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 released from an obligation. It is distinguished into acquisitive prescription (*usucapio*) and extinctive prescription.
I. Historical Notes
The principle that time, together with other elements, may operate as a cause for the acquisition or loss of rights was introduced by Roman law for social interest, so that, after a certain number of years, uncertainty in legal relations might be eliminated. It should be remembered, however, that Justinian (Nov. 9) defined prescription as an *impium praesidium*, evidently out of concern that it was not morally permissible for a possessor to reject a *rei vindicatio* or for a debtor to fail to fulfill an obligation merely because the holders of the relevant rights had remained inactive for a long period. The law of the Church, naturally, was highly sensitive to the aforementioned moral considerations and, consequently, while adopting and regulating the institution, transformed its essence by basing it not on the invoked social interest but on the presumption of ownership or fulfillment. Thus, it required the continuous presence of *bona fides* as a necessary condition.II. PRESCRIPTION IN CANON LAW
The ancient and modern doctrine on the nature and limits of canonical prescription is extensive. The main 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 extended also to so-called extinctive prescription; c) what was the substantive meaning of the decretals *Vigilanti* and *Quoniam*, and the interpretation predominantly given by later doctrine.The decretal *Vigilanti* (attributed to Alexander III, c. 5, X, 2, 26) states: «Vigilanti studio cavendum est... ne malae fidei possessores simus in praediis alienis, atque rebus (maxime) ecclesiasticis, quoniam nulla antiqua dierum possessio iuvat aliquem malae fidei possessorem, nisi respuerit postquam se noverit aliena possidere, quum bonae fidei possessor dici non possit». The *Quoniam* of Innocent III (c. 20, X, 2, 26) establishes in even more general terms: «Omne, quod non est ex fide, peccatum est, synodali iudicio diffinimus, 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 praescribit in nulla temporis parte rei habeat conscientiam alienae». Some commentators held that these provisions referred only to acquisitive prescription, and in particular Hostiensis wrote that: «in personalibus non potest considerari mala fides circa rem possessam cum nulla possideatur»; Bartolus likewise wrote that: «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» (Hostiensis, *Aurea Summa*, Venice 1605, fol. 705; Bartolus de Saxoferrato, *Commentaria in primum digesti*, V, ad 41, Venice 1615, p. 91). Ruffini deduced that the cited decretals transformed the institution of extinctive prescription, so that canon law would have known only acquisitive prescription, and the faculty to exclude an action was no longer considered an effect of public utility arising solely from the passage of time and the negligence of the plaintiff, but as a right acquired by the possessor by virtue of title and good faith. To this conception it has been objected that the opinion expressed by Ruffini, evidently inspired by Romanistic concerns (the inconceivability of an extinctive prescription that required, in addition to the negligence of the right holder, the good faith of the possessor), would not correspond to the thesis accepted by many decretalists and later canonists and theologians. Indeed, drawing on certain passages by Innocent IV, Bochius, the Panormitan, and Baldus, it has been held that the unitary concept of canonical prescription should be excluded. Although one cannot deny a connection between the concept of acquisition and that of loss, so that, from a general point of view, the position of the owner who, by failing to reclaim his property from the possessor, loses his right appears identical to that of the creditor who, by neglecting to collect, loses his right of credit; from a strictly juridical point of view, prevailing canonical doctrine recognized the distinction between the two types of prescription, though requiring in both cases that the possessor act in good faith.
Good faith meant the absence of sin, that is, not mere ignorance but honesty, moral and religious conscientiousness. Moralists confirm this thesis: for example, Laymann (*Theologia moralis*, Munich 1625, I. III, tit. I) specifies that obligations *quae suapte natura dumtaxat referuntur ad patiendum vel onus subeundum* are extinguished through the mere inertia of the creditor, even if the obligated party is aware of the obligation. In other words, while the cited author recognizes the existence of both types of prescription, both requiring the good faith of the possessor, he admits as an exception that the awareness of the obligated party does not constitute bad faith when the obligation consists in a *pati*, on the evident consideration that non-fulfillment does not constitute sin.
In the *Codex Iuris Canonici*, can. 1508 takes into account both acquisitive and extinctive prescription (*acquirendi et se liberandi modum*), though referring, however, to the provisions of civil law, with the exception of certain expressly provided derogations in cann. 1508–12. Can. 1509 declares imprescriptible: things which are of divine law, whether natural or positive; things which can only be obtained by apostolic privilege; and spiritual rights of which laypersons are not capable. Also declared imprescriptible are the certain and indubitable boundaries of ecclesiastical provinces, dioceses, abbeys, or prelatures *nullius*; nor can alms and Mass obligations, ecclesiastical benefices, the right of visitation and obedience, or the payment of cathedraticum be acquired through prolonged possession. Things which are sacred but in private ownership may, however, be prescribed provided their destination is not changed, while sacred things belonging to an ecclesiastical entity may be prescribed only by another ecclesiastical juridical person (can. 1510). Can. 1511 preserves centennial prescription for immovables, movables, and rights pertaining to the Holy See. Finally, can. 1512 confirms the principle that no prescription is valid unless it is undertaken in good faith, not only at the beginning of possession but throughout the entire period of possession required for prescription.
The prescriptive period is governed by cann. 1701: “in contentious actions, whether real or personal, are extinguished by prescription,” and 1702: “every criminal action is extinguished by the death of the accused, by legitimate condonation of the competent authority, and by the lapse of the useful time for bringing the criminal action.” The question arises whether good faith is required for the prescription of both civil and criminal actions; this question was examined during the preparation of the fourth book of the Schema Codicis Iuris Canonici (ed. F. Roberti, Vatican City 1940, p. 190), but was ultimately superseded by the explicit reference in the cited can. 1701 to cann. 1508–12. In other words, while the drafters of the fourth book of the CIC did consider whether prescription could operate despite the debtor’s bad faith, they ultimately made an express reference to the clear provision of can. 1512, thereby implicitly adopting the traditional theory that no prescription can operate unless it begins in good faith.
With regard to criminal actions, since there is no explicit reference to can. 1512 and in light of the common opinion that the guilty party is not bound in conscience to pay the penalty before a condemnatory sentence, it must be admitted that bad faith does not prevent the running of the prescriptive period.
Recent doctrine, however, remains perplexed about the concept of bona fides. According to one trend (Wernz-Vidal), good faith consists solely in error regarding obligations that involve an act (dare or praestare), whereas awareness does not constitute bad faith in obligations that consist in a passive endurance (pati). According to another opinion (Coronata), a negative bona fides would suffice for the validity of the prescriptive period, namely the debtor’s belief that he is not violating another’s right by waiting until the creditor fails to demand payment. Van Hove holds that there is good faith even with scientia rei alienae, provided that no obligation of conscience is knowingly omitted. Moreover, can. 63 admits that privileges can be acquired by prescription, and can. 76 provides that privileges that do not burden others do not cease through non-use or contrary use, whereas those that burden others are lost if a legitimate prescription supervenes. According to can. 1446, a cleric can acquire a benefice by prescription, and under can. 1470 n. 3 the right of patronage can be extinguished by prescription.
V. also: FEDE, BUONA (E CATTIVA); POSSESSO.