Liberative Prescription

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

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

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

2. Theological good faith; concerning this, observe:

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

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

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

259. Notion. 1. From the disposition of civil law, which however is diverse with regard to various Nations,² a debtor can be freed from his obligations through a certain lapse of time. For this there is not required possession properly so called, which in a matter of this kind becomes impossible, but the non-exercise of the creditor's right suffices. Nor is title required, but rather the creditor's counter-title is possessed. Good faith likewise is not required by civil law except negatively, insofar as an oath can be deferred to the debtor concerning payment made or not. It is necessary, however, that the obligation be prescriptible, that is, capable of extinction; hence one cannot prescribe against an obligation of natural or divine right.

² For France, Civil Code, a. 2262, 2271-2280. - We declare the sense of art. 2279: "In the matter of movables, possession is equivalent to title," in the Supplement, p. 61*.

With regard to the time required, prescription is of the longest or long time, when it is completed by thirty or ten years; of short time, when five or six years are required; of shortest time, when three or fewer years suffice.

260. 2. Its force in conscience. (A) Prescription of the longest or long time has force also in the forum of conscience. For here the arguments set forth above (n. 253) recur. For the legislator could and wished to assign this force to that prescription on account of the public good. The principal motives which demand this are reduced to these three: (a) after a long time, it is deservedly presumed that the debt has been paid: for creditors are not accustomed to wait so long; (b) it would be a grave burden for debtors to preserve proofs of payment beyond ten years, and to hand over a great sum of money which they thought had already been paid; (c) it is expedient that the carelessness and negligence of creditors be punished, so that they may be rendered more vigilant.

261. (B) Prescription of the shortest time does not have force in conscience, because the laws declare this explicitly or implicitly; for they do not deny action to the creditor except insofar as it is presumed that payment has already been made; hence, if by oath¹ or in another way it is proved that this was not made, the debtor is compelled to pay the debts.

¹ "Nevertheless, those against whom these prescriptions are opposed can defer the oath to those who oppose them, on the question of knowing whether the thing has really been paid." (French Civil Code, a. 2275.)

262. (C) Concerning prescription of short time there is controversy. In our judgment, the matter depends on the mind of the legislator; for he could indeed assign this force to prescription of five or six years, on account of the motives mentioned above (n. 268); whether he wished this or not depends on the very tenor of the law.

Now in France the legislator has set forth his mind sufficiently clearly from the fact that he admitted no proof in favor of the creditor, while on the contrary he permitted the oath to be deferred to the debtor in the case of prescription of the shortest time; for from this it is very probably inferred that he wished prescription of short time to have force in conscience. Hence in practice he who in good faith used this privilege of the law is not to be compelled to restitution.

263. 3. On the good faith required in this prescription. (A) Generally theological good faith is required in order to free oneself in conscience; for if someone is conscious that the debt has not been paid, by that very fact he acknowledges that the thing which he possesses is another's, and that he must restore it morally as soon as possible: otherwise he becomes an unjust detainer of another's thing.

(B) Nevertheless there are certain exceptions, which are easily understood from the very nature of the matter: (a) when someone prescribes against a servitude, he is not bound to warn another concerning the right of servitude which will soon be extinguished; but, although he is conscious of another's right, he can wait until that right is extinguished.

(b) Likewise if something is owed from a penal sentence, on account of a merely juridical fault, the debtor strictly speaking can wait until the fine or compensation is demanded by the other.

But in these or similar cases, properly speaking, good faith is not lacking; but he who is conscious of a debt, or of another's right, bears himself passively.

And let these things suffice concerning the modes of acquiring dominion and the existence of right.

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

233. Principle II. Concerning liberative prescription. — Prescription, clothed with the conditions due to it, is a legitimate mode of freeing oneself from a debt or obligation in the civil forum and in conscience.

For the legislator could and willed truly to free from a debt:

a) He could, by reason of the common good, on account of the arguments adduced above, n. 226.

To these special motives can be added: 1) the presumption of payment (or remission) of debts from that which generally happens: for creditors are not accustomed to wait long without demanding a debt; 2) exemption from the grave burden of preserving for a longer time testimonies of payment or receipts; 3) as to payments to be made periodically, the avoidance of the accumulation of debts, lest afterwards, compelled to pay a great sum, they be reduced to want.

b) He willed, at least sometimes, as is clear from his intention or from various signs. To understand this it must be considered that the continuous time required for liberative prescription is determined very variously: either longer, or short, or very short; for example:

1. all actions, both real and personal, are prescribed by 30 years (a. 2262);

2. after five years have elapsed (elsewhere six or four), all things which must be paid yearly or at shorter periods are prescribed, for example, the interest or usury of borrowed money (a. 2277);

3. finally, in the civil code prescriptions of the very shortest time are set forth.

Thus, for example, after 6 months the action of teachers for lessons which are accustomed to be compensated by each month is prescribed; likewise the action of innkeepers for lodging and food is prescribed, and of workmen for their wages (a. 2271); after a year the action of physicians for visits is prescribed, of surgeons for amputations, of pharmacists for medicines, of merchants for wares sold at least to those who are not merchants (a. 2272).

Now liberative prescriptions generally have force in conscience; yet with the exception of the last, of the very shortest time, which from the intention of the law does not deny the civil action of the creditor, except insofar as it is presumed that payment has already been made. Hence those pleading prescription are held to swear that they have really paid the debt⁸ (a. 2275), and if by oath or in another way it is proved that payment has not been made, the debtor is compelled to pay. Therefore the right of the creditor is left intact. — On the contrary, in longer prescriptions no proof in favor of the creditor is admitted; and therefore the diverse intention of the law seems to be clear.

⁸ For widows and heirs it is established by law: if payment of a debt which the deceased is said to have contracted is demanded from them, the judge can impose on them an oath by which they assert that they are ignorant of such a debt (a. 2275); which oath they can offer whenever they do not have a morally certain reason for thinking that the debt exists. But if afterwards they discover that they have erred, they are more probably held to pay, because a clear contrary disposition of the law is not had; some, however, judge that they are not strictly held to pay, because the law probably requires nothing else for prescribing than that oath offered in good faith. Thus Van Egeren and Waffelaert.

Thus in French law and in others which were derived more immediately from it.⁹ But it is doubtful for German law, in which there are biennial prescriptions for debts of commerce, lease, and wages, which, "with good faith acceding," according to some, "perhaps can be applied in practice" (Prümmer, Th. M. II, n. 64).

⁹ Namely Belgian, Dutch, Spanish, Italian, Portuguese, and of Latin America. — Yet these are only the principal dispositions, because there are many particular dispositions. And also they are various in various law. Thus in Germany: 4 years for revenues, 2 for debts of commerce, lease, and wages. In Switzerland: all actions by 10 years, except hypothecary debts, which are never prescribed; 5 years for debts of lease, interest, and wages; lapses of the very shortest time (for example, 1 month, 3 m., 6 m., 1 yr., 3 yrs.), especially in banking matters to be received. In Austria, besides 30 years: 3 years for actions concerning debts of commerce, services, census. By English and American law 20 years are regularly required.

234. Certain special determinations of time are established in canon law, can. 1701 and following:

1° "In contentious matters, actions both real and personal are extinguished by prescription according to the norm of c. 1508-1512; but actions concerning the state of persons are never extinguished" (c. 1701).

2° "Every criminal action is extinguished by the death of the accused, by condonation of the legitimate power, and by the lapse of the useful time for proposing a criminal action" (c. 1702).

"With the prescription of can. 1555, § 1 remaining firm concerning delicts reserved to the Sacred Congregation of the Holy Office, the useful time for proposing a criminal action is three years, unless there is question: 1) of an action for injuries, which is extinguished by one year; 2) of an action on account of qualified delicts against the VI and VII divine precept, which is extinguished by five years; 3) of actions on account of simony or homicide, against which criminal action endures for ten years" (c. 1703).

3° "When the criminal action has been taken away by prescription: 1) the contentious action, perhaps arising from the delict, for repairing damages, is not by that very fact taken away; 2) the Ordinary can still use the remedies established by can. 2222, § 2" (c. 1704).

4° "Prescription in contentious matters runs from the time when the action could first be proposed by right; in criminal matters, from the day of the committed delict.

If the delict has, as they call it, a successive course, prescription does not run except from the day on which the course of the delict ceased.

In a habitual or continued delict, prescription does not run except after the last act; and the defendant, on account of some criminal act not prescribed, is held concerning the older acts which are connected with the same act, even if, taken singly, they would be excluded by prescription" (c. 1705).

5° For the interruption of liberative prescription, ordinarily the civil law of the respective nation has force (c. 1725, 4° and 1508).

235. The conditions required for liberative prescription are not altogether the same as in acquisitive prescription. Certainly the required continuous time and a prescriptible thing must be present, according to what was said in n. 227; but there is not required:

a) possession properly so called, since there is no question of acquiring dominion, but of liberation from a right which another possesses, and of the non-exercise of the creditor's right, whence already the possession of liberty is obtained, by which a person or thing is not held to serve for the utility of another;

b) nor juridical title, because it is rather possessed against the title of the creditor;

c) nor positive good faith, that is, persuasion resting upon a juridical title at least supposed, or the supposition of freedom from a debt, but negative good faith suffices, or the absence of fraud or of bad faith, namely:

1. in liberative prescription from a debt, against an action to be furnished by the debtor, the absence of bad faith, or inculpable ignorance, or inadvertence or forgetfulness of the debt to be furnished, so that one is not in culpable delay in fulfilling the obligation; or

2. in liberative prescription from being subject to another's claim, against an action of the creditor to be undergone, the absence of fraud, so that nothing is done by which another is impeded in exercising his right: for to such a prescription it suffices that the other does not use his right, or the mere negligence of another. Thus in liberation from a passive servitude, one is not held to warn another concerning the right of servitude which will shortly be extinguished; likewise, in fines to be paid by reason of a penal sentence, the debtor can wait until the fine is demanded.

The same could not generally be admitted for ordinary debts, unless somewhere it had been established by law or general custom that they are to be demanded before they ought to be paid; as, for example, in those things which are paid by banks upon the received presentation of the note. But this cannot generally be supposed; on the contrary, regularly: he who ought to pay is held to pay, even when not asked. Hence there is no parity with passive servitude: in this case nothing is to be done, but the one prescribing can conduct himself passively; but he who is conscious of a debt, if he does not pay but conducts himself merely passively, does not act when he ought to act.

Therefore the absence of bad faith is required and can be lacking where there is something to be done or omitted, for example, that one pay or not build higher. But where an act is not required, but it suffices that another not use his right, properly there is no question of good or bad faith. For the obligation to do something, or to omit something, is one thing; the obligation to tolerate or permit something is another. For prescribing in the first case inculpable ignorance, or absence of bad faith, is required; for prescribing in the second case the negligence of another suffices, provided it was not obtained by fraud or by some other unjust means.