The conditions of prescription

454. In order that a damaging action induce the obligation of restitution, this threefold condition is required: a. that the action be truly unjust; b. that it be an efficacious cause of the damage; c. that it be theologically culpable, or that the damaging action be truly, efficaciously, and formally unjust.

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.

Prescriptive rights may be extinguished by abandonment, express or implied; and after a period of twenty years’ nonuse, or sometimes even after a shorter period, abandonment will regularly be presumed. They are also extinguished by operation of law when the dominant and servient tenements come into the possession of the same owner in fee.

As we have seen, the right to-real property is by the Real Property Limitation Act, 1874, extinguished after twelve years’ adverse possession. The Limitation Acts which affect the ownership of real property differ from other Limitation Acts which concern personal property or a right of action in that the latter only bar the remedy after the lapse of the time fixed by law; they do not take away the right; the former, on the contrary, extinguish the right.

The conditions for prescription in the United States are in general the same as in England, except that as a rule a period of twenty years is necessary and sufficient to acquire both land and incorporeal hereditaments, and also to extinguish those rights. In some States squatters who have cultivated plots of land in good faith may become owners of them by prescription in a shorter space of time than twenty years.

The subject of prescription is a thorny one in English law, and it would be imprudent for a confessor not otherwise specially skilled to venture to determine questions of right by prescription. What has been said will, it is hoped, enable him to judge how far conscience may follow the law, and when a penitent should be recommended to consult a lawyer.

5. Silvester donated several gems to Silvestrinus. He now wishes to reclaim them, pretending that that donation had not been made by a legal act.

Q. 1. Whether for prescription a title is required, and of what sort? 2. Whether Silvestrinus can keep the gems by title of prescription?

R. To the first. Cf. I. M. 919, 920. - To the second. Affirmatively. For since certainly Silvestrinus possesses the aforesaid gems in good faith, he can altogether keep them. It would be otherwise if there were question of all the movables of some house; for then possession alone does not suffice, but the other conditions for prescribing are required. Besides, even by title of manual donation Silvestrinus can keep those gems; for the donation was altogether valid, and for it there is not required that it be made with legal solemnity, as is the most common custom of these donations. - C. I. 707; I. M. 922, 1011.

6. Eugenius knows that his father possesses another's field in good faith. But he himself is silent, and allows him to possess the aforesaid field for ten years. These being completed, the father dies.

Q. 1. Whether good faith is required for prescription? 2. Can Eugenius keep the field?

R. To the first. Cf. I. M. 911, 925. - To the second. Although Eugenius sinned against charity by not warning his father concerning the possession of another's thing, nevertheless now he does not sin against justice by keeping the field; for, the legitimate time having passed, the father truly prescribed in each forum. Wherefore the son receives from the father what was now truly the father's. I. M. 922.

580. • Prescription is some positive reason or right of acquiring dominion, or of freeing oneself from some obligation through a certain lapse of time, the conditions prefixed by law having been posited (C.C. 2219).

Hence a twofold prescription must be distinguished: one acquisitive, through which some thing or some right is acquired; the other liberative, which frees from some servitude or some burden.

585. • Questions. Q. 1. When is prescription said to be interrupted?

Resp. When, because of an impediment interposed, it ceases in such a way that it must be begun again. But this can happen in a twofold way: 1. naturally, if the one prescribing loses possession for a time greater than a whole year, or if bad faith supervenes; 2. civilly, if a lawsuit is moved juridically concerning the possession, and the interpellation has not been rejected by the judge. Thus Roman and French Law.

Q. 2. When is prescription said to be suspended?

Resp. When an impediment is opposed to it so that it does not proceed further; namely, 1. while courts cannot be exercised, for example in time of plague, of war; 2. against the Church, while it lacks a rector or superior; 3. against pupils during the whole time in which they remain pupils ⁹; 4. against anyone who cannot prosecute his right. Thus the laws more commonly.

⁹ Against the goods of pupils prescription can neither be begun nor continued, if it was begun against a predecessor; and this, from common law, is valid both concerning ordinary prescription and concerning extraordinary and longest prescription, namely that of thirty years. But the condition of minors differs, because against their goods a prescription of ordinary time can indeed neither be begun nor continued, yet a thirty-year prescription can be begun and run.

586. • Q. 3. Whether prescriptions of three years for stolen and found movable things are valid in conscience, as French Law bears?

Resp. 1. As regards stolen things. 1. A thief, or a possessor of bad faith, can never prescribe, even if by lapse of time he has forgotten that he accepted the thing unjustly, since he began possession in bad faith. 2. But a buyer or donee who accepted the thing in good faith from a thief can prescribe, if the other conditions required for prescription are present ¹⁰.

¹⁰ Two articles of the French Code gave occasion to this controversy, namely 2279 and 2280, which afterward, even after the French invasion ceased, certain codes of Italy retained, such as the Piedmontese, Parmesan, Modenese, and Sicilian.

Article 2279 has itself thus: As regards movable goods, possession produces the same effect as title. Nevertheless, he who has lost some thing, or from whom it has been taken by theft, can reclaim it within the space of three years, to be computed from the day of the loss or theft, from him with whom he finds the thing, while the action of this one against him from whom he received it is preserved.

But article 2280: If the actual possessor of a thing taken by theft or lost has bought it at fairs or in a market, or on the occasion of a public auction, or from a merchant who sells goods of that sort, the original proprietor (owner) cannot reclaim it for himself unless he pays the possessor the price for which he acquired it.

Therefore the question is whether those dispositions as regards stolen things are valid also in the forum of conscience, or whether they are to be held in the same place as liberative prescriptions, which look merely to this, that for diminishing the number of lawsuits an action is denied to the creditor in the external forum. And the Author, as is plain, adheres to the opinion which admits those dispositions also for the internal forum; which opinion has pleased also some other writers of our age, against the certain sentence of all the older writers, who receive this only as regards prescription of the longest time, that is, thirty years, by which all actions are extinguished.

Nevertheless it must be said that this opinion of the more recent writers on the one hand rests on reasons not sufficiently firm, and on the other hand is pressed by grave difficulties. And indeed they bring forward as reason, some that the mind of the legislator seems to be that that law should obtain in conscience; but others that the law must be held as just, because it is most useful for commerce, the public good, peace, and the tranquillity of possessions. This latter is that of the Most Reverend Bouvier.

But as to the first reason, it must be wholly denied that those dispositions can obtain in conscience from the mind of the legislator. And indeed, since the law 1. requires no good faith, 2. requires no title of possession besides possession itself, and 3. merely requires that the stolen thing not be found by the owner before three years; certainly the authors of the law, unless we imagine them most stupid, could easily have seen that it can happen that by force of the law a stolen thing must be adjudged through prescription to thieves and robbers themselves.

Nor does it seem to profit sufficiently that those writers with the Author add that they posit the condition, provided the other conditions required for prescribing are present, or that according to the Piedmontese code possession has the force of title only in favor of a third party. For here the question ought to be whether the force of transferring dominion can be attributed to the law considered in itself and as it lies. But the law, as it lies, does not demand the conditions which those writers add, but permits the thing to be prescribed even by a thief. Therefore. But the limitation placed in the Piedmontese code does not prevent a third party who is conscious that the thing is stolen from being able to prescribe. For this reason the Austrian Code (§ 367) wisely took care at least expressly that this third party be a possessor of good faith.

And indeed strength accedes to these things from comparison with the articles of the same code which establish liberative prescriptions, and also with article 2269, which decrees that for prescribing immovable goods it suffices that good faith was present at the time of acquired possession. For in the same way, by force of prescription, the thing is adjudged to the possessor. Yet even the writers themselves deny that liberative prescriptions are valid in conscience; and they must establish the very same thing about him for whom good faith, which was not lacking at the time of acquisition, is afterwards lacking before the time for prescribing has been completed.

The question therefore is brought to this: whether a law can seem just which as it were supposes that dominion can be transferred by a thief to a buyer at fairs, etc. And common law indeed always denied that dominion is transferred; and therefore it preserved for the owner a right and action against the thing itself, by which he could vindicate it for himself, whoever at last, whether thief or another, now detained it. For this reason it plainly provokes laughter that either the compilers of the French code, or I know not who else, set under this law certain allegations from Roman common law, where it treats of the usucapion of another's thing, which, for example, is sold in good faith by one not the owner, or by one interdicted from alienating. For one must be stupid, or entirely a foreigner in Roman law, who confuses another's thing with a stolen thing. Nay rather L. 10, ff. De usurp. et usucap., which they also alleged, proves the opposite, while it says that another's thing can be usucapted, but denies that a stolen thing can be usucapted.

Moreover, since Roman law is plainly conformable to the law of nature, to which it is plainly repugnant that the owner be compelled to buy his own thing; and since French law also supposes that dominion of the thing is preserved for the owner when before the completed three years it gives the owner the right of reclaiming the thing for himself, provided the possessor has not acquired it at fairs, etc.; it would certainly be necessary that what is generally established concerning the justice of prescriptions according to natural law, civil common law, and canon law should also be valid in the case, namely that there be present so grave a reason why his own thing should be taken away from the owner that it would make necessary this spoliation of the owner. And to this matter the Most Reverend D. Bouvier has drawn forth the utility of commerce and the tranquillity of possessions.

But that there is present that urgent reason of necessity is cast into great doubt by the fact that through so many ages no one perceived it; indeed, they saw that it was necessary that the law of nature be observed in that case. Nor will anyone be able to object the diverse circumstances of times; nay rather, the more corrupt society appears, and the more cunning and bold the art of doing harm, the more grave will press the necessity that the republic protect the rights of property by laws.

But as to the reasons drawn forth by Bouvier, has commerce up to this age, or in places where that law is not in force, been so impeded that the free and safe exchange even of stolen things is manifestly to be desired? Or are we accustomed to be deterred from buying things which stand for sale at fairs or among merchants, or to tremble concerning the tranquil possession of things thus bought?

But on the contrary, what is that microscopic convenience of commerce worth in comparison with the grave inconveniences flowing from the same law? And certainly a most grave inconvenience is that by the wrongdoing of others the owner falls not only from the possession of his things, but entirely from dominion and every right. Nor should you say that the buyer of a stolen thing is placed in an equal condition if the thing is evicted by the owner. For the owner evicts what by natural right is his; but the buyer, on the contrary retains what by natural right is not his, but another's, and compensates the damage inflicted on him by the fraud of the thief by the unjust spoliation of another innocent person.

Likewise, the law introduces a very grave inconvenience to society, since it brings in a most ample favor to thieves. For thus an easy way is supplied for enjoying the fruits of thefts, when, after partnership has been entered into with men of the same flour, it suffices for a most safe protection of stolen things that the stolen thing has come into another's hands at fairs.

Resp. 2. As regards found things. A second possessor, or the successor of the finder by title of purchase, donation, etc., can prescribe, as was said concerning the successor of a thief. - But whether the first possessor of a found thing can be said to be of good faith, due diligence having first been used for finding the owner, and thus can prescribe, is disputed. But it seems that it must be affirmed; because if, after the circumstances have been considered and due diligence has been used, the owner cannot be found, nor does any hope shine forth of finding him, he falls from the dominion of the thing in such a way that the thing is judged to belong to no one, and therefore becomes the property of the first occupant. Therefore the finder in that case can begin possession of the thing with the intention of retaining it as his own. - Elbel, n. 172. - Sporer, de inventione, n. 187.

But as regards article 2280, which establishes that a stolen thing cannot be recovered by the owner unless he redeems it for as much as someone bought it at fairs or from a merchant, etc., in reality this does not pertain to the argument of prescription. For it sanctions that this must be observed at any time even within the three years, so that it could happen even two days after the theft, for example, if the thief on the next day after the theft sells a stolen calf or horse at the fairs of another village.

587. • Q. 4. Whether other movable things can be prescribed in conscience by the sole title of possession ¹¹ according to French Law?

¹¹ Above (in the note to n. 583) we have already warned that the hypothesis of good faith necessary for prescribing in the internal forum is repugnant when any title is lacking on account of which someone believes that some thing is his, which he wishes to retain as his own. Therefore we said that that saying, that possession as to movables is valid for title, merely serves in the external forum for presuming in favor of legitimate possession in order to introduce prescription, as article 2230 of the same code also insinuates.

Consequently, the question here would be made more suitably: how much time is required for prescribing other movables (namely those which can be called neither found nor stolen things), if the other necessary conditions are not lacking? On which matter perhaps the Author less suitably gives examples of a rented or deposited thing (for even according to the French code, art. 2236, the tenant and depositary of another's thing can in no way prescribe it at any time), unless those examples are understood of a thing rented or deposited which by error has come in good faith into the hands of another by some title.

Moreover, as to what the writers mentioned by the Author suppose, namely that the new French law was wholly silent about movables which they think are by no means contained under the count of lost or stolen things: this indeed seems to depart from probability. Nevertheless, on this hypothesis, the opinion which the Author reports last would certainly seem the more reasonable, not insofar as it establishes that the title of possession suffices (which words can have no probable sense there), but insofar as it admits that three-year possession with good faith suffices for prescribing even in conscience. For the privilege which the same code does not deny even to stolen things would absurdly be denied to these movables. But, as has been said, this hypothesis does not seem probable. And if indeed it is lawful to opine in a matter which could seem obscure, I would have thought that movables of this sort also are contained in the French code under the name of lost things. For the division of things is not obscure, so that some are withdrawn from the possession of owners without the wrongdoing of another, but others from the wrongdoing of another. And just as in Law a stolen thing is taken in a very broad sense for any thing whatever which, without the will of the owner, someone knowing it to be another's, and therefore through wrongdoing, has handled or alienated (Instit., De Usucap., § 3; L. 2, C. De Usucap. pro donato; L. 1, C. De Usucap. pro empt.); so in a broad but true sense a lost thing can be called whatever thing, without the will of the owner and without anyone's wrongdoing, but by chance or unknowingly, passes into the possession of another, although not every thing lost in this sense can in an equally proper sense be called found as regards him who begins to possess it. And in reality it is easily plain also from common law that the word "losing" is used in this broader sense (see ff., lib. 8, tit. VI, Quemadmodum servitutes amittuntur, and lib. 41, tit. II, De adquirenda et amittenda possessione).

Resp. It is disputed. Some require thirty years, because no time is established by law, nor does the sole title of possession seem sufficient. This can be true, inasmuch as through 30 years all actions are extinguished, even when a special title is lacking. Others require only three years. For the new French Law is silent. But the old was abrogated. Yet this, as it seems, can be admitted. For if the law admits a three-year prescription for stolen and found things, it ought to admit it also for others. - Others more probably admit that the title of possession is sufficient of itself. Nor do there seem to be such great inconveniences in this opinion; because, besides stolen things and found things, which are prescribed in three years, cases of possession of another's thing are very rare, for example in a thing rented or deposited; and since possession must be strong by various conditions, which cannot be fulfilled in a single instant, this prescription will more often fall back into three-year prescription, which can be admitted in conscience.

589. • Good faith in this matter is a firm persuasion by which someone prudently judges that the thing possessed by him is his.

I. This good faith is altogether necessary for acquiring dominion from prescription. 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 and also by positive right, whether divine or human, can knowingly neither be snatched away nor retained. This is evident also from the Fourth Lateran Council, and also from the second rule of Law in the Sext, which has itself thus: A possessor of bad faith does not prescribe at any time. Whence the dispositions of civil law, insofar as they do not demand good faith, or demand it only at the beginning of possession, are not valid for the internal forum, and are to be held as merely a denial of recourse, that is, of action, against another.

II. But good faith is required not only for acquisitive prescription, but also for liberative prescription, because for both the same reasons and authorities press equally.

Nevertheless, according to many theologians and jurists, good faith is not required for freeing oneself from some passive servitude; or rather one must say that good faith consists in this, that no obstacle is placed by which another is impeded from the use of his right. The reason is that the one prescribing is bound by no debt toward him against whom he prescribes; nor is he held, while the time of prescription is running, to warn another to use the right of servitude against him. Yet others deny this. - See Bouvier ¹², etc.

¹² Bouvier (De Iure, etc., part I, cap. 2, art. 1, sect. 3, punct. 2) merely says that Pothier seems to have thought otherwise. But this man, if indeed he dissented from the common sentence (for the things which Bouvier indicates from him are ambiguous), otherwise uses an argument which would be a mere begging of the principle.

Moreover, it ought to have been observed that according to the common sentence of Theologians and Jurisconsults, what is said, that good faith is not required for extinguishing a servitude by prescription, is valid only as regards the servitudes of rural estates; for this prescription no act of the one prescribing is required, but only the non-use of him to whom the right of servitude belongs. But otherwise one must speak in urban servitudes; against these, since prescription is not made without some positive act of the one prescribing, it is required that this be placed with good faith, by which someone thinks himself free from the servitude; otherwise that positive act would be done unjustly and would not grant place to prescribing.

But Bouvier perhaps, no otherwise than the Author, omitted those things because the French code distinguishes nothing between urban and rural servitudes; and besides in this also it differs from Roman common law: that the former (art. 642 and 706) requires the longest space of thirty years both for acquiring the right of servitude and for extinguishing servitudes by the help of prescription; but the latter predefines the same time as for prescribing immovables, namely (L. 13, C. De Servit.), ten years among those present, twenty among those absent.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Five conditions are commonly enumerated, expressed by these verses:

Not by use shall you take, unless there be for you such five things:

Let there be a suitable thing, faith, title, possession, time.

59. 1. A suitable or prescriptible thing generally is that which can fall under the dominion of the one prescribing. Therefore all those things which by disposition of law cannot fall under the dominion (of a private man) are generally imprescriptible (at least by a private man). But not only civil law, but also ecclesiastical and natural law hold certain things as imprescriptible. Not rarely in this matter there is a conflict between ecclesiastical law and civil law. Thus, for example, ecclesiastical law does not admit lay prescription in certain sacred things, which nevertheless civil law permits. In a case of conflict, ecclesiastical law certainly prevails of itself; nevertheless in practice it almost always is better to make a composition according to what is fair and good with the authority of the legitimate ecclesiastical superior.

Things totally or partially exempt from prescription:

a) All rights and obligations of natural and divine law are totally exempted. Hence, for example, there is no prescription against the obligation of receiving the sacraments, of honoring parents, of not dissolving marriage, etc.

b) Sacred things, i.e. things consecrated to divine worship and not yet deconsecrated or profaned, are partially exempted. But I say, "not yet deconsecrated or profaned"; for in certain cases determined by canon law⁷⁸ consecrated things can be deconsecrated or profaned, and then they are again like other lay things. Sacred things pertaining to the Church cannot be acquired by prescription by private persons; but nothing prevents, α) that a sacred thing existing in the dominion of private persons (or even of a civil juridic person) be prescribed, for example, a layman having the privilege of a private oratory possesses several consecrated chalices; these chalices can be acquired by title of prescription, just as other movable lay things; β) that one church or ecclesiastical juridic person prescribe a sacred thing against another church or ecclesiastical person.⁷⁹ Thus, for example, the oratory of some church, already from immemorial time existing in the use of some confraternity, can be acquired by title of prescription by that confraternity. Nevertheless there are several ecclesiastical things which can never be prescribed even among diverse churches, for example the certain boundaries of a parish or diocese, ecclesiastical benefices, and especially burdens of Masses, not satisfied even by the longest custom.⁸⁰

c) Things deputed to public uses, as public roads, squares, bridges, etc., cannot be prescribed by private men; they can, however, be prescribed by one community against another. The reason of both is that those public things do not fall under the dominion of a private man, but of the community.

d) Things declared by civil or ecclesiastical law to be imprescriptible, for example goods of pupils, goods of those who are limited in the management of affairs,⁸¹ payment of the cathedraticum.

⁷⁸ Cf. Cod. iur. can. c. 1170.

⁷⁹ Ib. c. 1510.

⁸⁰ C. 4 X; 3, 29; cf. St. Raymond of Peñafort, Summa, lib. 2 de praescr. et usucapione. Cod. iur. can. c. 1509.

⁸¹ Cf. Cod. civ. Germ. §§ 206, 207, 937, 939.

60. 2. Good faith is a judgment by which someone prudently judges that the thing which he possesses is his own. This judgment indeed is objectively erroneous, but arises from invincible ignorance and therefore inculpable ignorance. Bad faith is present when the possessor knows that the thing possessed belongs to another. Doubtful faith, however, is present when the possessor has a positive and founded doubt concerning the legitimacy of his possession. Good faith is distinguished as twofold: one positive, which has just been defined; the other negative, which is the persuasion of the one prescribing that he is doing and has done nothing against the right of another.

Good faith is altogether necessary for every prescription (whether acquisitive or liberative) to be begun and continued. Thus it is manifestly drawn from Rule of Law 2: "A possessor of bad faith prescribes at no time," and from the Fourth Lateran Council: "Since everything which is not from faith is sin, by synodal judgment we define that no prescription without good faith, whether canonical or civil, is valid, since generally derogation must be made from every constitution and custom which cannot be observed without mortal sin. Whence it is necessary that he who prescribes, in no part of the time, have consciousness that the thing is another's."⁸² - From this text it is held that good faith must necessarily be present during the whole time of prescription. Whence he who in good faith began prescription, but afterward becomes of bad faith, now cannot prescribe. He who at first was in good faith, but afterward seriously doubts whether he legitimately possesses the thing, must solve the doubt. But if he has culpably neglected this, the prescription now is not legitimate. If, however, with sufficient diligence having been applied, he could not solve the doubt, or if the doubt was not so grave, then it is to be spurned and the adage is valid: "In doubt the condition of the possessor is better."

In acquisitive prescription good faith is customarily required also by modern civil laws; in liberative prescription, however, negative good faith or the absence of fraud seems to suffice; i.e., prescription is valid if the debtor did nothing illicit, lest the creditor be able to vindicate his right.

Resolutions. Peter's field is burdened with a passive servitude in favor of Paul, who nevertheless does not freely use this servitude for many years. After the legitimate time of prescription has passed, the servitude of the field is extinguished, because Peter certainly was not bound to warn Paul about using the servitude. Theologians teach this rather commonly. The matter is not equally clear in the following example. Someone buys merchandise from another at the price of 100 marks. The seller not only does not urge payment of the price, but neither sends that which is called an account, commonly: a "bill to be paid." The buyer in conscience is not bound to warn the seller to send that bill. Whence at least within 10 years and perhaps even after five years he seems to prescribe against him and now not to be bound to paying the sum of 100 marks, although he well knows and always has known that the debt has not yet been paid. But the reason is that in this case the debtor had negative good faith, i.e. he employed no fraud and did nothing illicit, so that the creditor might vindicate his right; but civil laws can rightly establish that after so great an interval and so great negligence of the creditor, every debt of paying is now extinguished.⁸³ Hence also no one disapproves the almost universal use of banking institutes (commonly Bank), which pay nothing to those presenting slips (commonly coupons) after five years have elapsed.

The good or bad faith of him who previously possessed the thing also in some way influences the prescription of him who afterward acquired the same thing.

a) If both predecessor and successor are in good faith, then the time of possession employed by both is computed together. For example, if Peter in good faith possessed for 20 years a thing which afterward his successor Paul possessed in good faith for 10 years, a prescription of 30 years coalesces. Thus the common opinion. But the reason is that the predecessor is judged to transfer to the successor, together with the thing, every right which he had concerning it.

b) If the predecessor was in bad faith, but the successor in good faith, then judgment must be made, even in the forum of conscience, according to the laws prevailing in the region. According to the old Roman law (which canon law also adopted), the bad faith of the predecessor impeded from prescription the immediate universal successor, but not a particular or mediate successor.⁸⁴ The reason is that the immediate and universal heir by fiction of law was judged one and the same person with the deceased, and the possession of both one and the same possession. - But according to modern civil laws the bad faith of the predecessor is now not customarily injurious to successors, provided nevertheless that they themselves are in good faith.

⁸² Denz. 439. The Code of Canon Law c. 1512 establishes the same.

⁸³ Thus also Lugo (De iust. et iur. disp. 7, n. 48 sqq.), Pichler (In ius can. l. 2, tit. 26, n. 32 sq.), Génicot (Theol. mor. I, n. 493), Vermeersch (De iust. n. 268 sqq.; cf. nevertheless below n. 64 sq., where there will be discussion of civil laws).

⁸⁴ Cf. St. Alphonsus (Theol. mor. l. 3, n. 512), Lugo (De iust. et iur. disp. 7, n. 57 sqq.), Billuart (De iust. diss. 4, art. 3, § 9).

61. 3. Title is the cause on account of which someone possesses a thing, or is the reason on account of which the possessor thinks the thing to be his own. Thus, for example, a son possesses goods on account of inheritance or paternal donation. Therefore inheritance or donation in this case are titles of possession.

Five titles are customarily distinguished: true title, colored title, estimated title, presumed title, vicious title. A true title is that which in reality immediately transfers dominion in each forum, for example purchase, donation. - A colored title is said to be that action which seemed legitimately to place the possessor of the thing into true proprietorship, but which, on account of the hidden defect of some essential condition, in reality did not transfer ownership; for example a purchase, made in good faith, of some thing taken by theft. - An estimated title (also called putative) is not explained in the same way by all. It seems better that it is present then, when someone sincerely thinks that he has a right or dominion, but in truth does not have it on account of another's fault; for example a son thinks that a thing received from his father from inheritance is his own, when the father in reality did not possess that thing legitimately. - A presumed title is some fact which is presumed to have been present and to have effected dominion, but which on account of length of time cannot be proved. - Finally, a vicious title is that which from its very nature cannot transfer ownership, but only grants use or usufruct. It is sometimes also called a precarious title, because only precariously, i.e. in a transitory mode, does it bestow useful dominion of some thing. Whence, for example, a renter, borrower, depositary, curator can never prescribe the thing committed to him. For their title of possession is only precarious and vicious.

Note again that authors do not explain these diverse titles in the same way; whence confusion must be avoided, and it is necessary to attend rather to the sense of the words than to the words themselves.

According to natural law this principle must be kept before one's eyes: for legitimate prescription a true title is not required (inasmuch as it by itself alone, without prescription, transfers dominion; therefore prescription in this case is superfluous); a vicious or precarious title does not suffice (because it excludes good faith, concerning which above, n. 60); but a title either colored or estimated or presumed does suffice.

Modern civil laws speak otherwise concerning title, as will be clear below.

62. 4. Possession is the actual detention of a thing or the exercise of a right. Whence Rule of Law 3 in VI establishes: "Without possession prescription does not proceed." Possession adorned with the due qualities is the principal reason and foundation of prescription, since in it the whole right arises from possession. But the required qualities are the following: the one prescribing must possess the thing:

a) by title of proprietor, and not of depositary, usufructuary, lessor, etc. For there is question of ownership to be acquired. Moreover all who cannot possess anything, for example solemnly professed religious, or who possess some thing in another's name, as tutors, lessors, etc., cannot have the legitimate intention of acquiring it for themselves by simple detention. But it is not required that a man detain the thing by himself; for he can also occupy it through a servant, procurator, etc., because moral and not physical detention is necessary.

b) continuously, publicly, peacefully, certainly.

Possession must be continuous; for sometimes it "does not proceed" or "does not run," because it either "sleeps" or "has been interrupted." The statutes of the individual civil codes must be attended to.⁸⁵

Possession must be public in this sense, that he against whom prescription proceeds can easily know it; wherefore, for example, if someone secretly usurps for himself the fruits of some thing for a long time, from this he does not yet prescribe against the proprietor. The reason is that clandestine possession is judged to have been done without good faith, which nevertheless is necessary for every legitimate prescription, as was said above.

Possession must be peaceful. Hence he who has occupied some thing by force, or against whom a lawsuit is moved in judgment, cannot prescribe.⁸⁶

Finally, possession must be certain and not equivocal or doubtful. This is clear, because also in that case the good faith of the one prescribing can scarcely be present. But moral certitude suffices.

⁸⁵ Cf. Cod. civ. Germ. § 939 sqq.; Cod. civ. Gall. a. 2228 sq.; Cod. obligationum Helv. a. 134.

⁸⁶ Cf. Cod. Iur. can. c. 1725.

63. 5. Time required for prescribing is determined in diverse ways by ecclesiastical and civil laws. Ancient authors were accustomed to distinguish in prescription:

a) a very brief time, which is below two or three years;

b) a brief time, which is below ten years;

c) a long time, which exceeds ten years;

d) a very long time, which exceeds thirty years;

e) an immemorial time, of whose beginning no memory exists, for example a time of 100 years.

For recognizing how much time is required in prescription, prescription between those present and prescription between those absent is still customarily distinguished. Those are judged present who either live in the same territory, or who exist under the same governor or judge. But those are called absent in whom these conditions are not verified.

Ecclesiastical law in some cases differs from modern civil laws in determining the time required for prescription. Although civil laws are not accustomed to care much about the ordinances of canon law, nevertheless without any doubt in conscience ecclesiastical laws must be observed, at least if there is question of prescription of ecclesiastical goods. Whence, for example, the goods of some parish or monastery cannot be acquired by title of prescription, unless the statutes of ecclesiastical law have been observed. But it must be said otherwise if there is question of lay goods which some church or ecclesiastical juridic person acquires by title of prescription. In this case civil laws rather than ecclesiastical laws must be observed. But the reason is, 1. because lay goods are more principally ruled by civil laws than by ecclesiastical laws; 2. because ecclesiastical persons also are bound to observe just civil laws concerning contracts, concerning purchase, concerning sale, etc.

These are the more principal statutes of ecclesiastical law:

1. Acquisitive and liberative prescription, just as it is in the civil legislation of the respective nation, the Church receives for ecclesiastical goods, except in some cases,⁸⁷ as has already been said above. Hence the Sacred Rota on June 21, 1924 admitted the five-year prescription established by Italian law also for ecclesiastical goods.^87a

2. Immovable things, precious movable things,⁸⁸ rights and actions, whether personal or real, which pertain to the Apostolic See, are prescribed by a space of 100 years; but those which pertain to another ecclesiastical moral person, by a space of 30 years.⁸⁹ The same holds concerning the prescription of actions in contentious matters⁹⁰ (commonly: Rechtsklagen).

3. Criminal actions are prescribed in 1 year, if there is question of injuries; in 5 years, if there is question of qualified delicts against the VI and VII precepts; in 10 years, if there is question of the delicts of homicide and simony.⁹¹

4. A benefice peacefully and without simony possessed by a cleric in good faith for 3 years is prescribed, even if he perhaps acquired it with an invalid title.⁹²

Note. In practice, when a doubt arises concerning the prescription of ecclesiastical goods, it is better and safer to compose the matter according to what is fair and good, apostolic authority having first been obtained.

⁸⁷ Cod. iur. can. c. 1508.

^87a Acta Ap. Sed. XVI 480.

⁸⁸ Precious ecclesiastical things are not only those which have a notable metallic value, namely 500 francs, but also those which have notable historical, artistic, or scientific value, for example a very artistic chalice, a rare manuscript, etc. (cf. Hollweck, Die kirchl. Strafgesetze § 158, note 6).

⁸⁹ Cod. iur. can. c. 1511. The privileges conceded to some, for example to Mendicants, whose goods cannot be acquired by prescription before 60 or even 100 years have elapsed, have not been revoked.

⁹⁰ Cod. Iur. can. c. 1701.

⁹¹ Ib. c. 1703.

⁹² Ib. c. 1446.

67. 1. The civil codes of Italy and Spain treat the matter concerning prescription very broadly, so that it is impossible to embrace the whole matter in a few words. Therefore authors who discuss this matter expressly must be approached.

2. All things which are in commerce are prescriptible.¹¹⁸ Nevertheless there are many persons against whom prescription cannot obtain.¹¹⁹

3. Good faith is not required a) for thirty-year prescription,¹²⁰ b) for all liberative prescriptions.¹²¹

4. Authors do not agree whether the statutes of the Italian and Spanish laws concerning that prescription which does not require good faith are valid in conscience. Aloysius Piscetta¹²² defends the affirmative opinion for Italian law; Saralegui¹²³ defends the negative opinion for Spanish law.

¹¹⁸ Cod. civ. Ital. a. 2113; Cod. civ. Hisp. a. 1936.

¹¹⁹ Cod. civ. Ital. a. 2119 sqq.

¹²⁰ Cod. civ. Ital. a. 2135.

¹²¹ Cod. civ. Hisp. a. 1961.

¹²² Theol. mor. III, n. 143 sqq.

¹²³ Com. al P. Larraga n. 742: "These dispositions of the Code must be understood in order to the external forum, ... but they do not avail in the internal forum, in which good faith is indispensable."

660. • All who are capable of acquiring dominion can prescribe, and the same are subject to prescription, yet as to prescriptible things; therefore not only physical persons, but also moral persons, such as the Church, a community, public institutes. Yet moral persons cannot oppose prescription to others in our civil forums, except insofar as they are civilly capable of dominion.

But no one can prescribe against himself, since justice is toward another; and so, if one beneficed has already for a long time celebrated four Masses from error, although nevertheless by the tenor of the foundation he is not bound except to two, he will not for that reason in the future be bound to four. - The conditions for prescribing legitimately are: a prescriptible thing, possession, title, the required time, good faith.

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.

I say. Prescription clothed with the due conditions is a legitimate means of acquiring dominion, even in conscience; for not only civil and canon law in very many places hold it as legitimate, but natural right also, although not immediately, seems to require it, both for establishing certainty of the dominion of certain things, and thus for putting an end to lawsuits, and for preventing the negligence of owners. Wherefore, according to St. Thomas, if someone has truly prescribed, he is not held to restitution if afterward the former owner appears. The Church receives prescription, as a mode of acquiring and of freeing oneself, according as it is in the civil legislation of the respective nation, for ecclesiastical goods, with the prescription of the canons which follow being saved (Can. 1508). - But the conditions for prescribing legitimately are five, namely, aptitude of the thing, good faith, title, fact of possession, and the time required. These conditions are altogether necessary, and indeed understood according to the laws of the place in which prescription takes place. The reason is that the immediate force for transferring dominion through prescription is taken from human law. Cf. St. Thomas, Quodlib. 12, q. 16, art. 24. - St. Alphonsus, nn. 504, 507, and 517.

The conditions for prescribing are usually expressed by these little verses:

You will not take by use, unless these five things be yours: Let there be an apt thing, faith, title, possession, time.

A few things must be said concerning each.

I say. Good faith is altogether required not only for acquisitive prescription, but also for liberative prescription. The reason is that formal injury cannot pass over into right; wherefore St. Thomas says: "those things which cannot be without sin are strengthened by no prescription." - This is confirmed from the 2nd rule of law in 6, which reads thus: "A possessor of bad faith prescribes at no time."

No prescription is valid unless it rests upon good faith, not only at the beginning of possession, but through the whole time of possession required for prescription (Can. 1512).

Nevertheless, if the discussion is about prescription for freeing you from some passive servitude of rural estates, good faith consists in this, that no obstacle be placed by which another is impeded from the use of his right. The reason is that the one prescribing is bound by no debt toward him against whom he prescribes; nor is he held, while the time of prescription is running, to warn the other to use the right of servitude against him. I said of rural estates, because in urban servitudes, since one cannot prescribe against them without some positive act of the one prescribing, it is required that this be placed with good faith.

Hence it follows that the dispositions of civil law, insofar as they do not require good faith, or require it only at the beginning of possession, have no force for the internal forum, and are to be held as a mere denial of recourse, that is, of action against another.

I say. Colored or putative title is required for prescription and suffices: at least one is indeed required, for if both are lacking, good faith also will be lacking, without which prescription is not had; but one of the two suffices both because thus good faith is preserved, and because otherwise true title would be required, which is absurd. Wherefore presumed title is either reduced to putative title, if the discussion is about prescription of the longest time, or it will be valid only for the external forum; for prescription in the forum of conscience without good faith, as has already been said, is repugnant; on the other hand, good faith is not possible when only presumed title is present, especially after a brief time from the beginning of possession. - Cf. Baller., note (b), p. 509; and (c), p. 511.

I say. Possession is altogether required for prescription, which is clear both from the 3rd rule of law in 6: "Without possession prescription does not proceed"; and from the very nature of the thing. But in order that it be apt for prescribing, it must enjoy various conditions; namely, it must be 1st. dominative, or the thing must be had with the mind of a proprietor, but not of a depositary, lessee, etc.; 2nd. tranquil, so that no joinder of issue concerning the thing has intervened; 3rd. certain, that is, not equivocal; 4th. continued or not interrupted, until the required time is completed. - Many also require that it be public, namely that the thing not be hidden from him against whom prescription is made; but this condition is necessary only for the external forum, because for the internal forum it is already contained in good faith.

It is certain 1st. that some time is required for prescription, as is clear both from the word usucapio itself and from all positive laws; 2nd. that in fact this time is longer or shorter according to the diversity of laws and the nature of the thing subject to prescription; for movables, generally speaking, are prescribed more quickly than immovables.

In this region, given the multiplicity of States which make their own laws for themselves, there is great variety in the duration of the time required for prescribing. Wherefore for immovable goods in the State of Maine 40 years are required; in Alabama and Louisiana, 30; in Kansas, Nebraska, Ohio, Pennsylvania, 21; in Connecticut, Vermont, and Virginia, 15; in Indiana, Michigan, Mississippi, and Nevada, 10; in Florida, Georgia, N. Carolina, S. Carolina, and Tennessee, 7; in California, 5; in the other States, 20. But for movable goods still less is required. Cf. Wells, Every Man, etc., p. 321. - Bouvier, Law Dictionary, under the word Limitation.

In the new Code a distinction is made:

§ 1. Immovable things, precious movables, rights and actions, whether personal or real, which belong to the Apostolic See, are subject to prescription by the space of one hundred years.

§ 2. Those things which belong to another ecclesiastical moral person, by the space of thirty years (Can. 1511).

XI. Hence it is that authors commonly assign four conditions necessary to prescription. First is possession, of which it has been spoken. Second is a title probably presumed. For if a true and certain one be present, there is no need of prescription. A title therefore is necessary, either presumed, which cannot be proved but must be presumed; or coloured, which can be proved. That is called coloured which is reckoned true, although in the thing itself it be false. Within the space of twenty or thirty years a coloured title must be proved, and unless it be proved, prescription is not admitted. After forty, or fifty, or a hundred years a title is not proved, but presumed. Third is the condition of the amount of time, concerning which authors go off into various parts. The more common opinion is this. For the usucapion of movable things three years among those present and four among those absent are required. The Roman Church alone is excepted, against which, whether in movable or in immovable things, no prescription is admitted, except after the very longest time of a hundred years. Against wards, so long as they are wards, no prescription prevails, whether of movable or of immovable things. The time necessary for prescription must be continuous. Here the continuation of time can fail in two ways: first, while it is interrupted by opposed acts; second, while the prescription sleeps. And it is said by the jurisconsults to sleep when on account of impediments it cannot run, as in time of war, of plague, and the like.

XII. The last and chief condition is that which they call good faith, by which a man is persuaded that the thing he possesses belongs to him, or at least is ignorant that the thing is another's. Authors distinguish a twofold ignorance: one of right, the other of fact. If you believed that Sempronius could sell you his own thing, you would labour under an ignorance of right. If you believed the thing to be his, which in truth it is not, there would then be an ignorance of fact. All confess that ignorance of fact does not impede prescription.