spanish Law.
110 Cod. civ. Helv. a. 662.
111 Art. 661.
112 Art. 728.
113 Art. 807.
114 Obligationsrecht a. 127.
115 Ib. a. 128, 585.
116 Ib. a. 210, 454, 693, and Cod. civ. a. 95.
117 Obligationsrecht a. 803-807.
67. 1. The civil codes of Italy and Spain treat the matter concerning prescription very broadly, so that it is impossible to embrace the whole matter in a few words. Therefore authors who discuss this matter expressly must be approached.
2. All things which are in commerce are prescriptible.118 Nevertheless there are many persons against whom prescription cannot obtain.119
3. Good faith is not required a) for thirty-year prescription,120 b) for all liberative prescriptions.121
4. Authors do not agree whether the statutes of the Italian and Spanish laws concerning that prescription which does not require good faith are valid in conscience. Aloysius Piscetta122 defends the affirmative opinion for Italian law; Saralegui123 defends the negative opinion for Spanish law.
118 Cod. civ. Ital. a. 2113; Cod. civ. Hisp. a. 1936.
119 Cod. civ. Ital. a. 2119 sqq.
120 Cod. civ. Ital. a. 2135.
121 Cod. civ. Hisp. a. 1961.
122 Theol. mor. III, n. 143 sqq.
123 Com. al P. Larraga n. 742: "These dispositions of the Code must be understood in order to the external forum, ... but they do not avail in the internal forum, in which good faith is indispensable."
68. V. English Law And The Law Of North America.
1. American law in the diverse Federated States is not uniform; nevertheless generally it is sufficiently conformable with English law.
2. Prescription must very precisely be distinguished from the so-called "limitation of action" (limitation of actions), which is nothing other than a statute of law not admitting judicial actions after a determinate time has elapsed. There is not much need to care about this limitation of action in the confessional, since it is not valid to transfer dominion of a thing in conscience.124
3. Prescription never has place in movable things and in lands:125 "A title by prescription can be made only to incorporal hereditaments and to certain exemptions and privileges. The rights claimable by prescription for the most part consist of rights in alieno solo. The most important are advowsons, tithes, commons, ways, watercourses, lights, offices, dignities, franchises, pensions, annuities, and rents. Land or movables cannot be claimed by prescription."126 In this statute English and American law differ from all other European laws (insofar as it is permitted to know).
4. For prescription it is required that the rights causing prescription be exercised a) as true rights, and not as usurpations or simple licenses ("as of right"); b) peacefully and continuously; c) publicly, i.e. with the knowledge of the proprietor. Whence prescription is not present if the right was exercised by force, secretly, or in a precarious mode.
5. The time required for liberative prescription regularly is 20 years, but for acquisitive prescription ("rights of common and all other profits or benefits to be taken and enjoyed from or upon any land") regularly is 30 years; there are nevertheless exceptions, in which either 20 years suffice or 40 years are required.
124 Cf. the individual statutes in Tanquerey, Suppl. p. 15.
125 Cf. Slater, Princ. theol. mor. de iust. a. 3.
126 Encyclop. Britann. s.v. "Prescription."
69. Scholion. Certain Practical Rules For The Confessor.
1. Let any confessor take care to know at least the principal statutes of his own country concerning prescription, yet very precisely distinguishing statutes that transfer dominion from statutes that exclude judicial action. The former statutes oblige also in the forum of conscience, but the latter are not valid to transfer dominion in conscience.
2. In prescription transferring dominion there is always required good faith, i.e. a prudent judgment of ownership rightly obtained. In acquisitive prescription positive good faith is required, but in liberative prescription sometimes negative good faith suffices, i.e. the omission of any culpable action which could impede the legitimate owner from vindicating his ownership.127
127 Cf. Crolly, De iure et iust. I, n. 610.