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Conferences on the Virtues

By Fr. Bruno Cocuzzi, ocd

 

Number 31

 

Prescription – The manner of acquiring things

 

We will continue with the conferences on Justice.  We are still on the “question” of how Rights and Dominion are acquired.  Having dealt with Appropriation, Finding and Accession, we now turn to the fourth and final manner:

 

Prescription…

 

This manner of acquiring things takes its name from the verb to prescribe, because human positive law intervenes to declare, or to prescribe, that, given a certain set of well-defined and proven circumstances, the ownership of something “passes” from a former owner to its “new” owner, despite the fact that the former owner never willfully intended to give up ownership of the rights or property in question.  As such it is an exception to the general, more “natural” ways of acquiring ownership of things.

 

What usually happens is that, by force of law, an “owner” coming to exercise a right in or over something, whether a corporeal or incorporeal “good” discovers that he is “ousted” from ownership, or “divested” of rights in or over that good because another has it in his “possession” and has de facto been uninterruptedly exercising rights over it as owner thereof for a “prescribed” length of time.  There is an adage which most of us have heard quoted at one time or another:  “Possession is ninety percent of the Law.”  The other ten percent, then, would be to show that the length of time and other evidence of having exercised dominion required by law have also been fulfilled.

 

But “prescription” applies as well to a manner of “freeing oneself” from burdensome responsibilities that differ from the “natural” ways of liquidating “debts” and terminating obligations to others.  Thus, there is liberative as well as acquisitive Prescription.

 

It must be understood, however, that Prescription is merely an exception to the “natural” ways of acquiring rights and freeing from obligations, it is not contrary to Natural Law.  Because of the primacy of the Common Good, lawful civil authority is within its “God given rights” when it carves out exceptions to the general rule regarding acquisition of ownership and the dissolution of debts and obligations.

 

For that reason human positive laws that create such exceptions are binding in the “forum of Conscience” as well as in the “civil forum” whenever all the requirements of circumstance and time established by statute have been satisfied.

 

ACQUISITIVE PRESCRIPTION

 

Several reasons may be advanced to justify the assertion that civil authority lawfully may prescribe, for the sake of the Common Good, this exceptional way of obtaining rights of ownership and other Rights. 

 

i)                    lest there be protracted, continual “uncertainty” over the possession of Rights and ownership of certain things;

ii)                  for the sake of putting an end to or avoiding litigation;

iii)                 so that individuals may have and hold things with confidence and be secure in their Rights;

iv)                to overcome carelessness and neglect on the part of owners of property, i.e., to induce them to be more vigilant and responsible in the exercise of their rights.

 

That human positive law in this regard is binding in conscience was first officially acknowledged by the Church in the 4th Lateran Council, and is currently expressly admitted in the Code of Canon Law c.1268, which Canon refers the reader to Title X of the Code:  Prescription (cc 197-199).

 

In order that civil law may effectually grant ownership and dominion by means of “prescription”, certain conditions must be met.  They are:

 

1)      the thing in question must be of a nature that makes if “prescriptible”, that is, capable of having its ownership transferred by law for the sake of the common good.

2)      Possession

3)      An “entitlement”

4)      “good faith” on the part of the one acquiring

5)      the required lapse of time

 

Goods that are “prescriptible”…

 

1.       All things, corporeal or incorporeal, may be acquired by Prescription which, either by their very nature or by human positive law are capable of being privately owned.  As a rule of thumb, anything that is or can be made an object of trade and commerce is prescriptible.  Of interest to us as Catholics, is

Canon 199 – Not subject to Prescription are:

 

a.       rights and obligations which are of the divine natural or positive law;

b.       rights which can be acquired only from an apostolic privilege;

c.       rights and obligations which directly affect the spiritual life of the Christian faithful;

d.       the certain unchallenged boundaries of ecclesiastical territories;

e.       Mass stipends and obligations

f.        The provision of an ecclesiastical office which requires the exercise of a sacred order, according to the norm of law;

g.       The right of visitation and the obligation of obedience if it should result that the Christian faithful can be visited by no ecclesiastical authority and are no longer subject to any ecclesiastical authority.

Of the above, (a) and (c) are particularly relevant to us as individuals.  Some examples of the rights and obligations of Catholics which cannot be transferred or terminated by prescription are:  The right and the obligation to obey one’s lawful superior, the rights and obligations of an indissoluble (sacramental) marriage, the right and obligation to observe the ten commandments and to receive the Sacraments.

 

In the civil order, prescription has to do mostly with acquiring real property.  Clearly real property is “prescriptible” because it is capable of private ownership and is indeed an object of commerce and trade.  Yet there are certain things which are in the nature of realty but which cannot be privately owned because they pertain to the public order, such as roads and highways, bridges, parks, and whatever is destined for use by the public.  But those things which are owned by the Public Authority “in the same manner” that a private person owns them, ARE subject to being lost or acquired by Prescription.

 

In the United States, the most common way of acquiring or losing rights of ownership of real property is by adverse possession.  This occurs when, for a period of [usually] twenty years, an individual has continually occupied and has openly exercised dominion over previously unoccupied land, believing in good faith, that the land has no owner.  If, during the prescribed length of time, the owner, due to neglect or carelessness on his part, does not find out about the “squatter”, at the end of that time, or hearing about it, does nothing to assert ownership, the person occupying the land and using it as his very own becomes the true, legal owner of that land.

 

A possible exception to this would be the case of property held in trust for a minor until he reached a certain age, say 30.  Were the trustee to be negligent in exercising rights of dominion over that land, such that ordinarily it would have been lost to an “adverse possessor”, the fact that the minor, the true [beneficial] owner was lawfully impeded from exercising rights of dominion over the land might save that land for him.  I say this is a “possible exception”, because another way to indemnify the beneficial owner, the minor, would be to order the trustee, out of his personal resources, to purchase an equivalent plot of land for the beneficiary, or to pay him its fair market value.

 

In those countries where the custom of wives bringing “a dowry” into their marriage is still in force, land or other “prescriptible” property that forms part of the dowry cannot, by law, be lost by Prescription.

 

The Characteristics of “prescriptive” possession…

 

Possession means physically having and holding something in one’s personal care and custody, such that one is said to actually “enjoy” the use of it and the benefits therefrom.  But the possession must be (a) “dominative”, (b) peaceful and continual, and (c) unequivocal and public.

 

(a)    The expression “dominative” refers more to a frame of mind than to external evidence of exercising dominion.  A trustee or one who rents from another exercises dominion in external ways that are indistinguishable from the ways in which true owners exercise dominion.  Possession is dominative when the possessor really thinks and believes that the property in question is his.

(b)    Possession must be taken peacefully, quietly, without the least trace of violence or “disturbance”; and the quiet, peaceful possession, use and enjoyment must remain uninterrupted.

 

Civil law does recognize “suspensions” of peaceful uninterrupted possession, for example, in the case of adverse possession of property of minors or (in certain countries) of wives.  Nevertheless “time” of possession preceding the ”suspension” can be added to “time” following the cessation of the suspension to make up the required statutory prescriptive “time”.

 

Interruption of the prescriptive time occurs when, for example, the “adverse possessor” discovers that the land he is occupying really does belong to someone else, because then it is no longer possible for him to believe “in good faith” that the property has no owner.

 

It is clearly interrupted when the true owners appears to reclaim possession or initiates lawful procedures to regain actual possession.

 

(c) Possession is unequivocal and public when acts typical of true and exclusive ownership are done openly and regularly, so that it is noticed by other people.  Furtive, that is, secretive exercise of dominion does not satisfy this requirement.

 

The meaning of Entitlement…

 

This refers to the existence of a “presumed title” on the part of the one having possession of someone else’s land.  The implicit “title” in the examples given thus far derives from the good faith understanding on the part of the occupier that certain property has no owner, either because it never had an owner or was “abandoned” by its true owner.  In this situation, the normal and natural way to acquire such property is by Appropriation, as we saw in a previous conference.  Thus the “entitlement” proceeds from the Natural Law.  Other entitlements would derive from the fact that the occupier believes in good faith that he has “purchased” the property, or that he has “inherited” it, or that it was “given to him as a gift”, where in reality none of these are true.

 

These “titles” can have various characteristics.  In addition to a “true” title, there are “defective”, “apparent”, “colorable”, “putative” and “presumed” titles, depending upon “why” the occupier believes in good faith that the property of Right is truly his.  All of these suffice to obtain ownership by means of “prescription”.

 

The requirement of GOOD FAITH…

 

A Good Faith belief proceeds from a subjectively correct opinion that one truly is the owner of the property or Right in question.  The opinion is “subjectively correct” when the possessor is able to make a prudent, practical judgment that he has the requisite entitlement.

 

Catholic moral theology recognizes moral good faith and juridical good faith.  The former is present when the practical judgment is objectively erroneous, but the error is due to inculpable lack of knowledge of all the relevant facts.  The latter is present when the “entitlement” is defective but “hidden” in such a way that the defect is not discovered by ordinary, diligent means of inquiry, and everything else is done in proper fashion.  Both are required for the acquisition of rights and property, but in the case of “juridical” good faith, lack of knowledge of applicable law cannot be numbered among the “relevant” unknown facts.  As the adage states:  “Ignorance of the law is no excuse”.

 

The requirement of TIME…

 

In European countries the civil law varies as to how much time must elapse before Rights and property are required, depending upon whether goods are “movable” or “immovable”, and according to the author of my textbook, in America the time is generally ten or twenty years.  I don’t know to what kind of goods the ten-year prescription applies to here in our Country, but I would have to guess that it applies to movable goods only.  As you recall, we dealt with movable and immovable goods in a previous conference, to which I refer you (and myself).

 

LIBERATIVE PRESCRIPTION

 

Reasons that were advanced as to the desirability of Prescription as a means of acquiring rights can also be advanced, properly modified, to justify Prescription as a means of freeing oneself from debts and obligations.  To which could be added

 

i)                    there is a presumption of “payment made” or condonation of a debt when demands therefore cease to be made

ii)                  to free everyone from the burden of keeping receipts and evidence of payment beyond a certain length of time

 

The author of my textbook gives examples of debts that are terminated by “prescription” in his native land, the Netherlands, and the statutory times:

 

(a)    Given that the debtor has not received a demand for “payment” for six months running, Teachers lose their right to compensation for services which ordinarily are paid every month; “hospices” lose their right to compensation for lodgings and food provided to guests, and employees lose their right to payment for work done.

(b)    Given that the debtor has not received a demand for “payment” within a continuous full year, Medical Doctors and Surgeons lose their right to payment for services rendered, pharmacies for medicines provided, and merchants for goods sold to private individuals.

 

As a civil law here in the United States the only “type” of Liberative Prescription I am familiar with is known as a Statute of Limitations.  As you all know, courts will not entertain a “complaint” which seeks judicial enforcement of a debt or an obligation unless the “complaint” is filed within a statutorily specified length of time following the incurring of the debt or obligation.  The rationale behind this is that after the specified length of time, it becomes very difficult if not impossible to arrive at the truth of the matter, due to the fact that pertinent records tend to be lost or discarded, witnesses are difficult to locate, and if they can be located, they tend to forget details and particulars that the courts need in order to arrive at a just judgment of the case.  It is my understanding that State and Federal Laws are very specific when it comes to Statutes of Limitations, and they exist for various criminal matters as well as for all civil matters.  There are however, certain exceptions, that is civil debts and obligations which never are terminated by prescription.  It is my guess that personal income tax obligations are among them.

 

According to my text, Liberative Prescription is binding in conscience and I interpret that to mean once the debt or obligation has been dissolved or terminated according to applicable law, the debtor does not sin if he does not pay that debt should he be reminded somehow that at one time it was a just debt that he was obliged in justice to pay.

 

Conditions required for Liberative Prescription…

 

These are not exactly the same as the conditions for Acquisitive Prescription.  Still required, however, are the conditions (1) that the debt or obligation be “prescriptible”, and (2) completion of the statutory time, NOT REQUIRED are:

 

a.       Neither “possession”, strictly speaking, since it is here a question NOT of “having” a right but of being freed from a duty created by a Right “held” by another.

b.       Nor an “entitlement”, since “title” to what is owed resides in the creditor.

c.       Nor “positive” good faith.

 

To be positive, good faith requires a “concrete foundation” upon which to rest, even though it may exist only “subjectively” and not “objectively”.  Thus “negative” good faith”, which is the absence of fraud or bad faith, suffices to support liberative prescription.  It is ordinarily present because of inculpable ignorance or forgetfulness of the debt or duty, such that one is not guilty of deliberately evading timely payment or satisfaction.

 

Another example of negative good faith is found in a situation where someone holds that kind of property right called an “easement”, e.g., the right to cross someone else’s land to obtain access to a river, or a lake, or a public forest.  The owner of the plot of land which is “burdened” by the easement is not obliged in conscience to remind the holder of the easement that unless he exercises it within a specified date, soon to arrive, that he will lose it.  Provided the property owner does not “fraudulently” prevent the holders of the easement from learning about the expiration date, he is said to be in “negative good faith”.

 

Similar to this is the situation in which one is waiting for a “fine to be levied” or a “penalty to be imposed” upon him.  If the “culprit” is waiting to be called in to receive the fine or the penalty, and he suspects that the delay is due to the negligence or carelessness of the authority that has the right to levy or impose respectively, he is under no obligation in conscience to remind the official in question that he is remiss in exercising his right and duty to fine and to punish.  Provided the culprit does not attempt “fraudulently” to prevent the authority from adverting to the omission, he is said to be in “negative good faith” if he does nothing.

 

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That brings us to the end of the section on “how” Rights and Ownership are acquired.  The next Chapter is entitled Injustice in General, and we will continue with that next time.

 

 

 

 

 

 

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