What prescription is

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

² C. A., Section 1455-1459.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¹ C. A., Section 1472.

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

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

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

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

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

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

¹ Reg. iuris 3 in 6.

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

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

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

1. Concerning ecclesiastical prescription.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I. What It Is. Prescription is an original mode, established by positive law, of acquiring a real right or of destroying an obligation or action, after a certain interval of time has elapsed, and with the other prescriptions of the law observed (Cf. art. 2105 Italian Code). - Positive law is canonical when ecclesiastical goods are in question; but, with certain points saved, this canonizes the civil laws of the various nations (c. 1508).

II. How manifold it is. Taken generically, it has two species: acquisitive prescription, which is more strictly called usucaption; and liberative prescription, which is more properly called prescription.

III. What it effects. 1. Acquisitive prescription (the usucaption of Roman law) at the same time confers an action for pursuing the thing, and an exception for repelling an adversary.

Liberative prescription confers an exception by which someone, at least if he wishes, can render the creditor's action entirely void. At least if he wishes, I say, because laws for the most part provide that unless it is opposed, the judge cannot attend to that means of forensic defense.

But observe that property or perfect ownership is not lost by mere liberative prescription or by non-use: one who does not use his own thing remains its owner at least in the external forum, until either the treasury assigns it to itself as vacant, or someone occupies it.

2. By acquisitive prescription, the law intends to give a means of obtaining a right which is inviolable at least in the external forum. But it can grant liberative prescription with a twofold intention: either of extinguishing the creditor's right itself, or merely of destroying his action. And certainly it does not intend to extinguish the right, if it permits the creditor to defer to the debtor an oath before the judge concerning the payment having been made, and if this is denied, the debtor is condemned to payment.

3. Each prescription acts backward, insofar as, after prescription has been completed, the one prescribing is considered to have been owner of the thing, or immune from the obligation, from the day on which he began to prescribe, so that from then on he owes neither fruits nor interest or usury.

57. Definition. Prescription is the acquisition of dominion through continued possession for a certain time defined by law.⁶⁹

It Is Explained. Prescription is the acquisition of dominion, and therefore is not only a pure exception against an action brought by another, or more clearly: prescription not only effects that another cannot thrust me down from possession of some thing or right through the sentence of a judge, but also legitimately grants dominion in the forum of conscience, as will be said below, n. 58. But the law which determines the titles of legitimate prescription and especially the mode and duration of the required possession is positive law (whether ecclesiastical or civil). For although prescription is most conformable to natural law, and therefore is said by certain authors to have been introduced by the law of nations (which is as it were a conclusion of the law of nature), nevertheless natural law does not determine the individual conditions necessary for legitimate prescription, but this has been left to the determination of positive civil or ecclesiastical law. By the words of the definition: "through continued possession," etc., are indicated the conditions required for legitimate prescription, concerning which there will be discussion below, n. 59 sqq.

Division. Prescription is customarily distinguished as twofold: one acquisitive, the other liberative. Acquisitive prescription, which by jurists is customarily called usucapio,⁷⁰ is a mode of acquiring a new right, for example a right of passing through another's field. But it is beautifully called usucapio, because through use something is taken as one's own. Liberative prescription,⁷¹ however, is a mode of freeing oneself or one's thing from some burden, for example from some passive servitude.

By some authors, especially ancient ones, the word "usucapio" is also taken in other senses.⁷² Thus, for example, Schmalzgrueber⁷³ writes: "From this distinction, that usucapio properly affects only corporeal things, but prescription also incorporeal things, another distinction arises, that usucapio does not proceed without possession (as the very etymon of the word itself indicates): but not rarely prescription does so, if namely it tends to incorporeal things, of which there is not true possession, but quasi-possession." - We always take prescription and usucapio in the juridical sense explained above. In general it is useful to note here that there is a rather great confusion in the assumption of words in this matter among diverse authors; whence Waffelaert⁷⁴ already wisely warned: "In reading authors one must diligently attend to the mode of speaking: for they do not define the terms in one manner."

Certain authors furthermore bring forward two other distinctions. They divide prescription 1. into memorial, whose beginning still exists in the memory of men, and immemorial, whose beginning surpasses the memory of men living today; 2. into ordinary, which is completed in a space of 3 or 10 or at most 20 years, and extraordinary, which requires 30 or more years. - Both of these divisions are of little utility and are not customarily acknowledged by modern civil codes.

⁶⁹ Cf. L. 3, Dig. 41, tit. 3.

⁷⁰ Ersitzung.

⁷¹ Verjährung.

⁷² Cf. Billuart, De iure et iust. diss. 4, a. 3, § 1.

⁷³ Ius can. l. 2, tit. 26, n. 1.

⁷⁴ De iust. I, n. 2328.

58. Value Of Prescription. That prescription, furnished with all conditions, is a legitimate mode of acquiring dominion both in the public forum and in the forum of conscience, is now admitted by all theologians. For the common good evidently requires this. For:

a) Otherwise possessions would often remain uncertain and exposed to perpetual lawsuits. For it not rarely happens that a man cannot otherwise prove the ownership of some thing except by a long-standing and peaceful possession that has been exercised. For example, a farmer from immemorial time led cows through some private road. But he cannot prove that he has a strict right to this. Unless the remedy of prescription were present, he could suddenly be impeded in his mode of acting. Besides, if there is question of very ancient and doubtful possessions, there would be lawsuits without end, if from other titles it had to be proved who was the legitimate owner.

b) Otherwise some owners would be too sluggish in vindicating their own rights. But now, since they know that their own rights can be lost by prescription, they guard them more diligently.

c) To these arguments taken from Roman civil law⁷⁵ is added the authority of ecclesiastical law, in which the value of legitimate prescription in each forum is manifestly acknowledged: "Prescription, as a mode of acquiring and of freeing oneself, just as it is in the civil legislation of the respective nation, the Church receives for ecclesiastical goods (with the prescription of the canons that follow being saved)."⁷⁶

Corollary. He who, by legitimate prescription having been completed, has acquired a thing or right against another, is not bound in conscience to give up the thing or right, even if the former owner claims it back. Thus St. Thomas teaches.⁷⁷ Indeed prescription once legitimately completed is computed backward with respect to all fruits received from the first day on which the prescription began to proceed. Wherefore such fruits are not to be restored to the former owner.

⁷⁵ L. 1, Dig. 41, tit. 3; l. 23, Cod. VII, 40.

⁷⁶ Cod. iur. can. c. 1508; cf. c. 3, X 2, 26.

⁷⁷ Quodl. XII, a. 24. St. Raymond of Peñafort (Summa, de praescript. et usucapione) and several others remained doubtful.

657. Definition. - Prescription is defined: a means instituted for acquiring some right, or for freeing oneself from some obligation through the lapse of a certain time, with the conditions established by law observed.

Prescription differs from custom; for prescription is something of fact, of itself neither constituting nor changing legal right, but directly changing dominions of things or equivalent rights. But custom is something of right, because, as Suarez¹ notes, it has primarily and of itself the force of law.

658. Prescription is a legitimate mode of acquiring. - For it is not only approved by positive right, both civil and canonical,² and therefore has force in each forum, external and internal; but it is also very conformable to natural right and has foundation in it, since it rests wholly upon the common good, insofar as it was of the greatest interest of the common good: 1) lest dominions of certain things be long, and almost always, uncertain; 2) that there be some end of lawsuits; 3) that possessors be preserved in their possession with tranquil mind, and not themselves be held in nearly immortal fear; 4) for avoiding the sloth of owners, and the error and confusion of a long time.³ Wherefore the Angelic says: "If someone prescribes by possessing in good faith, he is not bound to restitution, even if he knows after prescription that the thing was another's."⁴

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

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.