Palladium theologicum, Tomus quintus: De virtutibus

When things acquired by title of prescription must be restored.

IF Prescription is legitimate, acquired things may be retained; but not, however, if the necessary conditions are lacking, as St. Bonaventure teaches in the Apology for the Poor, chapter 1 of the fourth response.

THE FIRST is, that the thing be prescriptible. For there are certain things which by law cannot be prescribed, as Sylvester teaches, verb. Praescriptio, 2. Covarruvias, relect. in regul. possess. p. 2. Juan Medina quaest. 16. de rerum restit. Valencia quaest. 6. punct. 5.; for a man cannot be prescribed, l. sola C. de longi temporis praescript. Nor the right of tithes, or other sacred things by Laymen, c. Cansam, extra de Praescript. Nor a fugitive slave, §. sed aliquando, Instit. de Usucapion. Nor exemption from obedience to one's superior, c. Cum non liceat, extra de praescript. Nor things held in common and assigned to public use, that is, of the Republic, such as public roads, l. 1. Usucapionem, ff. de Usucapion. Nor the boundaries of Bishoprics, provinces, and parishes, 16. quaest. 3. cap. Licet, et cap. Inter. et cap. Super eo, extra de Paroch. Nor a Pension, or Canon, which ought to be paid to the republic for lands, 16. quaest. 4. §. Potest. Nor possessions of fields held by colonists, l. Male agitur, C. de Praescript. triginta, vel quadraginta annorum. Nor tributes owed to the Prince, l. Comperit, C. eodem titulo. Nor things which are forbidden to be alienated by Law, or Canon, or by the deceased, or by pact, as Sylvester holds, verb. Praescriptio, 2. num. 13. and Valencia quaest. 6. punct. 5. Nor things which someone possesses Precariously, and not as true Lord, l. Certe, §. Is qui rogavit, ff. de Precar. Nor things bought from a Prodigal, or a luxurious man, or a gambler. Nor things which the Lord, through probable ignorance, does not know are possessed by another, as Sylvester explains, num. 17. Nor the goods of an excommunicate, so long as he does not stand in the way of being freed from excommunication, as Sylvester notes, num. 19. and Valencia: See them on all these matters, also Covarruvias, loco citato.

THE SECOND condition is, that the thing be actually possessed by the one who is going to prescribe it, for without possession there is no prescription, as the rule of Law has it, nor is it acquired by usucaption, as is clear from l. sine possessione, ff. de Usucapion.

THE THIRD condition is, that the thing be possessed by a legitimate title, true, or probably presumed, such as a title of inheritance, purchase, donation, etc. cap. si diligenti, extra de praescript.

THE FOURTH condition is, that the thing be possessed in good faith, in conscience believing it to be one's own, cap. Possessor, de regulis iuris, et cap. Vigilanti, et cap. si diligenti, extra de Praescript. By which canons certain civil laws are considered revoked, which permitted prescription with bad faith, as the Doctors commonly hold in cap. Finali.

THE QUESTION, however, is: whether mere doubt that the thing belongs to another impedes this good faith.

SOME say that it is removed; others, however, not; see them in Valencia, who follows the negative opinion. The reason is, because, although one in doubt cannot begin to possess; yet, while he possesses, The condition of the possessor is the better one.

THE FIFTH condition is, that possession have lasted for as long a time as is necessary according to the prescription of the laws. For to prescribe movable things—which may rather be called Usucaption than Prescription—a possession of three years suffices between those present, and of four years between those absent, as is clear from l. Quas actiones, C. de Usucap. But to prescribe Ecclesiastical immovable things, a possession of the very longest time is required, namely of thirty years between those present, and forty between those absent, as is clear in l. Quas actiones, et 16. quaest. 3. Indeed, even to prescribe the goods of the Roman Church a possession of one hundred years is required, l. Quas actiones, C. de Usucap. et 16. quaest. 3. cap. ult.

LIKEWISE, to prescribe temporal immovable things: if indeed they were first acquired by theft, or by violence, there is necessary in the heirs of the thief a possession of good faith of thirty years; at least between those present, and forty between those absent, as Sylvester says, v. Praescript. with Valencia, Et l. et omnis, C. de Praescript. triginta annorum. But the other things acquired by a good title are prescribed by possession of long time, namely of ten years between those present, and twenty between those absent, l. Quas actiones, C. de Usucapion. Et l. mala fidei C. de Praescript. longi temporis.

THE SIXTH condition is, that good faith not be interrupted throughout that whole prescribed time, cap. Illud autem, et cap. Quoniam omne, de Praescript. Therefore, if any of these conditions is lacking, the prescription must be judged invalid, and restitution made. But if all these are present, the prescription will be legitimate; as the Doctors commonly teach, Ven. Bonaventure, especially St. Thomas, quodl. 12. art. 25. Scotus in 4. dist. 15. quaest. 3. Paludanus eadem dist. quaest. 2. Durandus in 4. dist. 41. quaest. 4. art. 1. ad 1. and others in Valencia. And it is clear from the laws above, and C. Nos Sanctorum, and C. Quoniam omne, de Praescript. You have nearly all this also in Ven. Bonaventure, in the Mirror of the Soul, chapter 1, and in the places cited 1. 2. disput. de Conscientia. And in 4. dist. 15. p. 2. artic. 2. quaest. 1.