§ 2. What Positive Laws Establish

I. Sketch of the Positive Regime. 1. Conditions of usucaption properly so called. The condition common to every usucaption is juridical possession, for the required time, continuous or uninterrupted, and not vicious (peaceful and public), of a prescriptible thing.

Juridical possession presupposes, at least in most laws ¹, the intention of an owner; but this is presumed, unless it is proved that possession was begun with another intention. And today, when an immovable thing is in question, that possession will scarcely be had unless someone has been inscribed in the public registers as having the right.

That it be continuous, it is necessary that the possessor, according to the nature of the thing, has constantly used the right. Possession is interrupted naturally if, through the time established by law, for example beyond a year, the possessor has lost use; civilly, by a suit moved, by acknowledgment of another's right, etc. That it be not vicious, it must be peaceful: prescription is not begun against him who has suffered violence from the possessor, unless this has ceased; and it must be public: of itself it must have been able to be known by the true owner. These conditions must be certainly established.

A prescriptible thing is generally every thing of which there is commerce and private possession.

2. For certain usucaptions there is required besides a just title and good faith. A just title is a cause apt of itself for transferring a right (donation, for example), although because of a hidden defect it has not transferred the right. This title is called colored. Leasing would not be a just title, nor a merely declarative sentence, nor an act deprived of essential form or substantially null. And when it is required, it must truly be present: a putative title does not suffice. - Good faith here is "a just opinion of ownership acquired." Just, although involuntarily erroneous.

Worthy of special mention is the immediate acquisition of a movable thing which is defined by body, through the very possession in good faith, which many laws sanction, as will be explained.

3. Conditions of liberative prescription. Here no possession is necessary. But there is required an action or a prescriptible right, or one which can be extinguished; and, in the one having the right, a cessation from the use of the right or from pursuing the forensic cause, and this without interruption, for the time established by law. Sometimes there is added, in the one prescribing, the condition of good faith, which here will be a persuasion by which someone thinks that he is not a debtor, or is held by no positive obligation. Yet there are those who also introduce negative good faith, which consists in this, that someone, though conscious of his obligation, waits for the action of his creditor, which he impedes by no fraud or force.

3. On the condition common to each prescription, or on time. Time is computed not by hours, but from day to day, and generally in such a way that the first day is neglected, and the time is considered elapsed when the last day is completed. Therefore, if someone must pay a debt on 17 January, prescription will begin to run from 18 January, and a five-year prescription will be perfected when 18 January has been completed.

Prescription is said to sleep or to be suspended during a time which cannot be computed toward prescription, although the space elapsed before can be added to the useful future space. Thus, in several laws, minors by age have a general (not universal) benefit, so that prescription does not run against them.

4. To whom the benefit belongs. Not only the debtor, but also creditors and others whose interest it is, can oppose prescription on behalf of a negligent debtor. And if some buyer is disturbed in his possession of the thing acquired, he can call the seller into court, and not rarely, prudence advising, he will have to call him, so that the seller may be able to employ juridical means of impeding eviction.

One who, ignorant of the right of prescription, has paid a debt, can by some laws (for example those of France), though not by all (not those of Germany or Switzerland), recover what was paid even by judicial process.

5. Besides, attention must be given to the joining of possessions, which exists in various laws, sometimes free and sometimes obligatory. That is, one who succeeds someone can sometimes, and sometimes must, continue the possession of the author or predecessor, unless he prefers to repudiate the thing. He can, or he has the option of continuing the possession or of beginning a new one, if he succeeds by a particular title: for example, as buyer or particular legatee; but necessarily (at least in several laws) a successor by universal title continues the prior possession, because he, contrary to the former, shares the burdens of the patrimony of which he obtains a proportional part, together with the advantages. The importance of the option is this, that a new possession, unlike the continued possession of another, will not be infected with the defects of that other's possession.

¹ For by the Code of Germany possession is defined solely by physical power of ownership, which nevertheless one does not exercise in another's name (Cf. arts. 354, 855).

II. Various Positive Laws. 1. Canonical regime. After the general canon 1508 by which civil law is canonized, the Code reserves these things: 1. for every prescription, even liberative prescription, it requires good faith which has lasted through the whole time required for prescription (can. 1512); - 2. immovable things, precious things, rights and actions, whether personal or real, which pertain to the Apostolic See are prescribed by the space of one hundred years; but those which pertain to another ecclesiastical moral person, by the space of thirty years (c. 1511). Thus from the common law. But privileges are not revoked by which the goods of Mendicants are not acquired by usucaption except through 60 or perhaps even 100 years. On the contrary, peaceful possession and possession in good faith, for three years, of a benefice with even an invalid title, provided simony is absent, assigns the benefice to the cleric possessing it (c. 1416); - 3. sacred things which are not in the ownership of private persons cannot be prescribed by a private person, but only by an ecclesiastical moral person against another ecclesiastical moral person (c. 1510, §2). We think a non-ecclesiastical moral person is to be assimilated to a private person; - 4. subject to no prescription are: "1. Those things which are of divine right, whether natural or positive; 2. those things which can be obtained only from apostolic privilege; 3. spiritual rights, of which laymen are not capable, if prescription in favor of laymen is in question; 4. the certain and indubitable boundaries of ecclesiastical provinces, dioceses, parishes, apostolic vicariates, apostolic prefectures, abbeys or prelatures 'nullius'; 5. alms and burdens of Masses; 6. an ecclesiastical benefice without title; 7. the right of visitation and obedience, so that subjects could be visited by no Prelate and already be subject to no Prelate; 8. payment of the cathedraticum (c. 1509); 9. interruption of prescription is governed by civil law" (c. 1508. 1725, 4).

Actions concerning the status of persons are never extinguished (c. 1701). And concerning actions cf. cc. 1702-1705, 2240.

2. Civil regime. Latin regime. a) By the law of Belgium, France, and Italy, for every usucaption and for every prescription a space of thirty years suffices. And no title, no good faith is required (art. 2135 Italian Code; 2262 French Code). Therefore even the creditor of an annual payment which must remain for more than 30 years, lest he fall from his right, must after 28 years procure for himself a new title or document, at the expense of the debtor (art. 2136 Italian Code). Note that only continuous and apparent servitudes can be acquired by usucaption.

b) With good faith and a just title acceding, immovable things or the usufruct of them are acquired by usucaption of ten years (art. 2137 Italian Code; in French law, the years during which the owner has not lived in the territory of the appellate court where the immovable thing is situated must be doubled). Good faith at the beginning of possession alone is attended to.

c) Concerning movable things, no other usucaption exists in civil law. But as regards individual movable things (not a universality of movable things, as for example an inheritance consisting of movable things) and anonymous titles (ai portatore), possession itself, in relations with third persons, produces the same effects as a true title (art. 707 Italian Code; 2279 French Code). Thus Titius sells and hands over to Caius a watch already sold to Sempronius. Caius is supposed to be in good faith. He can keep the watch and oppose his possession to Sempronius when he claims it. The Italian Code wisely added to the French Code the words "in relations with third persons." Between him who holds the thing and him from whom he has it, the solution varies according to the case. Thus Titius erroneously pays something to Caius, who receives it in good faith. Once the error has been demonstrated, Caius will have to return the payment to Titius.

From this rule are excepted things lost by chance or taken by theft: the owner can reclaim these from the possessor for two years (for three years in the French Code); but the possessor can proceed for damages against him from whom he had the thing. Yet if the lost or stolen thing was bought in markets, or in a sale by auction, or from a merchant who publicly is accustomed to sell that kind of thing, the owner cannot recover his thing unless the price which the possessor paid has been refunded (arts. 707-709, 2146 Italian Code).

The German Code expresses a similar right in this way: by consent to the transfer of ownership and by handing over of the thing, the acquirer becomes owner even if the thing did not belong to the transferor, provided he receives the thing in good faith (art. 932).

d) The fruits of a thing possessed (to speak of a connected matter) are acquired in good faith, by the very perception or separation. But here good faith seems necessary for each perception. Suppose Titius, who has begun possession of a field, from which after five years he is deprived by the true owner. He can keep the fruits truly perceived, provided he was in good faith in each year. The jurists of France urge, more than the Italians, the necessity of true perception when civil fruits are in question. Therefore, if he neglected to seek the price of the rented house, in France the whole price will have to be paid to the true owner, while in Italy the part which he could have perceived will be assigned to him.

e) Finally, concerning the joining of possessions, what has just been said, n. 401, 5, holds.

f) As regards liberative prescription, besides the thirty-year prescription, by prescription of five years all pensions owed for perpetual or life annuities, annual alimentary pensions, annual prices to be paid by the tenant of a field or house, "interests" or interest on loaned money, and whatever is to be paid after individual years or shorter periodic terms are extinguished. And this prescription of five years is privileged, so that it runs even against soldiers in war, against minors by age and interdicted persons (arts. 2141-2155 Italian Code). By the Italian Code, art. 1300, actions concerning nullity or rescission of contract are prescribed in five years; by art. 1301 of the French Code, in ten years. - There are besides several shorter prescriptions, broadly so called, of six months, one year, three years, by which not indeed the right but the action is destroyed for seeking especially various wages or prices of merchandise or lodging (arts. 2138-2143 Italian Code). - Nor are special prescriptions lacking.

The Netherlands, Spain, Portugal, and Latin America use an entirely similar law. It will be enough to observe these few things. By the Austrian Code, immovables, possessed in good faith with inscription in the public registers, are acquired by usucaption in three years (1167). In Spain, for usucaption of immovable things through ten or twenty years with title and good faith, at least initial, he is understood to be absent who lives outside the region in another nation or beyond the Ocean; while elsewhere, for example in the Argentine republic, one is said to be absent who is outside the province; but the law of Canada Q., Switzerland, Mexico, Holland, Costa Rica, Guatemala, and Portugal do not attend to the absence of the owner. Indeed Guatemala grants prescription after five years, Switzerland after ten years (if inscription in the public registers has acceded), while Portugal requires fifteen years, Holland twenty years. Austrian law (1160, 1163, 1197); Brazilian law (551); Swiss law (661 Civil Code), and Spanish law (1310) require good faith through the whole time.

A movable thing is acquired by usucaption by Austrian law (1166), Spanish law (1955), with good faith in three years, by Swiss law (718 Civil Code) in five years. Without good faith, from possession alone, it is prescribed by Spanish law (1955) in six years; but by Portuguese and Mexican law in ten years; by the law of Ecuador, Chile, Nicaragua, Colombia, Uruguay, in thirty years, and by Peruvian law in forty years. By Brazilian law movable things are acquired by usucaption by possession of three years with just title and good faith; without these, in ten years (art. 118). - Active, continuous, and apparent servitudes (other servitudes cannot be acquired by usucaption) are acquired by usucaption in 20 years in Latin America and Spain; or in ten years in Costa Rica and the Mexican republic; in 30 years in the republics of Ecuador, Bolivia, Chile, Nicaragua, Colombia, Uruguay. Several laws, for example Spanish law (161), admit the immediate acquisition of a movable thing through possession in good faith.

Liberative prescription is established as 30 years, yet in such a way that annual payments, or payments to be made more often, are prescribed in 5 years.

Even in a shorter time the honoraria of physicians and debts of this kind are prescribed.

In liberative prescription, we have found only the Portuguese Code which (535), in order that the debtor be freed after 20 years, requires good faith understood in such a way that at the end of the necessary time he has been ignorant of the obligation. Without good faith, the extinction of the obligation itself after thirty years is established as a general rule, which does not exclude shorter prescriptions. But the Austrian Code (1479 ff.) sometimes speaks of prescription of an action, sometimes of prescription of a right. Cf. especially § 1480, by which actions for rents, interest, and annual debts are prescribed in three years; but the right is prescribed in thirty years. The general rule, however, is prescription of thirty years, and against privileged persons, of forty years. But the Codes of Brazil and Spain speak only of prescription of actions. Therefore one must see to what interpretation those laws are subject. By Swiss law (127 Civil Code), saving a special disposition, all actions are prescribed in ten years.

The Code of Spain seems to ignore suspension of prescription because of the incapacity of the one having the right; but it grants to persons who do not administer their own goods an action against those who by their negligence were the cause of the prescription which, as representatives of the incapable, they ought to have impeded (art. 1930). By the Code of Austria (1494) no prescription against incapable persons is completed except after two years from the incapacity being removed. - The bad faith of a predecessor does not harm in the laws of Latin America, if you except the Argentine republic and Bolivia.

The Code of Germany itself admits a universal acquisitive prescription of immovable things after thirty years from inscription in the land register (Grundbuch); with good faith which has remained through the whole time, movables are acquired by usucaption by possession of ten years. In liberative prescription it distinguishes prescription of the right itself in the thing, which supposes usucaption by another; prescription of only the use of the thing, which is to be observed only in relation to someone, for example of a buyer who in good faith has received a book already sold to another, while it permits the right to remain intact with respect to others; and prescription of only the action. The time is thirty years in general, but four years if interest, the price of rent, etc., is in question; and a shorter time for debts which are to be paid to physicians, merchants, etc.

Nor, even for shorter prescriptions, is it lawful for the creditor to defer an oath to the debtor who opposes prescription. Nor is that law, which many think intends to extinguish the right itself, held to be unjust. Cf. Prummer, II, 61. - Prescription is not fully suspended in favor of minors or incapable persons except between parents or tutors, and children or pupils; but incapable persons can, for a space of six months after obtaining capacity, impede prescription (art. 206).

By English law there is no prescription of movable things. From Act 1871, ownership of an immovable thing is acquired by usucaption of 12 years. Various rights in a thing are prescribed in 20 or 10 years. While the one having the right is incapable or impeded, prescription which does not require a time beyond thirty years is suspended. We are warned by R. P. Slater (A Manual, p. 38) that the law of England is thorny, so that a confessor not specially versed in law cannot prudently solve these questions.

In the U.S.A. usucaption and prescription are subject to various laws. Generally, for acquisitive prescription, possession of ten or twenty years is required, sometimes with good faith, sometimes with a colored title.

Actions for recovering lands are not prescribed except in 10 or 20 years; while actions from unwritten contracts or from accounts of merchants, physicians, etc., are prescribed in 1 or 2 years.