PRESCRIPTION. – It is a means by which, through the passage of time and the concurrence of certain conditions and circumstances, a person acquires or loses a right or is discharged from an obligation. It is distinguished into acquisitive prescription (usucapio) and extinctive prescription.
I. HISTORICAL NOTES
The principle that time, in conjunction with other elements, could function as a cause for the acquisition or loss of rights was introduced by Roman law in the social interest, so that, after a specified number of years, all uncertainty in legal relations might be eliminated. It should be recalled, however, that Justinian (Nov. 9) defined p. as impium praesidium, evidently out of concern that, from a moral standpoint, it should not be lawful for the possessor to resist the rei vindicatio or for the debtor to fail to fulfil the obligation merely because the holders of the respective rights had remained inactive for a long period of time. Church law, naturally, was highly sensitive to the aforementioned moral considerations and consequently, while accepting and regulating the institution, transformed its essence by placing at its foundation, rather than the invoked social interest, the presumption of ownership or fulfilment, and therefore required the prescriber to possess the requisite of continuous bona fides.II. PRESCRIPTION IN CANON LAW
Ancient and modern doctrine on the essence and limits of canonical prescription is extensive. The principal questions that have been the subject of careful and complex investigations by scholars are: a) whether the concept of prescription became unified in canonical doctrine (Ruffini); b) whether the requirement of bona fides, proper to acquisitive prescription, was also extended to so-called extinctive prescription; c) what was the substantive meaning of the decretals Vigilanti and Quoniam, and what interpretation was predominantly given to them by later doctrine.The decretal Vigilanti (attributed to Alexander III, c. 5, X, 2, 26) reads: «Vigilanti studio cavendum est... ne malae fidei possessores simus in praeclis alienis, atque rebus (maxime) ecclesiasticis, quoniam nulla antiqua dierum possessio iuvat aliquae malae fidei possessorem, nisi resipuerit postquam se noverit aliena possidere, quum bonae fidei possessor dici non possit». The Quoniam of Innocent III (c. 20, X, 2, 26) establishes
PRESCRIZIONE – PRESENTAZIONE DI MARIA S.MA
in an even more general manner: « Omne, quod non est ex fide, peccatum est, synodali iudicio diffinitum, ut nulla valeat absque bona fide praescriptio tam canonica quam civilis, quum generaliter sit omni constitutioni atque consuetudine derogandum, quae absque mortali peccato non potest observari. Unde oportet, ut qui praescripti in nulla temporis parte rei habeat conscientiam alienae ». Some commentators held that these provisions referred only to acquisitive p. and, in particular, Hostiensis wrote: « in personalibus non potest considerari mala fides circa rem possessam cum nulla possideatur »; Bartolus likewise wrote: « in praescriptione in actionibus personalibus non requiritur possessio, ideo non requiritur bona fides et ex parte mea non est possessio, sed praescribo per tuam negligentiam » (Ostiense, Aurea Summa, Venice 1605, fol. 705; Bartolo da Sassoferrato, Commentaria in primum digesti, V, ad 41, Venice 1615, p. 91). Ruffini inferred that the cited decretals transformed the institution of extinctive p., so that canon law would have recognized only acquisitive p.; the power to bar an action was no longer regarded as an effect of public utility originating solely in the passage of time and the plaintiff’s negligence, but as a right acquired by the party raising the exception by virtue of the title and his good faith. This conception has been opposed on the ground that Ruffini’s view, evidently inspired by Romanist concerns (the inconceivability of an extinctive p. requiring, in addition to the negligence of the person entitled, the good faith of the prescriber), would not correspond to the thesis accepted by many decretalists and by later canonists and theologians. Indeed, on the basis of certain passages by Innocent IV, Bosch, Panormitanus, and Baldus, it has been held necessary to reject the unitary concept of canonical p. Although a connection between the concept of acquisition and that of loss cannot be denied—so that, from a general standpoint, the position of the owner who, having failed to take care to reclaim his property from the possessor, loses his right, appears identical to that of the creditor who, having neglected collection, loses his credit right—from a strictly juridical standpoint, the prevailing canonical doctrine recognized the difference between the two types of p., while requiring in both cases that the prescriber be in good faith.
Good faith meant the absence of sin, that is, not mere ignuantia, but honesty and moral and religious conscientiousness. Confirmation of this thesis is found among the moralists: Laymann, for example (Theol. moralis, Munich 1625, l. III, tit. I), specifies that obligations quae suapte natura dumtaxat referuntur ad patiendum vel omis subendum are extinguished by the creditor’s mere inaction, even if the obligor is aware of the obligation. In other words, the cited author, while recognizing on the one hand the existence of the two types of p., both taking effect through the prescriber’s good faith, admits by way of exception that the obligor’s awareness does not constitute bad faith when the obligations are embodied in a pati, on the evident consideration that non-performance does not constitute a sin.
In the CIC, can. 1508 takes into consideration both acquisitive and extinctive p. (acquirendi et se liberandi modum), while referring, moreover, to the provisions of civil legal systems, except for certain derogations expressly laid down in cann. 1508–12. Can. 1509 declares imprescriptible things quae sunt iuris divini naturalis sive positivi, or those that can be obtained only by apostolic privilege, and rights spiritualia of which the laity sunt capace. The certi et indubii boundaries of ecclesiastical provinces, dioceses, abbeys, or nullus prelatures are likewise declared imprescriptible; nor may elemosynae et onera Missarum, an ecclesiastical benefice, the ius visitationis et obedientiae, or the solutio cathedratic be acquired through prolonged possession. Sacred things privately owned may, however, be acquired by usucaption, provided that their purpose is not altered, whereas res sacrae owned by an ecclesiastical juridical person may be prescribed only by another ecclesiastical juridical person (can. 1510). Can. 1511 preserves centennial p. for immovables,
movables, and rights belonging to the Holy See. Finally, can. 1512 confirms the principle that no p. is valid nisi bona fide nitatur, non solum initio possessionis, sed toto possessionis tempore ad praescriptionem requisito.
Extinctive p. is regulated by cann. 1701: « in contentiosis actiones tum reales tum personales extinguuntur praescriptione » and 1702: « omnis criminalis actio perimitur morte rei, condonationne legitimae potestatis et lapsu temporis utilis ad actionem criminalem proponendam ». The question that arises is whether good faith is required for the p. of both civil and criminal actions, an issue examined during the preparation of Book IV (Schemata CIC, edited by F. Roberti, Vatican City 1940, p. 190), but ultimately superseded by the referral in the cited can. 1701 to cann. 1508–12. In other words, the drafters of Book IV of the CIC, while considering whether p. of actions could be operative despite the debtor’s bad faith, ultimately made an express reference to the clear provision of can. 1512, implicitly accepting the traditional theory that no p. can operate nisi bona fide nitatur. With regard to criminal actions, it appears that, in the absence of an explicit reference to can. 1512 and on the basis of the common opinion that the guilty party is not bound in conscience ad solvendam poenam before a condemnatory sentence, it must be admitted that bad faith does not impede the running of the relevant p.
The most recent doctrine nevertheless remains perplexed about the concept of bona fides. According to one tendency (Wernz-Vidal), good faith would consist simply in error in the case of obligations consisting in an act (dare o praestare), whereas awareness would not constitute bad faith in the case of obligations consisting in a pati. According to another view (Coronata), for extinctive p. to be licit, a bona fides negativa would suffice; this would exist where the debtor is convinced that he is not violating another’s right by waiting until the creditor debiti solutionem non petat. Van Hove holds that good faith exists notwithstanding the scientia rei alienae, dummodo nulla scienter praetermittatur obligatio conscientiae. Moreover, can. 63 admits that privileges may be acquired by p., and can. 76 establishes that per non usum vel per usum contrarium privilegia aliis haud onerosa non cessant; quae vero in aliorum gravamen cedunt, amittuntur, si accedat legitima praescriptio. Under can. 1446, a clericus may acquire a benefice by p., while under can. 1470 no. 3, the ius patronatus may be extinguished by p.
V. also: FEDE, BUONA (E CATTIVA); POSSESSO.