Article I. Initial Presentation of the Controversy

267. Notions concerning prescription. 1. PRESCRIPTION, so called from the exception written beforehand by the Praetor in the formula by which he granted a judge,¹ so that at first it designated any mode of repelling the plaintiff, but afterward was used specifically for that defense which is sought from an interval of time (temporal prescription). Hence, to turn to its present use:

¹ Cf. Gaius, IV, 132.

Prescription, in the broader acceptation,² signifies a mode of acquiring rights, or of repelling an action, or of extinguishing obligations, granted by law to him who for a definite time is in possession of a right or has in fact been free from executing an obligation.

² Understand, however, that which concerns private rights. For it does not pertain to us here to dispute concerning the prescription of a political right and jurisdiction.

Prescription so understood is divided into acquisitive prescription, or usucaption, which grants both an action for vindicating the right and an exception for repelling the adversary; and prescription strictly so called, or liberative prescription, which is a mere exception.

2. FAITH, which in this matter must especially be attended to in order to discern the efficacy of prescription, is the persuasion of the mind or conscience by which someone either keeps a thing or omits to perform something.

That estimate of the mind, if it agrees with the disposition or intention which you have concerning the matter, so that you will or do nothing which you judge to be unlawful for you, is called good faith.

Opposed to this is positive bad faith, by which someone retains as his own a thing which he himself is forbidden by conscience to hold, at least as his own, or by which, against the dictate of conscience, he does not pay some debt.

Between the two consciences, as it were, is the middle state of him who does not doubt another's right, but at the same time either is accidentally excused from paying a debt—for example, on account of inability—or, because of the nature of the other's right, has nothing positively to perform unless perhaps asked. For on the one hand he cannot have a positive faith that he owes nothing; but on the other hand he does or omits nothing against conscience.

From what has been said it is apparent that he is not in bad faith who, although he does not prohibit another from exercising his right of an active servitude—for example, a right of way—nevertheless allows him not to act; or he who waits until judgment is rendered before paying a penalty which is not owed except after the judge's sentence. On the contrary, he who, while doubting another's right, has begun to possess strictly is stained by bad faith.³ For it is not licit for him to have the intention of having the thing absolutely.

³ C. de Lugo, disp. 7, nos. 17, 18.

C. d'Annibale, vol. 2, no. 140, calls civil faith that faith or persuasion which satisfies the conditions prescribed by civil law. Thus positive laws not rarely require good faith only at the beginning of possession,⁴ or, being more severe than the law of nature, reject good faith which rested upon an error of law. It was disputed, for example, whether the faith required by Roman and canon law could or could not exist together with an error of law.

⁴ Thus law 44, § 2, Digest XLI, 3.

268. Matters disputed and opinions. Concerning prescription, three questions are chiefly raised.

1. Concerning its origin, it is asked whether it is from the law of nature, from the law of nations, or from strictly positive law. It is readily agreed that, for its perfect regulation, there is need of positive dispositions by which the time and the conditions are defined; and it is known to all that some law of prescriptions is in force everywhere, so that at least this material description of the law of nations fits prescription: the civil law of very many nations.

Not a few jurists have been pleased to ascribe a certain prescription to natural law, by which they might better explain the efficacy of prescription among nations and with respect to foreigners.

Reuter,⁵ whom R. P. Lehmkuhl, vol. 1, no. 917, appears to follow, thinks that the substance of this institution is to be referred to the law of nations. Grotius, work cited, bk. 2, chap. 4, no. 9, is not alien to this opinion.

⁵ Moral Theology, pt. 3, no. 85.

Most theologians and canonists judge that this right is founded upon civil or canon law. Cf. St. Thomas, Quodlibet 12, art. 25; Molina, treat. 2, disp. 61, no. 6; C. de Lugo, disp. 7, no. 6; Schmalzgrueber, Canon Law, on bk. 2, tit. 26, no. 4; Ballerini-Palmieri, Moral Work, vol. 3, treat. 8, pt. 1, chap. 5, no. 264, etc.

It seems to us that, even of itself, it can happen that, on account of an excessive interval of time, the bond between a thing and its owner which efficiently precedes the right of ownership (no. 215) is morally broken, especially since they concede that jurisdiction or political dominion can perish in this manner. Nevertheless, we judge that the law of prescriptions now in force, especially civil law, has force from human law alone. Nor shall we remain longer in this question, which has little usefulness.

2. Concerning the force of human laws, indeed, another question follows. It is asked whether prescription can be established by a positive sanction as a true title of ownership or liberation in the internal forum or forum of conscience, or whether all its efficacy is confined to the external forum.

Concerning this, for a sufficiently long time in former days, there was doubt. St. Raymond himself writes thus concerning one who, after prescription had been completed, came to know that he had possessed another's thing: “Different men think different things. Almost all theologians say that he is bound to restore; almost all doctors of law say the contrary.” Summa, bk. 2, tit. 5, § 15, toward the end.

Zech also held the former opinion, On the Right of Ecclesiastical Things, sect. 4, §§ 576-578.

Others at that time conceded that prescription had force in conscience only when the thing had been acquired by an onerous title, or when he against whom prescription was made was to be accused of negligence. Thus Adrian VI, in Molina, treat. 2, disp. 61, no. 5, and others.

Today, however, there is agreement among almost all—as Molina, Lessius, C. de Lugo, Schmalzgrueber, etc., contended, whom St. Thomas and Scotus appear to have preceded—that human law has this force and often brings it about that, through prescription, rights are acquired and lost even in the internal forum; and the controversy pertains to the question concerning which laws in particular this is to be affirmed. This dispute is foreign to our purpose.

3. Concerning the faith required is the third question, which is not far removed from the preceding one: whether, by the benefit of a law so providing, even he who lacks good faith can prescribe; or, to speak more generally, how far, notwithstanding the law of nature, a human statute which sanctions prescription without regard to faith is ineffectual. Connected with this is the other question, whether laws of this kind are or are not to be positively condemned.

After the decree of the Fourth Lateran Council, which will be discussed immediately, most theologians are accustomed to require, for the effect of prescription in conscience, that good faith by which someone, throughout the whole time necessary for prescription, judges that he has the right or that he is bound by no obligation.⁶ And hence certain more recent authors, whose line is led by Ballerini, inveigh rather violently against modern laws, chiefly those which are contained in the Napoleonic Code. Concerning these, cf. the Scholia.

⁶ Once that time has elapsed, knowledge of the past error can no longer cause harm, since the completed prescription itself is for you a just title of immunity or ownership.

They nevertheless set aside the case of a passive servitude by which someone is merely obliged to suffer some action or work of another upon his own field, such as a right of way. They concede that prescription can take place, with consciousness of another's right, against that other who neglects to exercise his right during the time established by law.

Can this be transferred to money which someone is not bound to pay unless asked, so that he would of himself be freed from the debt if, during the time required for prescription, the creditor omitted to ask for payment? Molina, disp. 66, no. 10, does not appear alien to this opinion; and Pichler, On Canon Law, bk. 2, tit. 26, nos. 32, 33, defends it more expressly.

C. de Lugo, disp. 7, no. 48, also says more moderately: “If the law, on account of the public good, were to introduce the provision that someone, without possession in positive good faith, but nevertheless without bad faith, could prescribe something or quasi-prescribe it, this does not appear illicit from the nature of the thing.... Why, then, could civil law not similarly introduce at some time, on account of some public good, the provision that he who without fault did not pay some monetary debt for ten years would by that very fact remain free, although throughout that whole time he had been conscious of his debt?” (Cf. also nos. 42, 52.)

Finally, recently, R. P. Slater wrote these things: “Good faith in liberative prescription consists in this: that no obstacle is placed to prevent the other from being able to use his right.”⁷

⁷ On Justice and Right, no. 43.

269. The force of the Lateran decree. Something especially important in this matter, therefore, is to ascertain accurately what is the force of canon 41 of the Fourth Ecumenical Lateran Council (A.D. 1215), which is transcribed thus in canon law, final chapter, “On Prescriptions” (II, 26):

“Since everything which is not from faith is sin, by synodal judgment we define that no prescription, whether canonical or civil, shall have force without good faith, since generally derogation must be made from every constitution and custom which cannot be observed without mortal sin. Hence it is necessary that he who prescribes have, in no part of the time, consciousness that the thing belongs to another.”

Now then, this council, which by several dispositions—specifically canons 39 and 40—either tempers the rigor of civil law or recalls it to canonical or natural equity, by this decree of its own directly wills to derogate from those Roman laws which granted the benefit of prescription even to a possessor in bad faith; and it chiefly has regard to law 4, § Si antequam [If Before], Digest, “On Usucaptions,” by the force of which immovable things were acquired by possession of ten or twenty years, provided only that they had begun to be possessed in good faith. For that canon is entitled: “On the Continuation of Good Faith in Every Prescription.”

Furthermore, as the proximate cause of a derogation of this kind, the general definition is offered: “No prescription, even civil, shall have force without good faith.” Its deeper rationale is that, from the time when, before some right had been acquired, you came to know that the thing belonged to another, you could not retain it against the dictate of conscience: “Everything which is not from faith,” that is, from the persuasion of conscience, “is sin” (Epistle to the Romans 14:23). Since a civil statute has no force against this obligation, he who wishes to stand by it would sin, and therefore derogation must be made from it. Thus far the literal exposition.

Hence, as regards the force of the decree, only acquisitive prescription is directly touched. The doctors nevertheless judge that the rule is to be transferred also to liberative prescription, for the reason offered is general and the cause is equal.⁸ We do not oppose this conclusion, provided that this is done cautiously and prudently, with the foundation of this canon well understood.

⁸ Cf. C. de Lugo, disp. 7, no. 50; d'Annibale, vol. 2, no. 153, etc.

Cautiously and prudently, I say, lest some rationale of difference fall away. That usucaption cannot plainly be equated with liberative prescription—is this not already sufficiently urged by the nearly perpetual practice of civil laws, which attend far less to faith in prescription than in usucaption? So it was already in Roman law; so in French and Italian law; so in the more recent German Code itself, which, although in art. 937 it placed among the conditions of usucaption good faith continued throughout the whole time, nevertheless requires no faith for civil prescription. Cf. arts. 194-197.

The foundation of the Lateran canon, however, is rendered briefly thus: because the public authority cannot lend its authority to frauds and spoliations. Thus González, Commentary on this chapter of canon law, no. 15.