Prescription

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

² C. A., Section 1455-1459.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¹ C. A., Section 1472.

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

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

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

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

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

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

¹ Reg. iuris 3 in 6.

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

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

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

1. Concerning ecclesiastical prescription.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

¹ Can. 1512.

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.

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

II. Division. From the definition it is clear that prescription is twofold: acquisitive, by which someone acquires something; and liberative, by which someone is freed from an obligation. The former is also called usucapio.

III. Power of the civil State to establish prescription. The civil power, by force of eminent ownership, can for very grave reasons - in other words, when necessity or great common utility urges it - transfer rights and remove obligations (n. 764). But very grave reasons urge that, through a certain lapse of time, with certain conditions observed, in other words through prescription, rights be transferred and obligations removed. The reasons are: lest possessors be held in perpetual fear of losing their things; lest lawsuits always be able to be moved; lest debtors be compelled always to preserve receipts or testimonies of payment made; lest debts increase too much and thus create poverty for debtors (St. Alphonsus, III, 517). And this exercise of right is the more just because it does not diminish the rights of private persons. For before every event prescription favors one no more than another, since each has both fear of losing and hope of acquiring. It is, as it were, an aleatory contract which citizens can enter among themselves, and which the State imposes in the name of all. Moreover, even Canon Law generally, at least implicitly, approves prescriptions established by civil law, by the very fact that canon 1508 received "prescription, as a mode of acquiring and of liberating oneself, as it is in the civil legislation of the respective nation,... for ecclesiastical goods," with the prescription of the canons to be set forth afterward being saved.

Corollary I. Insofar as very grave reasons urge prescription upon the State, it is said to be introduced by the civil Authority, with natural law soliciting it.

Corollary II. Since prescription ultimately draws its force from positive law, it is clear that for the validity of prescription it is required that it be clothed with the conditions required by the aforesaid law.

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

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

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

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

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

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

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

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

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

III. A just title. It is said:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

² Cap. 41.

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

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

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

2. Theological good faith; concerning this, observe:

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

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

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

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

1. The following are not subject to prescription: 1° those things which are of divine law, whether natural or positive; 2° those things which can be obtained by apostolic privilege alone; 3° spiritual rights of which laymen are not capable, if it is a question of prescription for the advantage of laymen; 4° the certain and indubitable boundaries of ecclesiastical provinces, dioceses, parishes, apostolic vicariates, apostolic prefectures, abbeys or prelatures nullius; 5° alms and burdens of Masses; 6° an ecclesiastical benefice without title; 7° the right of visitation and obedience, so that subjects could be visited by no Prelate and would now be subject to no Prelate; 8° payment of the cathedraticum (can. 1509).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Is prescription a legitimate mode of acquiring ownership?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. Dominica, abbess of nuns, found in the archive of the monastery an ancient document by which it is established that a Mass was founded in the church of the monastery, and was to be applied for the founder. Yet since this foundation had been given over to oblivion already from a very long time, Dominica is doubtful whether she ought to procure that the aforesaid Mass be celebrated, and that the Masses omitted up to now also be celebrated, or at least that a sanation be obtained for them from the Holy See. For there seems to be place for legitimate prescription.

Q. 1. What is prescription, and what is its object? 2. Whether burdens of Masses are subject to prescription?

R. To the first. Cf. I. M. 908, 913, 914. - To the second. It is controverted; nevertheless the negative opinion seems truer. The reason is that, if there is question of Masses to be introduced or increased, for example, if when 50 Masses were to have been applied, a beneficiary has up to now applied 100, the Masses applied beyond the intention of the constitutors are just as if they had not been applied. But no one prescribes against himself. Hence the same beneficiary will not be held in the future to apply 100 Masses. But if there is question of Masses to be deleted or diminished, for example, if when there were 100 Masses to be applied, the beneficiary applied only 50, the reason of the common good, the foundation of prescription, lest ownership be uncertain and lawsuits be lessened and settled, does not press here, as is clear. For the obligation merely regards the private conscience of each one. But if there is question not of ordinary or even extraordinary prescription, even forty-year prescription, but of immemorial prescription, this is almost in place of a title. Wherefore the archive of the monastery must be better examined, that it may be seen whether another document is had, from which the reason is established why the Mass was not applied. Likewise one must see from what time the application of that Mass was omitted. These things having been investigated, it will then be easy to resolve the proposed case. - La-Croix, l. 4, n. 852; Bened. XIV, de Syn., l. 3, c. 25; St. Alph., H. A., tr. 15, n. 74; tr. 20, n. 84; Ferrar., v. Usucapio, n. 17, § 1, n. 30; D'Annib., p. 3, n. 76, n. 14; S. C. C., 18 Feb. 1702, 18 Aug. 1845, 20 Dec. 1879; A. S. S., v. 13, p. 220 seqq.; Decr. Auth. S. R. C. 333; I. M. 913, 914.

2. Ernestus was bound to pay yearly to Marcellus a canon of 10,000 lire from a perpetual census. For thirty and more years, in good faith, they did not pay the canon, neither he nor his son Ernestinus, the universal heir. Nor indeed did either Marcellus or his son Marcellinus, the universal heir, make protest. But one day Ernestinus, reading through ancient papers of the private family archive, came to knowledge of the omitted payment. But since thirty years had now elapsed, he asks whether prescription has now legitimately been made.

Q. 1. What is required that prescription proceed? 2. What as to the case?

R. To the first. Cf. I. M. 915. - To the second. Prescription could not have been made, although thirty and more years have passed, and the payment of the canon was omitted in good faith. Wherefore Ernestinus is held to payment of the canon. The reason is that prescription begins to run from that point at which it can freely be opposed. If Titus, for example, borrowed from Sempronius, with an agreement of restoring the loan within five years, prescription, if he does not restore, does not begin except after the five-year period has elapsed. Hence the conclusion emerges that a perpetual census can never be prescribed; because the capital by which the revenue was constituted can never be reclaimed, and the right to exact the canon is not had except when each year has been completed. Wherefore Ernestinus is held henceforth to pay the canon to Marcellinus. I. M. 915.

But is Ernestinus also held to pay the canon of past years not yet paid? It does not seem that he is held to pay the canon not yet paid beyond thirty years ago. For in the space of thirty years actions, namely rights of pursuing and recovering in judgment what is owed to us, are prescribed, whether they are real or personal; real, for example, if there is question of vindicating for oneself an estate possessed; personal, for example, if there is question of reclaiming money given as a loan. Nor indeed can defect of title or bad faith be opposed to him who alleges prescription. C. I. 2135. But good faith is altogether required in the forum of conscience; this, however, was not lacking in the case. Wherefore, although the existence of that original debt is now brought forward, nevertheless it has now been altogether extinguished by this thirty-year prescription.

Indeed, neither does it seem that Ernestinus is held to pay the canon not paid in preceding years before five years ago. For it is openly had in C. I. 2144 that those things are prescribed in the space of five years which are owed yearly for perpetual or life revenues. I. M. 922.

And here it must be noted that, to impede prescription of some debt, he who is held to pay any annual prestation whatever which will endure beyond thirty years must at his own expense, after twenty-eight years have elapsed, give to the creditor, if he asks, a new document by which he acknowledges his debt. C. I. 2136. Caius, for example, pays Titus a thousand lire yearly for a debt which he has toward him, and in individual years receives from him a note testifying that payment was made; if Titus could not from Caius exact after twenty-eight years a new document, Caius could destroy the aforesaid notes and assert that, since he has paid nothing through thirty years, prescription has been made. It is enough that the debtor by another note declare that he has paid up to now and has received a note from the creditor testifying that payment was made, or that he simply declare his debt. But if the mortgaged estate has passed to a third party, a new authentic document is necessary; otherwise there would be a personal action against the first debtor, but by no means a real action against the third party. Indeed, even inscription and its renewal do not interrupt prescription of the mortgage. C. I. 2127.

3. To Ambrosius there had been handed over for keeping a certain chest containing several precious gems and various objects made of gold and silver. Ambrosius having died, his son, the heir, in good faith reckons the aforesaid chest among the hereditary things and keeps it for two or three years. But behold, one day Augustinus claims the chest as his own.

Q. 1. Of what sort must the possession required for prescription be? 2. Can the son of Ambrosius oppose prescription?

R. To the first. Cf. I. M. 916, 917. - To the second. Negatively. The reason is that the heir in the case represents the deceased, who had it by title of deposit, not of ownership. Wherefore, just as Ambrosius could by no means prescribe by that non-dominative possession, so neither can his son, the heir, who uses the same possession. I. M. 917.

4. Quidonius, an artisan, had made a portable watch for Remboldus at the price of 100 lire. Payment by Remboldus was deferred for several years. Quidonius, fearing Remboldus, a powerful man, omitted the demand for payment. Six years having now elapsed, Remboldus dies. Then Quidonius immediately seeks the price of the watch from his universal heir, who opposes prescription to Quidonius.

Q. 1. How great is the time required for prescription? 2. What as to the case?

R. To the first. Cf. I. M. 921, 922. - To the second. The debt in the case cannot be prescribed except in the space of 30 years and with good faith. Remboldus lacked both conditions, and therefore he by no means prescribed. Nor indeed could his universal heir prescribe. For the bad faith of Quidonius still stands in the way; for an heir of this sort is considered by law to make one moral person with the testator. But since Quidonius immediately sought the payment of the debt, the heir could by no means complete prescription in the case independently of the testator. For for this there is required prescription of the longest time, or 30 years. G. 538, 540, 541; I. M. 922, 930.

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.

7. Eugenius, a minor son, in good faith possesses a house bought in bad faith by his tutor. After nine years Hippolytus attacks the possession by a certain false document. Wherefore he obtains nothing from the judge. But after three years Gustavius also, son of Hippolytus, attacks the possession, who found an authentic document of his own title. But Eugenius opposes prescription. Is this by right?

R. Eugenius rightly opposes prescription. For he himself is the one who possesses, not the tutor; nor can the bad faith of the tutor buying weaken the good faith of the one possessing. Good faith is required in the possessor, not in another. But his prescription was not interrupted by the suit of Hippolytus, because Hippolytus suffered repulse from the judge. But the authentic title was brought forward by Gustavius when prescription was now complete. G. 536, 538; I. M. 917, 922, 923, 925.

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.

581. • Principles. I. Human law can, by force of prescription, transfer the dominion of things from one to another, even without the consent of the owner. The reason is that this is not only useful, but plainly necessary for the common good of society, namely for preventing or settling lawsuits which otherwise would more often arise from the uncertain right of possession. On the other hand, it is not repugnant to natural equity, since the law has been established before every event, and by this very fact it presents to all and each an equal lot of gain or loss. - Thus generally the Canonists and Theologians. - Gousset. - Bouvier.

II. Prescription furnished with the due conditions transfers dominion in conscience. This is evident from the genuine sense of the words by which the law is enacted. For it is said that dominion is transferred, acquired, etc. On the other hand, human authority would in no way obtain the intended end, namely public security and the peace of consciences. It is evident besides from Canon Law, which recognizes the force of prescription even for the forum of conscience.

III. These five things are required for prescribing legitimately, namely: a prescriptible thing, possession, the required time, title, good faith. Hence the common little verses:

You will not take by use, unless these five things are yours:
If the thing is apt, faith good, and the title also just,
You possess justly when the time of the law has been completed.

We shall say a few things concerning each.

582. • Generally, all and only those things are prescribed which come under private dominion and commerce, and for whose acquisition there can be given a legitimate title (C.C. 2226). - For since the end of prescription is to transfer dominion by the authority of law, such a transfer cannot be made concerning a thing which by its nature, or by the disposition of the laws, cannot come into the dominion of private persons. - Hence sacred things, such as churches, cemeteries, ecclesiastical rights, and also those things which are of public dominion strictly taken, such as squares, roads, etc., cannot be prescribed ¹.

¹ Thus the laws, which add to things not apt to be prescribed also a free man (Inst., § 1, De Usucap.): Sometimes also, even if someone has possessed a thing in the highest good faith, nevertheless usucapion does not proceed for him at any time; as if someone should possess a free man, or a sacred or religious thing...

To these, from common law, must be added stolen things or things possessed by violence. Thus the Laws (Inst., § 2, De Usucap.): Stolen things also, and things possessed by violence, even if they have been possessed in good faith for the aforesaid long time, cannot be usucapted. For the law of the Twelve Tables and the Atinian law prohibit the usucapion of stolen things; the Julian and Plautian law prohibit that of things possessed by violence.

But that the Author is silent about this defect of stolen things or things possessed by violence must be attributed to the character of the French code, which (whether wisely or not, let others judge) decreed that the damage inflicted by thieves is to be borne by the legitimate owner of the thing rather than by its last possessor.

Nor is this to be understood only of thieves, but also of others to whom stolen things have come. Thus Inst., § 3, De Usucap.: But what has been said, that the usucapion of stolen things and things possessed by violence is prohibited by the laws, does not pertain to this, that the thief himself, or he who possesses by violence, cannot usucapt them (for usucapion does not belong to these for another reason, because, namely, they possess in bad faith), but so that no other, although he has bought from them in good faith or has received from another cause, may have the right of usucapting. Hence that saying, that the thing is defective, and that the defect passes with the thing (L. 11, C. De acquir. et retin. Poss.). Defects of possessions contracted by ancestors persist; and the fault of his author accompanies the successor.

Possession is said to be the detention of a thing in one's own name, or the exercise of some right ². This possession is required for prescribing ³. It is evident from Civil Law, both Roman and French. A proof drawn also from Canon Law accedes to this. For thus rule 3 in the Sext lies: Without possession prescription does not proceed.

² This is what is commonly accustomed to be called improper possession, or quasi-possession; for properly possession is customarily said only of corporeal things, not of incorporeal things, such as, for example, the right of electing, hunting, servitudes, etc.

³ A threefold possession is distinguished by the Doctors, namely natural, civil, and mixed. Natural possession is (as Schmalzgrueber has exactly, lib. 2, tit. 12, n. 4) when someone indeed possesses a thing by the support of body and mind (namely, he apprehends the thing and stands upon it, so that he takes and has it as his own); nevertheless someone else besides retains the civil possession of the thing.

Civil possession, as separated from natural, is when someone continues to possess by the support of the mind a thing once possessed naturally, though not by act of the body, either by himself or through another.

Mixed possession is when someone actually possesses a thing by the support of body and mind in such a way that no other retains the civil possession of the same thing. This is the most perfect possession.

Among interpreters of law, mention is also made of most civil possession, namely when by disposition of the laws dominion and possession are transferred without any act of the body (that is, without an act of apprehending), whether true or fictive. To this purpose belong C. Ecclesia 3, De Causa Possess. et Propriet., and C. Contingit 9, De dolo et contumacia.

Moreover, for beginning prescription there is necessary not only natural possession, since without actual apprehension of the thing, true or fictive, possession itself is not even begun, but civil possession is also required, inasmuch as one intends both with an opinion of dominion and with the will to possess the thing as his own. Nevertheless, the asserted necessity of natural possession does not exclude that most civil possession suffices; for since by disposition of the laws this is judged true possession, as to effects it ought to differ in nothing from true natural and civil possession. See Reiffenstuel, lib. 2, tit. 26, n. 190.

But possession must enjoy various conditions. For it must be 1. dominative, or the thing must be had with the mind of an owner, not of a depositary, etc.; 2. public, that is, not clandestine, so that the thing is not purposely hidden from him against whom it is prescribed ⁴; 3. tranquil, so that no joining of issue about the thing has intervened; 4. certain, that is, not equivocal; 5. continued, or not interrupted, until the required time is completed.

⁴ This second condition, which the illustrious Scavini also mentions (De Praescript., q. 4, n. 4), is taken from the French Code, art. 2229. But it is manifest that it pertains to the external forum; for as to the forum of conscience it does not bear on the matter. And indeed, whoever is going to prescribe as to the internal forum must be ignorant in good faith that the thing is not his, and must retain it as his own. To what purpose, then, the warning not to possess clandestinely? It will be valid for the thief, who hides for this reason, that he not be disturbed from tranquil possession until he can complete the time of prescription.

583. • Title is said to be a cause sufficient of itself for transferring dominion, for example, purchase, donation, etc. From Roman Law a fourfold title is customarily distinguished, namely true, colored, putative or estimated, and presumed.

A true title is not indeed required, as is plain; otherwise the possessor would not need prescription for acquiring the thing. Therefore a colored title suffices, that is, one which bears before itself the appearance of a true title, although in itself, on account of a hidden defect, it is not true ⁵. - For prescription of thirty years no title is required, but possession alone suffices even in conscience, provided good faith is present; or rather, then a presumed title is had in the very fact of tranquil possession through so great an interval of time.

⁵ Even a merely putative or estimated title suffices, namely when it is probably believed that a title intervened which nevertheless in fact was not present; for example, if an heir hands over a thing to someone as bequeathed to him by testament, which nevertheless in truth was not bequeathed. Concerning which matter L. 5, ff. Pro Legato says thus: The thing which has been handed over in the name of a legacy, although its owner lives, nevertheless is usucapted in the name of legacies (L. 6, ff. same title), if he to whom it was handed over thought the owner to be dead. Nevertheless it is required that the title be reasonably estimated to have been present.

But from French Law no title is required for prescribing movable things ⁶. Hence the saying: For movables, possession is equivalent to title (C.C. 2279). Whence he who detains the thing is judged its owner, unless the contrary is proved.

⁶ This will be able to hold for the external forum, in which indeed the thing is presumed to pertain to him who affirms it to be his; although otherwise possession of a thing determines nothing, since both true owners and also thieves and robbers possess things in their keeping, as frequent experience testifies.

But that possession so understood, namely without any title, can be valid in the forum of conscience is a plainly absurd hypothesis. For in the forum of conscience prescription without good faith is repugnant. But good faith is the judgment by which we believe that to be ours which we wish to possess as ours. But it is repugnant that we should think something to be ours if there is no cause why we should think it, namely if no title is present. Therefore without title it is impossible to begin possession of good faith; namely, even that very possession which they say holds the place of title is impossible, since without title I cannot even begin to have the thing as mine, or possess it for mine.

584. • I. As regards acquisitive prescription:

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

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

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

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

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

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

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

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

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

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

II. As regards liberative prescription:

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

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

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

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.

588. • Q. 5. Whether liberative prescriptions of five years under French law are valid in conscience?

Resp. 1. Negatively, if it is a matter of the first debtor, because in him good faith cannot be supposed, which wholly requires ignorance of the debt.

Resp. 2. Affirmatively, as regards the successors of the first debtor at least by particular title, according to what will be said below, n. 590, if they were ignorant of the debt of the author. - Gousset, n. 719.

Q. 6. Whether liberative prescriptions of French Law shorter than three years are valid in conscience?

Resp. Negatively, because in such prescriptions the legislator does not have the intention of transferring dominion. Thus article 2275 of the Civil Code clearly supposes; according to it, those who oppose prescription are held to swear that they have truly paid the debt.

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

243. State of the question. Prescription is a mode of acquiring dominion, or of freeing oneself from an obligation through a certain lapse of time, and under conditions determined by law or custom.

¹ Lugo, disp. VII; Lessius, lib. II, c. 6; Molina, Tr. II, disp. 60-80; Billuart, diss. IV, art. 3; St. Alphonsus, n. 504-517; Carriere, II, n. 395-500; Ball. P., n. 133-221; Marres, lib. I, n. 400-427; Lehmk., n. 917-927; Noldin, n. 389-397; Thiers, De la Propriete, l. I, ch. 13-14; Pothier, Traite de la Prescription; Troplong, De la Prescription; Planiol, I, n. 1391-1508.

From this it follows that prescription is twofold: acquisitive, by which dominion or right is acquired; liberative, by which someone frees himself from an obligation. The former is deservedly called usucapion.²

² Often prescription and usucapion are taken indiscriminately; but strictly, by force of the terms, prescription extends more broadly than usucapion, since the latter is limited to those things which are taken or acquired by use, while the former extends itself to those things which are obtained by use or non-use.

Now civil and canonical laws plainly acknowledge that prescription is a legitimate mode of acquiring. But the question is whether this mode is consonant with equity and has force in conscience. It would indeed be difficult to prove, if natural right alone is inspected, that dominion is transferred by long possession. But the right of nature permits this and approves it as very useful to the good of society; and supreme authority, by force of high dominion, completes natural right and confers obligatory force in conscience upon prescription, provided that it is clothed with certain conditions to be set forth below.³

³ Certain persons, however, hold that prescription arises from natural right alone, at least when it is immemorial; others from the Law of Nations; others from civil law alone. Cf. Carriere, n. 402-409.

We shall speak 1. of the legitimacy of acquisitive prescription; 2. of the conditions required for it; 3. of liberative prescription.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Which prescriptions are in force is explained in the text.

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

We shall treat 1. of the notion, division, and value of prescription; 2. of the conditions required for legitimate prescription; 3. of the statutes of certain modern laws.

I. Germanic Law.

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

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

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

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

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

II. French Law.

⁹³ Cod. civ. Germ. § 937.

⁹⁴ § 195.

⁹⁵ § 196.

⁹⁶ Theol. mor. III, n. 278.

⁹⁷ Moraltheol. II, n. 80.

⁹⁸ Inst. mor. I, n. 901.

⁹⁹ Das Bürgerl. Gesetzbuch 60 sq.

¹⁰⁰ De praeceptis n. 407.

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

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

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

III. Swiss Law.

¹⁰² Cod. civ. Gall. n. 2229.

¹⁰³ Art. 2265.

¹⁰⁴ Art. 2262.

¹⁰⁵ Art. 2279.

¹⁰⁶ Art. 2279, 2280.

¹⁰⁷ Art. 2262, 617, 706.

¹⁰⁸ Art. 2277.

¹⁰⁹ Code Napoléon expliqué II, a. 2270.

66. 1. Swiss law concerning this matter is found partly in the civil code, partly in the code of commercial obligations.

2. For legitimate usucapio Swiss law establishes these things:

a) Immovable goods are acquired by usucapio after 30 continuous years have elapsed and in peaceful possession of the thing;¹¹⁰ but after ten years, if the immovable good has been entered in the land register (Grundbuch) and has been possessed peacefully, continuously, and in good faith.¹¹¹

b) Movable goods are acquired by usucapio after 5 continuous years have elapsed and in peaceful possession of the thing, if nevertheless good faith was present.¹¹²

3. For legitimate liberative prescription these things are established:

a) Debts for which a hypothec has been given are never prescribed.¹¹³

b) Generally prescription has place after 10 years.¹¹⁴

c) After 5 years, however, very many debts are prescribed, for example the price of lease, interest, salaries of physicians, workmen, servants, etc.¹¹⁵

d) After one year or six months actions for obtaining indemnification are prescribed.¹¹⁶

Besides these prescriptions there are still others, for example of one month, of three months, of three years, etc., which principally have place in banking houses (commonly Bank).¹¹⁷

In the forum of conscience usucapiones and prescriptions seem to be valid after the elapsed time of at least 5 years, always with the good faith (positive or at least negative) of the one prescribing or acquiring by usucapio presupposed. This opinion is confirmed from the sentence of the Sacred Rota alleged above in n. 63. But shorter prescriptions do not seem to be valid in conscience.

IV. Italian And Spanish Law.

¹¹⁰ Cod. civ. Helv. a. 662.

¹¹¹ Art. 661.

¹¹² Art. 728.

¹¹³ Art. 807.

¹¹⁴ Obligationsrecht a. 127.

¹¹⁵ Ib. a. 128, 585.

¹¹⁶ Ib. a. 210, 454, 693, and Cod. civ. a. 95.

¹¹⁷ Obligationsrecht a. 803-807.

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."

68. V. English Law And The Law Of North America.

1. American law in the diverse Federated States is not uniform; nevertheless generally it is sufficiently conformable with English law.

2. Prescription must very precisely be distinguished from the so-called "limitation of action" (limitation of actions), which is nothing other than a statute of law not admitting judicial actions after a determinate time has elapsed. There is not much need to care about this limitation of action in the confessional, since it is not valid to transfer dominion of a thing in conscience.¹²⁴

3. Prescription never has place in movable things and in lands:¹²⁵ "A title by prescription can be made only to incorporal hereditaments and to certain exemptions and privileges. The rights claimable by prescription for the most part consist of rights in alieno solo. The most important are advowsons, tithes, commons, ways, watercourses, lights, offices, dignities, franchises, pensions, annuities, and rents. Land or movables cannot be claimed by prescription."¹²⁶ In this statute English and American law differ from all other European laws (insofar as it is permitted to know).

4. For prescription it is required that the rights causing prescription be exercised a) as true rights, and not as usurpations or simple licenses ("as of right"); b) peacefully and continuously; c) publicly, i.e. with the knowledge of the proprietor. Whence prescription is not present if the right was exercised by force, secretly, or in a precarious mode.

5. The time required for liberative prescription regularly is 20 years, but for acquisitive prescription ("rights of common and all other profits or benefits to be taken and enjoyed from or upon any land") regularly is 30 years; there are nevertheless exceptions, in which either 20 years suffice or 40 years are required.

¹²⁴ Cf. the individual statutes in Tanquerey, Suppl. p. 15.

¹²⁵ Cf. Slater, Princ. theol. mor. de iust. a. 3.

¹²⁶ Encyclop. Britann. s.v. "Prescription."

69. Scholion. Certain Practical Rules For The Confessor.

1. Let any confessor take care to know at least the principal statutes of his own country concerning prescription, yet very precisely distinguishing statutes that transfer dominion from statutes that exclude judicial action. The former statutes oblige also in the forum of conscience, but the latter are not valid to transfer dominion in conscience.

2. In prescription transferring dominion there is always required good faith, i.e. a prudent judgment of ownership rightly obtained. In acquisitive prescription positive good faith is required, but in liberative prescription sometimes negative good faith suffices, i.e. the omission of any culpable action which could impede the legitimate owner from vindicating his ownership.¹²⁷

¹²⁷ Cf. Crolly, De iure et iust. I, n. 610.

890. Definition. Prescription is a mode of acquiring ownership or a right, or of freeing oneself from some obligation, within a certain space of time, under conditions defined by law.¹⁰

Division. Prescription is: 1. By reason of effect, either acquisitive (usucapion); through this a right is acquired; or liberative: this exempts from some obligation or from a servitude.

2. By reason of time, it is ordinary or extraordinary: a) Ordinary is that which is completed within the space of years below thirty. It is subdivided into prescription of long time, if it is prolonged for ten years (or above), of short time, if below ten years, or of shortest time, if below three years (in Germany, two years). - b) Extraordinary, or of very long time, is prescription if it reaches or exceeds thirty years.

891. Principle. Prescription is a legitimate mode of acquiring or of freeing oneself, having force in both the external and internal forum. This is the common opinion among jurists and theologians; and the reason for this is "because human law can well transfer ownership from one to another on account of the common good, for avoiding quarrels, and lest ownerships of things remain uncertain" (III, 504-517; H. Ap., X, n. 15). Wherefore the Angelic Doctor says: "If someone prescribes by possessing in good faith, he is not held to restitution, even if he knows after the prescription that the thing had belonged to another" (Quodl. 12, a. 24). Cf. Vermeersch, o.c., n. 270.

Note. 1. Since prescription rests on positive Law, it follows that it does not have force unless the conditions required by Law are accurately observed.

2. No one can prescribe against himself, because justice is toward another. Thus, for example, a beneficiary who for a long time has celebrated four Masses by error, although from the foundation of the benefice he is obligated to only two, will not therefore be held in the future to four (Scavini, II, 356).

3. Anyone capable of alienating can renounce prescription, not indeed future prescription, but completed or begun prescription, insofar namely as he can cede his own right. - But creditors and all others whose interest is involved can oppose a renunciation damaging to themselves.¹¹

We shall treat separately of acquisitive and liberative prescription.

For valid acquisitive prescription it is required that a prescriptible thing be possessed, with some title, and with good faith, for the time defined by law. - Hence those very well-known little verses:

You will not usucapt, unless these five things are yours:
Let there be a suitable thing, faith, title, possession, time.

892. A prescriptible thing is that which by its own nature, or from the disposition of laws, can be acquired and possessed by private persons. The reason is that prescription is a transfer of ownership; but those things that are of public ownership strictly taken cannot be alienated (III, 515). Cf. the things said in n. 852.

Therefore these cannot be prescribed: 1. Those things that are of divine Law, natural or positive. Thus, for example, the right of a father over a son; likewise spiritual rights, the right of perceiving tithes, of conferring benefices, etc., are never prescribed by laymen; but indeed the right of patronage can be. - 2. Sacred things, churches, cemeteries.¹² - 3. Things deputed to public uses, as a public road, a square, bridges, and similar things, unless their use among the people has ceased or unless another community used them. - 4. Things that the law itself, whether canonical or civil, declares imprescriptible. Thus from the holy Canons, not even by immemorial custom can the undoubted boundaries of dioceses be prescribed, or conditions attached to pious foundations¹³ (legacies of Masses, various burdens, alms to be made; but see below n. 1613); and from civil law, prescription does not run against dotal goods, against goods of wards, against the goods of a minor with respect to a tutor or curator, etc.¹⁴

Note. a) Prescription of the goods of the Church is subject to the rules of Canon Law alone (VI, 324). - b) Stolen things can be prescribed by him who in good faith received them under the conditions of law. Cf. n. 936.

893. For prescribing, possession is required (cf. n. 849). This is certain both from the Third Rule of Law in the Sixth: "Without possession prescription does not proceed"; and from the unanimous opinion of jurists, who affirm that possession is the foundation of prescription.

Possession, that it may induce prescription, must be: 1. dominative, i.e. it must be had with the mind of a proprietor, but not of a depositary, tenant, usufructuary, etc.; - 2. certain, i.e. concerning which there is no doubt in any way, otherwise good faith would be lacking; - 3. peaceful, so that there is not litigation concerning it; - 4. public, at least for the external forum, so that he against whom prescription runs can protest. Thus, for example, predial servitudes that are not apparent cannot be prescribed (especially if they are without title: in which case the matter is certain; otherwise, controverted); - 5. continued, i.e. not interrupted through the whole time defined by Law.¹⁵

894. Title generally is the cause on account of which we possess something, for example purchase, donation.

A fivefold title is distinguished: 1. true, which has all the conditions required for transferring ownership, for example purchase of a thing from its owner;¹⁶ - 2. colored, or apparent, which indeed has the appearance of a true title, yet from a hidden defect lacks effect, for example purchase of a thing taken away by theft; - 3. estimated, which from the adjuncts is prudently believed to have been present, although in fact it was not present: as if a son possesses from inheritance a thing that he thinks was bought by his father, although it was not bought; - 4. presumed, which namely cannot be demonstrated, but from peaceful and long-lasting possession is presumed to have intervened; - 5. vicious, which, on account of the defect of some required condition, is not a sufficient cause for transferring ownership, for example a donation extorted through grave fear.

A vicious title differs from a colored, estimated, and presumed title in this: that these, as they appear, are estimated, or are presumed, are a cause that in fact suffices for transferring ownership, while a vicious title, even as it is estimated, does not obtain a force of this kind, although it is falsely believed to obtain it.

I. For prescription a true title is not indeed required, but neither does a vicious title suffice. The reason for the first is that a true title with possession already suffices of itself for acquiring ownership, without prescription. The reason for the second is that a vicious title impedes the possession itself required by law. Hence that saying: "It is better not to have a title than to have a vicious one."

Thus acts of mere tolerance (for example as regards passage through fields), which are conceded to someone for the sake of friendship, neighborhood, or consanguinity, are not apt for this, that usucapion run.

II. For prescribing, a colored title suffices, and sometimes also an estimated or presumed title. Namely: 1. Colored title suffices when the law (as often happens) requires some title. - 2. Estimated or presumed title suffices (namely for founding good faith in the internal forum) when no title is required in the external forum (III, 505).

Moreover, in the external forum, title is not required: a) As regards immovable goods, if there is question of prescription (usucapion) of very long time, i.e. thirty or forty years: from common Law.⁰¹ - b) As regards movable goods, for example from French Law, if there is question of prescription at least three years long; for before the law this holds: "For movables, possession is equivalent to title."⁰² (cf. below n. 897, II).

895. By Good Faith here is understood a firm opinion by which someone prudently judges that the thing which he possesses is his own, although in reality it is not.

For the internal forum, good faith supposes invincible ignorance. Nevertheless it is not vitiated, in the present matter, by negligence in inquiring that is lightly culpable (III, 511, 625).

I. For legitimately prescribing, Good Faith is necessary, not only from the beginning, but within the whole time that is required for prescribing. This is certain from the Second Rule of Law in the Sixth: "A possessor of bad faith never prescribes at any time." And the reason is that it is repugnant to every right that someone vindicate for himself a thing not his own, or retain it for himself.

Hence, when good faith is lacking, prescription does not have force in conscience, even if civil law, in some case, for example in the general prescription of thirty years, did not expressly require good faith (Gousset, I, n. 723).

II. Good faith is required in one way in him who begins possession, and in another way in him who continues it.⁰³ For in the one beginning, positive good faith is required, as is certain from the things said concerning the necessity of title. Hence he who from the beginning doubts whether the thing is his own cannot begin possession. - But in the one continuing possession, only this is required, that bad faith not supervene, namely through consciousness of another's thing, as is certain from that rule of Law (c. fin. de Praescript.): "It is necessary that he who prescribes, in no part of time, have consciousness of another's thing."

Wherefore, if a doubt supervenes upon a possessor of good faith, prescription is not interrupted; and one continuing possession enjoys the benefit of the years of the one beginning, provided that meanwhile (at least for the forum of conscience) he employs diligence for inquiring into the truth (III, 504, 511).

896. QUAER. Whether a successor prescribes who doubts concerning the good faith of predecessors?

Resp. Affirmatively, if he has employed due diligence for solving the doubt. The reason is that in doubt bad faith must not be presumed, at least ordinarily and of itself; for no one is presumed evil unless it is proved.

From the new Laws, a particular successor (not universal) in possession can begin prescription, even if the predecessor was in bad faith.⁰⁴

897. Things to be noted beforehand. 1. The time required for prescription is not to be computed from hour to hour, but from day to day, nor does prescription become valid before the last day has entirely flowed by. - 2. For completing possession, the actual possessor can add to his own possession the possession of his author or predecessor, by whatever title he succeeded to him, as we have said above.

Now the time required from various laws is as follows:

From Roman (and Canon) Law: 1. A movable thing with title (colored or estimated) is prescribed after three years; without such title, only after thirty years. - 2. Immovable goods of private persons are prescribed without title after thirty years; with title after ten years among those present, and twenty among those absent. But if someone is partly present and partly absent, the years of absence are to be doubled. - 3. Goods of minors after thirty years; goods of pious places after forty years; goods of the Order of St. Benedict after sixty years. - 4. Goods of the Roman Church or St. John Lateran, likewise goods of the Cistercians and Mendicants, only after one hundred years. - 5. Stolen things, received in good faith from the hands of a thief with title, are prescribed after thirty years among those present, and after forty among those absent. But the thief never prescribes, even if through forgetfulness he finally comes into good faith (III, 515).

II. From French Law⁰⁵ the following prescriptions are given: 1. Prescription of thirty years, than which a longer one is not admitted. It is most universal: for all actions, whether real or personal, even of moral persons, are extinguished after thirty years, without defect of title or good faith being able to be opposed. Possession, however, must be legitimate, in the sense in which we spoke above (n. 893). - 2. Prescription of ten or twenty years, by which immovable goods are prescribed, yet with title and good faith. Ten years are required and suffice if he against whom prescription is made is present, i.e. if he dwells in the territory of the court of appeal in which the immovable is situated. But twenty years are required if he is absent (or proportionately, if he has been partly present and partly absent). - 3. Prescription of three years, which with good faith suffices in every case for acquiring a movable good (cf. n. 895). - 4. Prescription that some call instantaneous, namely by which movable things, not stolen nor lost, immediately after delivery are legitimately possessed and acquired by a possessor of good faith; because for movables possession is after the manner of title, and because the law concedes the space of three years only for reclaiming a stolen or lost thing (cf. n. 885). Whether these things have force in conscience was formerly sharply disputed; today it is commonly affirmed.⁰⁶ Wherefore in this case, a possessor of good faith cannot be bound to restitution. But one must diligently advert whether the thing is in reality movable in the sense of the law (cf. n. 852).

III. From Italian Law.⁰⁷ Prescription of ten years has force also among the absent. Two years, in place of three, are granted for reclaiming a stolen or lost thing. - The rest agrees with French Law.

IV. From Spanish Law.⁰⁸ Prescription of thirty years is admitted, as in French Law; likewise prescription of ten or twenty years for immovable goods. Those are reputed absent who live outside the kingdom, or in an overseas region. For immovable goods three years are required with good faith, or six without another condition. The rest is as in French Law.

V. From Austrian Law.⁰⁹ 1. The ordinary time: a) as regards movable things to be usucapted, is three years; - b) as regards immovable things and predial servitudes, likewise three years, if they are inscribed in the public tables in the name of the usucapting possessor; otherwise, thirty years. - 2. Extraordinary time: a) against the fisc, churches, and other communities that enjoy the right of corporation, six years are required in place of three years; and in place of thirty years, a space of forty years; - b) against one voluntarily (but without fault) absent from the province where the thing is situated, a year of absence is computed as half a year; - c) for one immediately procuring a movable thing for himself from a vicious or bad-faith possessor, or from one not able to indicate his author, the space of ordinary time is doubled.

VI. From German Law.¹⁰ a) For usucapion of movable things it is required that someone have possessed the thing in good faith as his own for ten years. - b) Where the law concerning the land register has been perfectly introduced, usucapion of immovables is not admitted except in the case in which someone, inscribed in the land register as proprietor of the land, has peacefully possessed this immovable thing as his own for thirty years. - Indeed peaceful possession alone (without inscription) suffices after thirty years, provided that then an invitation be made to those who could have rights. With no one protesting, ownership is acquired through inscription. - c) Instantaneous prescription is also given, as in French Law, but under diverse conditions. See below n. 936.

VII. From English Law, certain prescriptions indeed are admitted with respect to immovable goods (and debts); but "movable possessions cannot be acquired by title of prescription."¹¹

898. It is asked: How is prescription interrupted or suspended?

Resp. 1. It is interrupted, so that it must be begun anew, either naturally, if the one prescribing loses possession (namely natural possession), or if bad faith supervenes upon him; or civilly, if litigation concerning the thing is moved, unless the one moving it does this unjustly for interrupting prescription. - But it is not interrupted if the thing possessed is transferred from one to another, for example by purchase, donation, etc.¹²

2. Prescription is suspended, or sleeps, when an impediment is placed before it so that it does not proceed further, yet in such a way that, when the impediment has been removed, it continues without any other detriment than the time of sleeping.

This happens in a twofold mode: a) when judgments cannot be exercised, for example in time of war or plague in certain kingdoms;¹³ - b) when he against whom prescription is made cannot pursue his right. Thus prescription does not run against interdicted persons, against a church lacking a rector. Thus from Roman Law; otherwise, however, from the new laws¹⁴ (cf. n. 892, 4).

Note. Notwithstanding legitimate prescription, there is sometimes conceded (for example to minors for four years after majority) the benefit of restitution in whole, i.e. rescission of the prescription to be pronounced by a judge.¹⁵

899. Things to be noted beforehand. 1. There are laws that deny only judicial action, and there are others that declare that the right has been extinguished.

2. Liberative prescription profits someone in a twofold mode: a) either on his part there are true debts, or also an obligation of suffering a servitude, and then liberative prescription prevents the other from being able in conscience to reclaim his right; - b) or he himself committed only juridic faults, and then liberative prescription closes every way to him who would wish to seek indemnity.

3. For liberative prescription (as also for acquisitive) good faith is required: a) If true debts are present, positive good faith must be present. - b) As regards claims that are founded on juridic fault, in a petitory action before a judge (or that suppose the use of some servitude continued after another), negative good faith suffices; in other words, it is enough if you impede the other neither directly nor indirectly from the exercise of his right of making a claim. But you are not obligated to warn him that he should use his right.

4. Legitimate time is also required. Authors, especially modern ones, distinguish: a) Prescription of very long time, or thirty years, by which all debts not reclaimed for thirty years are extinguished, likewise usufruct when he who had the right does not use it for thirty years. Rents can also be extinguished, not only as regards annual revenues, but also as regards the right itself or capital (in Austria,¹⁶ however, forty years are required against the fisc and corporations). - b) Prescription of long time, or ten years, by which actions for nullity or rescission of contract are extinguished, when law does not establish a shorter term.¹⁷ - c) Prescription of short time, or five years (in Germany four years, in Austria three years), which regards sums to be paid periodically by way of civil fruits.¹⁸ - d) Prescription of shortest time, for example two years for the stipends of procurators, the case being finished; one year for the stipends of physicians, servants, merchants, etc.; six months for the stipends of workers, guests, etc.¹⁹ These are especially various in various regions. In German Law²⁰ no prescription is admitted against rights related in the land register, or against family rights.

900. I. Liberative prescriptions both of very long and long time, and of short time, have force in conscience, provided good faith has persevered through the whole time. Thus commonly, from the reasons adduced for prescription in general (III, 517). Cf. above n. 890.

Note. As regards prescription of short time, controversy is not lacking. Cf. Tanquerey, II, n. 262; Lehmkuhl, Das Burgerl. Gesetzbuch, ad § 194 and 929.

901. II. Prescriptions of shortest time do not have force in conscience, nor do they constitute anything except a presumption of payment made, as all confess. - Reason: 1. because from the laws themselves it is clear that the legislator did not have the intention of transferring ownership, but only of denying action in the external forum, lest the administration of justice be rendered too difficult; - 2. the legislator cannot have this intention, because as regards these prescriptions of shortest time good faith is often lacking, nor is the reason of the common good present, since this would conduce to oppressing the weak and poor.

"A debtor, therefore, who is certain that payment has not been made, is in no way exempted from the obligation of payment," except after prescription certainly sufficient, which must be judged from the individual Codes and jurisprudence (III, 515). - If someone, however, for example a successor in good faith, after the time assigned by law has passed, begins to doubt, for example, whether his author paid, he can use the presumption of law, unless omission of payment is duly proved. Noldin, II, n. 407; Pelt, o.c., p. 112.

225. Prescription in juridical speech is the same as exception, that is, a legitimate reason opposed to another in order to exclude or delay his action, without nevertheless denying the foundation of the action itself; in the present case it is a peremptory exception by which, against an owner reclaiming a thing (or debt), possession through a certain time is opposed, solely from the very lapse of time defined by law, so that by force of law the right of another can even be extinguished and a right in the thing can legitimately be acquired for the one prescribing. Hence it is a mode of acquiring dominion through possession under conditions of time and mode determined by law; or of liberating oneself thus from an obligation.

Therefore a twofold prescription is given: acquisitive, by which a new dominion or right is acquired, which is called usucapion, because by it something is taken into one's own by use; and liberative, by which someone frees himself or his thing from a burden or obligation.

It arises from positive human law, by force of high dominion for the sake of the common good; yet it is consonant with natural law, which establishes it as suitable, without nevertheless having it as strictly necessary.

Dominion can chiefly be acquired: 1st. by occupation; 2nd. by prescription; 3rd. by accession; 4th. by contracts. Concerning contracts we shall treat in the particular tractate; but now only concerning the first three modes of acquiring dominion.

Occupation is the real apprehension of a thing capable of dominion with the intention of acquiring it for oneself. Wherefore five conditions are required; for on the part of the subject it is required 1st. that some external act be posited, because a simple desire or intention is not sufficient; and 2nd. that there be the intention of acquiring dominion. But on the part of the object it is required 1st. that that which is apprehended be some corporeal thing, as, e.g., some part of land; 2nd. that that thing be capable of dominion, of which sort certainly the ocean or air is not; 3rd. that besides it belong to no one, because a right cannot arise against a pre-existing and remaining right. - Many theologians also require that the occupation not be prohibited by some positive law which reserves the thing to another owner, e.g., the State; but this condition is contained in the others.

I say. All the aforesaid conditions having been verified, occupation is a legitimate mode of acquiring dominion. The reason is taken both from the right of nature and from the practice and positive right of all nations.

Since the more frequent cases of acquiring dominion by occupation occur concerning animals and found things, we shall speak only of these.

Animals are distinguished into three kinds, namely wild, tame, and tamed. - Wild or undomesticated animals are those which by nature live freely outside the society of man, such as hares, stags, fish, birds, etc. Tame or domestic animals are those which have a natural accustomed association with man, and return to him of their own accord, such as sheep, horses, hens, etc. Tamed animals are those which indeed are born to natural liberty, yet by man's industry are deprived of it, and become accustomed to his society, such as birds which are tamed by art and industry, doves, bees, etc. Many add a fourth class, namely those gone wild, which either have now put off a connatural tame disposition, or after they were tamed have resumed their former wild one. - Cf. Baller., note (a) and (b), p. 500.

I say 1st. Wild or undomesticated animals become the property of the first occupier, because they belong to no one, and otherwise their occupation is licit by natural right. But if they have been reduced into someone's dominion, they belong to him as long as they are kept in custody and have not recovered natural liberty. But they are considered to have recovered liberty when they have escaped custody in such a way that pursuit of them is difficult; and then they so cease to be under dominion that they can become the property of another occupier, just as if they had never had an owner.

I say 2nd. Animals wild by their own nature, but tamed, remain with the prior owner as long as they have not escaped his custody or have not lost the custom of returning; for animals of this kind belong to the possessor both by reason of occupation and also by reason of training and detention. But if they have escaped the custody of the owner or have lost the custom of returning, they become the property of another first occupier, because they have recovered their first nature.

I say 3rd. Tame or domestic animals always belong to the first owner, however much they wander; whence they cannot be occupied by another. The reason is that domestic animals can never be said to have recovered their liberty, since from their own nature they are judged to have no liberty.

You Will Resolve. - 1st. A swarm of bees which has flown out from your hive is yours up to that point as long as it remains in your sight and pursuit has not become difficult for you; otherwise it becomes the property of the first occupier. Yet he who finds in another's field a tree in which a swarm of bees is contained does not by this already acquire dominion, but it is necessary that he enclose them in a hive. - Cf. Kenrick, loc. cit. n. 56. - Kent, Comment., vol. 2, part 5, lect. 35, n. 350.

2nd. Doves going off by their own movement, without having been attracted by fraud, become the property of him in whose dovecote they settle. Otherwise if they have been attracted by fraud, e.g., by wholly extraordinary or very choice food. Cf. Lugo, disp. 6, nn. 42 and seq.

3rd. Fish which are in the sea or in navigable rivers and into which the tide of the sea ascends, belong to those taking them; but in lesser rivers the right of fishing is generally reserved to neighboring owners of the banks. - Cf. Kenrick, loc. cit. n. 57. - Kent, Comment., vol. 3, part 6, lect. 52, nn. 411 and seq.

4th. He violates justice who takes oysters in that part of rivers where they have been reserved by another, or in which someone has an exclusive right of fishing; for through this they are reputed enclosed.

5th. He does not sin against commutative justice who hunts or fishes on another's land without his license, provided nevertheless that the land is accessible, or, if it is enclosed, is of such extent that individual animals can easily escape the hunter or fisherman; because animals of this kind are neither part of the land nor can they in these circumstances be considered as already apprehended by the owner of the land. - Cf. Lugo, disp. 6, n. 72.

6th. A wild animal wounded or caught by a snare belongs to the one wounding or to him who set the snare, if it is so wounded or caught that it is not going to escape, because then, and not otherwise, it will be said to have been apprehended. - Thus the theologians, with whom our Kent agrees, who says: "The possession must be so far established by the aid of nets, snares, or other means, that the animal cannot escape." - Cf. St. Alphonsus, n. 604; and Hom. Ap., n. 71. - Kent, Comment., vol. 2, part 5, lect. 35, n. 348.

Goods which can be found are distinguished into four kinds, namely: treasures, things recently lost, abandoned goods, and vacant goods. It will be said in particular concerning each what they are and to whom they belong.

I. Treasure from Roman Law is a hidden sum of money, of which no memory exists. But according to the laws of many nations, just as among us, by the name of treasure today is understood not only money, but also any other hidden movable thing estimable in price. - Wherefore Kent says: "Goods found hidden in the earth go under the denomination of treasure-trove." - Cf. Kent, Comment., vol. 2, part 5, lect. 35, n. 358. - Kenrick, loc. cit. n. 61. - Crolly, vol. 1, n. 641.

I say 1st. Treasure by natural right certainly belongs to the finder, if the finder is also the owner of the land. But if treasure is found on another's land, indeed much is disputed, but a probable opinion holds that then also the treasure belongs to the finder. The reason is that treasure cannot be held as a part of the land, and therefore the same must be established concerning it as concerning wild animals captured on unenclosed land.

I say 2nd. From Roman Law treasure also belongs to the finder if the finder is at the same time the possessor of the land where the treasure lay; otherwise it must be seen whether he found the treasure by chance or by industry. If by chance, he has a right to the half part; if by industry, the whole treasure yields to the owner of the land. Yet observe 1st. that there is required a sentence of a judge which declares industry to have been present, in order that the finder be held to hand over to the owner of the land that half part of the treasure which, if industry had been lacking, he could have retained for himself; 2nd. that owner of the land here means the one who has direct dominion; 3rd. that the finder is considered not the one who first touched the treasure, but the one who saw it or rendered it visible.

I say 3rd. From English law all treasures belong to the king, not only when they are found in some part of the national dominion, but also when they are found in some private field. Indeed, formerly those who hid found treasure were punished with capital punishment. Yet that law seems to be only penal; for, as Crolly notes, scarcely today is there a man of timorous conscience who would not retain found treasure. - Cf. Crolly, n. 642.

I say 4th. As regards this region, excepting Louisiana, where the dispositions of Roman and French law are in force, in the other States the laws establish nothing concerning treasure, and therefore the question is to be solved according to the norm of natural right, which always favors the finder. - The State of New York had imitated English law in this matter; wherefore every treasure found there belonged to the treasury, but this disposition was omitted in the revision of the laws of that State. - Cf. Kenrick, loc. cit. n. 61. - Kent, Comment., loc. cit. n. 358.

From the things said you will gather 1st. that little stones, gems, amber, coral, found on the shore of the sea or elsewhere, belong to the finder, because these are not part of the land; 2nd. that mines of iron, lead, coal, silver, gold, etc., belong to the owner of the land, both because these are considered part of the land and because our laws and customs so establish. - Cf. Kenrick, n. 59.

II. Things recently lost are those movable goods which are involuntarily left by the owner. They differ from treasure both because they are not hidden or buried, and because ordinarily they have been recently lost.

I say. It is certain that things recently lost are to be returned when the owner appears, because the fact of loss is not a title for stripping an owner of his thing. Moreover, from the saying received by all, "for retaining, intention alone suffices; but for occupying, real apprehension with a legitimate intention of having is required," it follows both that the owner has not lost the right, because he retained the intention, and that the finder has not acquired it, because the occupation was not legitimate.

Question 1. To what is the finder held immediately after the finding of the thing?

Response. Often he is held by charity to take up the thing lest it perish, and thus to avert the harm of the owner. But, the thing having been taken up, he is held by justice to care for it; for then between him and the owner there arises a quasi-contract which is called management of affairs. He is also held by justice not only not to conceal the thing, but also to apply suitable means by which the owner can be found; but those means are called suitable which are proportionate to the value of the thing and the circumstances of time, place, and persons. - Cf. Baller., note (a), p. 504.

Question 2. Whether, suitable means having been applied for discovering the owner, and he not appearing, you can retain the found thing?

Response. It is controverted; for many judge that the found thing must then be expended for the poor or for other pious uses, because the owner, since he still retains right in his thing, is to be presumed to have this will. - But other theologians say more probably that the owner has then wholly lost the faculty of using his own thing, and therefore no longer has dominion of it. Therefore the will of the prior owner is not to be sought, as of one who, having morally lost dominion, can dispose of nothing concerning it. Therefore that thing is morally to be held as abandoned and capable of becoming the property of the first occupier; and therefore if afterward the owner appears, since the thing has already been consumed, the price is not to be restored. - Cf. St. Alphonsus, n. 603. - Lugo, disp. 6, n. 140. - Lacroix, lib. 3, part. 2, n. 86. - Kenrick, loc. cit. n. 62. - Crolly, n. 415. - Kent, Comment., vol. 2, part 5, lect. 36, n. 356.

III. Abandoned goods are called those which the owner has cast away with the intention of no longer possessing them. This casting away can happen in two ways: either positively, when someone sends away among useless things clothing already worn out, perforated shoes, or something similar; or negatively, when someone gathers those things which he desires to retain, caring nothing about the rest, as, e.g., happens concerning ears of grain and grapes after harvest or vintage.

I say. Abandoned goods, whatever the manner of abandoning may be, licitly become the property of the first occupier. The reason is that as soon as they have been abandoned, they have become goods of no one, and therefore capable of occupation. Yet the custom of the region is to be regarded when the discussion is about goods abandoned negatively, because from custom it is known whether the owner had the intention of casting away dominion.

You Will Ask. Whether those things which are found in the sea, or near the bank after shipwreck, or cast away from fear of it, are to be reputed abandoned goods?

Response. Negatively; and the reason is that the owner did not have the intention of casting away those goods, and he always retains the hope of recovering them at least partially. Positive laws also stand in the way. Hence the supreme assembly of the United States in the year 1825, sect. 9, established: "If any person shall plunder, steal, or destroy any money, goods, merchandise, or other effects, from or belonging to, any ship or vessel, or boat, or raft, which shall be in distress, or which shall be wrecked ... every person so offending shall be guilty of felony, etc." It is said in the question after shipwreck or cast away from fear of it, because goods which were voluntarily left for saving life or the ship (derelict at sea) are to be distinguished from those (wrecks) which come from the breaking of the ship without any act of the will. - But the response applies to both cases. - Cf. Kenrick, nn. 65 and 66.

IV. Vacant goods are all those which are left by a deceased person who neither has heirs nor made a testament.

I say. By natural right vacant goods become the property of the first occupier, for they no longer have any owner. But by positive right, also prevailing among us, these goods are adjudicated to the treasury; but this seems to be restricted to immovables only, at least before the sentence of a judge. - Cf. Carriere, nn. 285 and 359. - Kenrick, n. 63.

You Will Ask. What must be said concerning the goods of foreigners who have died in this region without a testament, but nevertheless have natural heirs?

Response. Those goods certainly cannot be called vacant, because although in some States they are adjudicated to the treasury, nevertheless by natural right they pass to the heirs. - I said in some, because in Maryland, Pennsylvania, Illinois, and Ohio those goods are distributed to the heirs after the manner of goods which belong to citizens. Where this liberality of laws is not in force, Kenrick thinks that those natural heirs are obligated only in the external forum not to receive those goods. - Cf. Kenrick, n. 64. - Kent, Comment., vol. 2, part 4, lect. 25, nn. 61 and 70.

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

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.

All and only those things generally are subject to prescription which come under dominion and private commerce, and for the acquisition of which there can be a title that is legitimate both by the right of nature and by positive right. - For since the end of prescription is to transfer dominion by the authority of law, such a transfer cannot be made concerning a thing which from its own nature or from the disposition of laws cannot come into the dominion of private persons.

The following are not subject to prescription:

1st. Those things which are of divine right, whether natural or positive;

2nd. Those things which can be obtained from apostolic privilege alone;

3rd. Spiritual rights, of which laypersons are not capable, if there is question of prescription for the advantage of laypersons;

4th. The certain and undoubted boundaries of ecclesiastical provinces, dioceses, parishes, apostolic vicariates, apostolic prefectures, abbeys, or prelatures nullius;

5th. Alms and burdens of Masses;

6th. An ecclesiastical benefice without title;

7th. The right of visitation and obedience, so that subjects can be visited by no Prelate and are no longer subject to any Prelate;

8th. The payment of the cathedraticum (Can. 1509).

§ 1. 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.

§ 2. Sacred things which are not in the dominion of private persons can be acquired by prescription not by a private person, but by an ecclesiastical moral person against another ecclesiastical moral person (Can. 1510).

Good faith in this matter is conscience or sincere estimation by which someone judges that the thing possessed by him is his own.

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.

You Will Ask. Can an heir who is ignorant of the bad faith of his predecessor ever legitimately prescribe?

Response. Negatively, as it seems, if he succeeds by universal title, because an heir of this kind so represents the person of the deceased that he succeeds to all his obligations and burdens; and therefore, since the predecessor on account of bad faith could never have prescribed, neither will the heir be able, because that radical defect is transmitted to him. And the same must more probably be said concerning one who succeeds mediately, provided nevertheless that the succession is by universal title. - Cf. St. Alphonsus, nn. 512 and 516. - Lugo, disp. 7, nn. 59, 60, and 61. - Baller., note (b), p. 516.

Title is that upon which the transfer of dominion rests, and it answers the question: why do you possess? Omitting here both true title, about which there can be no controversy, since no one prescribes against himself, and defective title, which, since it lacks some condition required by law, can be of no utility, three other titles are enumerated, namely colored, putative, and presumed. The first is the appearance of a cause sufficient of itself for transferring dominion, but laboring under a hidden nullity, e.g., if I buy a thing from Titius, thinking it to belong to Titius, when it belongs to Martin. The second is present when it is prudently believed that a true title intervened, although it did not intervene, e.g., if a son from inheritance possesses a thing which is thought to have been bought by the father, when it had not been bought. The third finally is reduced to length of time. - Cf. Scavini, lib. 2, n. 388.

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.

Possession is the holding of a thing, or the enjoyment of a right, which someone exercises by himself or through another, yet in his own name. Holding of a thing is called possession simply, and enjoyment of a right quasi-possession. Each is divided into natural, civil, and mixed. Cf. Schmalzgr., lib. 2, tit. 12, n. 4. - Baller., note (a) and (b), p. 508.

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).

You Will Ask. When is prescription called interrupted, and when suspended?

Response. It is called interrupted when, on account of an impediment interposed, it so ceases that it must be begun again. But this can happen in a twofold way: 1st. naturally, if the one prescribing loses possession for the time determined by law, or if bad faith supervenes; 2nd. civilly, if a lawsuit is juridically moved concerning possession, and the interpellation has not been rejected by the judge. - But it is called suspended when an impediment is set against it so that it does not proceed further, and this can happen in two ways: 1st. by reason of persons, as, e.g., minors, the insane, captives, and generally all who, whether from the right of nature or from the disposition of positive law, cannot act against one willing to prescribe; 2nd. by reason of some extrinsic cause, e.g., plague, war, etc., which makes it so that a person otherwise capable cannot act. - Cf. Wells and Bouvier, loc. cit.

Accession is a mode of acquiring dominion in some thing, because that thing is added to our thing; this can happen either with nature alone operating, or by art, or by both at once. Hence a threefold accession is distinguished: natural, artificial, and mixed.

I. Natural accession happens in two ways: 1st. by birth, or when another animal is born to our animal from intermixture with another's: in this matter the axiom is, the offspring follows the womb; 2nd. by alluvion, which, if it is slow and extends my land either by the bringing of new earth or by the recession of a river, that addition will belong to me; but if it is sudden, ownership is no longer computed to the middle line of the water, but to the former limits.

II. Artificial accession can also happen in two ways: 1st. when my art or work is joined with the thing of another, which is called accession by specification, and then if this has been done in good faith, generally speaking among us, that which results through such specification will be given to him who performed the work, with the burden of paying the price of the thing to the other; 2nd. when my work and my thing at the same time are joined with the thing of another, and then either accession by adjunction is had, if that which results can in no way be separated, as would be a painting with my colors and made by me on your wall, in which case the thing belongs to him who placed the more precious element; or accession is had by confusion or commixture, as, e.g., if from my grapes together with yours I made wine, or from my ears of grain and yours I gathered wheat, and then, good faith standing, the thing must be divided according to the principles of equity; otherwise the laws favor him who has suffered injury.

III. Mixed accession is had when, with nature and art operating at the same time, some thing accedes to my thing; e.g., if you should plant your trees in my land: moreover, in this case the thing will belong to the owner of the soil, due compensation having been furnished. Hence the two following verses:

Whatever is planted, sown, or built, Everything yields to the soil, if nevertheless it has put forth roots.

Yet observe that if the discussion is about those who among us are commonly called squatters, Kenrick says that the laws favor them, lest fields lie uncultivated. Cf. Kenrick, nn. 67 and seq. - Bouvier, Law Dictionary, under the word Accession.

ARTICLE III Whether prescription avails in the forum of conscience?

I say: Every prescription legitimately made avails in the forum of conscience, so that he who has legitimately prescribed, if after completed prescription he discovers the thing to have been another's, can retain it as his own, nor is he bound in conscience to return it to the former owner appearing, whether his negligence intervened or not ; whether the thing was acquired by gratuitous or by onerous title.

This is now the common opinion of almost all theologians and jurists, confirmed by the constant practice of both civil and canonical law.

Proof. 1°. Every legitimate prescription transfers in conscience the dominion of the thing prescribed to the one prescribing, whether the negligence of the former owner intervened or not ; whether the thing was acquired by onerous or by gratuitous title. Therefore it avails in the forum of conscience, so, etc. — Proof. of the antecedent. Prescription is defined indistinctly and indefinitely in law : « Acquisition of dominion by continuation of possession for a time defined by law. » Authent. Quas actiones, c. de sacrosanctis ecclesiis, book I, tit. 2. Instit. book 2, tit. 6, De usucapionibus, init. L. 1, ff De usucapionibus, and elsewhere. Which disposition of civil law canonical law not only does not disapprove, but positively approves, both by its practice and by its sanctions, cap. Sanctorum, Decretal., De Praescriptionibus, book II, tit. 26 ; cap. De quarta, ibid. ; cap. Ad aures, ibid. ; cap. Quoniam finali, ibid. and elsewhere. Therefore every legitimate prescription transfers dominion, etc.

Proof. 2°. It cannot be denied that the prince or the republic can, if it will, on account of the common good, transfer dominions of private persons from one to another independently of the negligence of the owner. Now it willed this in prescription, the common good so requiring. Therefore. — Proof. of the minor. And indeed that it willed it is clear from the laws cited and several others. That it willed it for just causes for the common good is shown by the exposition of those causes. The first is : « Lest the dominions of certain things be long and nearly always uncertain », L. 1, ff de usurpatione et usucapione, book 41, tit. 3. « And that there might be some end of lawsuits », L. ultima, ff pro suo, book eod., tit. 10. And finally, « lest possessors be held by an almost immortal fear », L. Cum notissimi, c. de praescriptione triginta vel quadraginta annorum, book 7, tit. 39. The second cause is, that the negligence of owners neglecting to look after their things may be whetted, L. Ut perfectius, c. De annali exceptione, and cap. Vigilanti, Decretal., de Praescriptionibus.

Where you see the first and principal cause to be independent of the negligence of owners, and that it proceeds in the forum of conscience. For if prescription did not avail in it, dominions would remain always uncertain, and the more so the longer things were possessed, since with length of time true titles are more easily lost and false ones fabricated. There will be no end of lawsuits and quarrels, at least private ones, in families, while one strives to seize his thing secretly or by force, another to defend it, and possessors will be held by immortal fear and perpetual scruples of conscience. Therefore.

It is confirmed. 1° By authority. In the cap. Sanctorum cited, Decretal., de Praescriptionibus, it is said : « The sanctions of the holy Fathers established » that goods once prescribed « be held quietly and sincerely forever. » Now, if prescription did not avail in the forum of conscience, but the obligation of restoring remained, possessors would not remain « quiet and forever », but anxious always. Therefore.

[Confirmed 2° by this other reason. Prescription acquired according to the laws avails in the forum of conscience, if it does not repugn to equity. Now such a prescription does not repugn to equity. Therefore. — Proof of the minor. That a judgment may be formed of the equity of the law, the law must be considered not as regards private persons, but in itself, before any event whatever. Now the law establishing prescription, thus considered, in no way injures equity ; because then the hope of gain and of loss is equal for any private person : whence private persons could certainly have justly decreed among themselves that dominion be acquired or obligations extinguished by long possession. But what private persons could have done in this matter, public authority could do justly a fortiori on account of the common good. Therefore.]

You will say 2° the Rule of law, in 6°, has thus: « Without his own fault no one is to be deprived of his thing. »

I answer. The law is not quoted integrally ; for it has thus : « Without his own fault, unless a cause subsist, one is not to be deprived of his thing. » Beneath lies the manifold cause of prescription, as has been proved.

I. Three kinds of goods are to be distinguished. Some are those which no one has ever possessed, such as gems and pearls. Others are treasures, which by the law of nature belong to the finder. Of the third kind are lost goods, which have a lord near at hand; and the finder who retains them commits theft, if he have knowledge of the lord, or could have it. If nevertheless they have long lacked a lord, they are held as derelict, and belong to the first finder.

II. The goods of the shipwrecked are held by no one as derelict; those who usurp them when found sin, and are bound to restitution, and very often incur the excommunication of the Bull In Coena Domini. Vacant goods are those which a man dying without a testament leaves, and who has no necessary heirs. These are wont to be applied to the treasury. The goods of pilgrims dying without a testament the bishop ought to lay out on pious works.

III. Those who find lost goods are bound to restore them to the lord. If they be ignorant of the lord, they are bound to use diligence to discover him. The thing found is to be announced from the public pulpits, and notices are to be posted in public places, in which, with due caution, it may be made known. The finder can by right demand nothing for the finding. If the lord offer a gift, he may accept it. If after diligence used the lord be not found, many teach that the finder can retain those goods for himself; but to me it is more probable that they are to be distributed to the poor, or applied to pious works. They are nevertheless to be kept so long as there is hope of the lord being found. If the thing does not suffer long keeping, it is to be sold, and the price kept for a fitting time for the finding of the lord. If the finders be poor, let them consult prudent men whether they may retain part, or the whole, of the goods found.

IV. A treasure is properly called an ancient deposit of money, of which no memory survives. This treasure belongs to the finder by the law of nature and by the common civil law. For the rest, many peculiar positive laws have decreed to whom treasures found are to be applied. Money, or other precious things, hidden for fear's sake — say of war, plague, or marauders — do not come under the name of treasure. He who finds them and does not restore them is guilty of theft. If by chance a true treasure be found in another's house or land, half the part belongs to the finder, and half to the lord. If it has been sought by industry on another's land, the whole is owed to the lord, as all commonly teach; who nevertheless add that the finder of a treasure is not bound to restitution before the judge's sentence, because the law forbidding to dig on another's land is penal. That laws of this kind oblige in conscience is to me the more probable, and consequently that the finder is bound in conscience to restitution. The lord of the ownership only is likewise lord of the land in which the treasure is found. Wherefore if a treasure be found in a road, in a square, or in any other public place whatsoever … … whether by chance or by industry, the whole belongs to the finder, unless some peculiar law stand in the way. A treasure found in a field bought belongs to the finder.

V. QUESTION I. What is to be said of dominion by force of alluvion, and the like? ANSWER. Rivers induce alluvion when they pluck away a part from one estate and join it to another; which can happen little by little imperceptibly, or in an instantaneous and manifest manner. The lord of an imperceptible alluvion is he whose estate is increased; but on the contrary the lord of a perceptible and manifest one is the possessor of the estate from which the earth was taken, unless he hold the earth torn away as derelict. But concerning this alluvion the laws are to be consulted.

VI. Accession is that which adds something to your thing. It is twofold. The one is natural, such as are the offspring of a handmaid, of flocks, of plants which are born on one's own land. The other is artificial, or industrial, such as is that which is made by painting, by building, by writing, by weaving in, by grafting, and the like. The lord of the handmaid, of the land, and so forth, is the lord of the fruits.

VII. Another mode of acquiring dominion is specification, which occurs when out of the material of another lord a new species of thing coalesces: as wine out of grapes, oil out of olives, a vessel out of silver. Concerning these there is fuller discourse in Book 2, On Justice, title 1, § 25. When out of two a third one thing is made, it is called confusion, and the dominion becomes common; but it is commixture when things are so mingled that, the same parts remaining, they constitute one third thing, as when moneys, grains, and the like are mingled. When mixed bodies can be discerned and separated, then they pertain to their respective lords. When on the contrary the aforesaid bodies are so mingled that they can neither be discerned nor separated, you become their lord; you are nevertheless bound to pay the price of the other's thing mingled with your own.

VIII. QUESTION II. How is dominion acquired by force of prescription, or usucapion? ANSWER. Prescription is twofold. One draws its origin from the natural law itself; the other has been introduced by positive law. Of the first now, of the other afterwards. From the same fount whence the dominions of things flowed forth, thence usucapion, or prescription, also proceeds. By natural and permissive law all things were common, and nature itself inclines to this community, if it be considered apart from its innate appetitions. For the rest, nature being considered as it now is, division was necessary. Prescription therefore takes its origin from the law of nature itself, and its execution was committed to the law of nations. For this prescription is the basis and safeguard of peace and of mutual tranquillity among men. For the division of goods could not serve reciprocal concord, unless long-lasting possession rendered possessors secure and safe. For this security acquired by usucapion being taken away, dominions would always remain uncertain and in suspense.

IX. That this prescription is confirmed by divine law is clearly gathered from divine Scripture itself. For these words are had in Judges, chapter 11: Why in all this time hast thou attempted nothing about this recovery? Jephte therefore alleged against the Ammonites, besides the title of war, a possession of three hundred years; and objected to the Ammonites that in so long an interval they had never attempted anything to recover the land as their own. This prescription introduced by the law of nations has no other conditions save long-lasting possession and good faith.

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

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.

XIII. Theologians dispute whether an invincible ignorance of clear right (of vincible ignorance, since it cannot stand with good faith, there is no dispute) is an obstacle to prescription. De Lugo, Castropalao, and others deny it. But the more probable opinion affirms it, and the text proves it which is had in the Digest, title 6, law 4, and is of this kind: ignorance of right is denied to profit in usucapion; but that ignorance of fact profits is established. That law, like also the other which is had in the law Sumatur, Digest, On Usucapions, has place not only in the external forum, but also in the internal. Wherefore altogether vain and inept is the distinction of adversaries, by which they say that the laws cited have place in the external forum but not in the internal. For those laws, which set forth the law of nature and of nations, oblige no less in the one forum than in the other.

XIV. An heir who receives an inheritance from an author of bad faith cannot prescribe, as all teach, because an heir bears the person of the deceased, and constitutes one person with him. But he who in good faith receives a thing from an author of bad faith by another title besides inheritance — say of purchase, of legacy, of donation — is able to prescribe, as the common opinion teaches.

XV. Prescription endowed with all its conditions acquires dominion for the one prescribing, not only in the external forum but also in the internal, as the more common and true opinion teaches: since indeed prescription takes its rise from the law of nature itself, and is confirmed by the law of nations and by divine law, as consonant with the public good, with peace, and with tranquillity. It is coeval with the very division of things, as it were the safeguard and supplement of the same.

XVI. QUESTION IV. What of the dominion of children subject to the paternal power? ANSWER. There are four kinds of goods which can pertain to such sons. Castrensia, quasi-castrensia, adventitia, and profectitia. Castrensian goods take their name from war, or the camp, and are conferred under the title of military service. Quasi-castrensian are those which sons of a family obtain by exercising public offices — say the offices of physician, advocate, procurator. Those which sons of a family obtain by title of inheritance, of a legacy left not out of regard for the father, of trade, or of succession to maternal grandparents, are called adventitious. But those which sons obtain out of regard for their parents are called profectitia.

XVII. Sons constituted under the paternal power possess full dominion, both direct and useful, in goods both castrensian and quasi-castrensian, and are able to alienate, distract, and give them, without consulting their parents, after puberty attained. But before puberty the administration lies with guardians or parents, without whose knowledge they cannot alienate them. In adventitious goods sons of a family possess direct, but not useful, dominion. In profectitia goods parents have dominion both direct and useful. Let it suffice here to have touched briefly upon justice and dominion taken in general.

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

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

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

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

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

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

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

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

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

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

Caius, an architect, had prepared the plans of a new building for a certain college of religious in England; since, however, on account of lack of money the religious could not build immediately, their superior asked Caius to seek his expenses. Caius wished the work to be entrusted to him for completion and therefore did not wish to seek immediately the expenses, which easily exceeded one hundred pounds sterling, although the superior had asked him more than once. Other superiors succeeded, and at length one of them, who knew that for at least fifteen years Caius had said nothing about his expenses and therefore thought that he had renounced the money, began to doubt whether, even if he now sought payment, he himself was bound to pay. Hence it is asked:

1. What is prescription, and what conditions are required for prescribing?

2. What are the Statutes of Limitation, and what are their effects?

3. What is to be said of the case?

1. This question is answered in “Manual of Moral Theology,” vol. i, p. 376 and following.

2. What are the Statutes of Limitation and what is their effect ? Statutes of Limitation fix a certain time within which a right of action must be enforced. In English law the Real

Property Limitation Act, 1874, fixes twelve years as the period within which an action to recover real property must be brought, and the effect of the expiration of the statutory time is not only to bar the right of action, but to extinguish altogether the title of the person against whom the time limit has run. Other Limitation Acts differ from this in that they only bar the remedy; they do not extinguish the right. Thus by the Limitation Act of 1623, as amended by subsequent statutes, actions for debt grounded on any lending or contract without specialty must be brought within six years after the time at which payment became due. But although after the lapse of the statutory period no action may be brought, yet the debt is not extinguished. Sir F. Pollock says: “Now there is nothing in these statutes to extinguish an obligation once created. The party who neglects to enforce his right by action can not insist upon so enforcing it after a certain time. But the right itself is not gone. It is not correct even to say without qualification that there is no right to sue, for the protection given by the statutes is of no avail to a defendant unless he expressly claims it. . . . Although the creditor can not enforce payment by direct process of law, he is not the less entitled to use any other means of obtaining it which he might lawfully have used before.”¹

1 Principles of Contract, p. 599. 4th ed.

3. The case. Caius, an architect, neglected to send in his bill for work done for some Religious, because he hoped to get the whole job if he waited. Fifteen years elapsed and nothing was said by either party about the debt. The Religious Superior began to doubt whether there would be any obligation to pay the bill even if the architect sent it in after the lapse of so long a time.

From what has been said already it is clear that the architect could not bring an action at law to recover payment of his money. In certain circumstances the debtor might even presume that the debt had been condoned and refuse to pay, even if afterward the bill were sent in. Apart from this, as the Statute of Limitation does not extinguish the debt, and as there is no prescription in such cases according to English law, the obligation in conscience to pay the debt still remains, if the architect chooses to demand payment. Otherwise he may be presumed to have abandoned his claim.

4. Prescription is a title to ownership of property based on the fact that it has been held in quiet and bona fide possession for the space of time appointed by the law. This supposes: 1. That the property is such as can be lawfully acquired by a private person. 2. That the person in possession has honestly considered it all along as his property. 3. That he has remained in undisputed and uninterrupted possession during the required time.

The common good demands that claims to property reaching back beyond a reasonable period should be disregarded, in order that ownership may be settled on a solid basis.