DECADENCE (LAPSE). - If it is vain to seek in the canon laws the proper expression for lapse, it does not follow from this that the institution of lapse does not have, even in canon law, a physiognomy that distinguishes it from other institutions and related concepts, such as generically the loss of a right (amissio iuris) and specifically extinctive prescription, peremption and preclusion.
Lapse is a cause of the loss of a right through the passage of time (temporalitas iuris, limitatio iuris exercitii).
However, the temporal element is not sufficient to distinguish lapse in every case from other related institutions. For in extinctive prescription (v.) too the factor of time operates as a cause, so that the specific difference between the two institutions (extinctive prescription and lapse) must be sought elsewhere, and precisely in the source from which they emanate, in the juridical foundation and in the function.
For while the source of prescription is always in the law, lapse, besides by the law, can also be established by a decision of the judge and by a disposition of the parties. The foundation of lapse, moreover, rests on a reason of order that makes it seem harmful, in certain cases and in relation to other institutions and other exigencies of life, to allow a right to subsist beyond a determined period, whereas extinctive prescription is inspired by the different criterion of not allowing a right to remain indefinitely in existence which, through the inertia of the holder, is not exercised, to the detriment of certainty and to the prejudice of the interest of others. Finally, in lapse the subjective factor (good or bad faith) is disregarded, whereas it has relevance in prescription (can. 1512).
From the different foundation there originates the different manner of operating of the two institutions: lapse, unlike extinctive prescription, as a rule does not admit interruptions or suspensions, but can be avoided only by means of the exercise of the right within the term established by the law, by the judgment or by the agreement.
Bearing these notions in mind, as regards procedural lapse, it is now easy to distinguish it from peremption (v.). If indeed both institutions are informed by the purpose of accelerating the course of the suit («ne immortales fiant lites») and if, both to avoid peremption and to avoid lapse, it is necessary to perform a procedural act within a determined period of time, here too, however, the rational foundation is different, and the effects of the one and of the other institution are different. While peremption has as its effect the extinction of the process, while still leaving in existence the possibility of exercising the right anew, lapse, being limited to the single procedural act, leaves no further possibility of performing that act. And, while the foundation of peremption rests on the presumed renunciation of the action and the character of a sanction for an alleged negligence is not extraneous to it, lapse disregards any consideration of negligence, and looks to the objective fact of the failure to exercise the right within the established term.
It is precisely in this that the conceptual affinity between lapse and preclusion is defined; however, while preclusion can also derive from the simple incompatibility between the activity exercised and that which ought to have been exercised, lapse, on the other hand, is always bound, as has been said, to the temporal factor.
Accordingly, the institution of lapse is closely connected to the establishment of peremptory terms - sometimes, that is, when they are laid down by the law (fatalia legis) and save for the exceptions specifically contemplated (cf., for example, cann. 177 § 1, 181 § 2, 1883, 1885), not extendable - which, if they are not respected, entail the «peremption» of the right (can. 1634 § 1), that is, more exactly, lapse.
Bibliography
Ermanno Graziani