Morals of the Church
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Section — Wouters, Manual of Moral Theology

II. On Acquisitive Prescription

808.

For acquisitive prescription there are required: a prescriptible thing, possession prescribed by law, a just title, good faith, and the time established by law (St. Alphonsus, III, 504).

I. A prescriptible thing. All things are prescriptible which can be the object of private ownership, unless they are excluded by positive law, ecclesiastical or civil.

  1. Which can be the object of private ownership: hence those things cannot be prescribed which pertain to public ownership, that is, which are destined for the use of the community, such as roads and a river;1 the contrary must be said concerning those things which pertain to the private ownership of the State, province, or municipality.

  2. Unless they are excluded by positive law. Which things are excluded by civil law, you will find in the respective civil Code; which by ecclesiastical law, is set forth in n. 811.

II. Possession held with the intention of ownership, continuous, and endowed with other conditions perhaps established by law. It is said:

  1. Possession: that is, physical or moral detention of a thing.

  2. Held with the intention of ownership, that is, held in one's own name. Those who possess a thing in another's name cannot acquire it by prescription; here belong, for example, the tenant, the depositary, the usufructuary, and others who possess a thing by a precarious title, as it is called.

  3. Continuous, that is, not interrupted, for example by a lawsuit which is moved concerning the thing.

  4. And with other conditions, etc.; these conditions should be drawn from the law.

III. A just title. It is said:

  1. Title. Title in general is the reason on which possession is founded. Title taken universally is distinguished into title translative and non-translative of ownership. Title translative of ownership is again divided into true, colorate, putative, and legally presumed. True is that which both exists and is valid; colorate, that which exists and is invalid, either because the one transferring the thing lacks ownership of it, or because the translative act is null on account of a defect in form; putative, that which is thought to exist but does not exist; legally presumed, that which is presumed by law to exist, whether in fact it exists or does not exist. A true title, as is clear, is never required, because of itself it transfers ownership. A title non-translative of ownership is called defective, and never suffices.

  2. Just, that is, a title which is recognized by law, and indeed deservedly.

IV. Good faith. 1. Good faith can be taken both theologically and juridically. What theological good faith is was explained in n. 776. Juridical good faith is that which is required by civil law, whether it coincides with theological good faith or does not coincide with it.

  1. Theological good faith is always required in the forum of conscience, and it must be had throughout the whole time established for prescription. "It is necessary," so says Lateran Council IV, "that he who prescribes should in no part of the time have consciousness of another's thing."2 For the rest, this is clear from the fact that as soon as good faith ceases before the time is ended, an obligation of restoring arises. Nevertheless, from the same Council (l.c.), venially bad faith does not prevent it (St. Alphonsus, III, 511).

Corollary I. One who possesses one part in bad faith and another in good faith can prescribe this other part.

Corollary II. One who possesses first in good faith, afterward in bad faith, and then again in good faith, must prescribe by this last possession.

Corollary III. One who in good faith succeeds a predecessor in bad faith can acquire or not acquire a thing by prescription according as the civil law is not opposed or is opposed.

Corollary IV. One who, after possession begun in good faith, begins to doubt whether the thing is his, and, after inquiry into the truth, continues to doubt, can without fault and therefore in good faith continue possession and, when the time is completed, prescribe. But one who before possession begun doubts whether the thing is his or belongs to a determinate other person, is bound to divide it, and therefore cannot begin prescription of the whole, though he can begin prescription of the part (St. Alphonsus, III, 504, 625). Make an exception, with sufficient probability, if with doubt he succeeds a predecessor in good faith, since the predecessor seems to transfer his whole right to the successor (St. Alphonsus, I, 37 at the end). But if someone doubts concerning the good faith of the predecessor, let him presume good faith, unless indications of bad faith are such that they ought to create the contrary presumption.

Corollary V. If someone is subject to guardianship, and therefore is civilly incapable, the good faith of the guardian seems to be required, and also to suffice. It seems to be required because the guardian, before the law which establishes prescription, acts the person of the one subject to guardianship. It suffices rather probably because the law, which indeed regards only the guardian, seems honest. Likewise and for the same reasons, if it is a question of a moral person, the good faith of those who can act the affairs of the moral person even before the law seems to be required and to suffice.

Nevertheless, in the former case the minor, and in the latter the voters, who judge the thing to belong to another, are bound, insofar as can be done, to remove the good faith of those who represent their persons.

Corollary VI. A thief who, having forgotten the theft, has possessed another's thing in good faith through the required time, cannot prescribe it, since a law which deprives someone of ownership of a thing in favor of him who took the said thing by theft seems dishonest (cf. St. Alphonsus, III, 515).

V. Established time. How much time is required for different things, draw from the respective law. Note, however:

  1. A possessor can add to the time through which he himself possessed the thing the time through which a predecessor or predecessors possessed it in a manner useful for prescribing.

  2. If prescription is suspended, the time which preceded the suspension is computed with the time following the suspension; but if it is interrupted, prescription must be begun anew. But when prescription is suspended, and when it is interrupted, the law establishes. Note this one thing: by force of natural law prescription is interrupted by bad faith.

1 In these the State has rather ownership of jurisdiction than of property.

2 Cap. 41.

PrescriptionAcquisitive PrescriptionThe kinds of title