Summa summae S. Thomae, Tomus III

Note. Dominions of things that belong to someone are acquired in two ways, with the owner willing and with him unwilling. With the owner willing, as by donation, testament, sale, and other contracts, of which specially and at large in their place. With him unwilling, and this in three ways : 1° by the law of nations, as things captured in a just war become the captor's ; 2° by the sentence of a judge, as when a thief is condemned to fourfold restitution ; 3° by authority of the law, as by prescription, and about this the question is now concerned.

I say 1° : Prescription or usucaption (for they are taken here as the same), is « the acquisition of dominion by continued possession, for a definite time fixed by law. »

I say 2° : For legitimate prescription four conditions are required : first, true possession ; second, presumed title ; third, good faith ; fourth, legitimate time. So commonly. The aforesaid conditions are examined.

True possession.

So Rule of law 3a in 6° : « Without possession prescription does not proceed. » And it is clear, because this whole right arises from possession. And therefore one prescribes or can prescribe insofar as he possesses truly and properly, that is, in his own name, and indeed civilly at least ; for natural possession does not suffice, as appears in the tenant farmer who possesses naturally, and yet cannot prescribe. Natural and civil together is best. Civil alone, however, suffices, by which someone absent insists upon the thing with the mind and the faculty of its being his ; for it is called partly civil because it produces this civil effect. See what I said above on possession.

Presumed title.

Such as, v. g., purchase, donation, or any other mode by which dominion is transferred. I say, « presumed, » because if it were true it would transfer dominion without prescription. It suffices therefore that it be rationally and in good faith believed true, as if you buy, or accept as gift, from him who is reputed the owner of the thing, and is not.

Moreover, although for beginning every prescription a title is required, otherwise good faith would fail ; and likewise although for perfecting prescription which is called of short and long term, namely of ten or twenty years, allegation and proof of title are required : nevertheless doctors agree commonly that for perfecting that which is called of longest term, that is, of thirty or forty years, regularly no proof of title is required, since in so long a space of time it could have perished in various ways.

Good faith.

So Rule of law 2, in 6° : « A possessor in bad faith at no time prescribes¹. » Item e. Vigilanti, c. Quoniam, final chapter de Praescriptionibus, Decretal., book II, tit. 26, from the Lateran Council under Innocent III, where the civil laws are corrected which seem to admit prescription of thirty or forty years as legitimate without good faith. Although however the civil laws do not admit prescription of bad faith in the internal forum as conferring dominion, they admit it nevertheless in the external forum, inasmuch as they reject the action against a possessor of thirty or forty years, lest under pretext of bad faith legitimate possessors in good faith be harassed, and thus public tranquility be disturbed by continual lawsuits.

So civil law, L. Si quis emptionis, c. de Praescript. l. 7, tit. 39, and Innocent III, in cap. Adversus consules, Decretal. book III, de Immunitate Ecclesiae.

You will ask 1° whether one who doubts whether the thing is his or another's is a possessor in good faith, and can prescribe.

I answer 1°. He who, before possession has begun, doubts whether the thing is his or another's, is not a possessor in good faith, nor can he prescribe. So commonly ; because there is no reason why he rather than another should possess the thing, and accordingly, vindicating it to himself, he does an injury to the other and exposes himself to the danger of usurping what belongs to another.

I answer 2°. He who, after possession begun in good faith, doubts whether the thing is his or another's, if, diligent inquiry having been made, he does not discover it to be another's, more probably remains a possessor in good faith, and can continue the prescription. So Sylvester, Navarrus, Covarruvias, Sylvius, Pontas, V. Prescription, cas. 8, and more commonly, against Soto and some more recent authors.

Proof. 1°. According to the Rule of law, « in case of doubt the condition of the possessor is better² » Now all tribunals, both civil and ecclesiastical, understand this better condition such that they adjudge the whole to the possessor : and such is the sense of all men, that they believe they retain with a safe conscience what has been adjudged to them by reason of possession. Therefore.

— 2° Since men, on the one hand greedy for things, are not accustomed to leave their own with others, but guard them diligently, and on the other hand an upright man is not accustomed to acquire possession of a thing without a just title : hence, when a doubt concerning goods of fortune arises independently of possession, equal on both sides, possession itself carries a great presumption that the possessor is the owner of the thing he possesses.

Therefore, although the possessor, in our case, doubts speculatively whether the thing is his or another's, and whether he can retain it ; nevertheless from the twofold principle laid down he can reflectively form for himself a practically certain judgment thus : 1° According to the laws, possession begun in good faith is a sufficient reason, on a doubt supervening, for retaining the thing to himself. Now I possess by a possession begun with good faith. Therefore. 2° In equal doubt it is more probable, from possession itself, that the possessor is owner in goods of fortune of the thing he possesses. But it is licit to follow what is more probable. Therefore.

[You will ask 2° whether theological good faith suffices for prescribing.

I answer 1°. Theological good faith does not suffice in prescriptions of ten and twenty years. The reason is, because the whole force of prescription depends on the civil law. Now theological good faith does not suffice before the civil law in prescriptions of this kind. For, both in the ancient law and in the new law of different peoples³, it is required together, in such cases, that faith be not only theological, but also juridical. Therefore.

I answer 2°. Theological good faith suffices in prescriptions of thirty years. The reason is, because where theological good faith is found, whatever law and conscience require for the validity of the prescription is present. 1° What is required by the law is present ; for the law exacts neither juridical good faith nor title⁴ in prescriptions of thirty years. 2° What is exacted by conscience is present also ; for, in this case, conscience requires nothing beyond what is required by the civil law, namely good faith, which evidently must be theological. Therefore.]

Legitimate time.

Note that, respectively as to prescription, time is distinguished as manifold in law : short, long, longest, and immemorial. Short is of three years. Long is of ten or twenty years. Longest is of thirty or forty years. Immemorial, of which memory does not exist among the older men.

I say 1° : Movable things, whether of private persons or of churches (excepting the Roman Church), with title are prescribed by a space of three years, whether between the absent, or between the present.

As to the things of private persons, we have Inst. de usucap., § 1 and c. de usucap. transformanda, L. unica.

As to ecclesiastical things, we have Authent. Quas actiones, c. de Sacrosanctis ecclesiis, where also causa 16, q. 3, cap. Nemo, the things of the Roman Church are excepted generally, for whose prescription a hundred years are required.

Things stolen are excepted also, which into whatever hands they come cannot be prescribed except by a space of thirty years. Instit. de usucap., § Furtivae.

I say 2° : Without title, movable things, whether of private persons or of the Church (excepting, as above, the Roman), are not prescribed except by thirty years.

As to the movables of private persons, it is gathered from L. Sicut, c. de Praescrip. thirty or forty years, book 7, tit. 39, where thirty years are decreed for the prescription of immovables without title, and since nothing else is sanctioned by law for movables without title, authors gather that the same must be held of both.

As to the movables of churches, the reason is, because, since churches (except perhaps the Roman, as before) have no privilege for movables, the same must be said of them as of the movables of private persons.

I say 3° : Immovables of private persons with title are prescribed by ten years between the present, by twenty years between the absent. So Instit. de usucap., § 1, and L. Cum longi, c. de

Prescription of long time. Without title, however, whether between the present or between the absent, thirty years are required, L. Sicut in rem and L. Si quis, c. de Praescript. of thirty or forty years.

Those are held present, by Roman law, who dwell in the same territory, v. g., the diocese of Liege, even if the things be situated elsewhere. Absent, on the contrary, those who dwell in different territories. In Gaul those are called present who are under the jurisdiction of one bailiwick or seneschalship. But, because he against whom prescription runs may be, respectively to the one prescribing, partly present, partly absent, authors commonly note that two years of absence are to be computed as one of presence ; so that one who has possessed for five years between the present, if the owner of the thing be absent thereafter, the prescriber ought to possess again for ten years before he perfects the prescription.

I say 4° : For prescribing immovables against the Roman Church, whether with title or without title, whether between the present or between the absent, a hundred years are required, L. cited Quas actiones ; against other churches, monasteries, hospitals, pious causes, forty years. In the same place ; against monasteries of the Order of Saint Benedict and of other Orders sharing privileges of this kind, sixty years, by privilege of Eugene IV.

These are the common rules, from which however several exceptions are made. I put forward the principal ones. Excepted is 1° the ward, against whom, as long as he is of wardly age, no prescription proceeds, whether of movables or of immovables, L. Sicut in rem, c. de Praescript. of thirty years. If he is a minor, however, thirty years are required, L. ultima, c. In quibus causis.

2° He who peacefully, without simoniacal entry, possesses a benefice for three years prescribes against the action of any challenger. Reg. 33a of the Chancery.

3° The action of injuries expires with the lapse of one year, L. Si non convicii, c. de Iniuris. Look for several other exceptions in our larger Work.

You will ask 1° whether, and for how long a time, one prescribes who received a thing in good faith from a possessor in bad faith.

I answer 1°. The immediate heir of a possessor in bad faith cannot prescribe at any time. So Sylvester and commonly. It is plain from § Diutina, Instit. de usucap., where it is said : « If he [the deceased] had not a just beginning, possession profits neither the heir nor the possessor in good faith, though ignorant. » The same L. ultima, c. Communia. The reason is, because the immediate heir is held, by fiction of law, to be one and the same person with the deceased, and their possession is one and the same continued possession ; and thus by that fiction the immediate heir is held to possess in bad faith, like the deceased himself.

I answer 2°. The mediate heir, likewise he who received from a possessor in bad faith immediately indeed, but under another title than inheritance, say by legacy, purchase, donation inter vivos, even if the movable thing is stolen, and the immovable possessed by violence, can prescribe.

The reason is, because laws do not admit two fictions from the same cause, and therefore that fiction of law concerning the bad faith of the immediate heir does not pass to the second heir, nor is he held the same person with the deceased. Which must be said a fortiori of the legatee, buyer, donee, etc., who in no way represent the person of the deceased, and to whom therefore the defect of the author does no harm, as the laws expressly decree, L. An vitium. ff De diversis temporalibus Praescript.

I answer 3°. Things received in good faith from a possessor in bad faith, insofar as they can be prescribed, are regularly prescribed in ordinary time. So commonly, from the L. cited An vitium. I said, « regularly », because there is exception 1° if the thing is immovable, and he against whom prescription runs is ignorant that it is possessed by another ; 2° if the thing is stolen or possessed by violence ; for in either case thirty years are required. As to the first case, it is plain from the Authentica Malae fidei, c. de longi temporis Praescriptione. As to the second, it is plain from § Furtiva, Instit. de usucap. But what is said in law, that stolen things cannot be prescribed, is understood of prescription of ordinary time, not of prescription of extraordinary time, L. An vitium, c. de diversis temporalibus Praescript. ; likewise expressly L. Super, c. de annali exceptione, § Ad haec book 7, tit. 40.

You will ask 2° what things cannot be prescribed.

I answer 1° Those things cannot be prescribed which cannot be possessed in one's own name and legitimately, as ecclesiastical rights by a layman, a fief by a feudatary, etc. See on possession.

2° Prescription does not proceed against natural or divine law, because in it human power avails nothing, on which prescription depends.

3° Those things cannot be prescribed which are assigned to public uses, as public roads, squares, bridges, L. Usucapionem, ff De usucap.

4° A free man cannot be prescribed so as to become a slave, L. ultima, c. De longi temporis praescript.

5° Certain boundaries of provinces, bishoprics, and parishes cannot be prescribed ; otherwise, if they are uncertain, from cap. Dilectio, causa 16, q. 3.

Tournely, the Perfector, notes here that by French law predial servitudes are not prescribed by any possession of time without title, nor the rights of the public oven and mill, nor fiscal things, or those once incorporated into the fisc ; otherwise, if not yet incorporated.

It must be noted besides that many things are said by Roman law not capable of being prescribed, because they are not prescribed in ordinary time, although they can be prescribed in extraordinary time of thirty years and above. Such are stolen things, as I already noted ; likewise things of the fisc, fideicommissa, legacies, the dotal fund, the majorate, adventitious goods, etc., L. Sicut, c. De annali except., book 7, tit. 4 ; L. Sicut in rem ; L. Omnes, c. de Proescript. of thirty or forty years, book 7, tit. 39, on the proscription of custom against human law. See de Legibus.

[Note : 1° Time required for prescription must be computed not from hour to hour, but from day to day, nor does a prescription become valid before the last day has wholly flowed by⁵. - 2° To complete possession, the actual possessor can join to his own possession the possession of his author or predecessor, under whatever title he has succeeded to him⁶].

By Roman law the time required for any prescription whatever had been determined almost everywhere. Since however particular laws have grown old, it will help here to insert the legal dispositions today in force among the various European peoples.

I. From French law⁷ the following prescriptions are given :

1° Prescription of thirty years, longer than which none is admitted. It is the most universal ; for all actions, whether real or personal, even of moral persons, are extinguished after thirty years, without the defect of title or of good faith being able to be opposed. Possession however must be legitimate in the forum of conscience, in the sense said above. — 2° Prescription of ten or twenty years, by which immovable goods are prescribed, yet with title and good faith. Ten years are required and suffice if he against whom prescription runs is present, that is, if he dwells in the territory of the Court of appeal in which the immovable good is situated. Twenty years are required, however, if he is absent, or pro rata, if he was partly present and partly absent. — 3° Prescription of three years, which with good faith suffices, in every case, for acquiring a movable good.

Some add instantaneous prescription, whereby movable things, neither stolen nor lost, are immediately after delivery possessed and acquired by a possessor in good faith ; because for movables possession stands in the place of title, and because the law does not grant a space of three years except for reclaiming a stolen or lost thing. Whether these hold in conscience is disputed probabilistically on both sides, though it is more commonly affirmed. Wherefore, in this case, a possessor in good faith cannot be bound to restitution.

II. From Italian law⁸. Prescription of ten years avails even between the absent. Two years, in place of three, are granted for reclaiming a stolen or lost thing. — The rest accords with French law.

III. From Austrian law⁹. Ordinary time : 1° As to movable things to be usucapted, it is three years. 2° As to immovable things and predial servitudes, likewise three years, if they are inscribed in the public tables in the name of the usucapient possessor ; otherwise, thirty years. — Extraordinary time : 1° Against the fisc, churches, and other communities enjoying rights of corporation, in place of three years six years are required, and in place of thirty years, a space of forty years ; 2° against one voluntarily absent (but without fault) from the province where the thing is situated, a year of absence is computed as half a year ; 3° for one acquiring immediately to himself a movable thing from a vitious possessor, or one in bad faith, or one unable to point out his author, the space of ordinary time is doubled.

IV. From Prussian law¹⁰. Ordinary time : 1° As to the goods of private persons, whether immovable or movable, possessed with title, it is of ten years between the present. Between the absent, each year of absence is doubled. 2° As to things without title, yet possessed in good faith, it is of thirty years. Nor is the space of time doubled in favor of the absent. — Extraordinary time : 1° against moral persons enjoying rights of corporation, twenty years are required in place of a decade, and forty-four years in place of thirty. 2° Things stolen or snatched away are not prescribed by the first possessor in good faith except after forty years. — Moreover, that a right may be acquired by ordinary prescription, it is necessary that it be exercised at least once a year ; otherwise forty years are required, and the right exercised at least three times in this space.

You will ask how prescription is interrupted or suspended.

I answer 1° It is interrupted, so that it must be begun anew, either naturally, if the one prescribing loses possession, namely natural, or if bad faith supervene upon him ; or civilly, if a lawsuit be moved concerning the thing, unless the mover do this unjustly to interrupt the prescription¹¹. It is not interrupted, however, if the thing possessed is transferred from one to another, v. g., by purchase, donation, etc.

2° Prescription is suspended or sleeps when an impediment is cast before it that it proceed no further, yet so that, the impediment removed, it goes on without other detriment than the sleep of the time. This happens in a twofold way : 1° When judgments cannot be exercised, v. g., in time of war or pestilence, in certain kingdoms¹². 2° When he against whom prescription runs cannot pursue his right. Thus against interdicted persons, against a church lacking a rector, prescription does not run. So by Roman law ; otherwise however by modern laws¹³

Note. Notwithstanding legitimate prescription, the benefit of restitution in integrum, that is, rescission of the prescription to be pronounced by the judge, is sometimes granted, v. g. to minors for four years after majority¹⁴

On liberative prescription.

Among authors, especially modern ones, a distinction is made, respective to liberation : 1° Prescription of longest time, or of thirty years, to which generally all actions are subjected, whether real or personal¹⁵. Thus usufruct is extinguished when he who had the right does not use it for thirty years. Thus also censuses can be extinguished, not only as to the annual returns, but also as to the very right or capital. In Austria however forty years, and in Prussia forty-four years are required against the fisc and corporations¹⁶.

— 2° Prescription of long time, or of ten years, by which actions for nullity or rescission of contract are extinguished, when the law has not constituted a shorter term¹⁷ — 3° Prescriptions of short time, or of five years, which regard sums payable periodically by way of civil fruits¹⁸ — 4° Prescriptions of very shortest time, v. g. of two years for the stipends of procurators, the case finished ; of one year for the stipends of physicians, servants, merchants, etc. ; of six months for the stipends of workers, guests¹⁹, etc. — Now then

1° Prescriptions of longest and of long time avail in conscience, provided good faith has persevered through the whole time. So commonly, from the reasons adduced for prescription in general²⁰

Hence : 1° If your creditor, or your father's creditor, after thirty years demands from you an obligation of which within that time you were unaware, or which you supposed extinguished, you are held to nothing. 2° In Gaul, if you have accepted a donation, and if after a decade the donor wishes to rescind it, v. g., on account of a defect of form in the instrument of donation, it will avail nothing against you.

2° Prescriptions of very shortest time do not avail in conscience, and constitute only a presumption of payment made, as all confess. The reason is because from the laws themselves it is clear that the legislators had no intention of transferring dominion, but only of denying an action in the external forum, lest the administration of justice be rendered too difficult. In these cases therefore « the debtor who is certain that payment has not been made is by no means freed from the obligation of payment²¹ ». Otherwise, if, the time assigned by law having passed, he begins to doubt, v. g., whether his author paid ; because then he can make use of the prescription of law, unless the omission of payment be proved.

As to prescriptions of short time, it is doubted whether these avail in conscience ; for among authors some

²² affirm them to avail and others deny it. In this doubt therefore the saying holds : « In doubtful things blessed is he who possesses », unless the debt not to have been paid be duly proved ; for presumption yields to truth.

Nota. The burdens of Masses, pious legacies, dowries or alms to be distributed, etc., are not prescribed, not even by contrary immemorial custom, as the S. Congregation of the Council declared, 13 Aug. 1843.

Moreover, for conscience, prescription of the goods of the Church is not subject to civil laws, but to the rules of canon law, as all know.²³]

ARTICLE III Whether prescription avails in the forum of conscience?

I say: Every prescription legitimately made avails in the forum of conscience, so that he who has legitimately prescribed, if after completed prescription he discovers the thing to have been another's, can retain it as his own, nor is he bound in conscience to return it to the former owner appearing, whether his negligence intervened or not ; whether the thing was acquired by gratuitous or by onerous title.

This is now the common opinion of almost all theologians and jurists, confirmed by the constant practice of both civil and canonical law.

Proof. 1°. Every legitimate prescription transfers in conscience the dominion of the thing prescribed to the one prescribing, whether the negligence of the former owner intervened or not ; whether the thing was acquired by onerous or by gratuitous title. Therefore it avails in the forum of conscience, so, etc. — Proof. of the antecedent. Prescription is defined indistinctly and indefinitely in law : « Acquisition of dominion by continuation of possession for a time defined by law. » Authent. Quas actiones, c. de sacrosanctis ecclesiis, book I, tit. 2. Instit. book 2, tit. 6, De usucapionibus, init. L. 1, ff De usucapionibus, and elsewhere. Which disposition of civil law canonical law not only does not disapprove, but positively approves, both by its practice and by its sanctions, cap. Sanctorum, Decretal., De Praescriptionibus, book II, tit. 26 ; cap. De quarta, ibid. ; cap. Ad aures, ibid. ; cap. Quoniam finali, ibid. and elsewhere. Therefore every legitimate prescription transfers dominion, etc.

Proof. 2°. It cannot be denied that the prince or the republic can, if it will, on account of the common good, transfer dominions of private persons from one to another independently of the negligence of the owner. Now it willed this in prescription, the common good so requiring. Therefore. — Proof. of the minor. And indeed that it willed it is clear from the laws cited and several others. That it willed it for just causes for the common good is shown by the exposition of those causes. The first is : « Lest the dominions of certain things be long and nearly always uncertain », L. 1, ff de usurpatione et usucapione, book 41, tit. 3. « And that there might be some end of lawsuits », L. ultima, ff pro suo, book eod., tit. 10. And finally, « lest possessors be held by an almost immortal fear », L. Cum notissimi, c. de praescriptione triginta vel quadraginta annorum, book 7, tit. 39. The second cause is, that the negligence of owners neglecting to look after their things may be whetted, L. Ut perfectius, c. De annali exceptione, and cap. Vigilanti, Decretal., de Praescriptionibus.

Where you see the first and principal cause to be independent of the negligence of owners, and that it proceeds in the forum of conscience. For if prescription did not avail in it, dominions would remain always uncertain, and the more so the longer things were possessed, since with length of time true titles are more easily lost and false ones fabricated. There will be no end of lawsuits and quarrels, at least private ones, in families, while one strives to seize his thing secretly or by force, another to defend it, and possessors will be held by immortal fear and perpetual scruples of conscience. Therefore.

It is confirmed. 1° By authority. In the cap. Sanctorum cited, Decretal., de Praescriptionibus, it is said : « The sanctions of the holy Fathers established » that goods once prescribed « be held quietly and sincerely forever. » Now, if prescription did not avail in the forum of conscience, but the obligation of restoring remained, possessors would not remain « quiet and forever », but anxious always. Therefore.

[Confirmed 2° by this other reason. Prescription acquired according to the laws avails in the forum of conscience, if it does not repugn to equity. Now such a prescription does not repugn to equity. Therefore. — Proof of the minor. That a judgment may be formed of the equity of the law, the law must be considered not as regards private persons, but in itself, before any event whatever. Now the law establishing prescription, thus considered, in no way injures equity ; because then the hope of gain and of loss is equal for any private person : whence private persons could certainly have justly decreed among themselves that dominion be acquired or obligations extinguished by long possession. But what private persons could have done in this matter, public authority could do justly a fortiori on account of the common good. Therefore.]

You will say 2° the Rule of law, in 6°, has thus: « Without his own fault no one is to be deprived of his thing. »

I answer. The law is not quoted integrally ; for it has thus : « Without his own fault, unless a cause subsist, one is not to be deprived of his thing. » Beneath lies the manifold cause of prescription, as has been proved.