Acquisitive Prescription

399. Definition. Prescription can be defined: a mode of acquiring ownership through possession continued for the time and in the mode defined by law.

a. Prescription is sometimes, especially by theologians, taken for the same thing as usucapion, but sometimes is distinguished from usucapion. But in assigning the distinction between the two, authors do not agree.¹

b. The term ownership in the definition must be taken generally: for the right which is acquired by prescription is diverse: either full ownership, or direct ownership, or useful ownership, or servitude, or liberation from servitude.

c. The law which determines the mode and duration of possession required for prescribing is positive law, whether ecclesiastical or civil. Therefore, according to the variety of laws, the time necessary for legitimate prescription is also diverse.

¹ C. A., Section 1451, uses these terms in such a way that it calls acquisitive prescription usucapion (Ersitzung), but liberative prescription simply prescription (Verjahrung). In a similar way C. G., Section 194 ss. and Section 937 ss.

400. Division. Prescription is divided: a. Into acquisitive, by which someone acquires a new right, for example, of passing through another's field; and liberative, by which someone liberates himself or his thing from some burden, for example, himself from the burden of paying a debt, or a field from the burden of suffering another to be able to pass through it.

b. Into memorial, whose beginning does not go beyond the memory of men, and immemorial, whose beginning goes beyond the memory of men now existing.

c. Memorial prescription is divided into ordinary, which is completed in the space of three or ten years, and extraordinary, which requires thirty or more years.

d. By reason of time, into prescription of very short time, which is below three years (in Germany two years); of short time, which is below ten years; of long time, which is below thirty years; of the longest time, which exceeds thirty years.

e. By reason of persons, into prescription among those present and prescription among those absent.

Those are called present, according to the disposition of law, who dwell in the same territory, or who exist under the same judge or governor; those are called absent who dwell in diverse territories or exist under a diverse judge or governor.

401. Nature of prescription. 1. Prescription is a legitimate title of acquiring ownership: for prescription by its nature consists in this, that possession by the very course of time, if the required conditions are present, transfers ownership of the thing possessed to the possessor. It has the force of transferring ownership from human law: for human law, by force of high ownership, can transfer ownership from one to another, even against the will of the owner, on account of grave reasons of the common good; but grave reasons of the common good demand this.

a. The reasons on account of which prescription has been introduced are: alpha. lest ownership of things be uncertain for a long time; beta. that disputes may more easily be ended or altogether avoided; gamma. that doubts of conscience and fears of losing things possessed may be removed; delta. that the diligence of men in preserving things and prosecuting their rights may be sharpened. - For liberative prescription this twofold reason is brought forward: alpha. presumption of payment on the part of the debtor, because creditors are not accustomed to neglect for a long time the payment of a debt; beta. immunity from the burden of preserving testimonies of payment forever.

b. Both ecclesiastical and civil law use prescription.¹ Where human law in reality intends to transfer ownership by prescription, the law of prescription has value also in the forum of conscience. Therefore he who legitimately prescribes against another makes his own, by force of law, the thing which he possessed for a certain time; hence if, after prescription has been completed, he learns that the thing was another's, he is not bound to restore it, even if the former owner demands it back.

2. The five conditions which are required for legitimate prescription are contained in the following verse:

You will not usucapt unless such five things are yours: Let there be an apt thing, faith, title, possession, time.

¹ C. Quoniam fin. (20), De praescript. (II, 26).

402. An apt thing, or one capable of prescription, is generally a thing whose ownership can be acquired. But a thing which, whether by its nature or from the disposition of law, cannot come into another's ownership is incapable of prescription, because by prescription ownership of the thing is transferred to another.

a. Sacred things, that is, things consecrated to divine worship, such as churches, chapels, altars, cannot be prescribed by laymen; but they can be prescribed by those who can have their ownership. Thus, for example, a cemetery can be prescribed by one church as a juridical person against another church; but a private man can prescribe only the right of burial in a determined place of the cemetery, because he can acquire this alone. In the same way a private man can prescribe sacred utensils which are in the ownership of a private man.

b. Sacred rights of themselves can be prescribed just as sacred things can; thus an ecclesiastical benefice, the right of conferring a benefice, and the right of electing to a prelature can be prescribed only by a cleric, because they can be possessed only by a cleric; but the right of patronage can be prescribed even by a layman, because it can also be possessed by a layman.

c. Public profane things can be prescribed by a community against a community, but not by a private person, because they cannot be possessed by a private person, such as public roads, bridges, fountains, ports, etc.

d. Stolen things indeed cannot be prescribed by the thief because of defect of good faith, even if by lapse of time he had forgotten that he possessed the thing unjustly, unless the defect has been purged. But it is purged by possession of 30 years if the matter concerns a movable thing, 40 years if the matter concerns an immovable thing. Whether they can be prescribed by another who received them from the thief in good faith depends on the disposition of law. And modern codes indeed nearly establish that he who in good faith received the thing from the thief (by donation, purchase) can prescribe. The same is valid concerning a found thing if the finder omitted due diligence of finding the owner.

e. Finally, among things which cannot be prescribed must be referred those whose prescription law impedes. Ecclesiastical law impedes that the boundaries of parishes or dioceses once constituted, conditions attached to pious foundations, or burdens of Masses¹ can be prescribed; but civil law impedes prescription against dotal goods, goods of wards, etc.²

¹ Council of Trent, sess. 25, c. 5, De reform.; S. C. C., 18 Aug. 1813; 20 Dec. 1879. Cf. Acta s. sedis, XIII, p. 220.

² C. A., Section 1455-1459.

403. Good faith is an erroneous judgment by which someone prudently, that is, with moral certitude, judges that the thing which he possesses is his own. Therefore he who doubts from the beginning whether the thing is his own cannot begin prescription.

a. By liberative prescription a burden or obligation is extinguished. But obligations are of two kinds: active, which are referred to a personal or real action, such as of paying from purchase or loan; and passive, which are referred only to a burden to be undergone, for example, of suffering passage through one's own land.

b. Likewise good faith is one thing positive, which is the persuasion of the prescriber or debtor that he has no obligation; another negative, which is the persuasion of the prescriber that he does nothing against the right of another. This therefore requires that he not impede another in the use of his right, but does not require that he warn him about the use of the right.

1. Good faith is required for beginning and also for continuing every prescription, both acquisitive and liberative: for it is repugnant to justice that someone should make his own a thing which he knows to be another's, since rather he is bound to render it; nor can civil power through the law of prescription help anyone in inflicting an injury. Therefore the Church altogether requires good faith for legitimate prescription.¹

a. Therefore prescription begun in good faith, to which bad faith supervenes, is interrupted; but if to prescription begun in good faith there supervenes a doubt which cannot be laid aside after moral diligence has been employed, prescription can be continued. Indeed, even if investigation of the truth is culpably neglected, prescription itself, which has been begun in good faith, is not impeded; but the one prescribing contracts an obligation of restitution insofar as the presumed owner is deprived of hope of recovering his own thing.

beta. If there is any prescription for which the law requires either no good faith or only good faith in the beginning, it has no value in conscience. Therefore a law of this kind must be understood in such a way that it only denies judicial action (das Klagerecht), but not in such a way that it transfers ownership itself.

2. For active liberative prescription, positive good faith is required, even if civil law should establish otherwise. Therefore, if positive good faith is lacking, this prescription has no value in conscience. But for passive liberative prescription, negative good faith is required and suffices. But if civil law admits the prescription of him who impeded another in the use of his right, prescription has no value in conscience.

3. The good faith of the predecessor always benefits a successor, both universal and particular, who himself is in good faith. Therefore if someone, after the completed time of prescription begun by the predecessor and continued by himself, learns that the thing is another's, he is not bound to return it. The reason is that the predecessor hands over the thing to the successor with every right which he himself has.

Whether the bad faith of the predecessor impedes prescription of the successor, if he himself is in good faith through the whole time required for prescription, depends on the disposition of law, by which one can stand also in conscience: a. Roman law, and canon law, which adopted it, establishes: the bad faith of the predecessor impedes prescription in the immediate universal successor, but not in the particular successor or in the mediate universal successor. b. Modern civil law admits prescription even in the universal and immediate successor or heir, so that he prescribes the inheritance, provided he has possessed it in good faith for 30 years (according to other codes for 10 years).²

alpha. A universal successor is called one who, from a universal title, succeeds into a universal right, whether there is one heir or several, whether he succeeds by force of a testament or ab intestato. A particular successor is called one who by a particular title, whether of legacy, purchase, donation, etc., succeeds another in possession of a determined thing. A successor or heir is one thing immediate, who succeeds the deceased himself; another mediate, who is heir of the immediate successor.

beta. A universal successor or heir in Roman law is considered as one person with the deceased; therefore just as the predecessor who is in bad faith cannot prescribe, so neither can the successor. But the successor of this one, that is, the mediate universal heir, can prescribe if his own predecessor was in reality in good faith; for a mediate heir is not the heir of the first deceased, who was in bad faith, but of the immediate heir, who is supposed to have been in good faith. A particular successor can prescribe notwithstanding the bad faith of the predecessor, because he does not represent the person of the predecessor; wherefore the latter does not communicate to him personal defects, of which sort bad faith is.

¹ C. Quoniam fin. (20), De praescript. (II, 26), where the words of the Fourth Lateran Council are had: "By synodal judgment we define that no prescription, whether canonical or civil, has value without good faith." Reg. iur. 2 in 6: "A possessor of bad faith prescribes in no time."

² C. A., Section 1463, 1493; C. G., Section 194, 195.

404. Title is the cause on account of which someone possesses a thing, for example, purchase, donation. Therefore title at the same time is that reason on account of which the one prescribing judges that the thing is his own.

Title is universally divided into true, which in reality transfers ownership, and apparent, which does not transfer ownership. Apparent title, which comes here to be considered, is either colored or believed or presumed. Colored title is a cause truly indeed existing, but invalid by reason of a hidden defect, as if someone buys a thing from a thief. Believed title is called a cause which is thought to exist, but in reality does not exist, as if a master who had handed money to a servant for buying a thing thinks that the thing was bought by the servant, which nevertheless was not bought by him but taken away by theft. Presumed title is called a cause capable of transferring ownership, which never intervened nor was thought to have intervened, but on account of the long duration of possession is supposed by law.

1. True title is not required for prescription, but apparent title is required and suffices, whether it is colored or believed. a. If true title which transfers ownership were present, prescription would be superfluous. b. Apparent title is required, because without a title from which the possessor judges that the thing is his own, prescription cannot be begun in good faith. c. Not only colored title but also believed title suffices, because each can found good faith.

Therefore if by law a just or legitimate title is required for prescribing, a title is understood which by the disposition of law suffices for prescribing.

2. In extraordinary prescription, presumed title suffices: for the long duration of possession founds the presumption of title.

Therefore he who can demonstrate possession of the longest time is not bound to allege and prove the title, but in this case title is presumed from long possession. Yet if the adversary can demonstrate absence of title, possession even of immemorial time has no value: for presumption yields to truth.¹

¹ C. A., Section 1472.

405. Possession. 1. For prescribing, legitimate possession is required: for possession is the foundation of prescription; wherefore from the rule of law, without possession prescription does not proceed.¹

a. Possession in acquisitive prescription consists in the holding of a thing or in the exercise of a right, according as a thing or a right is prescribed; but in liberative prescription it consists in possession of liberty, by which the person or thing is not held to serve for the utility of another who does not use his right.

Since this liberty is possession very improperly so called, others simply teach that no possession is required for liberative prescription, but that the right (for example, of demanding payment) which is not exercised within the time determined by law is extinguished by its own nature.²

b. He who possesses a thing in his own name also prescribes in his own name; he who possesses another's thing in another's name also prescribes in another's name. Thus a tutor who possesses in the name of a ward prescribes not for himself but for the ward.

2. Possession which is required by law for prescribing ought to be continuous. Prescription already begun sometimes does not proceed or does not run, either because it sleeps or because it is interrupted.

Prescription is said to sleep when on account of a supervening impediment it is suspended. But when this impediment is removed, it proceeds in such a way that the subsequent time can be computed with the preceding. It is said to be interrupted when on account of a supervening impediment, for example, because bad faith supervenes or possession is lost, it is altogether extinguished.

¹ Reg. iuris 3 in 6.

² Cf. Holzmann, Theologia moralis, t. 4, n. 136.

406. The time necessary for prescribing is determined by law.

The time required for prescribing is diverse in diverse laws. Prescription of goods of the Church which has value in conscience is governed not by civil laws, but by the laws of canon law (which are the laws of Roman law with peculiar privileges added); all other prescriptions are subject to the laws of their own province.

1. Concerning ecclesiastical prescription.

a. Immovable and precious movable goods are prescribed in 40 years.

alpha. It is not necessary to warn that among ecclesiastical goods are also referred the goods of monasteries and of any pious places whatsoever which have been erected by ecclesiastical authority.

beta. The Roman Church enjoys a privilege by force of which its immovable goods are not prescribed except in 100 years. A similar privilege has been granted to certain monasteries. Thus the goods of the Order of St. Benedict are not prescribed except in 60 years; the goods of the Cistercians and Mendicants are not prescribed except in 100 years.

b. Movable goods not precious are prescribed in 3 years with title, in 30 years without title.

c. Servitudes inhering in immovable goods are equated with immovable goods themselves. Therefore, that ecclesiastical goods may be burdened with servitudes, the time indicated above is required; but that they may be freed from servitudes, the time of civil prescription suffices if prescription is made against a profane person or profane goods, but the time of ecclesiastical prescription is required if prescription is made against ecclesiastical goods.

2. Concerning civil prescription. The time required in civil prescription must be taken from the civil code of the region.¹ In this place only the question must be treated whether those things which modern laws establish concerning liberative prescriptions, especially active ones, have value in the forum of conscience.

¹ From C. A., movable goods of private persons are prescribed by the course of three years (Section 1466), but movable goods of the fisc, communities, and the Church by the course of six years (Section 1472); concerning immovable goods several things are established in Sections 1467-1472. From C. G., the ordinary time of prescription is ten years for movable things (Section 937), thirty years for immovables (Section 195, 900); yet there are things which are prescribed by the course of two years (Section 196), and others by the course of four years (Section 197).

407. On the value of liberative prescription. 1. All concede that liberative prescriptions of long and a fortiori of the longest time have value in conscience from the general motive of prescription. Therefore if, for example, after ten years a creditor demands from another a debt which the latter thought extinguished through that time, he is not bound to pay the debt, provided the civil code declares this time sufficient for extinguishing the debt.

2. Authors commonly affirm that liberative prescriptions of very short time do not have value in conscience; for those prescriptions, from the very mind of the legislator, do not intend to transfer ownership or extinguish the debt, but only to deny judicial action (das Klagerecht), and if they wished to extinguish the debt, they could not do it.

Prescriptions of this kind are, for example, payments owed to physicians, servants, teachers or instructors, workers, merchants, innkeepers, etc., which, if they are not demanded within the time determined by law (half a year, a year, two years), are held as extinguished before a judge. Therefore these debts are not extinguished in conscience where it is certainly established that payment has not yet been made, because prescriptions of this kind, which provide to the powerful a means of defrauding the weak of their goods, do not benefit the common good but harm it.

3. Authors dispute concerning the value of prescriptions of short time. Therefore it is difficult to determine whether, for example, the debts enumerated above or yearly rents, after three or four years have elapsed, are still to be paid in conscience, or whether the debtor is immune in conscience from the obligation of paying, even if it is established that payment has not yet been made. But if it can certainly or at least probably be shown that the intention of the legislator was not only to deny action, but to extinguish the debt itself after that time has elapsed, the debtor, with good faith supposed, can be considered immune from the obligation of paying.¹

It is clear that good faith can scarcely be present in the first debtor; but his successor, if he is in good faith, can use this prescription. Yet there are those who think that even for active liberative prescription negative good faith suffices, which consists in the absence of fraud, although there is certain persuasion that the debt has not yet been paid. Therefore they think that he who does not pay rent or the price of a lease through the time apt for prescription can with a safe conscience deny payment, especially if the payment was not made from the creditor's negligence. For since the whole force of prescription depends on civil law, where civil law does not require positive faith, it is licit to stand by it also in conscience. Nor can a law be called unjust which tends to this, that creditors be rendered more diligent and more attentive.²

¹ Neither from the Austrian code nor from the German code is the mind of the legislator concerning the force of this prescription certainly established.

² Cf. Conferenzblatt (Brixen: Weger, 1895), p. 105 ff.; C. A., Section 1432. Cf. Lehmkuhl, Das burgerliche Gesetzbuch^2 (Freiburg: Herder, 1900), p. 59 ff.; C. G., Section 222.

As the term is used here in moral theology, prescription is a title by which the ownership of property is gained or lost through adverse possession during the time and in the manner laid down by law.

In English law the term prescription is only used with reference to incorporeal hereditaments—i.e., rights and profits annexed to or issuing out of land. Of these the chief are advowsons, tithes, commons, ways, offices, dignities, franchises, pensions, watercourses, lights, annuities, and rents. Land and movables cannot be claimed by prescription. However, the Statute of Limitation, 3 & 4 William IV, c. 27, and the Real Property Limitation Act, 1874, have the same practical effect as Prescription Acts, with regard to real property, and it will be convenient to consider them here as such.

The mere possession of property belonging to another even for a lifetime would not of itself transfer the ownership to the possessor. But as it is so much easier to prove possession than ownership, and because those who have been in peaceful possession of property for a long time should not be liable to be unwarrantably disturbed, and, moreover, in order that owners of property may look after their rights, the legislature has authority to confer a right to property, in consideration of long and peaceable possession. This is what both ecclesiastical and civil laws of prescription do, and these laws avail not only in the external forum, but also in the forum of conscience.

In order that ownership of property may be transferred by prescription, certain conditions are requisite either from the nature of the case or by positive law. Theologians usually reckon five such conditions—viz.: (a) the property must be such as the law allows to be prescribed; (b) there must be good faith in him who prescribes; (c) consequently there must be some sort of title; (d) there must be possession (e) for the time required by law.

(a) As prescription depends for its validity on positive law, there can be no prescription which the law does not recognize. English law does not recognize any title to movables by prescription, as we have already seen. Ecclesiastical law acknowledges a right of prescription to both movables and immovables. Inasmuch as laymen cannot hold benefices, they cannot gain a title to them by prescription, though clerics may do so. .(b) Good faith is the second condition required for prescription, English law does not expressly require good faith, but it is certainly required in conscience. He who prescribes must not know that the property which is in his possession belongs to someone else; if he knows this, he can never become its owner by prescription. This was defined by the Fourth Council of Lateran, c. 41, and the reason is plain.¹ For as soon as anyone is conscious that he has something which belongs to another, he is bound to restore it to the owner, and the longer he keeps it against the owner’s will the more grievous sin of theft does he commit. Positive law could not by prescription transfer another’s property to one who was in bad faith, for such a law would not be for the common good, but would foster crime. The user, then, by which property is acquired by prescription must be without the consciousness of wrongdoing; in one who frees his property from a servitude by prescription, there will be good faith if he put no obstacle in the way of the other’s enjoying his right; he is not required to warn him that prescription is running against him. If during the time required for prescription a doubt about the right to the property occurs to the possessor, he must make all needful inquiries, and satisfy his conscience that at least no one else has a certain title to the property in question.

The time during which a predecessor in title held possession of the property may be reckoned together with the period during which the present possessor has held it in order to complete the time required for prescription, if possession was always held in good faith. Even if a predecessor in title was in bad faith, this will not prevent a successor from gaining a title by prescription, provided that the latter possesses the property in good faith for the full time required by law.

(c) Inasmuch as good faith is required, as we have seen, and this cannot exist without some colourable, supposed, or at least presumed title, the third condition requisite for prescription is some sort of title. The quality of the title affects the period of time required for prescription by ecclesiastical law,as we shall see; no special title is expressly required by English law.

(d) No prescription can be had without uninterrupted, open, and peaceable possession. The prescription must be nec vi, nec clam, nec precario. It is precisely the possession for the period required that furnishes the ground for the transference. of ownership by prescription. When the term is up the property is vested in the possessor, who acquires also a right to all the fruits, if any, which he has meantime reaped from the property; for what is accessory follows the principal.

(e) Different systems of law require different periods of time for prescription, and the time varies with different kinds of property.

A great change in the ecclesiastical law of prescription was made by the new Code, as is clear from Canon 1508, which is as follows: ‘‘’ The Church accepts for ecclesiastical property prescription as a mode of acquisition and of freeing one’s self from burdens as it exists in the civil legislation of each nation respectively, with the exceptions laid down in the following canons.” Canon 1509 exempts certain classes of property from prescription, Canon 1510 lays down that sacred things in the possession of private persons can be prescribed by private persons, but that sacred things which are not in the ownership of private persons can only be prescribed by a moral ecclesiastical person against another moral ecclesiastical person. In general one hundred years are required to prescribe against the Apostolic See, and thirty years are required to prescribe against other ecclesiastical moral persons, according to Canon 1511.

The term required by English law for the acquisition of rights by prescription varies according to circumstances. At common law, time immemorial was required to establish a prescriptive right, but the Prescription Act, 1832, provided that with respect to rights of common, and all other profits or benefits to be taken and enjoyed from or upon any land, where there shall have been an enjoyment of them by any person claiming right thereto without interruption for thirty years next before the commencement of any action upon the subject the prescriptive claim shall no longer be defeated by showing only that the enjoyment commenced at a period subsequent to the era of legal memory. It is also provided that the time during which the adverse party shall have been an infant, idiot, non compos mentis, or tenant for life, or during which any action as to the claim shall have been pending and diligently prosecuted, shall be excluded in the computation of the period of thirty years. But where there has been an enjoyment for sixty years the claim is to be absolute and indefeasible.

Rights of way and other easements, or any watercourse, or the use of any water, to be enjoyed upon, over, or from any land or water, and also as to the access or use of light to and for any dwelling-house, workshop, or other building, are prescribed after twenty or at least forty years, instead of thirty and sixty respectively. An uninterrupted enjoyment of lights for twenty years constitutes an absolute and indefeasible right to them.

¹ Can. 1512.

I. Notion. Prescription is a mode of acquiring something, or of liberating oneself from some obligation, through a definite lapse of time and under conditions established by law.

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.

2. 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.

I. Liberative prescription can be constituted in a twofold way, namely, either so that it truly extinguishes the debt itself, or so that it excludes only a judicial action against the debtor. In what way it is constituted for different debts, draw from the law and jurists of one's country.

II. For liberative prescription there are required: a suitable thing, theological good faith, and the time established by law. It is said:

1. A suitable thing; almost as was said concerning acquisitive prescription (n. 808).

2. Theological good faith; concerning this, observe:

a) Theological good faith is had: 1° when thought about the existing debt does not even enter the mind; 2° when someone judges either that the debt was not contracted or that it has been paid; 3° when without grave fault he doubts whether the debt was contracted. But if he is certain concerning the debt contracted and doubts concerning payment, he is bound to pay, according to the opinion of St. Alphonsus, which we shall embrace in its own place.

b) Theological good faith is always required, with a twofold case excepted, namely: 1° when it is a question of a debt which someone is not bound to pay unless it is demanded, such as a penal debt (St. Alphonsus, III, 513); 2° when it is a question of extinguishing a passive servitude, for example a servitude of way, and someone other than the one prescribing places an act which impedes the use of the servitude.

3. Time established by law; concerning this, consult the respective civil law. Note also that here too the things which we said concerning the suspension and interruption of acquisitive prescription have force (n. 808).

I. The Church recognizes prescription as a mode of acquiring ecclesiastical goods and of liberating oneself from a debt arising either from a disposition of ecclesiastical authority or from a contract entered concerning an ecclesiastical good (can. 1508). Nevertheless:

1. The following are not subject to prescription: 1° those things which are of divine law, whether natural or positive; 2° those things which can be obtained by apostolic privilege alone; 3° spiritual rights of which laymen are not capable, if it is a question of prescription for the advantage of laymen; 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 would now be subject to no Prelate; 8° payment of the cathedraticum (can. 1509).

2. Sacred things which are in the ownership of an ecclesiastical moral person cannot be prescribed either by a private person or by a non-ecclesiastical moral person, but only by an ecclesiastical moral person. But sacred things which are in the ownership either of private persons or of a non-ecclesiastical moral person can also be acquired by private persons and by non-ecclesiastical moral persons, who nevertheless cannot apply them to profane uses; but if they have lost consecration or blessing, they can be freely acquired even for profane uses, though not sordid ones (can. 1510).

II. For acquisitive prescription there are required: possession, established time, and good faith; for liberative prescription: established time and good faith.

1. Possession - which it suffices to note - is the detention or enjoyment of a thing which someone has in his power by himself or through another as if it were his own (n. 775).

2. Established time. a) Immovable things, precious movable things, rights, and actions, whether personal or real, which pertain to the Apostolic See, are prescribed by a span of one hundred years; those which pertain to another ecclesiastical moral person, by a span of thirty years (can. 1511).¹ If a cleric who possesses a benefice has proved that he has been peacefully in possession of the same benefice for an entire three-year period in good faith, even perhaps with an invalid title, provided simony is absent, he obtains the benefice by legitimate prescription (can. 1446).

b) Other things are prescribed in the time determined by the civil legislator for a thing of this kind (can. 1508).

Note 1. Concerning the prescription of actions, consult canons 1702-1705, 2240.

Note 2. Interruption and suspension of prescription have place according to the norm of civil law (n. 808).

3. Good faith. No prescription has force unless it rests upon good faith, not only at the beginning of possession, but throughout the whole time of possession required for prescription (can. 1512).

¹ Concerning possession begun, but not yet completed when the Code had been issued, cf. Ius Pontificium, 1924, p. 23.

Theft and Robbery.—Having considered the injuries to person committed by homicide, mutilation, imprisonment, etc., we shall now take up the injuries to property committed by theft and robbery. Private ownership of property is allowed by natural and divine law, and it is necessary when, as at present, human affairs cannot be well managed under another system. It has its limits, however, since it is subordinate to the public good, and charity requires that those who have the goods of this world share them with those who are in need (see 1210 sqq.). The chief titles to private ownership are the following:

(a) original titles, which are those by which one takes possession and dominion of goods that have never had or have not now an owner, and these are reduced to two, namely, occupation (i.e., the taking possession of a material thing) and accession (i.e., the union of a material thing with one’s property);

(b) derivative titles, which are those by which one obtains dominion, through transfer of right, of the goods that belong to another. These titles are produced by the law itself (as in prescription), or by the law and the free will of man (as in inheritance from testament or from intestate), or by the free will of man (as in contracts).

Prescription.—Prescription laws (see 1798) are valid in conscience, since they are determinations about property rights made in the interest of the common welfare. But the following conditions are required for acquisition of property through prescription:

(a) the object of prescription must be a thing prescriptible according to natural and positive law. Thus, natural rights and public property may not be prescribed against;

(b) the subject of prescription must be a person capable of possessing, and he must be honestly convinced that he has a right to what he possesses;

(c) the claim of the subject to the object must rest on possession, on apparent title to the property, and on the lapse of the legal time during which possession has been held or ownership has remained undisputed.

Cessation of Obligation.—The obligation of a contract ceases in various ways: (a) by action of the contractants, as when a promisee renounces his right, or each of the parties to a promise has made a gratuitous promise in favor of the other and one refuses to keep his word; (b) by action of law, for example, by prescription, by annulment; (c) by impossibility, as when a thing freely promised has become unlawful or useless, or when the donee of a gift mortis causae dies before the donor.

What is usucapion or prescription? The chief mode of acquiring ownership by civil law is usucapion or prescription, which is defined: the acquisition of ownership, or liberation from some obligation, and the extinction of another's right through continuation of possession, for the time and in the manner defined by the laws. C. I. 2105; C. G. 2219; C. H. 1930; C. A. 1451, 1452. Acquisition of ownership; for through legitimate usucapion or prescription, from the disposition of civil and canon law, the possessor acquires ownership of another's thing, or is freed from some obligation.

For usucapion or prescription is twofold: one acquisitive of right, the other liberative from servitude or another burden. The former is properly called usucapion, the latter properly prescription; but these names are often used promiscuously, and in reality they cannot be separated, for what is acquisitive with respect to one is extinctive with respect to another. C. A. 1451, 1478; C. B. 194, 937, 945; C. L. 505. And the extinction of another's right; for after the possessor by legitimate prescription has acquired ownership of another's thing, or has freed himself from some obligation, on the part of the prior owner not only is ownership extinguished, but also every right to the thing; hence one who legitimately prescribes some thing is not bound by any obligation toward another.

C. I. 1236; C. G. 1234; C. A. 1449. Through continuation of possession for the time, etc.; for continuation of legitimate possession for the time and in the manner defined by the laws is the proximate reason on account of which civil and canon law attributes ownership of another's thing to the possessor. Civil and canon law, since usucapion or prescription is governed by that law to which the thing to be acquired by usucapion or prescription is subject. - C. 4, 6, 8 de Praescr.; Inst. 1. 2. t. 6. Cf. on this whole matter Troplong, della Prescrizione.

For what causes was usucapion or prescription introduced? - The causes on account of which usucapion or prescription was introduced by civil and canon law are four: 1. That the uncertainty and confusion of ownerships might be removed. 2. Lest lawsuits be multiplied. 3. Lest possessors live in continual fear of losing the thing possessed. 4. Lest men be negligent in preserving their things and rights. - Therefore usucapions or prescriptions were introduced on account of the public good; and therefore creditors and debtors cannot stipulate that no usucapion or prescription proceed between them. C. I. 2107; C. G. 2229; C. A. 1935; C. A. 1502. Nor consequently can someone renounce the right of prescription. C. L. 508 ff. - Inst. 1. 2. t. 6.

Prescription, however, in a civil cause, cannot be proposed ex officio. C. A. 1501; C. G. 2223; C. I. 2109; C. L. 514, 515. In a civil cause; for prescription of a penal action and of condemnation is applied ex officio, and it cannot be renounced. C. I. pen. 99. But in criminal causes of clerics a penal action is extinguished, "if indeed prescription has been expressly opposed in judgment by the accused or investigated person, or by his procurator. From this it is easy to perceive that the right both of accusing and of investigating remains entire until prescription is expressly opposed, and that the judgment altogether holds if the same has by no means been opposed." S. C. EE. et RR. 21 Mar. 1898. E. M. de stat. Partic. 7, 8 at the end, ed. 4, p. 172.

Is prescription a legitimate mode of acquiring ownership?

R. Affirmatively, both in the external forum and also in the internal forum, as the very common opinion of doctors has it, and it is approved by canon law itself. C. 3, 20 de Praescr.; C. 1 e. t. in the Sixth. The reason is that, with so great negligence of the owner standing, namely of not reclaiming his thing within the established time, it is legitimately presumed either that the thing is truly the possessor's, or that its true owner renounces it to the same. - Therefore the possessor, although after legitimate prescription he learns that another was the owner of the prescribed thing, nevertheless is not bound to restore it to him, since through legitimate prescription he himself has been made owner. But once prescription has been completed, the thing is his as if it had always been his, nor does he owe fruits of the past time. And even if the possessor is ignorant that he has acquired ownership of the thing by prescription, nevertheless he prescribes legitimately; and if from such ignorance he returns the thing thus legitimately prescribed to the prior owner, afterward, conscious of the right, he can demand it back. C. I. 2105; C. G. 2219; C. H. 1930; C. A. 1451, 1452; Inst. 1. 2. t. 6; S. Th. Quodl. 12. a. 24; L. 513, 517; Lugo, de Iust. et Iur. d. 7. s. 1; Cf. C. B. 222, 390, 479.

What conditions are required for prescription? - For legitimate and consequently valid prescription by both laws, canon and civil, the following conditions are required: capacity to prescribe, a thing apt for prescription, possession, title, legitimate time, good faith. Inst. 1. 2. t. 6; L. 504.

Who can prescribe? - All those can prescribe who are capable of acquiring ownership. Therefore both private persons and Communities and Churches can prescribe, as they are also subject to prescription. C. L. 507, 516; C. I. 2114; C. G. 2227, 2251; C. A. 1453, 1454; C. H. 1931, 1932; C. 3, 8, 9 de Praescr.

What things can be prescribed? - Generally, all and only those things can be prescribed which come under ownership and private commerce, and for whose acquisition a legitimate title can be given. For since the end of prescription is to transfer ownership by authority of law, such transfer cannot be made concerning a thing which from its own nature, or from the disposition of the laws, cannot come into private ownership. Those things which can be alienated can regularly be prescribed. For those things which cannot be alienated cannot be acquired by another. C. I. 2113, 2135; C. G. 2226, 2262; C. H. 1936; C. A. 1455-1459, 1480, 1490; C. B. 194; C. L. 506; Inst. 1. 2. t. 6.

Likewise all rights and all obligations are subject to prescription. Rights, obligations, namely those which do not pertain to oneself, but to others; for prescription is not made against oneself, but against another; and thus the right of building or planting in one's own soil is not prescribed against oneself. To others, namely private persons; for those things which are of public order and public right, such as the power of a superior of making laws, obedience owed to superiors, are by no means subject to prescription. To others, that is, those things which can come to others from our concession, as, for example, the faculty given to another of building on your soil, if he has not used this faculty for thirty years; from our concession, not from mere toleration; from our concession, not those things which flow from natural law, such as, for example, the faculty which anyone has of alienating his own thing, nor those which flow from civil law, such as a change of domicile, restitution in full granted to a minor, a married woman, or one interdicted. Therefore acts merely facultative and of simple toleration cannot be the foundation of prescription. For the natural and civil faculty of each one cannot legitimately be possessed by another; and toleration excludes concession of one's own right, on the presumption of which prescription is founded. Facultative acts, namely acts which are merely acts of the power of acting or doing, in oneself or in one's own thing, not merely acts of exacting something from others, with an obligation imposed on them. C. I. 688; C. G. 2232; Troplong, della Prescrizione c. 1, Dispos. Gener. n. 112; c. 2, del Possesso n. 381 ff.; L. 9 de Usurp. et usuc.; E. M. From C. He. 789, land burdens cannot be prescribed. Individual prestations can be prescribed, from the moment when they become the personal debt of the one obligated. And from art. 807, credits secured by an enrolled immovable pledge are not subject to prescription. Likewise perpetual census is imprescriptible; that is, the right to the payment of the prestation, although this can be prescribed, namely as to the various annual payments. Pothier, Trattato dei Censi s. 1. a. 1. § 3. Cf. L. C. de Praescr. 30 vel 40 annor. C. From C. L. 537, inalienable rights, and those which are perpetual, cannot be prescribed. From the same C. L. 592, literary property is imprescriptible.

You will resolve: Public sacred and religious things, such as churches, cemeteries, ecclesiastical rights, and also profane things which are of public ownership strictly taken, such as squares, roads, etc., the former cannot be prescribed by laypersons, the latter by private persons. For they cannot acquire ownership of these things. Schmalz. 1. 2. t. 26. n. 24 ff. "For public places indeed serve the uses of private persons, namely by the right of the city, not as if proper to each one... things which are destined for public use." L. 2. § 2, 5. D. Ne quid de loco publico. The right of conferring benefices cannot be prescribed by laypersons. C. 7 de Praescr. - Nor can the boundaries of parishes or dioceses be prescribed, provided that it is established that they were constituted by legitimate authority. C. Super eo 4 de Paroch. More truly also burdens of Masses cannot be prescribed. Cf. Ferrar. v. Usucapio n. 17; S. C. C. 18 Feb. 1702, 18 Aug. 1843. Although the Pontiffs did not wish ecclesiastical benefices to be transferred to laypersons by prescription, nevertheless an ecclesiastical benefice can be prescribed by a cleric by three years' possession, as is had in Reg. 36 of the Chancery, concerning three years' possession. Here, however, it must be noted that for a similar prescription these conditions are required: 1. good faith; 2. peaceful possession for three years; 3. colored title; 4. non-simoniacal entry; 5. that the beneficed person has not intruded himself into a benefice reserved to the Apostolic See in the Body of Law. L. 507, 515; Lugo d. 7. s. 7; Haunold. t. 1. tr. 5. c. 2. n. 273. C. I. 177, 427, 430; Inst. 1. 2. t. 6; C. 11, 12, 16 de Praescr.; Troplong, della Prescrizione c. 1.

Note: In order that prescription proceed against someone, that is, that it can begin and, once begun, be continued, it is necessary that he be able to defend his rights in court, and that he already have a complete right in the thing. Prescription does not run against one unable to act. Hence prescription does not proceed if someone has fallen into insanity; likewise against conditional rights while the condition is still pending; against rights for a determined day, while the day has not yet elapsed; against an action for eviction until controversy has been moved.

Cf. C. I. 2120, 2121; C. G. 2257, 2258; C. H. 1932, 1934; C. A. 1494, 1497; C. B. 198 ff.; C. L. 545, 550; C. Placuit 1 de Praescr., C. De quarta 4 ib., C. transmissa 10 ib.; L. 1 de Annali exceptione C.; L. 7 de Praescr. 30 vel 40 annor. C. But prescription simply does not proceed, that is, it can neither begin nor be continued, among those who are considered as one person, that is, between spouses, between a son under paternal power and him under whose paternal power he is, between those administered and administrators given by law, between an heir who enters upon an inheritance with the benefit of inventory and the creditors of the inheritance entered upon by him, as to credits which he himself has against the succession. C. I. 2119; C. G. 2252, 2253, 2258; C. A. 1495; C. B. 204; C. L. 551; Troplong, della Prescrizione c. 4. n. 804.

Is possession required for prescription? - It is certain that legitimate possession is required for prescription. This is clear both from civil law and from canon law: "Without possession prescription does not proceed." R. I. 3 in the Sixth. Possession as to things, quasi-possession as to rights, which consists in the use of a right, or in cessation from fulfilling an obligation, as if someone uses a servitude of passage or of aqueduct, if someone prohibits another from going through his land, or obstructs an aqueduct. Inst. 1. 2. t. 6; C. I. 2106; C. G. 2229; C. H. 1940; C. A. 1460; Laymann 1. 3. tr. 1. c. 8. n. 4; Struggl, Theol. univ. p. 2. tr. 8. d. 2. q. 3, a. 4. II; Troplong, della Prescrizione c. 2; E. M.

What is the title required for prescription? The title required of possession in general is the cause from which we hold or possess a thing. One title is translative of ownership, which per se is ordered to transferring ownership, such as sale; another is non-translative, which per se is not ordered to transferring ownership, such as lease. The latter is defective, for of itself it is insufficient for prescription. Indeed, it perpetually obstructs prescription, for it always shows another owner. And thus it is better to have no title than to have a defective title. But the former, if not true and existing in reality, at least apparent, thought to exist, or presumed, is necessarily required for prescription. For, with every title lacking, one cannot prudently judge the thing to be his; and therefore without every title, he cannot be a possessor in good faith. C. I. 701, 2115 ff.; C. G. 550, 2228 ff.; C. A. 1461; C. H. 433, 1434, 1940, 1952, 1953, 1954, 1955, 1959.

Now concerning this title it must briefly be said that it is not absolutely required to be true, but generally a title thought to exist, apparent, or presumed suffices. "For if there had been a true purchase, or donation, etc., prescription would not be required; therefore an apparent title is required, such as purchase, for example, from him who was thought by the buyer to be the owner, although he was not the owner. But the reason is that without title there could not have been good faith at the beginning of possession. Yet because the title could have been present at the very beginning, and afterward be lost through forgetfulness, it was therefore established that a presumed title suffices. But to presume title, possession for that ordinary time required for prescription does not suffice; rather possession for 30 or 40 or more years is required, which is customarily called possession of the longest time: and this indeed when the law does not resist, nor from elsewhere is there presumption of bad faith in the possessor. But if the law resists, or there were a presumption of bad faith in the possessor, possession for immemorial time would be required, as is clear from C. I. de Praescr. in the Sixth.

But if there were not only presumption, but it were established concerning the bad faith of the possessor, or concerning ignorance of a law not doubtful, which ignorance, even if it were invincible, is equivalent to bad faith in this matter; then even possession for immemorial time would not suffice; because a possessor in bad faith prescribes at no time. But the law is said to resist possession not because it is made in some way to the contrary, but because it positively prohibits such possession." Lugo d. 7. n. 15; L. 505. Cf. here n. 855.

How much time is required for prescription according to Roman and Canon law? - Movable things, if a special title is present, both among present persons and absent persons, are prescribed by a completed three years. L. un. C. de Usuc. transf. And this still holds as before as to the goods of churches. Auth., received by the Church, Quas actiones de Sacrosanctis ecclesiis; Extr. Ambitiosae de Reb. Eccl. non alien.; Lugo d. 7. n. 69; L. 506, 507, 510. - Immovable things according to the same Law, if a special title is present, are prescribed against a private owner among present persons by ten years, and among absent persons, namely those who are under a different provincial government, by twenty years.

Inst. 1. 2. t. 6; L. 509. Things both movable and immovable, if no special title is present, are first prescribed after the completed time of thirty years. L. 500. But immovable goods of churches, monasteries, hospitals, or those belonging to other pious causes are not prescribed except by a space of 40 years; indeed immovable goods of the Roman Church only by a space of 100 years. C. 4, 6, 8, 9, 13, 14, 17 de Praescr. The Lateran Church also has the privilege of hundred-year prescription, and many religious Orders have it. - Nov. 131. Cap. 6; Schmalz. 1. 2. t. 26. n. 100 ff.; Struggl l. c. q. 3. a. 5; L. 510; Anacletus, Decr. lib. 2. tit. 26. nn. 151, 171. "Since custom tends not only to abrogate law, but also to take away and diminish rights belonging to the Roman Pontiff alone, besides the other conditions it is necessary that it have persevered without any interruption for a space of at least a hundred years." Benedict XIV, de Syn. 1. 9. c. 2. n. 6. - E. M. "Annual revenues are considered among immovables by law." Clem. Exivi § Proinde de Verbor. signific.

What is interruption of prescription, and when is it had? - Prescription is interrupted when, on account of an impediment interposed, it ceases in such a way that it no longer has force unless legitimate possession is begun anew. Now prescription is interrupted in two ways:

1. Naturally, if the one prescribing loses, by the act of a man, possession for a time greater than a whole year, or if bad faith supervenes. C. I. 2124; C. G. 2243; C. H. 1944; C. L. 552; C. B. 940, 942; C. Quoniam 20 de Praescr.

2. Civilly, if a lawsuit is juridically moved concerning possession, and the interpellation has not been rejected by the judge, "unless the other," adds St. Alphonsus 511, "does this unjustly to interrupt prescription," C. I. 2125, 2128; C. G. 2244, 2246, 2247; C. H. 1945, 1946, 1947; C. L. 552; C. B. 940; or if he who began to prescribe, prescription not yet completed, recognizes the other's right in any way. C. I. 2129; C. G. 2248; C. H. 1948; C. L. 552; C. A. 1497. Natural interruption interrupts possession for all as to prescription, but a civil act, since it is a thing done among others, benefits only him who exercises it, and therefore does not interrupt possession as to prescription with respect to others. Troplong, della Prescrizione c. 3. n. 542. Cf. C. L. 553, Wirceburg. 431.

What is suspension of prescription, and when is it had? Prescription is suspended when it, having first been begun, ceases because of some legitimate impediment interposed, so that the time during which the impediment lasts cannot be computed; nevertheless, once the impediment ceases, the prior years, with the intervening time of the impediment omitted, can be joined with the following years, and from all of them prescription be completed. - Now prescription is generally suspended against those unable to act, namely in cases determined by the law itself, C. G. 2251; but specifically: 1. against married women, during marriage, as to dotal goods, C. I. 2120; C. G. 1561, 2255. 2. Against minors and interdicted persons, C. I. 2120; C. G. 2252. 3. Against soldiers in time of war, C. I. 2120.

4. Against a church as long as it lacks a rector, C. 4, 15 de Praescr. 5. Against those absent because of civil or military service, and while courts cannot be exercised, in time of plague, war, etc. C. A. 1496. The stated causes of impediment in the first three cases from C. I. 2121 do not have place in usucapion of 30 years as to a third possessor of an immovable, or of a real right over an immovable. C. B. 202 ff., 939; C. H. 1932; C. L. 548 ff. Even when the time of prescription has been completed, the benefit of restitution in full is conceded to the Church, which, as is had in C. Auditis de In integr. restit., enjoys the right of a minor.

What is the good faith required for prescription? Good faith, required in this matter, is the firm persuasion by which someone prudently judges that the thing possessed by him is his; and therefore he is ignorant that the thing was acquired not from the owner, or from one not able to alienate, or from fraud or another defect. C. I. 701; C. G. 550; C. H. 1950; C. A. 326.

This good faith is altogether necessary for beginning and continuing acquisitive prescription of ownership. The reason is that whoever notices that he possesses another's goods, by that very fact immediately contracts the obligation of restitution, since another's thing, both by natural law and also by positive law, whether divine or human, can knowingly neither be taken away nor retained. This is also clear from the Fourth Lateran Council and also from the second Rule of Law in the Sixth: "A possessor in bad faith prescribes at no time." Hence the dispositions of Civil Law, insofar as they do not require good faith, or require it only at the beginning of possession, or only in ordinary prescriptions, do not hold for the internal forum, and are to be held as mere denial of recourse, that is, of action against another.

C. I. 702, 2135, 2137; C. G. 2262, 2265, 2269; C. H. 1955, 1959; C. A. 1493; C. 5, 20 de Praescr. But good faith is required not only for acquisitive prescription, but also for liberative prescription, because the same reasons and authorities press equally for both. But good faith in this prescription consists in this: 1. That someone not be in delay in fulfilling an obligation, for example of paying a debt; for then he is already in fault, and prescription ceases. For if he himself is the one who ought to fulfill the contracted obligation, even if the creditor omits to warn him, the omission of the contracted obligation is certainly not without fault. 2. That no obstacle be placed by which the other is impeded from the use of his right, if someone is bound to do nothing, but only to tolerate and permit.

The reason is that the one prescribing is then bound by no debt toward him against whom he prescribes; nor is he bound, while the time of prescription is running, to warn the other, so that against himself, for example, he may use the right of servitude. C. I. 1236, 2105; C. G. 1234, 2219; C. A. 472, 482, 1478 ff.; C. L. 535, 536. - L. 504, 513; S. Th. 4. D. 41. q. 1. a. 5, q. 1. 2; Quodl. 12. a. 24, 25; Troplong, della Prescrizione c. 5. n. 915 ff.; E. M.

584. • I. As regards acquisitive prescription:

1. For immovable things possessed without special title, thirty years are required for prescribing. - But with a special title, ten years are required and suffice if the true owner is present, that is, if he dwells in the same province in which the estate subject to prescription is situated; but if the true owner is absent, the years of absence are doubled. But this province is determined by particular laws.

In France the true owner is said to be present if he has domicile in a place subject to the same superior Court (Cour d'appel) in whose territory the estate lies.

2. All actions, both real and personal, are prescribed through 30 years without title.

3. Active servitudes, if they are continuous and apparent, are prescribed with title like immovable things, and therefore in thirty years if a special title is lacking. But active non-apparent servitudes are not subject to prescription without title. But those are called non-apparent which are not plain of themselves, as, for example, a prohibition of building on such an estate, or of raising a building beyond such a height. - But whether they can be prescribed with title in ten years as immovable things is disputed.

4. For movable things under Roman Law three years are required with title, but thirty without title. - But under French Law, three years without title for stolen and found things; but as to the rest, possession alone suffices (art. 2279).

5. If another's thing has been possessed successively by several, the last possessor, for prescribing, can compute all the time in which it was detained in good faith by others, even if he has had it for only a few days when the time of prescription is completed.

6. In Roman and Canon Law 40 years are required for prescribing ecclesiastical goods; and 100 for the goods of the Roman Church, or of St. John Lateran. But French Law does not distinguish ecclesiastical goods from others ⁷.

⁷ Here you have a trace of the depraved sense into which the age that authored these laws betrays that it had been handed over. For that some special homage or reverence is owed to things sacred to God, even the very dictate of natural reason suggests, so that we find this received in every age and among all peoples, however pagan and barbarous.

Add that some singular privilege for ecclesiastical goods had seemed necessary to ancient wisdom also for this reason: since those goods are administered by those who do not have dominion of them, they therefore rightly seemed to be equated to the goods of pupils and minors, whose singular care the laws have never failed to assume, although otherwise they are not destitute of tutors or curators.

Bouvier (De Iur. et Iust., c. 2, § 4, sect. 3, punct. 2, prop. 2) well limits that the prescription of ecclesiastical goods is made in the same way as that of others, at least in the external forum. For in reality civil laws cannot derogate from the natural rights of the Church, except among pagan legislators.

II. As regards liberative prescription:

1. Passive servitudes, ground-rents, and all debts, good faith being supposed, are extinguished after thirty years. - St. Lig., n. 513. - Lugo, etc. - (C.C. 2262).

2. From French Law five years suffice for prescribing pensions due from ground-rents, alimentary pensions, the price of the leasing of houses and estates, and whatever must be paid yearly, or after a shorter time (art. 2277). - There are also other shorter prescriptions: thus, for example, only six months are required for wages of workmen, innkeepers, etc.; one year for fees of physicians, servants, etc.; two years for fees of procurators, once the case is finished ⁸. - (Art. 2271 and following).

⁸ As to these things each person must consult the laws of his own region.

244. Principle: Prescription, clothed with the due conditions, is a legitimate mode of acquiring dominion, even in the forum of conscience. It is certain.

Indeed, for the legitimacy of prescription in conscience, it suffices that the supreme civil authority could and wished to confer this force upon it. But both are established: -

245. 1. Civil authority could do this; for the State, by force of the high dominion which it has over the goods of subjects, can perform that which favors the public good and moreover of itself injures the rights of no one. (A) But prescription, with the conditions to be set forth below posited, promotes the good of society most greatly. For it is of very great importance that dominions not remain uncertain, nor lawsuits concerning the property of things be perpetual; for if they remain uncertain and lawsuits are feared, fields are either neglected or at least are not cultivated with that industry which the utility of society demands; besides, the peace of families is disturbed, since it is to be feared lest those who judge themselves richer soon, through a lawsuit, be expelled from the house which for a long time they judged to be their own, and be despoiled of goods formerly possessed. Now, unless prescription is admitted, dominions will not rarely be uncertain; for sometimes the title is lost, nor can the legitimacy of this or that dominion easily be proved except with the help of prescription; moreover the title can be attacked as defective, and, when there is question of a fact which occurred already a long time ago, the difficulty will be solved with difficulty, and therefore lawsuits concerning the legitimacy of this or that title will be innumerable and perpetual unless the obligatory force of prescription is acknowledged. On the contrary, if long possession, clothed with certain conditions, is equivalent to title, it will be much easier to solve lawsuits and to define rights certainly.

246. (B) Moreover prescription of this kind of itself injures the rights of no one. That its equity may be judged, it must be considered not in one particular case, but in general and of itself. But of itself, before every event, it favors one no more than another; namely each has an equal fear of losing or hope of gaining. This can be illustrated thus: if the citizens of some republic by common consent established that goods should become his who possessed them in good faith for a long time, no one could think himself injured: for this would be an aleatory contract, before the event favoring all equally and therefore most equitable. Now what citizens can establish by pact, the legislator can decree in the name of all, provided that the public good demands it. Moreover citizens, in accepting this law, implicitly enter an aleatory contract among themselves.

Indeed prescription of itself profits all; for it renders each more vigilant and more diligent; for not a few would indulge in negligence and laziness, and sometimes would leave lands uncultivated, unless by fear of prescription they were compelled to assert their dominion and vindicate it by exercising certain acts. - Therefore prescription greatly contributes both to private and to social good; therefore the State could assign obligatory force to it in the forum of conscience.

247. 2. Supreme authority wished this. This is established:

(A) From the end of the law: for the law tends to promote public peace and security;¹ but such an end cannot be attained unless prescription has force in conscience; otherwise pious and honorable persons would labor under anxieties, while others less honorable would use the benefit of the law without scruple; and thus the law would serve to ensnare consciences.

¹ That this was the intention of the legislator in composing the French Code is clear from the speeches given before the Legislative Assembly; cf. Code et Motifs, t. VII, p. 134 sq.

(B) From the words employed in the law and from the interpretation of jurists. For the words used in various Codes either suppose or even openly declare that dominion is truly transferred or acquired;² indeed in certain regions a distinction is made between prescription properly so called, which transfers rights, and prescription improperly so called, by which the time is limited within which rights can usefully be vindicated before judges,³ without however being lost in this case; from which it is deservedly inferred that by prescription properly so called dominion is truly transferred, even in the forum of conscience. - This is confirmed by the testimony of jurists, many of whom explicitly teach that prescription has force in conscience, provided good faith has endured for the whole time of possession.⁴

² For France this is established from these or similar words: "Prescription is a means of acquiring or of freeing oneself by a certain lapse of time ... One cannot renounce prescription in advance ... Prescription can be opposed at every stage of the case, even before the court of appeal..." (Civil Code, a. 2219-2224, in Supplement, p. 55*-56*).

³ Thus in England and the United States of America.

⁴ In Carriere, n. 420.

248. (C) To these arguments there is added the authority of canon law, insofar, namely, as it asserts or supposes that prescription has force in the forum of conscience: "The sanctions of the holy Fathers and human laws, establishing irrefragably, have confirmed, and we in the present council, with all who are with us, irrefragably confirm, that all possessions belonging to the individual provinces of our brothers, by whom they have been possessed for thirty years, shall be held quietly and sincerely, without synodal proclamation, perpetually, and no voice of being heard shall be conceded to any adversary."¹ Likewise the Fourth Lateran Council defines "that no prescription, canonical as well as civil, is valid without good faith, since generally every constitution and custom is to be derogated which cannot be observed without mortal sin";² from which it is inferred that even civil prescription with good faith is valid. - Now if Pontiffs and Councils held prescription introduced by Roman civil law as legitimate in the forum of conscience, the same reason holds concerning that which modern Codes establish, which have imitated the Roman law in this matter. - The Code sanctioned this doctrine, c. 1508.

¹ Decretal. Gregor. IX, l. II, t. 26 de Praescript., c. 3, p. 382-383, ed. Richter-Friedberg.

² In Denzing., n. 364.

249. 1. An apt thing, that is, one which by its nature is capable of private dominion, and at the same time is not excluded by positive law from the scope of prescription. Now (a) things deputed to public uses, such as public roads, squares, bridges, etc., cannot be prescribed by private persons, because from the fact that they are destined to public use, they cannot be acquired by private persons, as is established from the law in force among various Nations; nevertheless they could be prescribed by one community against another community.

(b) Sacred things which are in the dominion of private persons can be acquired by prescription by private persons, but not for profane uses; those which are not in the dominion of private persons can be prescribed not by a private person, but by an ecclesiastical moral person against another (Code, c. 1510).

(c) Likewise ecclesiastical law prohibits certain things from being prescribed, on account of the public good, e.g., the certain boundaries of a diocese or parish legitimately constituted.¹

¹ Others are enumerated in the Code, c. 1509, especially: those which are of divine right or can be obtained from apostolic privilege alone; spiritual rights, of which laymen are not capable, if there is question of laymen; alms and Mass obligations; an ecclesiastical benefice without title; the right of visitation and obedience; payment of the cathedraticum.

(d) Likewise civil laws often impede certain goods from falling under prescription; thus, e.g., the dotal goods of wives under the dotal regime, the goods of wards. On this matter civil Codes should be consulted.

250. 2. Possession, that is, occupation and detention of the thing, or exercise of the right. This indeed is so necessary that without possession prescription does not proceed.² But in order that it may be valid, it must be fortified with certain qualities; indeed it must be:

² Rule of law 3 in the Sext.

(A) With the intention of an owner, not however with the intention of a depositary or usufructuary, etc.; for there is question of dominion legitimately acquired; but he who knows the thing is not his, but deposited, or leased, etc., cannot legitimately acquire it. - Hence he who possesses a thing in his own name prescribes for himself; but he who possesses in another's name, as a tutor in the name of a ward, prescribes not for himself but for the ward; but he who detains a thing through another, e.g., a servant, a procurator, can acquire it for himself.

251. (B) Peaceful and continuous; for if it is violent, it is not possession, but invasion;³ nor does useful possession begin except when the violence ceases; - but if it is suspended or interrupted before the required time has already elapsed, one of the conditions required for prescription is lacking. Now there is this distinction between suspension and interruption: (a) the former indeed prevents prescription from running, on account of the prescription of the law, - when, e.g., there is question of the goods of minors or of wives; - but when the impediment has now ceased, the time preceding the suspension is joined with the time following. (b) The latter exists when one of the conditions necessary for prescription is lacking, - e.g., if good faith ceases, or the owner usefully opposes; - and so harms prescription that the time which had previously elapsed is held as nothing.

³ Ball. P. indeed says (n. 173) that this is not required by natural right, but is drawn from the French Code; but in this the French law is consonant with natural right, as there is no one who does not see. Cf. Supplement, p. 56*.

252. 3. The required time, which is determined not by natural law, but by positive law, canonical or civil.

(A) By canonical law, (a) the goods of the Roman Church, both precious movable goods and immovable goods, are not prescribed except by the space of one hundred years.¹

¹ Code, c. 1511, § 1.

(b) Immovable goods of other churches, monasteries, hospitals, and other religious places are prescribed by thirty years;² precious movable goods are to be equated with these. - Certain monasteries enjoy a special privilege; thus against monasteries of the Benedictines one cannot prescribe except by sixty years; against monasteries of the Cistercians and Mendicants except by one hundred years.

² Ibid., § 2.

(c) Movable goods of other churches are prescribed by thirty years. - Nevertheless St. Alphonsus probably holds (n. 510) that these goods are prescribed by three years, provided that title is present.

(B) By civil law, the time required is diverse for various Nations; hence we shall treat of this in the Supplement.³

³ For France, cf. Civil Code, a. 2260-2280; Planiol, n. 1402-1488; Supplement, p. 59*.

253. 4. Good faith, which can be twofold: theological and juridical.

(A) Theological good faith is a prudent judgment by which the possessor believes that the thing is his own, or at least is possessed justly by him.

(a) Now prudent judgment is lacking when it does not rest on a grave foundation, e.g., when someone has gravely neglected to investigate the thing diligently. But invincible ignorance, whether of fact or of law, does not harm good faith.

Good faith is also lacking as soon as the possessor notices that he possesses another's thing; or also, if, seriously doubting concerning his own right, he nevertheless invades a thing possessed by another. But if doubt supervenes upon possession already begun in good faith, and, after the matter has been diligently investigated, remains, he can retain the thing, according to that saying: in doubt the condition of the possessor is better; for although he is not morally certain that the thing is his, nevertheless he possesses it legitimately.

254. Here, however, the question arises whether a possessor in good faith legitimately prescribes, who succeeds a predecessor in bad faith. A distinction must be made: if he immediately succeeds a predecessor whose bad faith is certainly established, as a universal heir or by universal title (below, n. 702), he does not legitimately prescribe: for since he juridically represents the person of the deceased, he takes upon himself his obligations, and therefore is bound to restore to the owner that which the predecessor possessed in bad faith. Nevertheless if he knows the bad faith of the predecessor only after the time required for thirty-year prescription has elapsed, he licitly retains the thing, provided that the title of the predecessor was not defective or not properly translative of property. - But a mediate heir, probably at least, and all the more a particular successor, legitimately prescribe, because juridically they do not put on the person of the predecessor, and therefore they can continue prescription begun in good faith.

255. (b) That theological good faith is necessary during the whole time of prescription, so that this may have force in conscience, is certainly established: - 1) by authority; since Alexander III says:¹ "It must be guarded with vigilant care ... lest we be possessors in bad faith in the estates of others ... because no ancient possession of days by divine right helps any possessor in bad faith, unless he repents after he has known that he possesses another's things, since by right he cannot even be called a possessor in good faith." The Code teaches the same thing more openly, can. 1512: "No prescription is valid, unless it rests on good faith, not only at the beginning of possession, but during the whole time of possession required for prescription."

¹ Ibid., c. 5, p. 383, ed. cited.

2. By reason; for as soon as someone is conscious that the thing possessed by him is another's and is not possessed justly, before the time required for prescription has elapsed, he is bound to restore it morally as soon as possible to the owner; otherwise he becomes an unjust detainer of another's thing and injures justice; for the thing cries out to its owner. - Therefore if certain civil laws in certain cases do not require good faith, they do not wish to touch the forum of conscience in this respect;¹ or, if they wished to, they lack force, as being opposed to natural and divine right; for natural right demands that fraud and bad faith patronize no one; otherwise thieves would be incited to invade the things of others, and the whole social order would be disturbed.

¹ This is established for the French Civil Code from the declarations of those who proposed the law; thus Bigot-Preameneu, Expose des motifs, after vindicating the utility and necessity of prescription, adds: "But this sacrifice, required for the public good, only renders more culpable in the internal forum him who, having usurped, or him who, being certain that his engagement has not been fulfilled, abuses legal prescription. The cry of his conscience is the only recourse which the law can leave to the owner or creditor who has allowed prescription to run against him."

256. (B) Juridical good faith is that which civil laws require; and since prescription obtains its force not only from natural right, but also from civil law, juridical good faith is required for prescribing validly and licitly whenever it is demanded by a just law.

By French law, good faith consists in this: that the possessor thinks that he from whom he received the thing, by force of a title translative of property, truly is the owner of this thing. This is presumed, unless the contrary is proved, and it suffices that it exist from the beginning of possession.² It is not required in prescription of thirty years, but in prescription of ten or twenty years or a shorter one.³

² Planiol, n. 1431-1434; Civil Code, art. 550 and 2269; Supplement, 59*.

³ Civil Code, art. 2262, 2265, 2266, 2275; Planiol, n. 1431-1434; Supplement, 59*.

257. 5. Title, that is, the cause, or reason on account of which the possessor thinks the thing is his own; e.g., purchase, donation are titles from which the buyer or donee judge themselves to be owners of the thing bought or donated.

(A) Title is true when it validly transfers dominion; apparent, when, on account of some defect, it does not transfer dominion, but is judged to transfer it; defective, when by its nature it is not translative of property, e.g., leasing, deposit.

(B) That true title is not required here is clear from the fact that otherwise prescription would avail nothing. - Defective title certainly harms prescription, since from it it is established that the possessor is not the owner.⁴

⁴ Hence the axiom: "It is better not to have title than to have a defective one"; for sometimes without title someone can prescribe, but by no means with a defective title.

(C) Apparent title can be: (a) colored, when it has the appearance of a true title, even if, on account of a hidden defect, it is invalid; e.g., the purchase of a stolen thing; (b) putative, or supposed, when someone prudently believes himself to be the owner, although in reality he is not the owner; thus one who possesses something by force of a testament revoked by another; (c) presumed, which in reality does not exist, but, on account of long possession, is supposed by law to exist.

258. These things being posited, by natural right a colored or putative title suffices for prescription, because good faith can exist with each; indeed, with positive right at least added, a presumed title suffices for prescription of the longest time, because lengthy possession is deservedly presumed not to be without title; unless, however, the adversary can prove that in the case a title was never present: for presumption yields to truth.

But civil law concerning title is not the same among various Nations.¹

¹ French Civil Code, a. 2236-2241; 2262, 2263, 2265, 2267, 2279; Planiol, n. 1422-1430; Supplement, p. 57* sq.

64. 1. Germanic law very precisely distinguishes between usucapio (Ersitzung), which is acquisitive prescription, and liberative prescription (Verjährung).

2. Immovable goods cannot be acquired either by usucapio or by prescription.

3. Movable goods can be acquired through ten-year usucapio, made in good faith.⁹³

4. The ordinary time of prescription is 30 years;⁹⁴ nevertheless most debts of commerce, lease, and wages are prescribed in two years: "In 2 years the claims of merchants, manufacturers, craftsmen, and of those who carry on an industrial art are prescribed, for delivery of goods, execution of works, and management of another's affairs.... In 4 years claims for arrears of interest are prescribed...."⁹⁵

Theologians do not agree whether these two-year prescriptions are valid in conscience. Aertnys,⁹⁶ Göpfert,⁹⁷ and Marc⁹⁸ deny it, but with Lehmkuhl⁹⁹ and Noldin¹⁰⁰ it is better affirmed. Thus Noldin rightly writes: "Therefore first of all it must be inquired whether the positive law truly intends to extinguish the debt or only to deny an action in judgment. But if it can be shown certainly or at least probably that the intention of the legislator was to extinguish the debt entirely after that time had elapsed, the debtor, with good faith supposed, can be considered immune from the obligation of paying.... Nevertheless there are those who think that, even for active liberative prescription, negative good faith suffices, which consists in the absence of fraud, although there is held a certain persuasion that the debt has not yet been paid; therefore that he who has not paid a rent or the price of a lease through the time suitable for prescription can with a safe conscience deny payment, especially if payment has not been made because of the negligence of the creditor. For since the whole force of prescription depends on civil law, where civil law does not require positive faith, it is lawful even in conscience to stand by it. Nor can a law be called unjust which tends to this, that creditors be rendered more diligent and more alert." - The civil code of Germany (just as generally all modern civil codes) does not care much about obligation in conscience, but generally imposes its own norms. It cannot be denied that these two-year prescriptions sometimes are very good. For from them many ambiguities are avoided; contracted debts are paid more quickly, and commerce is fostered rather than impeded. Besides, negative good faith can be present not so rarely. How often does it happen that someone thinks he has already paid the price for merchandise previously received, and yet in reality he has not paid! Therefore, with negative good faith acceding, the two-year prescriptions contained in § 196 perhaps can be applied in practice.¹⁰¹

II. French Law.

⁹³ Cod. civ. Germ. § 937.

⁹⁴ § 195.

⁹⁵ § 196.

⁹⁶ Theol. mor. III, n. 278.

⁹⁷ Moraltheol. II, n. 80.

⁹⁸ Inst. mor. I, n. 901.

⁹⁹ Das Bürgerl. Gesetzbuch 60 sq.

¹⁰⁰ De praeceptis n. 407.

¹⁰¹ Aloysius Piscetta teaches nearly the same thing excellently and defends it with arguments drawn from Lugo (De iust. et iure disp. 7, n. 48), Theol. mor. III, Augustae Taurin. 1907, n. 153 sqq.

65. 1. For legitimate usucapio there are required: a) continuous, peaceful, public, not equivocal, and truly proprietary possession ("To be able to prescribe, there must be a continuous and uninterrupted, peaceful, public, not equivocal possession, and under title of proprietor");¹⁰² b) a time defined by law, namely, α) for acquiring immovable goods, 10 years, if the proprietor lives in the same district (within the jurisdiction of the imperial court in the extent of which the immovable is situated), and 20 years, if the proprietor does not live in the same district.¹⁰³ In these cases, however, a legitimate title and good faith are required; if these are lacking, 30 years are required.¹⁰⁴ β) For acquiring movable goods no time is required, but that famous principle is valid: "In the matter of movables, possession is worth title."¹⁰⁵ Yet this principle is often understood falsely. Its sense is: "He who possesses a movable good is judged to possess it by just title, until the contrary is proved. But if the contrary has been proved, the possessor is bound to hand over the thing, and indeed, if the things were lost or taken by theft, still after 3 years. But if he bought things of this kind in good faith in a public market or from a merchant publicly selling things of this kind, he has the right of claiming from the proprietor the price given for those things."¹⁰⁶

2. For legitimate liberative prescription a) the time of 30 years always suffices, without either title being required or bad faith being able to be opposed;¹⁰⁷ b) by a time of 5 years all annual or periodic prestations are prescribed ("everything which is payable by the year or at shorter periodic terms");¹⁰⁸ c) by a time of six months, one year, and two years several other smaller debts are prescribed, concerning which Picot rightly writes:¹⁰⁹ "They must not be considered as true ways of extinguishing obligations, but only as presumptions of payment; for this reason (excepting one exception, art. 2277) the oath can be deferred to him who invokes them. These presumptions of payment of debts, which in usage are called 'crying debts,' are introduced in the interest of debtors and especially of their heirs; they are founded upon the ordinary need of creditors of such obligations, upon the habit of debtors of paying promptly these thousand little daily debts without witnesses and without receipts."

III. Swiss Law.

¹⁰² Cod. civ. Gall. n. 2229.

¹⁰³ Art. 2265.

¹⁰⁴ Art. 2262.

¹⁰⁵ Art. 2279.

¹⁰⁶ Art. 2279, 2280.

¹⁰⁷ Art. 2262, 617, 706.

¹⁰⁸ Art. 2277.

¹⁰⁹ Code Napoléon expliqué II, a. 2270.

659. • It is divided into acquisitive, which is also called usucapion, and by which some right is acquired; and liberative, which is simply called prescription, and by which someone is freed from some obligation. Acquisitive prescription among us is properly called "limitation," and is referred to corporeal goods; but liberative is called "prescription," and pertains only to incorporeal things, such as servitudes. Today, however, those words are used promiscuously; more commonly, nevertheless, "limitation," and indeed for signifying each prescription.⁵

661. • The following cannot be prescribed:

a) Things which have been placed outside commerce, because they cannot even be possessed by private persons. Of this kind generally are judged those things which serve only public utility, for example streets; sacred things and sacred places, while they are sacred.

b) Things which law, whether ecclesiastical or civil, has declared imprescriptible. Thus from the disposition of ecclesiastical law the limits¹ of Parishes, just as also of dioceses,² and the burdens and conditions of pious foundations, cannot be prescribed.³

c) Things found or stolen, which are never prescribed by at least the finder, or thief, or possessor in bad faith.

d) Certain servitudes (n. 683. 2) and 684. 5°).

662. • Possession is detention of a thing or enjoyment of a right, in one's own name, by oneself, or through another who detains that thing or exercises that right in our name. Enjoyment of right is customarily called improper possession, or quasi-possession; for properly possession is accustomed to be said only of corporeal things, not of incorporeal things, of which kind is, for example, the right of electing. Possession here defined is called civil, and is distinguished from bare detention of a thing or enjoyment, which is done in another's name, as possession of a field through a tenant, and is called natural.

663. • Possession, so that it can induce prescription, must be:

1° Dominative, or the thing must be held, or the right exercised, in one's own name, as is said in the definition, or with the mind of an owner. Hence he who detains a thing or exercises a right in the name of another, for example as tenant, depositary, usufructuary, cannot prescribe. This is also valid concerning their successor by universal title, but not concerning a successor by particular title, as for example concerning one who holds a thing by purchase from a depositary. - Hence also acts of simple tolerance cannot be the foundation of prescription; for acts of this kind are done from the tacit or presumed consent of the owner; therefore in the name of another. Thus by title of friendship or neighborhood many things are tolerated or permitted, without some right being acquired from them. - Nor can acts of mere faculty, or of simple non-use, induce prescription. Thus from the fact that for twenty years I have not built on my land, the neighbor cannot impede me from building today. - Therefore that natural possession which was defined at n. 662 cannot induce prescription.

2° Tranquil or peaceful, i.e. not interrupted, namely by that Interruption concerning which below at n. 667 under 2°.

3° Certain, not equivocal or doubtful, so that he who possesses is morally certain that he has a right of detaining the thing or exercising the right in his own name, lest namely the condition of good faith be lacking, which is required for prescription.

4° Continued or not suspended before the required time (n. 667. 3°). - Yet he who succeeds into a thing, whether by universal title, namely from inheritance, or by particular title, for example because he bought the thing, rightly joins the time during which he himself possessed with the time during which his predecessor possessed: understand according to what is to be said at n. 670.

5° Finally, for the external forum, public, so that he against whom prescription runs can know it and reclaim, if he wishes to attend accurately. For if it were not so public, in the external forum bad faith or an intention of hiding would be presumed.

664. • Title here means a cause sufficient from law for transferring dominion, for example purchase, donation, etc. But title is distinguished fivefold: true, or one which labors under no vice; colorable, or apparent, or one which labors under hidden nullity, such as would be present if, for example, I had bought from Titius a thing which I thought belonged to Titius, although nevertheless it belonged to Sempronius; estimated, which is prudently believed to have been present, although in fact it was not present, as if a son possesses from inheritance a thing which is thought to have been bought by the father, although it was not bought; presumed, when a certain title cannot be alleged, but because of length of time is presumed to have been present; vicious, which lacks some condition established by law.

Now for legitimate prescription a true title cannot be required; for then prescription would not be necessary, since no one can prescribe his own thing. - But a vicious title cannot be alleged, because the dispositions of the law with which it is not consonant are never reputed unknown. Hence the axiom: it is better not to have a title than to have a vicious title. - But a colorable or estimated title is required and suffices, since then good faith is sufficiently preserved. Indeed for the prescription of twenty years, which in most of our States must be called prescription "of the longest time," a presumed title suffices, or no title must be shown, since from the fact itself of tranquil possession through such an interval of time it is supposed to be present. A presumed title will also have force in conscience, if good faith has been present.

Therefore if somewhere a law, as to movables, holds possession in place of title, that will have force only for the external forum; but probably for the internal forum also, if with good faith there is also a title, at least an estimated one.

665. Note. - 1° What we are about to say concerning the time required for prescription in individual States cannot be applied for the internal forum to the goods of churches and pious places. - Besides a colorable title,¹ one hundred years are required for prescribing immovables of the Roman Church or of St. John Lateran; but forty if it is a question of other churches or pious places; but with sufficient probability only three if there is discussion of movables, and thirty without title.² But since the faithful in this matter scarcely distinguish between profane and ecclesiastical goods, you will leave them in good faith, if no hope of fruit is expected from admonition. Moreover, in these matters, the seal being saved, let nothing be done without consulting the Bishop, whose it is to bear judgment in sacred causes.²

2° The dispositions of our laws concerning the time required for prescription do not have force in conscience unless good faith is present in the possessor, and generally are to be held merely as denials of action against the possessor.

666. Questions. - Quaer. 1° What do our laws dispose concerning the time required for prescribing?

Resp. 1° Immovables or real property without title are prescribed by the space of 40 years in Maine, 30 in Alabama and Louisiana, 21 in Kansas, Nebraska, Ohio, Pennsylvania; 15 in Connecticut, Vermont, Virginia; 10 in Indiana, Michigan, Mississippi, Nevada; 7 in Florida, Georgia, North Carolina, South Carolina, Tennessee; 5 in California; 20 in the other States and Territories. So according to Wells.³

Resp. 2° As to movables, interest, debts, etc., we remit the reader to the laws of each State, or to Wells.⁴

667. • Quaer. 2° How is prescription weakened?

Resp. By renunciation, interruption, suspension.

1° By renunciation. For generally each one can renounce his own right. But prescription ceases through renunciation not only express, but also tacit, namely that which is deduced from some fact, as if someone, notwithstanding the prescription which frees him from payment, nevertheless knowingly pays. We have said: generally; for, so that renunciation may have force, it is required: 1) that the one renouncing be capable of alienating, because through renunciation he alienates the right of recurring to prescription. Thus individual religious cannot renounce the privileges of their Order; 2) that alienation not injure the right of creditors and of others having an interest.

2° By interruption, namely when because of an interposed impediment it ceases in such a way that it must be begun again. But this can happen in a double way: 1) naturally, which happens in two ways, namely: a) if someone is cast down from possession and has been deprived of enjoyment of the thing through that time which the laws of the individual State or sometimes the judgment of a judge establish; b) if bad faith supervenes; 2) civilly, if a lawsuit is juridically moved, and the interpellation has not been rejected by the judge. Likewise if the debtor or possessor of the thing recognizes the right of him against whom prescription is made.

3° By suspension, or dormition, when namely an impediment is present which, unless it is removed, prevents prescription from proceeding further. But an impediment can generally be called whatever stands in the way of someone's being able to watch over his own affairs and protect his own rights, according to that: "prescription does not run against one not able to act." Moreover an impediment can exist either on the part of persons, or on the part of some external cause.

On the part of persons. - Thus our laws generally dispose: "Minors, married women, persons out of the United States (and generally out of the State), insane or imprisoned, may bring action within the times of limitations after such disability is removed." In Canon Law, a church is equated with minors when it lacks a rector or superior.

On the part of an external cause. - If the administration of justice, with tribunals closed, is altogether suspended, so that a private person cannot protect his own right, as for example could happen in time of war.

668. • Quaer. 3° Are prescriptions of brief time valid, by which someone is freed from paying a debt?

Resp. 1° In the negative, if it is a question of the first debtor and he, as must be supposed, knows that payment has not been made, since good faith altogether requires ignorance of the debt.

Resp. 2° In the affirmative, as to successors of the first debtor, at least by particular title (see n. 670. q. 2°), if they were ignorant of the debt of the author.

669. • Good faith here is understood as that affection or persuasion of the mind by which someone prudently, or without ignorance gravely culpable theologically (n. 744), judges that the thing which he possesses is his, although in reality it is not.

I. This good faith is altogether necessary for acquiring dominion from prescription. For he who adverts that he possesses another's goods, by that very fact immediately contracts the obligation of restitution; and by natural right, and also positive right whether divine or human, a thing belonging to another cannot knowingly be either stolen or retained. This is also clear from Lateran Council IV,¹ and also from Rule of Law 2 in the Sixth, which reads thus: "A possessor of bad faith will prescribe at no time."

Yet he who thinks the thing is his through ignorance slightly culpable, or a possessor of venially bad faith, can prescribe more probably, since in law² only mortally bad faith is condemned.³

Therefore dispositions of civil laws, insofar as they do not expressly demand good faith, have no force in the internal forum, and are to be held as a mere denial of action or recourse as to the creditor.

II. But good faith is required not only for acquisitive prescription, but also for liberative, because for each the same authorities and reasons urge equally. - Nevertheless according to many theologians and jurists good faith is not required so that you may be freed from some rustic passive servitude, for example of way; or rather one must say that then good faith consists in this, that you place no obstacle by which another is impeded from the use of his right. The reason is that for prescription of this kind no act of the one prescribing is required, but only non-use on the part of him to whom the right of servitude belongs, whom the one prescribing is not bound to admonish, during the running time of prescription, that he use against him the right of servitude, for example a way. Yet others deny; and certainly it must be denied concerning urban servitudes, for example concerning the passive servitude of dripping. For against these servitudes prescription is not made without some positive act of the one prescribing, which without good faith would be unjust.

670. Questions. - Quaer. 1° Does an heir prescribe who doubts concerning the good faith of his predecessors?

Resp. In the affirmative, supposing that he has used due diligence for resolving the doubt. The reason is that bad faith must not be presumed, at least ordinarily and of itself; for no one is presumed evil unless he is proved. - Hold the same in general concerning one who legitimately succeeds into some possession. - But he who is certain of the bad faith of his predecessor does not prescribe.

Quaer. 2° Does the bad faith of a predecessor, unknown, always impede a successor from prescription?

Resp. 1° In the affirmative, if the heir succeeds by universal title, i.e. such that comprehends the universality or an aliquot part of the goods, for example half of the whole, as has place in the institution of an heir properly so called. The reason is that by a fiction of law an heir by universal title is judged to be one moral person with the author, succeeding into all his obligations and burdens.

Resp. 2° In the negative, but only from the time at which he succeeded, if he succeeds by another title than the aforesaid, as obtains in legacies, in sale, and in other contracts. The reason is that then he is not judged to constitute one person with the predecessor.

Quaer. 3° Does the bad faith of a predecessor harm a mediate heir?

Resp. In the affirmative, more probably. The reason is that he is judged to make one person with the predecessor.¹

226. Principle I. Concerning acquisitive prescription. - Prescription, clothed with due conditions, is a legitimate mode of acquiring dominion, even direct dominion, in the civil forum and in the forum of conscience.

It is certain because 1) the legislator could and willed truly to transfer dominion:

a) He could, by reason of the common good.

Its motives are four: 1. lest for a long time and almost always the dominions of certain things be uncertain; 2. that there be some end of lawsuits; 3. lest possessions be held in nearly immortal fear; 4. that the carelessness and negligence of owners omitting to pursue their things be corrected, whereby they may be rendered more vigilant.

b) He willed to transfer dominion and not only to deny a civil action.

This is clear both from the indicated end of the law, which otherwise cannot sufficiently be obtained; and from the entirely general words and the obvious sense signifying this, which it uses without any restriction;¹ and from the interpretation of jurists.

¹ Thus already in ancient law; and in various modern codes, for example, French Code, a. 2219-2224.

2. The Church recognized this in Lateran Council IV, which for the value of prescription requires only good faith; and in her own law, which admits its legitimacy, in Decr. IX, t. 26, c. 3, and can. 1508.

Hence St. Thomas already concluded (Quodl. XII, q. 24) that one legitimately prescribing is not held to restitution, even if after prescription he knows that it had been another's.

Yet in order that prescription concede dominion, it must be accompanied by the due conditions, which are: an apt thing - possession - title - good faith - and the required time.

227. A thing apt to be prescribed, or prescriptible, whose dominion can be acquired, is every thing, whether corporeal or incorporeal, which by its nature is capable of private dominion, and is not otherwise excepted by some law; or every thing which comes under private dominion and commerce. Hence it is said: things which are not in commerce cannot be prescribed (C.C., a. 2226), whether they are so from their nature or from the disposition of law. Therefore from prescription are excluded:

1. from the nature of the thing, all things which are of natural right or positive divine right (can. 1509): thus there cannot be prescription against obedience owed to a superior, against the indissolubility of marriage or the obligation of receiving sacraments, against the independence of the Church from civil power;

2. from ecclesiastical law: a) by reason of the common good, these are not subject to prescription: certain and indubitable boundaries of ecclesiastical provinces, dioceses, parishes, apostolic vicariates or prefectures, abbeys or prelatures nullius - alms and burdens of Masses - an ecclesiastical benefice without title - the right of visitation and obedience, so that subjects would be under the visitation or obedience of no prelate - payment of the cathedraticum² - all things which can be obtained by apostolic privilege alone (for example, the right of patronage for a layman, the rights of a pontiff for one not a bishop) - and spiritual rights of which laymen are not capable, if there is question of prescription for the advantage of laymen (can. 1509);

² This does not exist in Belgium.

b) sacred things which are not in the dominion of private persons cannot be prescribed by a private person, but only by an ecclesiastical moral person against another ecclesiastical moral person. On the contrary, sacred things which are in the dominion of private persons can be acquired by prescription by private persons, who nevertheless cannot employ them for profane uses; but if they have lost consecration or blessing, they can freely be acquired even for profane uses, yet not sordid ones (can. 1510);

3. from civil law: a) things which are not capable of private dominion, but belong to public dominion and order, as public roads, rivers, squares, bridges, ports, citadels, and other things of this kind destined for public uses (a. 538 and 540); yet private goods of the State or of public institutions, because they are capable of private dominion, can be prescribed (a. 2227 and 541);

b) things which are of mere faculty or tolerance, as the right of building on one's own land, the tolerance of pasturing or passing through, and all non-continuous servitudes (a. 2232 and 691); likewise things possessed by force (a. 2233) or stealthily, but only as to those who occupied violently or stealthily (a. 2279);

c) things which belong to those who are impeded in the exercise of right or are specially protected: thus, for example, prescription does not run, during marriage, against dotal goods of the wife under the dotal regime (a. 2255 and 1561), nor generally against the goods of wards, minors, and interdicted persons (a. 2252), nor between spouses (a. 2253).

228. Prescriptive possession is the detention of some thing or the enjoyment of a right in one's own name, whether by ourselves, or by another in our name (a. 2228): for prescription is founded upon possession of another's thing, so that "without possession prescription does not proceed." It must be dominative - peaceful and continuous - indubitable and public (a. 2229):

1. Dominative, that is, held with the intention or title of an owner, not by a precarious or transitory title of deposit, lease, management, etc. (a. 2236), or of faculty or tolerance (a. 2232). Hence he who possesses a thing in another's name, as a tutor in the name of a ward, prescribes not for himself but for another, in the case the ward; on the contrary, he who detains a thing in his own name but through another, for instance through a servant or procurator, can acquire it for himself and not for another.

2. Peaceful and continuous, that is, held quietly, not violently, and undisturbed and uninterrupted. Hence prescription does not run:

a) in the case of violence, because this is not possession but invasion; and only when the violence ceases does useful possession begin (a. 2233);

b) in the case of suspension (tschorsing): for then prescription sleeps because of an impediment placed by law (for example, concerning the goods of minors or of a wife); but once the cause of suspension has ended and the impediment has ceased, it revives and is resumed so that the time preceding the suspension can be computed with the subsequent time for completing prescription (a. 2251);

c) in the case of interruption (stuiting'): for then, the required condition failing (for example, good faith ceasing or the owner reclaiming), prescription ceases definitively, so that the time elapsed before is held as nothing and cannot be computed, but the whole course of prescription must be begun anew (a. 2243 sq.).

From the disposition of our civil code, prescription is suspended according to the rule: "Prescription does not proceed against one unable to act": 1. against minors and interdicted persons, unless there is question of liberative prescription, or in the few cases excepted by law (a. 2252); 2. between spouses, that is, one does not prescribe against the other (a. 2253); 3. against a wife, while the marriage stands, as to alienation of land constituted as dowry under the dotal regime (a. 1561), and as to actions which the wife cannot exercise unless an election has been made concerning accepting or repudiating the community, or whenever the husband, who sells goods proper to the wife without her consent, is held to provide security for the sale, and in all other cases in which the wife's action would redound against the husband (a. 2255 and 2256); 4. against an heir for debts owed to him from an inheritance which he accepted with benefit of inventory (a. 2258); 5. when the thing possessed is not yet demandable, as in debts under condition or to a day (a. 2257).

On the contrary, it is interrupted naturally or civilly (a. 2242): 1. naturally, if the possessor has been deprived for more than a year of enjoyment of the thing by the former owner or by some third party, without having intended a possessory action (a. 2243); 2. civilly, if he is summoned into court concerning the thing which he possesses, even before an incompetent judge, unless however this action is denied, revoked, or null because of defect of form (a. 2244-2247); 3. if the possessor or debtor has acknowledged the right of another against whom he prescribes (a. 2248).

3. Indubitable and public, that is, not equivocal but shown by acts of true and exclusive ownership, so that anyone who wished could have noticed it; otherwise the principle is valid: prescription does not run against one unable to act. Thus, for example, for uncertain limits of a field, for undivided possession, for possession or enjoyment exercised secretly, for a discontinuous or non-apparent servitude (a. 691).

229. The title of prescription is a cause of itself capable of transferring dominion, or a reason sufficient of itself on account of which someone possesses a thing and at the same time thinks it to be his, for example, purchase or donation or inheritance. It is required for prescription, because no one can possess a thing in good faith unless he has, or at least thinks that he has, a title from which a right arises. Title is:

1. true, which on the part of the thing truly exists and validly transfers dominion, for example, a valid purchase or donation. This is not required, because of itself it transfers dominion and therefore prescription is useless;

2. vicious, which from its nature is not translative of dominion, but of itself inept, as showing the dominion of another remaining, for example, lease, commodatum, deposit. This harms prescription and renders it impossible, because with a vicious title good faith cannot exist, since from it it is clear that the possessor is not the owner; hence "it is better not to have a title than a vicious one";

3. apparent, which on account of a defect does not transfer dominion, but is judged to transfer it. This can be:

a) just (or colorate), if it has the species and legal form of a true title and from its nature is apt for transferring dominion, but does not obtain its force and does not transfer dominion, because it is null, yet because of an occult defect, and therefore not from a defect of form (a. 2267): thus a sale made by one who is not the owner of the thing, as having it by theft or by usufruct;

b) believed or putative, if it is believed to be present although in reality it is not present: thus one who possesses something by force of a revoked testament, or because he prudently thinks a thing was bought by his father or by a servant, which nevertheless in no way was done, since it had been taken away by theft;

c) presumed, if in reality it does not exist, but because of the fact of possession, especially long possession, it is supposed by law to exist.

Now in present-day law:

1. A just title is required and suffices for prescription of 10 or 20 years (a. 2265), a fortiori for the prescription of those movable things for which possession holds the place of title.

2. But for prescription of 30 years, no certain title is required, but a presumed or putative title suffices (a. 2262), because such long possession is equated by law to title.

3. The same seems true concerning those movable goods which can be transferred from hand to hand, because possession as to these holds the place of title (a. 2279).

230. Good faith of prescription is the right opinion of dominion acquired, or the practical judgment by which the possessor of another's thing prudently has persuaded himself that he possesses the thing justly as his own. One kind is moral in conscience and before God, whence by others it is called theological: it is a judgment objectively erroneous but pronounced from inculpable ignorance, by which someone sincerely thinks that he has the thing legitimately; another is juridical before the law, resting upon a real just title (a. 2265), which, although null because of an occult defect, does not labor under a defect of form, and because of which in the external forum good faith is presumed to be present (a. 2267-68). Now:

A. Moral good faith is required at the beginning and through the whole course of prescription, namely, for beginning and continuing it. This is clear:

1. From the declarations of the Church: of Alexander III and Innocent III, in Decr. l. II, t. 2, c. 5 and ult., and of Lateran Council IV: "We define that no prescription, whether canonical or civil, has force without good faith... Hence it is necessary that he who prescribes, in no part of the time have consciousness that the thing belongs to another." Hence the Code of Canon Law: "No prescription has force unless it rests on good faith, not only at the beginning of possession, but during the whole time of possession required for prescription" (can. 1512).

2. By reason: from natural law, fraud and bad faith can patronize no one; because that would be against good social order. It directly conflicts with justice that someone make his own a thing which he knows to be another's, since rather he is held to return it; nor can civil law licitly or validly favor iniquity or assist in bringing injustice.

Prescription is a means instituted for acquiring some right or for freeing oneself from some obligation, under conditions established by law. Hence it is clear that there is a twofold prescription by reason of matter: one acquisitive, by which some right is acquired; the other liberative, by which someone is freed from some burden or servitude. Although indiscriminately each is called prescription, nevertheless in law the first is called usucapio, and the second simply prescription. - Cf. Scavini, lib. 2, n. 386.

Note. Dominions of things that belong to someone are acquired in two ways, with the owner willing and with him unwilling. With the owner willing, as by donation, testament, sale, and other contracts, of which specially and at large in their place. With him unwilling, and this in three ways : 1° by the law of nations, as things captured in a just war become the captor's ; 2° by the sentence of a judge, as when a thief is condemned to fourfold restitution ; 3° by authority of the law, as by prescription, and about this the question is now concerned.

I say 1° : Prescription or usucaption (for they are taken here as the same), is « the acquisition of dominion by continued possession, for a definite time fixed by law. »

I say 2° : For legitimate prescription four conditions are required : first, true possession ; second, presumed title ; third, good faith ; fourth, legitimate time. So commonly. The aforesaid conditions are examined.

True possession.

So Rule of law 3a in 6° : « Without possession prescription does not proceed. » And it is clear, because this whole right arises from possession. And therefore one prescribes or can prescribe insofar as he possesses truly and properly, that is, in his own name, and indeed civilly at least ; for natural possession does not suffice, as appears in the tenant farmer who possesses naturally, and yet cannot prescribe. Natural and civil together is best. Civil alone, however, suffices, by which someone absent insists upon the thing with the mind and the faculty of its being his ; for it is called partly civil because it produces this civil effect. See what I said above on possession.

Presumed title.

Such as, v. g., purchase, donation, or any other mode by which dominion is transferred. I say, « presumed, » because if it were true it would transfer dominion without prescription. It suffices therefore that it be rationally and in good faith believed true, as if you buy, or accept as gift, from him who is reputed the owner of the thing, and is not.

Moreover, although for beginning every prescription a title is required, otherwise good faith would fail ; and likewise although for perfecting prescription which is called of short and long term, namely of ten or twenty years, allegation and proof of title are required : nevertheless doctors agree commonly that for perfecting that which is called of longest term, that is, of thirty or forty years, regularly no proof of title is required, since in so long a space of time it could have perished in various ways.

Good faith.

So Rule of law 2, in 6° : « A possessor in bad faith at no time prescribes²⁹². » Item e. Vigilanti, c. Quoniam, final chapter de Praescriptionibus, Decretal., book II, tit. 26, from the Lateran Council under Innocent III, where the civil laws are corrected which seem to admit prescription of thirty or forty years as legitimate without good faith. Although however the civil laws do not admit prescription of bad faith in the internal forum as conferring dominion, they admit it nevertheless in the external forum, inasmuch as they reject the action against a possessor of thirty or forty years, lest under pretext of bad faith legitimate possessors in good faith be harassed, and thus public tranquility be disturbed by continual lawsuits. ²⁹² Quodlib. XIII, a. 24, q.

So civil law, L. Si quis emptionis, c. de Praescript. l. 7, tit. 39, and Innocent III, in cap. Adversus consules, Decretal. book III, de Immunitate Ecclesiae.

You will ask 1° whether one who doubts whether the thing is his or another's is a possessor in good faith, and can prescribe.

I answer 1°. He who, before possession has begun, doubts whether the thing is his or another's, is not a possessor in good faith, nor can he prescribe. So commonly ; because there is no reason why he rather than another should possess the thing, and accordingly, vindicating it to himself, he does an injury to the other and exposes himself to the danger of usurping what belongs to another.

I answer 2°. He who, after possession begun in good faith, doubts whether the thing is his or another's, if, diligent inquiry having been made, he does not discover it to be another's, more probably remains a possessor in good faith, and can continue the prescription. So Sylvester, Navarrus, Covarruvias, Sylvius, Pontas, V. Prescription, cas. 8, and more commonly, against Soto and some more recent authors.

Proof. 1°. According to the Rule of law, « in case of doubt the condition of the possessor is better²⁹³ » Now all tribunals, both civil and ecclesiastical, understand this better condition such that they adjudge the whole to the possessor : and such is the sense of all men, that they believe they retain with a safe conscience what has been adjudged to them by reason of possession. Therefore. ²⁹³ Regula iuris 65 in 6° : « In pari delicto vel causa, potior est conditio possidentis. » From which was derived the rule cited : « In dubio, etc., » because the possessor is « in pari causa, » as regards the doubt, with the other to whom perhaps the property pertains, and possession supports him, because it is presumed to accord with the right as done.

— 2° Since men, on the one hand greedy for things, are not accustomed to leave their own with others, but guard them diligently, and on the other hand an upright man is not accustomed to acquire possession of a thing without a just title : hence, when a doubt concerning goods of fortune arises independently of possession, equal on both sides, possession itself carries a great presumption that the possessor is the owner of the thing he possesses.

Therefore, although the possessor, in our case, doubts speculatively whether the thing is his or another's, and whether he can retain it ; nevertheless from the twofold principle laid down he can reflectively form for himself a practically certain judgment thus : 1° According to the laws, possession begun in good faith is a sufficient reason, on a doubt supervening, for retaining the thing to himself. Now I possess by a possession begun with good faith. Therefore. 2° In equal doubt it is more probable, from possession itself, that the possessor is owner in goods of fortune of the thing he possesses. But it is licit to follow what is more probable. Therefore.

[You will ask 2° whether theological good faith suffices for prescribing.

I answer 1°. Theological good faith does not suffice in prescriptions of ten and twenty years. The reason is, because the whole force of prescription depends on the civil law. Now theological good faith does not suffice before the civil law in prescriptions of this kind. For, both in the ancient law and in the new law of different peoples²⁹⁴, it is required together, in such cases, that faith be not only theological, but also juridical. Therefore. ²⁹⁴ Cod. civ. Gall., art. 2265.

I answer 2°. Theological good faith suffices in prescriptions of thirty years. The reason is, because where theological good faith is found, whatever law and conscience require for the validity of the prescription is present. 1° What is required by the law is present ; for the law exacts neither juridical good faith nor title²⁹⁵ in prescriptions of thirty years. 2° What is exacted by conscience is present also ; for, in this case, conscience requires nothing beyond what is required by the civil law, namely good faith, which evidently must be theological. Therefore.] ²⁹⁵ Ibid., art. 2262.

Legitimate time.

Note that, respectively as to prescription, time is distinguished as manifold in law : short, long, longest, and immemorial. Short is of three years. Long is of ten or twenty years. Longest is of thirty or forty years. Immemorial, of which memory does not exist among the older men.

I say 1° : Movable things, whether of private persons or of churches (excepting the Roman Church), with title are prescribed by a space of three years, whether between the absent, or between the present.

As to the things of private persons, we have Inst. de usucap., § 1 and c. de usucap. transformanda, L. unica.

As to ecclesiastical things, we have Authent. Quas actiones, c. de Sacrosanctis ecclesiis, where also causa 16, q. 3, cap. Nemo, the things of the Roman Church are excepted generally, for whose prescription a hundred years are required.

Things stolen are excepted also, which into whatever hands they come cannot be prescribed except by a space of thirty years. Instit. de usucap., § Furtivae.

I say 2° : Without title, movable things, whether of private persons or of the Church (excepting, as above, the Roman), are not prescribed except by thirty years.

As to the movables of private persons, it is gathered from L. Sicut, c. de Praescrip. thirty or forty years, book 7, tit. 39, where thirty years are decreed for the prescription of immovables without title, and since nothing else is sanctioned by law for movables without title, authors gather that the same must be held of both.

As to the movables of churches, the reason is, because, since churches (except perhaps the Roman, as before) have no privilege for movables, the same must be said of them as of the movables of private persons.

I say 3° : Immovables of private persons with title are prescribed by ten years between the present, by twenty years between the absent. So Instit. de usucap., § 1, and L. Cum longi, c. de

Prescription of long time. Without title, however, whether between the present or between the absent, thirty years are required, L. Sicut in rem and L. Si quis, c. de Praescript. of thirty or forty years.

Those are held present, by Roman law, who dwell in the same territory, v. g., the diocese of Liege, even if the things be situated elsewhere. Absent, on the contrary, those who dwell in different territories. In Gaul those are called present who are under the jurisdiction of one bailiwick or seneschalship. But, because he against whom prescription runs may be, respectively to the one prescribing, partly present, partly absent, authors commonly note that two years of absence are to be computed as one of presence ; so that one who has possessed for five years between the present, if the owner of the thing be absent thereafter, the prescriber ought to possess again for ten years before he perfects the prescription.

I say 4° : For prescribing immovables against the Roman Church, whether with title or without title, whether between the present or between the absent, a hundred years are required, L. cited Quas actiones ; against other churches, monasteries, hospitals, pious causes, forty years. In the same place ; against monasteries of the Order of Saint Benedict and of other Orders sharing privileges of this kind, sixty years, by privilege of Eugene IV.

These are the common rules, from which however several exceptions are made. I put forward the principal ones. Excepted is 1° the ward, against whom, as long as he is of wardly age, no prescription proceeds, whether of movables or of immovables, L. Sicut in rem, c. de Praescript. of thirty years. If he is a minor, however, thirty years are required, L. ultima, c. In quibus causis.

2° He who peacefully, without simoniacal entry, possesses a benefice for three years prescribes against the action of any challenger. Reg. 33a of the Chancery.

3° The action of injuries expires with the lapse of one year, L. Si non convicii, c. de Iniuris. Look for several other exceptions in our larger Work.

You will ask 1° whether, and for how long a time, one prescribes who received a thing in good faith from a possessor in bad faith.

I answer 1°. The immediate heir of a possessor in bad faith cannot prescribe at any time. So Sylvester and commonly. It is plain from § Diutina, Instit. de usucap., where it is said : « If he [the deceased] had not a just beginning, possession profits neither the heir nor the possessor in good faith, though ignorant. » The same L. ultima, c. Communia. The reason is, because the immediate heir is held, by fiction of law, to be one and the same person with the deceased, and their possession is one and the same continued possession ; and thus by that fiction the immediate heir is held to possess in bad faith, like the deceased himself.

I answer 2°. The mediate heir, likewise he who received from a possessor in bad faith immediately indeed, but under another title than inheritance, say by legacy, purchase, donation inter vivos, even if the movable thing is stolen, and the immovable possessed by violence, can prescribe.

The reason is, because laws do not admit two fictions from the same cause, and therefore that fiction of law concerning the bad faith of the immediate heir does not pass to the second heir, nor is he held the same person with the deceased. Which must be said a fortiori of the legatee, buyer, donee, etc., who in no way represent the person of the deceased, and to whom therefore the defect of the author does no harm, as the laws expressly decree, L. An vitium. ff De diversis temporalibus Praescript.

X. QUESTION III. What is prescription undoubted by the civil law? ANSWER. It is the acquisition of dominion and the extinction of another's right, with the continuation of possession in good faith for the time prescribed by law. This definition all admit. That prescription, or usucapion (for although some say that prescription transfers movable things and usucapion immovable things belonging to another to a second party, yet more commonly this distinction is rejected, and the one is used for the other), may adjudge dominion to you and extinguish another's right, it must bring with it a continued possession begun in good faith, with a title either real or presumed, and for the time predetermined by law.

IF Prescription is legitimate, acquired things may be retained; but not, however, if the necessary conditions are lacking, as St. Bonaventure teaches in the Apology for the Poor, chapter 1 of the fourth response.

THE FIRST is, that the thing be prescriptible. For there are certain things which by law cannot be prescribed, as Sylvester teaches, verb. Praescriptio, 2. Covarruvias, relect. in regul. possess. p. 2. Juan Medina quaest. 16. de rerum restit. Valencia quaest. 6. punct. 5.; for a man cannot be prescribed, l. sola C. de longi temporis praescript. Nor the right of tithes, or other sacred things by Laymen, c. Cansam, extra de Praescript. Nor a fugitive slave, §. sed aliquando, Instit. de Usucapion. Nor exemption from obedience to one's superior, c. Cum non liceat, extra de praescript. Nor things held in common and assigned to public use, that is, of the Republic, such as public roads, l. 1. Usucapionem, ff. de Usucapion. Nor the boundaries of Bishoprics, provinces, and parishes, 16. quaest. 3. cap. Licet, et cap. Inter. et cap. Super eo, extra de Paroch. Nor a Pension, or Canon, which ought to be paid to the republic for lands, 16. quaest. 4. §. Potest. Nor possessions of fields held by colonists, l. Male agitur, C. de Praescript. triginta, vel quadraginta annorum. Nor tributes owed to the Prince, l. Comperit, C. eodem titulo. Nor things which are forbidden to be alienated by Law, or Canon, or by the deceased, or by pact, as Sylvester holds, verb. Praescriptio, 2. num. 13. and Valencia quaest. 6. punct. 5. Nor things which someone possesses Precariously, and not as true Lord, l. Certe, §. Is qui rogavit, ff. de Precar. Nor things bought from a Prodigal, or a luxurious man, or a gambler. Nor things which the Lord, through probable ignorance, does not know are possessed by another, as Sylvester explains, num. 17. Nor the goods of an excommunicate, so long as he does not stand in the way of being freed from excommunication, as Sylvester notes, num. 19. and Valencia: See them on all these matters, also Covarruvias, loco citato.

THE SECOND condition is, that the thing be actually possessed by the one who is going to prescribe it, for without possession there is no prescription, as the rule of Law has it, nor is it acquired by usucaption, as is clear from l. sine possessione, ff. de Usucapion.

THE THIRD condition is, that the thing be possessed by a legitimate title, true, or probably presumed, such as a title of inheritance, purchase, donation, etc. cap. si diligenti, extra de praescript.

THE FOURTH condition is, that the thing be possessed in good faith, in conscience believing it to be one's own, cap. Possessor, de regulis iuris, et cap. Vigilanti, et cap. si diligenti, extra de Praescript. By which canons certain civil laws are considered revoked, which permitted prescription with bad faith, as the Doctors commonly hold in cap. Finali.

THE QUESTION, however, is: whether mere doubt that the thing belongs to another impedes this good faith.

SOME say that it is removed; others, however, not; see them in Valencia, who follows the negative opinion. The reason is, because, although one in doubt cannot begin to possess; yet, while he possesses, The condition of the possessor is the better one.

THE FIFTH condition is, that possession have lasted for as long a time as is necessary according to the prescription of the laws. For to prescribe movable things—which may rather be called Usucaption than Prescription—a possession of three years suffices between those present, and of four years between those absent, as is clear from l. Quas actiones, C. de Usucap. But to prescribe Ecclesiastical immovable things, a possession of the very longest time is required, namely of thirty years between those present, and forty between those absent, as is clear in l. Quas actiones, et 16. quaest. 3. Indeed, even to prescribe the goods of the Roman Church a possession of one hundred years is required, l. Quas actiones, C. de Usucap. et 16. quaest. 3. cap. ult.

LIKEWISE, to prescribe temporal immovable things: if indeed they were first acquired by theft, or by violence, there is necessary in the heirs of the thief a possession of good faith of thirty years; at least between those present, and forty between those absent, as Sylvester says, v. Praescript. with Valencia, Et l. et omnis, C. de Praescript. triginta annorum. But the other things acquired by a good title are prescribed by possession of long time, namely of ten years between those present, and twenty between those absent, l. Quas actiones, C. de Usucapion. Et l. mala fidei C. de Praescript. longi temporis.

THE SIXTH condition is, that good faith not be interrupted throughout that whole prescribed time, cap. Illud autem, et cap. Quoniam omne, de Praescript. Therefore, if any of these conditions is lacking, the prescription must be judged invalid, and restitution made. But if all these are present, the prescription will be legitimate; as the Doctors commonly teach, Ven. Bonaventure, especially St. Thomas, quodl. 12. art. 25. Scotus in 4. dist. 15. quaest. 3. Paludanus eadem dist. quaest. 2. Durandus in 4. dist. 41. quaest. 4. art. 1. ad 1. and others in Valencia. And it is clear from the laws above, and C. Nos Sanctorum, and C. Quoniam omne, de Praescript. You have nearly all this also in Ven. Bonaventure, in the Mirror of the Soul, chapter 1, and in the places cited 1. 2. disput. de Conscientia. And in 4. dist. 15. p. 2. artic. 2. quaest. 1.