Case 8. Prescription

Caius, an architect, had prepared the plans of a new building for a certain college of religious in England; since, however, on account of lack of money the religious could not build immediately, their superior asked Caius to seek his expenses. Caius wished the work to be entrusted to him for completion and therefore did not wish to seek immediately the expenses, which easily exceeded one hundred pounds sterling, although the superior had asked him more than once. Other superiors succeeded, and at length one of them, who knew that for at least fifteen years Caius had said nothing about his expenses and therefore thought that he had renounced the money, began to doubt whether, even if he now sought payment, he himself was bound to pay. Hence it is asked:

1. What is prescription, and what conditions are required for prescribing?

2. What are the Statutes of Limitation, and what are their effects?

3. What is to be said of the case?

1. This question is answered in “Manual of Moral Theology,” vol. i, p. 376 and following.

2. What are the Statutes of Limitation and what is their effect ? Statutes of Limitation fix a certain time within which a right of action must be enforced. In English law the Real

Property Limitation Act, 1874, fixes twelve years as the period within which an action to recover real property must be brought, and the effect of the expiration of the statutory time is not only to bar the right of action, but to extinguish altogether the title of the person against whom the time limit has run. Other Limitation Acts differ from this in that they only bar the remedy; they do not extinguish the right. Thus by the Limitation Act of 1623, as amended by subsequent statutes, actions for debt grounded on any lending or contract without specialty must be brought within six years after the time at which payment became due. But although after the lapse of the statutory period no action may be brought, yet the debt is not extinguished. Sir F. Pollock says: “Now there is nothing in these statutes to extinguish an obligation once created. The party who neglects to enforce his right by action can not insist upon so enforcing it after a certain time. But the right itself is not gone. It is not correct even to say without qualification that there is no right to sue, for the protection given by the statutes is of no avail to a defendant unless he expressly claims it. . . . Although the creditor can not enforce payment by direct process of law, he is not the less entitled to use any other means of obtaining it which he might lawfully have used before.”¹

1 Principles of Contract, p. 599. 4th ed.

3. The case. Caius, an architect, neglected to send in his bill for work done for some Religious, because he hoped to get the whole job if he waited. Fifteen years elapsed and nothing was said by either party about the debt. The Religious Superior began to doubt whether there would be any obligation to pay the bill even if the architect sent it in after the lapse of so long a time.

From what has been said already it is clear that the architect could not bring an action at law to recover payment of his money. In certain circumstances the debtor might even presume that the debt had been condoned and refuse to pay, even if afterward the bill were sent in. Apart from this, as the Statute of Limitation does not extinguish the debt, and as there is no prescription in such cases according to English law, the obligation in conscience to pay the debt still remains, if the architect chooses to demand payment. Otherwise he may be presumed to have abandoned his claim.