Article III. Supplements to the Doctrine

275. Concerning a servitude of not acting. He who is obliged only to abstain from doing some work—for example, not to build higher—so long as he does not act, in fact performs that to which he is bound and therefore does not begin to prescribe. The response will have to be otherwise concerning a passive servitude by which someone must tolerate another's action.

The prolonged omission of that action gives the former an occasion to free himself by the aid of prescription, which, as we saw in no. 268, 3, requires no positive good faith.

276. The bad faith of the debtor does not harm the creditors. Therefore, although the debtor himself, on account of bad faith, is prohibited from repelling creditors whose claim has civilly prescribed, other creditors will be able to do this with a safe conscience. Nor is the law unjust which, as article 2225 of the French Code, grants them this faculty. For they receive the reward of greater diligence, but of no fraud.

It is worthwhile to give briefly a summary of the prescriptions of the French Code:

Usucaptions:

1. Usucaption of an immovable thing by ten or twenty years. Good faith at the beginning and a just title are required (arts. 2265, 2266-2269).

2. The rule proper to a movable thing, article 2279, with the exception of a stolen or accidentally lost thing in article 2280. Good faith is required.

Prescriptions:

3. a) Certain short prescriptions which merely extinguish an action (art. 2275).

b) Five-year prescriptions of interest and of those things which are paid at annual or shorter intervals, with a special disposition against a minor (arts. 2277, 2278).

c) The thirty-year prescription of every action (art. 2262).

No mention is made of good faith.

277. Concerning successors: 1) If they have succeeded by a particular title, there is no greater difficulty. For although the possession of a predecessor who was in bad faith does not benefit them, nothing prevents them from beginning in good faith to possess the thing in such a way that, when the time has elapsed, they acquire it for themselves by a most just usucaption. Therefore, they can both join their own possession with the possession of their predecessor and begin a new possession not infected by the defect of the predecessor.

2) If, however, they have succeeded by a universal title, the doctors are more divided.

There are theologians who distinguish between an immediate and a mediate heir, and permit prescription only to the latter, because he no longer, as the former does, represents the person of the predecessor in bad faith. This rationale was already well exploded by C. de Lugo, work cited, no. 61, since the obligation of the heir does not rest upon some continuation of the person, but upon the acquisition of an estate upon which there is imposed of itself the burden of repairing the losses which are to be ascribed to the predecessor in bad faith and of paying his debts. This obligation, however, heirs will begin to prescribe against this obligation, however, according to the provisions of civil law, from the time when the goods themselves have come to them.

Others, because they place prescription itself among those losses, judge that these successors can in no way prescribe—thus C. de Lugo—or at least that the time is required in which, according to the general determination of the law, every obligation is erased. Hence not a few, according to French law, grant heirs the thirty-year prescription. But the obligation of repairing a loss which consists in lawful prescription itself is certainly no civil obligation. But is the use of civil prescription legitimate for extinguishing an obligation which does not exist civilly?

To us, that obligation of repairing a loss inflicted by prescription itself seems, to confess the truth, very uncertain. It was devised by C. de Lugo with sufficient ingenuity. But, I ask, is just prescription an unjust loss? And if it is not unjust, can knowledge of it give rise to any obligation of restitution? Add that he who has prescribed is judged to have had the thing by a just title from the first moment, so that he is bound to restore none of the fruits received from the beginning of possession. In general, if an obligation of repairing losses was joined to a principal debt, when the principal debt is extinguished, is not the obligation concerning the losses also extinguished—for example, that which arises if someone omitted to perform a promised service? Hence Lessius, chap. 6, no. 42, appears to have derived from positive law alone the reason why universal successors could not be aided by their own good faith in prescription.

We shall say, therefore, that according to most present-day laws nothing prevents even universal successors, if they are in good faith, from extinguishing the debts of their predecessor by liberative prescription. The required time, however, will have to be defined, according to the various obligations, by the provisions of positive law.

As regards usucaption, positive laws themselves are accustomed, at least in certain usucaptions, to exclude the universal successors of a predecessor in bad faith. And here you should observe how laws which seemed to have little relation to conscience do not lack all efficacy in the internal forum. French law, for example, considers good faith only at the beginning of possession. Therefore, if Titius began in good faith to occupy some field which he afterward came to know belonged to another, his possession will be infected by no civil defect. Hence the heirs will be able to use, even in conscience, the usucaption of ten or twenty years, reckoned from the death of the predecessor. On the contrary, if he had begun in bad faith, the thirty-year prescription would have been necessary.

N.B. 1. In a doubt concerning the bad faith of predecessors which, after inquiry has been made, is not removed, the principle will have force: “No one is presumed bad unless he is proved such.” Cf. French Code, art. 2268. 2. Faith is not judged bad unless it is joined with mortal sin. Hence an error arising from slight negligence will not impede prescription.

278. Concerning good faith in liberative prescription. 1. From the proof given it must be concluded that per se someone cannot judge himself free from an obligation which, while conscious of it, he long omitted to execute. For even if he were excused by some inability, he could not abstain from making payment except by binding himself to payment at a future time. Thus Molina argues, disp. 66, no. 6. Therefore, per se, consciousness of a debt obstructs prescription, just as consciousness that a thing belongs to another obstructs usucaption.

2. Nevertheless, if the debt is of such a kind that the debtor is not bound to pay unless asked,¹ knowledge of the debt does not seem to us per se to obstruct prescription, so that we almost equate this case with the prescription of a passive servitude. Hence we think that assent must be given to the opinion of Pichler mentioned above, no. 268, 3, from which Molina does not dissent.² The reasons which most oppose are either impertinent or drawn from the ancient law. If, however, the creditor has demanded payment, or has delayed exercising his right merely from a certain humanity, it is evident that equity or justice itself forbids the use of prescription. Cf. Carrière, On Justice, no. 465.

¹ Formerly the debtor was bound to pay of his own accord; now, however, per se, the day no longer puts a man in default: debts must be demanded for the debtor to be in default. As they say in French, les dettes ne sont plus portables, mais quérables [debts are no longer payable by being brought, but by being sought]. The parties are nevertheless accustomed to derogate from this law by an express stipulation.

² “What,” asks C. d'Annibale, vol. 2, no. 152, “if someone knew of an obligation and did not fulfill it? ... If no delay can be imputed to him, neither can any bad faith be imputed; and therefore prescription proceeds for him. This, moreover, happens in two ways: if I ought to do nothing, but only to suffer something—for example, that you pass through my property—or if I ought indeed to do something, but only when requested.”

3. Moreover, the laws themselves will no longer be judged to patronize frauds and sins if, on account of a motive of the common good which is little affected by the debtor's good or bad faith, they have passed over the consideration of this faith to a greater or lesser degree.

Nor do we think that the Lateran statute so often praised is opposed to these laws.

Now the five-year prescription of interest and of payments to be made annually is supported in French law (art. 2277) by this rationale of the common good: lest, through the accumulation of interest or payments, generally through the creditor's sloth, the debtor be reduced to poverty. For, as men are, the annual sums owed, unless exacted at their proper time, are spent upon the family estate or in another, generally unproductive, manner, so that it is far more burdensome to pay at once the sums of ten years' interest than to furnish them in annual installments. Therefore, the creditor's negligence would not rarely be ruinous to the debtor unless he were protected by this prescription. This was already given as the motive by Louis XII in A.D. 1510.³ And therefore our laws pursue this prescription with special favor, so that it runs even against those who are minors in age. Hence, although not a few think otherwise,⁴ we do not see why—fraudulent arts by which he deliberately neglected payment so that he might free himself by prescription being excluded—the debtor cannot per se enjoy the benefit of the law with a safe conscience.

³ Cf. Carrière, no. 400; C. d'Annibale, vol. 2, no. 153, note 17; Baudry, Précis de droit civil, vol. 3, no. 1718.

⁴ Cf. Carrière, no. 425; Gury-Ballerini, I, 588.

The new German Code, art. 197, establishes a prescription of four years for debts of this kind, yet one subject to no special rule.

279. Concerning a thief, the question then arises whether, from the time when he has perfectly forgotten the offense, he can usucapt the thing. Many wholly oppose this, both because forgetfulness is not to be held as good faith and because a thief must take upon himself all probable consequences of his fault and therefore also answer for this forgetfulness. But unless the law requires positive good faith, from forgetfulness it comes about that at least that bad faith which obstructs the efficacy of the law ceases; and the very obligation of answering for this consequence of the fault appears able to prescribe from the very moment of forgetfulness, or, as we were saying just now, no. 277, 2, it appears to be extinguished together with the principal debt. Hence, with C. de Lugo, disp. 7, no. 151, and C. d'Annibale, vol. 2, no. 140, note 8, and against St. Alphonsus, bk. 3 (4), no. 515, we incline in mind toward the more benign side.

280. The rationale of the ancients. Formerly the doctors were accustomed to demonstrate the efficacy of prescription chiefly by this rationale: that the loss of a right would be the just penalty of negligence. Thus St. Thomas, Quodlibet 12, art. 25; and John Duns Scotus, on IV Sentences, dist. 15, q. 2, no. 10. Yet, to disclose our mind, a penalty is found here only in a broader or improper sense. For he who neglects his own things does not properly commit an offense, or at least is not deserving of so grave a fine or penalty; and sometimes prescription proceeds without anyone's negligence. At most, therefore, this is a secondary rationale, and it is held as such by Molina, Lessius, C. de Lugo, and Schmalzgrueber.

281. Ownership is not lost by prescription alone. Other rights in a thing can perish by nonuse itself, so that the owner by that very fact recovers the free dominion of his own thing. Ownership is not so lost. For unless there is at the same time another who usucapts the thing, the owner has no adversary who can plead prescription against him.

282. Quasi-possession of freedom. Some, after C. de Lugo, in order that they may force each prescription into one genus, explain liberative prescription by a certain usucaption or quasi-possession of freedom. These fictions seem to us deserving of rejection, since, useless of themselves, they are not free from danger. How, then, can there be prescription of a passive servitude without any intention of the owner and therefore without any quasi-possession of freedom? Cf. no. 268, 3.

283. Judgment concerning present-day laws. In several prescriptions, at least those which are of a longer time, civil laws are accustomed to omit mention of good faith.⁵ Yet they are not thereby immediately to be condemned, as though they had established rewards for frauds.

⁵ The Codes of France, Italy, and Germany make no reference to good or bad faith among the conditions of liberative prescription; the laws of England do not appear to require good faith even for usucaption, but circumscribe the law of prescriptions within narrower limits.

For they can make provision by another rationale lest they openly favor bad faith. Thus the French Code, art. 2223, left it to the choice of the possessor or debtor whether he would use prescription, so that unless he wished to repel the plaintiff by this exception, the latter's action would not perish; nor does it grant to a debtor who voluntarily paid, although conscious that prescription had been completed, recovery of the money paid. In this way it left the matter to the conscience of the one prescribing. Nor is there lacking a rationale for omitting these mentions. For proof of good or bad faith is made with difficulty in the external forum; and there are persons—for example, the other creditors of the debtor—who with a safe conscience can defend themselves by another's completed prescription, even when made in bad faith. Therefore, lest he be bound expressly to pursue an excessive variety of cases, the legislator can promulgate a simpler rule of judging which leaves the obligation of conscience intact.

284. You will ask what is to be held concerning the assignment of fruits to a possessor in good faith. Certain more recent laws, such as the French Code, arts. 549-550, dispose that a possessor who possessed a thing from a cause of itself suitable for transferring ownership (colorable title), whose defects he did not know, in fact makes the fruits his own by gathering them. The Italian Code, art. 703, has something similar.

This disposition, which is held to be most equitable by Carrière, nos. 1053-1054, and is approved by Cardinal d'Annibale (vol. 2, no. 241, note 22), is judged unjust by Ballerini,⁶ and is rejected by R. P. Lehmkuhl in such a way that he permits secret compensation to the owner who is thus despoiled of his fruits.

⁶ Moral Work, vol. 3, treat. 8, pt. 2, no. 221.

That this statute of the law can nevertheless truly be defended by valid arguments is urged:

1) From reason. With the law of nature alone considered, a possessor in good faith would have to restore to the owner fruits not consumed, and consumed fruits to the extent that, by consuming them, he had spared his own property; both, however, only insofar as they were not fruits of industry. Cf. C. de Lugo, disp. 17, nos. 38-40.

Who does not see that this determination is not easy and would be a fruitful source of controversies and lawsuits?

Hence, already by Roman law he was not bound to restore at least the fruits consumed. “He cannot bring an action concerning fruits consumed” (the owner). Institutes, bk. 2, tit. 1, § 35. This disposition appeared expedient to all. Furthermore, our law presumes that the fruits are consumed in each year. But if someone, employing provident thrift, set them aside, why would he thereby have become of a worse condition?

What is more, prolonged possession in good faith often arises from the negligence of the owner.

The law, therefore, while granting the fruits to the possessor, provides for the peace and concord of citizens, favors thrift, and promotes their diligence and industry. Are not these things of grave weight in evaluating the law?

2) The very antiquity by which this law is commended. For, apart from the fact that it is sufficiently disputed what Roman law established, so that there is a suspicion that by it all fruits received are granted to the possessor in good faith,⁷ this rule obtained in ancient French law. Cf. Carrière, no. 1053.

⁷ Cf. C. de Lugo, disp. 17, no. 41 ff., who, when reporting texts which support this opinion, by no means accuses them of injustice.

285. You will ask what is to be held concerning the rule of article 2279 of the French Code.

This rule, also contained in Italian law, is stated thus: “As regards movable things, possession itself is equivalent to title.” Whether this is a certain usucaption, or whether you prefer to explain this law otherwise, according to it he who with the intention of an owner has physically taken possession of a particular movable thing—not a certain aggregate—or even an unnamed banking instrument (titre au porteur [bearer instrument]), can retain it as his own, provided that he himself was in good faith when he received the thing and that the thing itself had not been taken by theft or accidentally lost. A just title indeed is not formally required, but without it good faith will not be present.

C. d'Annibale⁸ and Scavini⁹ attribute to this rule force as regards the forum of conscience. It is rejected by Carrière, no. 455. R. P. Lehmkuhl, vol. 1, no. 922, note, thinks that it can at least be disregarded by him whose interest it is that it not be law. Ballerini, however, says:¹⁰ “That possession so understood can have force in the forum of conscience is a most absurd hypothesis.” But from the connected discourse beginning at no. 417, it is apparent that he fashions for himself a sense of the law alien to the genuine sense.

⁸ Vol. 2, no. 122, note 38.

⁹ Moral Theology, 14th ed., II, 362, 589.

¹⁰ Moral Work, vol. 3; On Justice and Right, pt. 1, chap. 5, no. 437. Palmieri speaks somewhat more mildly in a note.

Again, however, this law does not appear destitute of a valid rationale.

For corporeal movable things, especially today, are very frequently exchanged among men. Therefore, in order that provision be made for the utility of commerce and the present-day intercourse of men, it is necessary that the mode of exchanging them be at once most expeditious and secure. But each is obtained by the rule which we are examining: it makes secure him to whom the thing has been delivered. How much confusion and how many disturbances would be engendered if, on account of the owner's late vindication, accounts had to be compared among the many who had possessed the same thing in good faith, one after another! How many delays would be introduced through the controversies themselves, since the thing in litigation, while the lawsuit lasted, would be almost withdrawn from commerce! Besides, as is evident from the notion given, the rule is circumscribed by suitable limits.

Moreover, that which antiquity has approved is not to be lightly censured. Now this rule appears to have been taken from ancient Germanic law, from the law of the Franks; it is found in the constitutions (Établissements) of King St. Louis, and it was admitted in the customary law of the kingdom of France.¹¹

¹¹ Cf. Thiry, Cours de droit civil, vol. 4, p. 558.

What is more, Sanchez, On the Decalogue, bk. 2, chap. 23, no. 91 ff., and others maintain the force of prescription retroactively, so that what is found in law 26 of the Code, “On Interest” (IV, 32), has force: “Those who have fallen from the principal action through an exception cannot raise any question concerning ... the fruits of the past time.” But by this fiction of law, is there not introduced the acquisition of certain movable things through possession in good faith?

286. You will ask what is to be held concerning the prescription of a stolen thing in French law.

By French law it is established that, after three years,¹² things stolen and accidentally lost can be acquired by him who then possesses them with the good faith required by article 2279.

¹² You should observe that this is by no means, as certain theologians falsely think, a three-year prescription; rather, for three years this acquisition through possession, which is treated in article 2279, is impeded.

Indeed, if he bought them in good faith at a market, at an auction, or from a merchant with whom things of a similar kind are sold, he is not bound to return the thing to the owner before the latter has reimbursed the price paid. The owner, however, will be able to bring an action for damages against the thief.

This rule, by a rationale similar to the preceding ones, is vindicated as immune from the stain of injustice.

Ballerini indeed opposes it sharply, but he was deceived by a false understanding of the law. For he argues from the fact that the law requires no good faith and no title, whereas the law requires good faith, which, where there was no cause of possession, will not easily be judged present. But when, at no. 429 ff., he considers drawing out the rationales of the advantages and disadvantages of a law of this kind, he assumes a role which is more safely permitted to those who, in the midst of business affairs, can more easily judge in what manner it is expedient to establish provisions concerning business and agreements.