DECADENZA. – Although it is futile to seek in the canonical laws the proper expression for forfeiture, it does not follow that the institution of forfeiture lacks, also in canon law, a character distinguishing it from other related institutions and concepts, such as, in general, the loss of a right (amissio iuris) and, specifically, extinctive prescription, peremption, and preclusion.
Forfeiture is a cause of the loss of a right through the passage of time (temporalitas iuris, limitatio iuris exercitii).
However, the temporal element does not in every case serve to distinguish forfeiture from other related institutions. prescription (v.), too, the factor of time operates as a cause; hence the specific difference between the two institutions (extinctive prescription and forfeiture) must be sought elsewhere, specifically in their source, their juridical basis, and their function.
While the source of prescription is always the law, forfeiture may be established not only by law but also by a judicial order or by a party’s provision. The basis of forfeiture, moreover, rests on a consideration of order that leads one to regard it as harmful, in certain cases and in relation to other institutions and other needs of life, to allow a right to subsist beyond a given period; extinctive prescription, by contrast, is inspired by the different criterion of not allowing a right that is not exercised, through the holder’s inertia, to remain indefinitely in force, to the detriment of certainty and of another’s interest. Finally, forfeiture disregards the subjective factor (good or bad faith), which, on the other hand, is relevant in prescription (can. 1512).
From the different basis derives the different manner in which the two institutions operate: forfeiture, unlike extinctive prescription, as a rule does not admit interruption or suspension, but can be avoided only by exercising the right within the period established by law, by judgment, or by agreement.
With these notions in mind, as regards procedural forfeiture, it is now easy to distinguish it from peremption (v.). Although both institutions are directed toward the aim of accelerating the course of the litigation («ne immortales fiant lites»), and although, in order to avoid both peremption and forfeiture, a procedural act must be performed within a specified period of time, here too the rational basis is nevertheless different, and the effects of the two institutions are different. Whereas peremption has the effect of extinguishing the proceedings, while leaving open the possibility of exercising the right anew, forfeiture, being limited to the individual procedural act, leaves no further possibility of performing that act. And whereas the basis of peremption rests on presumed renunciation of the action, and the character of a sanction for supposed negligence is not foreign to it, forfeiture disregards every consideration of negligence and looks to the objective fact that the right was not exercised within the established period.
It is precisely here that the conceptual affinity between forfeiture and preclusion becomes clear; yet, whereas preclusion may also arise from the mere incompatibility between the activity undertaken and that which ought to have been undertaken, forfeiture, as has been said, is always linked to the temporal factor.
Accordingly, the institution of forfeiture is closely connected with the establishment of peremptory periods—which, when established by law (Jatalia legis) and subject to the exceptions specifically contemplated (cf., e.g., cann. 177 § 1, 181 § 2, 1883, 1885), are unextendible—and failure to observe which entails the «peremption» of the right (can. 1634 § 1), or, more precisely, its forfeiture.