Article II. Formulation and Arguments of the Proposition

By human law there can validly and suitably be introduced both the usucaption of a real right and prescription by which an obligation is truly extinguished.

Nevertheless, per se it will be unlawful for a possessor or debtor in bad faith to enjoy the benefit of the law.

Nor for that reason are laws to be judged unjust which, without regard to good or bad faith, extinguish an action after a definite time.

270. I. State of the Question. 1. INTENTION OF THE THESIS. The intention of the thesis is directed to three points. For in the first part, with the opinion common today, we attribute this force to human law, by which, through the aid of prescription, it can give or dissolve rights even in the internal forum. In the second part, however, we deny that this force per se extends so far as to grant an advantage even to one in bad faith. While we posit this exception, we also defer to the authority of the Lateran Council. Finally, in the third place, we establish that laws which, with the consideration of good or bad faith omitted, simply suppress actions are by no means to be condemned.

2. THE TERMS ARE EXPLAINED.

By human law, which will be canonical in ecclesiastical matters, civil in secular matters,

Validly, or efficaciously,

And suitably, or usefully, so that they are to be praised,

There can be introduced, with the question of first origin omitted, whether this may perhaps be natural,

Both usucaption, or acquisitive prescription,

Of a real right: for not only ownership, but also usufruct, use, habitation, and other rights in a thing can of themselves be acquired by prescription, if the law has extended the force of prescription to them. This has in fact occurred concerning most of these rights, with the exception of certain servitudes.

And prescription, more strictly so called, or liberative prescription,

By which an obligation, and not only an action before a magistrate,

Is truly extinguished, that is, in both forums.

Nevertheless, per se, or for the most part, unless another rationale of the common good demands a more universal efficacy. We shall give examples in the immediately following article.

In bad faith, at least of the positive kind which was explained above. Concerning him who is in the middle state, cf. no. 278.

For a possessor, or for him who wishes to usucapt,

Or debtor, who wishes to be released by prescription,

It will be unlawful, or prohibited by the higher law of God,

To enjoy the benefit of the law, even if good faith is not required by the letter.

Nor for that reason. Thus far nothing has been said concerning laws which make no mention of good faith. Nor will the thesis be posited concerning all of them, but only concerning those which merely deny an action. Concerning others, see below, nos. 278 and 283.

Nor for that reason are laws to be judged unjust: therefore they have force and are not to be censured,

Which, without regard to good or bad faith, and therefore not attending to bad faith. For no law expressly professes itself to favor it.

An action, not the right itself, from which civil protection is thus merely removed,

After a definite time, understood as defined by the law itself,

Extinguish, so that the plaintiff must lose his case and the defendant cannot be punished by the judge.

3. NOTE OF THE THESIS. We give the three parts as philosophically certain. The second, moreover, must also be held theologically certain from the authority of the Lateran Council.

II. Proof.

271. A. FIRST PART. By human law there can validly and suitably be introduced both the usucaption of a real right and prescription by which an obligation is truly extinguished.

N.B. Because the force of a law, as an ordinance toward the common good, is closely connected with its suitability, and because the reasons are nearly common to usucaption and prescription, we shall comprehend the various assertions of this part in one reasoning.

First Argument. From reason. Laws which are part of a wisely ordered governance of private possessions are validly and suitably enacted. For we saw, in Thesis XVI, that this ordering pertains to the public authority.

But. Such are the laws which introduce usucaptions and prescriptions by which rights themselves and obligations of conscience are affected. Therefore.

The minor is proved by indicating the various common advantages which flow from these institutions. And in truth, through them:

a) Ownerships of things become more certain. Without usucaption, it would scarcely be possible to prove incontrovertibly that a thing belongs to someone, since it would have to be traced back to the first occupier and the legitimate possession of all who received it from him in order would have to be demonstrated.

b) Very many and most difficult lawsuits are cut off. For with usucaption and prescription removed, complaints could be brought against both a possessor and a debtor from the most ancient causes; but the more a lawsuit flows from an ancient source, the more difficult it is to adjudicate and the more protracted it becomes.

c) Not a few hatreds and dissensions of citizens are forestalled. Not only are lawsuits themselves accustomed to beget hatreds, but so long as the adversary's right remains uncertain in some way, manifold occasion is given for suspicions and quarrels by which peace and concord of minds are disturbed.

d) Provision is made for the security of agreements. He who acquired some thing by purchase, inheritance, etc., unless he were protected by the safeguard of prescriptions, could scarcely have secure possession of the thing or become more certain concerning the extent of the estate.

e) Citizens are freed from the excessively grave burden of perpetually preserving receipts of debts and various instruments.

f) Dangers of sinning and fears of conscience are removed. Often, if there were no prescription, there would arise, with great harm to the family estate, an obligation to deprive oneself of goods possessed for a long time in good faith.

The less voluntary a cause this necessity had, the harsher it would appear and the more it would provoke the mind to sin. And how many anxieties would flow from these very doubts for men of timorous conscience!

g) The minds of men are stimulated to care diligently for their own things. For he who knows that he will fall from his right unless he acts promptly is greatly incited to diligence and industry.

It will escape no one that, although not the individual reasons, nevertheless several of them—for example, those under letters a), d), f), and g)—tend toward requiring or recommending a prescription which is upheld even in the forum of conscience.

Add to these that from long possession or from the creditor's prolonged silence there arises a valid presumption of right or of payment; that negligence is not undeservedly affected by a certain penalty, as it were; and, further, that after a long time the possessor or debtor has arranged his expenditures on a settled basis according to the resources which he thought were his own. Nor indeed will you be able to doubt that you are entering into the opinion of the authors whom we shall presently mention, who extolled these provident institutions with the highest praises.

Second Argument. From authority:

a) Of the Lateran Council, which, by condemning prescription vitiated by bad faith, appears indirectly to admit the same prescription when fortified by good faith;

b) Of both canon and civil law; civil law, indeed, of almost all nations, which, as at least the most probable opinion holds, establishes prescriptions of the rights themselves. What is more, reasons plainly similar to ours are offered in civil law itself. Cf., in the fifty books of the Digest, law 5, Pro suo [As One's Own] (XLI, 10); law 2, principium, De aqua et aquae pluviae arcendae [On Water and the Restraining of Rainwater] (XXXIX, 3); law 28, De verborum significatione [On the Signification of Words] (L, 16); and, in the Code, law 7, principium, De praescriptione triginta vel quadraginta annorum [On the Prescription of Thirty or Forty Years] (VII, 39).

c) Of jurists and theologians. Cicero, For Caecina, chap. 26, calls usucaptions “the end of anxiety.” Gaius, cited in law 1, Digest, De usurpationibus et usucapionibus [On Usurpations and Usucaptions] (XLI, 3), affirms that “usucaption was introduced for the public good.”

Cassiodorus, in an epistle written in the name of King Theodoric, has these words, which have now customarily been said as a proverb: “Thirty-year prescription, the patroness of the human race.”¹

¹ Variae, bk. V, Epistle 37, under this title. Thus Carrière, no. 418.

Moreover, a long line of men could be cited, with St. Thomas at its head, who, among theologians of the greatest learning and virtue, do not hesitate to attribute this force and efficacy to prescription. The conclusion is therefore proved to be most manifest.

272. OF THE SECOND PART. Nevertheless, per se it will be unlawful for a possessor or debtor in bad faith to enjoy the benefit of the law.

First Argument. From the decree of the Lateran Council. For at least this conclusion is contained in the general principle given there: “We define that no prescription, whether canonical or civil, shall have force without good faith.” Nor does it help to except liberative prescription, since, at least per se, the cause of each is entirely equal, and we posit the conclusion as true only per se. Besides, theologians agree concerning the inference, and rather extend the force of that decree farther.

This is confirmed by the second Rule of Law in the Liber Sextus: “A possessor in bad faith prescribes at no time.”

Second Argument. From reason. It is unlawful to enjoy the benefit of a law which is deprived of all force by the higher law of nature.

But. A law which intends to enrich or release a possessor or debtor in positive bad faith is per se invalidated by nature. Therefore.

The minor is proved because this law would per se be opposed to the common good. For it is readily apparent that the arguments given in the first part do not bring it about that it is for the good of the commonwealth to grant, as it were, a reward to continued positive bad faith; but, on the contrary, the public good demands that, insofar as can be done, the malice of men be restrained by laws. Unless, therefore, a rationale of the common good sought from elsewhere and prevailing demands a more universal efficacy of prescription, that is, per se, a law which grants the benefit of prescription to bad faith would be opposed to the common good.

273. OF THE THIRD PART. Nor for that reason are laws to be judged unjust which, without regard to good or bad faith, extinguish an action after a definite time.

For laws of this kind are defended by absolute or more universal reasons, and they do not positively favor bad faith or sin.

Therefore. They are by no means to be condemned.

The antecedent is proved. a) For these laws absolutely, whether good or bad faith has intervened, procure that the ownership of things is plainly established in the external forum and that provision is made for the security of agreements in the same forum; that forensic controversies, especially those whose cause is more ancient, are diminished in number; and that the diligence of citizens is fostered. Who does not see that all these things contribute greatly to the common good? Add to these that there is a reason for less attention to be paid in the external forum to the good or bad faith of the plaintiff or defendant: for faith is difficult to prove and concerns internal matters, concerning which, as they say, the praetor is not accustomed to judge.

b) Nor do these laws positively favor sin, since, by denying an action, they merely deprive certain rights of citizens of their own external protection. But it is not necessary that human law protect all rights or punish all sins; rather, it must adapt its sanctions to the common good of human society.

274. III. Difficulties.

1. AGAINST THE FIRST PART.

a) “No one ought to be enriched with the injury or loss of another” (Rule 48 of Law in the Liber Sextus), But. This occurs from prescription. Therefore.

Reply. I distinguish the major. With the injury of another properly so called, C.; with loss, I subdistinguish. By private authority or without just cause, C.; otherwise, N. I contradistinguish the minor. This occurs by prescription: with the injury of another, N.; with another's loss, I subdistinguish. Both by public authority and for a just cause, C.; otherwise, N.

Instance. But a) it occurs with the injury of another; β) at least there is no just cause.

α) For no one is to be deprived of his own thing without fault. But. Often there is no fault on the part of him against whom prescription is made. Therefore.

Reply. Unless the rationale of the common good demands otherwise.

Instance. When someone is to be deprived of his own thing on account of the common good, he has a right to equitable compensation, as is observed, for example, in “expropriations.” But. Here there is no compensation. Therefore.

Reply. I distinguish the major. When the deprivation itself immediately yields to the common advantage, C.; when it immediately yields to the private advantage of another, and this is done on account of the common good only so that a right may be established from which that private advantage can be acquired, N. I contradistinguish the minor. And, as regards the example added, I deny the parity.

For there is a twofold disparity, by which the distinction of the major is at the same time declared. a) Individual “expropriations” must be made for a public cause; therefore, it is readily understood that there is a place for public compensation, so that the burden undertaken for a public cause may be distributed equitably among all. Individual prescriptions, however, are of a merely private order, and only the law by which they are sanctioned was enacted on account of the common good. Therefore, the changes of rights which occur on account of this cause no more demand that something be repaid from the treasury than do those to which other modes of acquiring or losing goods give place. Besides, if compensation of this kind were granted, prescription would be a rationale for burdening the treasury rather than for changing private rights. b) Prescription is a defined and universally known part of the governance of goods in force in society. Its effects equally threaten all who possess goods, and no one can complain of violated equality among citizens, since it is a common restriction placed upon the perpetuity of possessions. Cf. the excellent treatment in Carrière, On Justice, bk. 1, no. 418. As regards “expropriation,” however, someone cannot, by employing diligence, foresee or prevent it, nor does it affect all equally.

β) At least a just cause is lacking. For prescription of an action suffices for public tranquility and the extinction of lawsuits. (Thus Zech, Canonical Institutions, sect. IV, §§ 576-578.)

Reply. I deny that these causes are all the causes. Cf. the demonstration.

b) Prescription is not granted except to a possessor in good faith. But. As soon as someone knows that the thing which he possesses belongs to another, he loses good faith. Therefore. He must restore the thing, even after the time has elapsed, since the foundation of prescription itself is lacking.

Reply. I concede the major. I distinguish the minor. As soon as someone knows, etc., before the required time has elapsed, C.; after it has elapsed, N.

For, in usucaption, so long as “the estimate of the mind corresponds to the intention,” so long is there good faith.² But. After the time has been completed, by authority of the law, someone can judge to be his own the thing which beforehand, through ignorance, he possessed as his own.

² C. de Lugo, disp. 7, no. 16.

c) He to whom a thing which he knows belongs to another is adjudged by a sentence is not permitted to keep it. Therefore. Likewise, he to whom it is adjudged by law.

Reply. I distinguish. By a declaratory sentence, which is the more customary, C.; by a sentence which attributes rights, N. For a declaratory sentence rests upon a presumption, which yields to the truth. To the consequent. The parity is denied, since the law concerning prescription does not rest upon a mere presumption.

Concerning a sentence which adjudges, however, St. Thomas, II-II, q. 66, art. 5, ad 1, has these words: “To accept another's thing, either secretly or openly, by the authority of a judge decreeing this, is not theft, because it is now made due to him by the fact that it has been adjudged to him by sentence.”

2. AGAINST THE SECOND PART.

a) The circumstance of good or bad faith does not change the rights of the public authority over the goods of citizens. Therefore. The public authority appears able to transfer ownership to a possessor in bad faith.

Reply. I distinguish the major. It does not change the rights properly speaking, C.; it does not change the matter concerning which they are exercised, N.

For the public authority cannot dispose of the goods of citizens at its own discretion, but only for procuring the common good. But the assignment of a thing to a possessor in bad faith would harm the common good, far from promoting it.

Instance. It contributes to the common good that ancient lawsuits, etc., be avoided; and these reasons hold even if the possessor was in bad faith.

Reply. For this also it is sufficient that the lawsuit be extinguished in the external forum, as was said in the third part.

b) At least in the prescription of interest, good faith is not to be required. (Cf. Carrière, On Institutions, no. 425.) For those things which are not owed except by law can be dissolved simply by law.

But. Interest becomes just or due only from a law permitting it. Therefore.

Reply. I deny the assertion; and, to its confirmation, I distinguish the major. Things which per se and proximately are not owed except by law can be dissolved simply by law, C. Things which are so only per accidens and remotely, N. I contradistinguish the minor. Interest becomes just per se and proximately from law alone, N. Per accidens and remotely, I pass over.

There are indeed, as we shall see below, those who derive the universal faculty of demanding interest from positive law; but, in present circumstances, there will generally be at least another title, which will be called extrinsic, on account of which all permit those stipulations. Therefore, even if we follow that opinion, lawful interest will be ascribed to civil law per accidens. Nor even then will interest be owed proximately from law; rather, the immediate source will almost always be an agreement, which, according to that opinion, is made lawful by the law. Only then is interest immediately owed from law when that interest which the law itself establishes as payable is in question. And we do not deny that derogation can be made by law from this legal obligation, without regard to the debtor's good or bad faith. But it cannot happen that, on account of these infrequent causes, the right of seeking interest can be granted or taken away at the will of the ruler.

3. AGAINST THE THIRD PART.

A law which favors fraud is unjust. But. A law which, without regard to good or bad faith, extinguishes an action favors fraud. Therefore.

Reply. I distinguish. A law which favors fraud per se, C.; per accidens, I subdistinguish. One which favors it positively, C.; permissively, N.

Per se it favors the common good, public peace, and tranquility. Per accidens, indeed, it does not approve fraud, but does not restrain it, nor does it protect the creditor's right. But it does not pertain to human law to restrain all things (St. Thomas, I-II, q. 96, art. 2); it must, however, protect the rights of individuals insofar as this is expedient for the end of civil society.