PRESCRIPTION. - It is a means by which, through the passage of time and the concurrence of determinate conditions and circumstances, someone acquires or loses a right or is freed from an obligation. It is distinguished into acquisitive p. (usucapio) and extinctive p.
I. HISTORICAL NOTES
The principle that time can, with the concurrence of other elements, function as a cause of acquisition or loss of rights was introduced by Roman law in the social interest, so that, after a determined period of years, all uncertainty in legal relationships might be eliminated. It must be remembered, however, that Justinian (Nov. 9) defined prescription as impium praesidium, evidently out of the concern that it should not be lawful, from the moral point of view, for the possessor to reject the rei vindicatio and for the debtor not to fulfill the obligation, merely because the holders of the relevant rights had remained inert for a long period of time. The law of the Church, naturally, was very sensitive to the aforementioned requirements of a moral character and, consequently, while accepting and regulating the institution, transformed its essence by placing at its basis, rather than the invoked social interest, the presumption of ownership or of fulfillment, and therefore required in the prescriber the condition of continuous bona fides.
II. THE PRESCRIPTION IN CANON LAW
The ancient and modern doctrine on the essence and limits of canonical prescription is imposing. The main questions that have been the object of accurate and complex investigations by scholars are: a) whether the concept of prescription became unitary in canonical doctrine (Ruffini); b) whether the requirement of good faith, proper to acquisitive prescription, was also extended to so-called extinctive prescription; c) what was the substantial meaning of the decretals Vigilanti and Quoniam and the interpretation prevailing in 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 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 ». A part of the commentators held that such provisions referred only to acquisitive prescription, and in particular the 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 of Sassoferrato, 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 of excluding the action was no longer considered as an effect of public utility originating solely from the passage of time and the negligence of the plaintiff, but as a right won by the one raising the exception by virtue of title and his good faith. To this conception it has been objected that the opinion expressed by Ruffini, evidently inspired by Romanistic preoccupations (the inconceivability of an extinctive prescription that required, besides the negligence of the right-holder, the good faith of the prescriber), would not correspond to the thesis accepted by many decretalists and by later canonists and theologians. In fact, basing themselves on certain passages of Innocent IV, of Bosch, of Panormitanus and of Baldus, it has been held that the unitary concept of canonical prescription should be excluded. Although a connection between the concept of acquisition and that of loss cannot be denied, so that, from a general point of view, the position of the owner who, having failed to reclaim his thing from the possessor, loses his right, and that of the creditor who, having neglected collection, loses his right of credit, appear identical; from a strictly juridical point of view, the prevailing canonical doctrine realized the gap between the two types of prescription, while still requiring that in both cases the prescriber be in good faith.
Good faith meant absence of sin, that is, not mere ignorantia, but honesty, moral and religious conscientiousness. Confirmation of this thesis comes from the moralists: for example, Laymann (Theol. moralis, Munich 1625, l. III, tit. I) specifies that obligations quae suapte natura dumtaxat referuntur ad patiendum vel omis subendum are extinguished following the mere inertia of the creditor, even if the obligor is aware of the obligation. In other words, the cited author, while on the one hand recognizing the existence of the two types of prescription, both being realized with the good faith of the prescriber, admits by way of exception that the awareness of the obligor does not constitute bad faith, when it is a matter of obligations concretizing in a pati, for the evident consideration that non-fulfillment does not constitute sin.
In the CIC, can. 1508 takes into consideration both acquisitive and extinctive prescription (acquirendi et se liberandi modum), referring, moreover, to the provisions of civil legal systems, save for certain derogations expressly provided for in cann. 1508-12. Can. 1509 declares imprescriptible things quae sunt iuris divini naturalis sive positivi, or that can be obtained only by apostolic privilege, and the spiritualia rights of which the laity are not capace. Also declared imprescriptible are the certi et indubii boundaries of ecclesiastical provinces, dioceses, abbeys or nullus prelatures, and likewise the elemosynae et onera Missarum, the ecclesiastical benefice, the ius visitationis et obedientiae, the solutio cathedratic cannot be acquired by prolonged possession. On the other hand, sacred things that are private property can be usucapted, on condition that their destination has not been changed, while res sacrae that are the property of an ecclesiastical entity can be prescribed only by another ecclesiastical juridical person (can. 1510). Can. 1511 preserves centenary prescription for immovables, movables and rights belonging to the Holy See. Finally, can. 1512 confirms the principle that no prescription is valid nisi bona fide nitatur, non solum initio possessionis, sed toto possessionis tempore ad praescriptionem requisito.
Extinctive prescription is governed 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 problem that arises is whether good faith is required for the prescription of both civil and penal actions, a question examined during the preparation of l. IV (Schemata CIC, edited by F. Roberti, Vatican City 1940, p. 190), overcome, moreover, by the reference in the cited can. 1701 to cann. 1508-12. In other words, the drafters of l. IV of the CIC, while posing the problem of whether the prescription of actions could be considered operative despite the bad faith of the debtor, in the end expressly referred to the clear provision of can. 1512, implicitly accepting the traditional theory according to which no prescription can operate nisi bona fide nitatur. As regards criminal actions, it seems 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 the sentence of condemnation, it must be admitted that bad faith does not constitute an impediment to the running of the relative prescription.
The most recent doctrine, however, remains perplexed about the concept of bona fides. According to one tendency (Wernz-Vidal), good faith would be exhausted in error for obligations consisting in a doing (dare or praestare), whereas awareness would not constitute the concept of bad faith for obligations consisting in a pati. According to another opinion (Coronata), for the lawfulness of extinctive p. a bona fides negativa would suffice, which would obtain in the hypothesis that the debtor is convinced he is not violating another's right by waiting until the creditor debiti solutionem non petat. Van Hove holds that there is good faith, despite the scientia rei alienae, dummodo nulla scienter praetermittatur obligatio conscientiae. Furthermore, can. 63 admits that privileges can 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. According to can. 1446, a benefice can be acquired by p. on the part of a clericus, while according to can. 1470 no. 3 the ius patronatus can be extinguished by p.
See also: FAITH, GOOD (AND BAD); POSSESSION.