§ 3. What Force Prescription Has in the Forum of Conscience

I. Principles. 1. The law of prescriptions is founded on reasons of the common good which non-Christian and Christian authorities have approved. The reason, besides the special utilities of certain prescriptions, is principally this: lest goods and rights remain uncertain; lest, after a long time, during which documents and proofs easily perish, possessors of goods and debtors be exposed to vexations which are for the most part unjust. St. Thomas, Qdl. 12, art. 24, also adds the reason of a certain punishment of the negligent owner or creditor. For more, cf. Quaestiones de iustitia, n. 268. Wherefore, without doubt, these laws can transfer ownership and extinguish obligations even in the forum of conscience.

2. But in order that prescription operate in conscience, it is necessary: a) that the law itself have wished not merely to extinguish the action of the external forum, but truly to change rights or obligations; b) that its conditions have been fully fulfilled; c) that it should not seem to bestow any reward upon fraud and sin: for such a law would be unjust.

II. Corollaries. 1. Opinions. Most authors, especially in usucaption, require, in a universal manner, the canonical good faith which, for prescribing ecclesiastical rights and goods, is necessary from can. 1512. And they are accustomed to allege the chapter of the Lateran Council (c. "Quoniam," title De Praescript., II, 26), by which, however, this one thing is strictly defined: that the initial good faith with which Roman law and also more than one modern civil law are content does not suffice. This we also deny. Yet those writers temper their severity when there is question of a servitude of suffering something: one who is bound only to suffer that another do something, for example that he pass through, can prescribe against the one having the right, if he does not exercise his right and the conditions of the law are fulfilled. Many also are content with good faith which they call theological, which consists in this, that the one prescribing has not illicitly retained another's thing, or has not been in delay in fulfilling the obligation about whose prescription there is question. In this matter they can rely on the authority of Molina, d. 66, n. 10; Pichler, In ius canonicum, L. 2, tit. 26, n. 32, 33; LeGonis, Iust., d. 7, n. 18.

Some go further in liberative prescription. That is, in order that the right which the civil law intends to extinguish may truly be extinguished for conscience, "it seems to suffice" (thus, for example, Prummer, II, 62) "that there be negative good faith, or absence of fraud; i.e., prescription is valid if the debtor has done nothing illicit so that the creditor could not vindicate his right." This is not repudiated by Noldin, II, 107, although he, in this matter, seems to speak rather confusedly and with little coherence (cf. n. 106). More clearly Slater, De iustitia et iure, n. 13: "Good faith in liberative prescription consists in this, that no impediment is placed whereby the other is prevented from being able to use his right."

Indeed, even in acquisitive prescription, when there is question of the joining of possessions, not a few permit that the successor, by universal title, of a predecessor in bad faith, if he himself has existed in good faith, can choose not to continue the possession of the author, or at least can begin and complete a possession of thirty years; for by this prescription all debts are extinguished, and hence also the obligation of answering concerning the bad faith of the author. But that explanation is juridically defective when the laws themselves require no good faith. For by civil prescription only civil obligations are extinguished. But there is no civil obligation of answering concerning the bad faith of the author when civil law does not demand good faith in the one prescribing.

Nor do we think it less foreign to law to require of him who wishes to enjoy in conscience the thirty-year usucaption of French law, that, after bad faith has been removed, possession of the movable or immovable thing have been continued for thirty years. For this, juridically, is to introduce a prescription of more than thirty years, since to the thirty years there would have to be added years, varying in number, during which the thing had been possessed in bad faith: that is sanctioned by no French civil law; yet we are dealing with an institution which draws its efficacy from positive law.

2. Therefore, to set forth, with reverence for the authorities preserved, our opinion, which we have proposed for several years now, for example in Quaest. de iustitia, n. 267-276, we proceed from this beginning: in an institution of positive law such as prescription, one must not depart from positive law unless, by the clear iniquity of the disposition or of the practical consequence, we are compelled to depart from it.

Hence these things concerning liberative and acquisitive prescription seem to us to be gathered.

Concerning liberative prescription. a) One who, before prescription has been completed, is conscious, or becomes conscious, of the obligation of paying the debt, cannot of itself use the benefit of the law in conscience. But one who in good faith has completed prescription does not have to examine the antecedent faith, for example of his author, in order that he may be able to oppose the exception of prescription. Therefore the disposition of the Portuguese Code, art. 535, is valid in conscience and is of itself to be approved, since it wishes debts of him who, when the time is completed, is in good faith, to be prescribed in twenty years. For prescription of this sort does not favor iniquity.

b) Even one conscious of the debt will be able to think himself freed: if, by force of law or agreement, he did not have to pay unless asked. To this belongs the case in which either a merchant or a physician has omitted to send the usual written account of the debt (conto, fattura) (Prummer, II, 62). The same seems to be said if, for the confirming of peace and security or for arousing diligence, the law regards as renouncing his right the creditor who, through a definite time, has not demanded execution of the debt; and the law does not admit contrary proof.

c) One who merely must tolerate that another do something (thus the possessor of a field burdened by a passive servitude) can oppose the prescription of civil law, if the one having the right has omitted to use his right for the time necessary for prescription. (Not every law, however, is content with this condition.)

When a reason of the common good, independent of good faith, founds the law of prescriptions, that law, without consideration of good faith, can be valid in conscience. Now the five-year prescription of interest, etc., rests on this common reason: of preventing the creditor who has omitted to seek his annual credits from oppressing the debtor by a cumulative exaction of many years. This reason is detached from every respect of good faith. Wherefore we do not see how you would strictly oblige a debtor who merely (having used no positive fraud) neglected to pay annual pensions or interest, to restore those things which have been prescribed by civil law.

But counsel to be given seems to have to be estimated from the circumstances, which sometimes favor the creditor, sometimes the debtor. Moreover, it has been received by usage that banking or industrial societies, which are accustomed to pay interest to those exhibiting certificates (coupons), and not spontaneously, protect themselves by five-year prescription: and no one disapproves this.

In order that someone may be able to use in conscience an entirely brief prescription, of one year, six months, and the like, he must first be made more certain about the intention of the legislator to destroy the right itself and not only the action.

2. Concerning acquisitive prescription. a) A possessor in good faith can with a safe conscience keep the fruits perceived in good faith, which the law assigns to him. Cf. our Quaestiones de iustitia, n. 284. Thus already many, against Ballerini, Opus theol. III, 423.

b) Nor is he less secure in conscience who, relying on positive law, preserves a movable thing received in good faith, or an immovable thing inscribed in his own name, although his author, or the one handing it over, handed over in bad faith a thing already sold to another. Cf. our work cited, n. 285, against Ballerini, work cited, III, 196-202.

c) One who in bad faith completes the time necessary for usucaption is forbidden to use the benefit of the law. This is proved by the very reason of the matter, and by the definition of the Lateran Council IV (1215) alleged above. Thus the most common opinion.

d) What now concerning one who in good faith completes possession begun or continued in bad faith by another? Let the case be the following. Titius buys a field which he thinks has been legitimately possessed by Caius; or, as heir, he obtains in good faith a house which he thought legitimately pertained to the deceased. After some time, for example five years, he knows that neither the field legitimately pertained to Titius nor the house to the deceased; indeed, it is sufficiently clear to him that both kept these things in bad faith. In the law by which he himself is governed, possession of five years does not suffice for usucaption. By joining the possession with the preceding possession, the conditions required by law will be satisfied. Can he in conscience acquire the field or house by usucaption? Although authors are accustomed to weigh this case less explicitly, nevertheless they speak of the good faith required through the whole time and of the joining of possessions in such a way that we must say that this usucaption is repudiated by the common opinion. And indeed it must be repudiated if the positive law itself, as many laws now do, requires good faith continued through the whole time. But what if, as in French and Italian law, the law is content with initial good faith, or demands none? We confess that then, in admitting the common opinion, we experience difficulty.

For: a) the very one whom, in the case, usucaption would benefit, as c. 20 of the Decretals, II, 26, requires, "in no part of the time had consciousness that the thing was another's." Therefore, by conceding usucaption to him, no reward will be given to iniquity. The reason given above concerning liberative prescription under a) returns. - b) Although possession in bad faith, as possession, is inefficacious, nevertheless there accompanies it the fact of a lasting separation of the thing from the true owner. That fact can deservedly be attended to by the Legislator, so that he may grant the benefit of usucaption more easily. For the longer some state of things has remained, by so much the greater difficulty and harm it is changed. - c) Consider this consequence of severity. The Austrian Code, as we noted, grants usucaption of an immovable thing to him who has possessed it in good faith for three years, inscribed in his own name. Nor is there doubt about the value of this law in conscience. Here possession has persevered in good faith for five years. Why deny the benefit of positive law? Could the law not assign a thing separated from its owner for thirty years to him who had possessed it in good faith for five years, when Austrian law grants usucaption already after three years? Or did it not wish to? But it did wish to, since satisfaction has been made to its conditions. These are the things which seem to militate for the probability of the milder opinion, so that this more general rule may be admitted: one who is not a possessor in bad faith can use the benefit of the law as soon as the conditions of the law have been fulfilled.

Moreover, do not think that those laws which do not require good faith wished to favor iniquity. They were moved by various reasons of the common good so that, at least in the external forum, they would establish certain things more benignly, committing each one to his own conscience. How moderately St. Thomas, Quodlibet. 12, art. 25, wrote these things about the opposition between canon law and civil law in this matter: "The reason of this opposition is that the end which the civil legislator intends is different, namely to preserve peace and standing among citizens, which would be impeded if prescription did not run: for anyone at all could come and say: that was mine at any time whatever. But the end of canon law tends toward the peace of the Church and the salvation of souls." (For still more benign things, cf. Piscetta-Gennaro, S. S. Theol. mor. III, 165, 175.) S. S.

What Good Faith Is to Be Attended To. a) in persons who have been placed under a tutor, although they have natural capacity; b) in moral persons?

This question, usually omitted, we think must be solved briefly in this way.

1. As regards persons civilly incapable, the good faith civilly required must be considered only in the persons who act for them. But by the moral law they are forbidden to acquire anything unjustly. Wherefore, according to the conscience of those themselves for whom the thing profits, the matter will have to be decided; and practically, theological good faith of tutor and pupil will generally be necessary. For one will have to make the other more certain concerning knowledge of another's right.

2. As regards moral persons, again, in the external forum, the good faith will be that of those who have authority to decide and to act in their name. Therefore according to the mode by which they are governed, it will be either of the Rector or one commanding, or of those voting. But those who have been conscious of another's right, before prescription is completed, will have to restore what has come to them without right.

But D'Annibale, II, 140, (8) at the end, observes that the good faith of successors does not purify the defect of good faith in those who began to possess, because a moral person always remains the same. Indeed, since our civil law demands good faith in the beginning, good faith which was then lacking will not be able to be corrected by the good faith of successors. But concerning natural law, what prevents several things from now being established in good faith, after other things have been established in bad faith? Wherefore the initial defect will be by no means incurable, especially since our law requires no good faith for several prescriptions. We shall pronounce efficacious in conscience a prescription which has been completed in good faith, provided the conditions of the civil law have been fulfilled.

Cases and Scholia. 1. In doubt concerning the good faith of predecessors, which after inquiry has been made is not removed, the principle is valid: "No one is presumed bad unless he is proved such." Wherefore the successor will then be able simply to allege the possession of the predecessor for prescribing. Nor do we condemn him who, ignorant of the bad faith of a predecessor, began to possess the thing in good faith and opposes to the adversary vindicating the thing the prescription completed by the predecessor.

2. Whether a thief who, forgetful of the theft, has possessed a thing for thirty years, can prescribe or not? Some deny it, because he ought to answer concerning the preceding forgetfulness itself and the consequent prescription (St. Alph., l. 3, n. 515); others affirm it, because this obligation also of answering will be extinguished by prescription of thirty years. (Thus Lugo, De Iust. et Iure, d. 7, n. 151; D'Ann. II, 110, (8).) But this obligation, which does not exist civilly, cannot be extinguished by civil prescription. Therefore rather let us deny that one ought to answer concerning a legitimate mode of acquiring, such as prescription is.

3. One who, with a doubt not to be despised and invincible, doubts whether the thing which he acquires or possesses is another's, will be able to continue possession begun in good faith and thus prescribe: for he is in theological good faith, and the law does not demand good faith more strictly so called except at the beginning of possession. Nor is it otherwise, if a doubt arises whether you are bound by some debt to be paid: if, after investigation, the principles concerning restitution permit that you do not pay the debt itself, you can prescribe with that theological good faith, unless the law demands positive good faith.

4. Creditors can always, with safe conscience, oppose the civil prescriptions of their debtor, without consideration of the faith of the debtor, because they themselves, by a merely legal means, pursue their right to full payment.

Nor is it otherwise, since modern laws are accustomed, from two buyers of an immovable thing, to prefer him who first took care of transcription in the public register; he who, after another, bought the house in good faith and took care that it be transcribed, can safely vindicate it for himself. And if a mortgage creditor, who had been inscribed first, neglected the timely renewal of the inscription, another can safely take the place of the prior one.

5. Of itself, prescription must be completed by the law by which it began to be made. Wherefore of itself it is not affected by a new law. Nevertheless, peculiar statutes of certain laws concerning this matter exist. Cf., for example, art. 19 Swiss Civil Code.

Concerning the Various Original Modes of Acquiring Rights. — 1. Occupation: the apprehension of a thing belonging to no one, with the intention of having it as one's own. For by the fact by which a thing belonging to no one is shown, according to its nature, to be subject to someone, or to serve for a use which cannot be common, that thing is connected specially to him by this bond which, under the regime of divided property, is inviolably confirmed. Occupation is called the primordial fact which gave origin to private possessions.

Wild or untamed animals can be occupied, but not domestic or tamed animals. Yet a proper right of hunting or fishing can be initiated by certain modes of hunting or fishing, and can be injuriously violated.

Attention must be given to the dispositions of civil law concerning certain animals, such as rabbits, doves, bees.

2. Treasure, whose very notion varies according to the various law, is rather commonly designated as a movable thing (precious), deliberately hidden or buried, which no one can prove to be his own. Most laws, rather arbitrarily, either wholly or in part assign to the owner of the land and to the finder the ownership of the treasure, which, from the law of nature, would yield to the discoverer; and most think that by this law, insofar as it is not penal, conscience is bound: nevertheless, concerning this matter, before the sentence of the judge, we doubt.

3. If natural law is considered, things recently lost cannot be occupied except from the time when recovery by the owner is despaired of. In the meantime charity, unless you are excused by inconvenience, will oblige you to collect the thing; then justice, to take care of the thing and to seek the owner by the means which are at hand; and place is given to that good faith, broadly so called, by which you conditionally assign the thing to yourself unless the owner is found. What civil laws establish about these things, as also about things left after battle or shipwreck, must be considered.

4. By the addition of a thing to one's own thing, there is generated, whether by nature or by positive law, a certain extension of ownership which is called accession. Thus, by nativity, fruits, and hence offspring, are assigned to the owner of the fruitful thing, such as the animal giving birth. This accession is common to movable and immovable things; while the proper accession of movables is made by adjunction, specification, commixture or confusion; but the proper accession of immovables, by alluvion, relict, island, building, planting: concerning which things positive laws must be consulted.

5. Prescription is an original mode, of positive law, of acquiring a real right or destroying an obligation or action, after a certain interval of time has elapsed, and with the other prescriptions of the law observed.

It is distinguished as acquisitive (usucaption), which at the same time gives an action for vindicating the thing and an exception for repelling the adversary; and liberative, which confers only an exception by which someone, if he wishes, can render the creditor's action entirely void. Besides the debtor, others whose interest it is can oppose prescription. Prescription acts backward, so that, after it has been completed, the effects are computed from the day on which it took its beginning. Perfect ownership is not lost by mere prescription, without another's usucaption.

But because it has been introduced by positive law: a) prescription is null unless satisfaction has been made to the conditions of positive law. Generally laws require, for every prescription, a certain time, which, with the first day neglected, is computed from day to day, not by hours; for acquisitive prescription, moreover, a continuous or uninterrupted possession, which is not vicious, i.e., peaceful and public; for several usucaptions or prescriptions, in addition, a colored title, or a cause apt of itself for conferring a right, but inefficacious because of a hidden defect; and good faith strictly so called; b) it does not operate more than the law intends, so that you must distinguish prescriptions by which a mere action of the external forum is destroyed from others which extinguish the right; c) in order that it operate in conscience, the law must be just, nor can it be understood in such a way that it seems to confer a reward upon fraud and sins. Wherefore one who in positive bad faith completes the conditions of civil law cannot of itself use prescription. Yet except the case in which a cause of the common good, independent of good faith, founds the law of prescriptions: which we judge to obtain concerning the five-year prescription of interest in Italian or French law.

Nevertheless, a creditor can always oppose the legal prescriptions of his debtor, without consideration of this latter's good faith.

In a serious and invincible doubt whether the thing which you acquire or possess is yours or another's, you are in theological good faith, so that you can begin and perfect the prescription which civil law admits.

Unless positive law has ordered the matter otherwise, prescription must be completed according to that law by which it was begun, even if a new regime has been introduced.

Which prescriptions are in force is explained in the text.

2. Derived modes. They are contracts, gifts, inheritance, testament, concerning which one must speak separately, delict and quasi-delict, which find their place in another section.