Prescription
PRESCRIPTION
In theology, was a kind of argument pleaded by Tertullian and others in the third century against erroneous doctors. This mode of arguing has been despised by some, both because it has been used by Papists, and because they think that truth has no need of such a support. Others, however, think that if it can be shown that any particular doctrine of Christianity was held in the earliest ages, even approaching the apostolic, it must have very considerable weight; and, indeed, that it has so, appears from the universal appeals of all parties to those early times in support of their particular opinions. Besides, the thing is in itself natural; for if a man finds a variety of opinions in the world upon important passages in Scripture, where shall he be so apt to get the true sense as from contemporary writers or others who lived very near the apostolic age? And if such a man shall find any doctrine or interpretations to have been universally believed in the first ages, or, as Vicentius Lirinensis words it, semper ubique et ab omnibus, he will unquestionably be disposed to think such early and universal consent, or such prescription, of very considerable weight in determining his opinion.
Fuente: Theological Dictionary
prescription
(Latin: prae, before; scribere, to write; legal sense, limitation)
A legal method in both ecclesiastical and civil law of acquiring ownership and liberating oneself from burdens; hence division into acquisitive and liberating prescription. Common good demands that the possesson of property should not remain uncertain and exposed to, constant litigation, hence the legal institution of prescription. Certain conditions are necessary; the person must be capable of having dominion over the object claimed, for certain things are not prescribable, e.g., rights and obligations of natural or Divine law, things deputed to public use. Actual possession is necessary which must be continual; public so that the one against whom the prescription proceeds can easily know it; pacific, not taken by force or been the object of litigation; certain and not dubious. The possessor must have a title to the thing and be in good faith during the entire time of prescription. Time must also be considered; 160 years are required for prescription relative to the Holy See; 30 years relative to any other ecclesiastical corporation; civil law is to be followed relative to private persons. In American and English law, lands or movables cannot be claimed by prescription. There is special legislation regarding prescription of judicial processes.
Fuente: New Catholic Dictionary
Prescription
(Lat. prœ, before, and scribere, to write, in later legal Latin involving the idea of limitation)
A prescription is a method created by law for acquiring ownership or ridding oneself of certain burdens on the fulfilment of fixed conditions. It is, therefore, either acquisitive or liberating, the former being frequently termed usucaption. Prescription has its origin in enactments of the civil law which have been confirmed by the canon law and which so far as the principle underlying them is concerned are universally acknowledged to be perfectly valid in conscience. Public good demands that provision should be made for security of title to property as well as for the prevention of litigation as much as possible. Hence the State, using its right of eminent domain, may for grave reasons of the common welfare transfer ownership from one individual to another or release from lawful obligations. A person, therefore, who has under the proper conditions acquired real estate by prescription may retain it with a safe conscience even though the former owner were to appear and claim it.
Prescription, deriving its value from positive law, presupposes certain conditions in order to produce the effect attributed to it. Moralists are agreed that the object, the ownership of which is to pass, must be open to prescription. It must be something that may be made the subject matter of private barter and to which it is possible to gain a title recognized by both natural and positive law. Thus one could not secure dominion over a public highway on pretence that prescription had operated in his behalf. The reason is that the authority of the law cannot be invoked, without which the process falls.
2. The beneficiary must act in good faith. The civil codes are not so explicit in demanding this, but in conscience it is essential. This simply means that a man must be honestly convinced that what he has in his possession really belongs to him. The Fourth Lateran Council requires this in no uncertain terms. Prescription cannot legitimize theft or detention of property known to be that of another. It may be noted, however, that when the scope of the prescription is to free one from certain servitudes, and the attitude of him who profits by it need only be passive, then. “good faith” is interpreted to mean that he should not hinder the other party exercising his right; he is not bound to warn him that prescription is running against him. This has its application in rural districts and with regard to such matters as the right to fish, to draw water, to pasture, and the like. Bad faith on the part of a decedent will prevent his immediate and sole heir from availing himself of prescription. The heir is then juridically one person with the deceased and must take over the latter’s obligations. Consequently he can no more benefit by it than could his predecessor. In addition the good faith which is indispensable for prescription postulates in the possessor of a thing some sort of title to it. It need not be a true title because then there would be no need of prescription. It must have the semblance of a good title, such as the purchase of something which did not as a matter of fact belong to the seller, or at least there must be valid ground for supposing the existence of a title as in the case of things acquired by inheritance.
From the point of view of the law, prescription is unintelligible without the fact of possession, whether this last stand for the holding of some thing or the enjoyment of some right. Either way the possession referred to must be accompanied by a veritable proprietary state of mind and is not satisfied by fiduciary relations such as trusteeship or by those of deposit, rental, and the like. Theologians exact as necessary qualities of this possession that it should be peaceable, that is, not assailed by lawsuits, sure, uninterrupted, and open, that is, not clandestine. Much stress is laid on the fact of possession by the common law which regards it as the very foundation of prescription. Tenure of property, other requisites being verified, will confer a right by prescription not only to the land or buildings as the case may be but also to such income as may have been derived from them in the meantime.
The plea of prescription cannot be successfully advanced unless it can be shown that possession has been had over a period of time stipulated by law. This space is different for different kinds of goods. The canon law allows prescription of movables on proof of possession for three years with at least a supposed title; without other title than that they have been held a long time, possession for thirty years is required. Against immovable ecclesiastical property prescription may be used only after possession for forty years, whilst a special provision demands an hundred years when the action lies against the Roman Church. The civil law in various countries exhibits such substantial differences in fixing this requirement that there is no way to summarize it. In general a longer time is required for immovable than movable property. In the United States of America many of the States exact twenty years for immovables; in Maine forty years are necessary, whilst in others the time sinks to seven or even five years as in California. In England rights of common and all other profits from land become absolute and indefeasible after sixty years. The same is true of rights of way and easements in general after forty years. Moreover, prescriptive rights may be extinguished and will be presumed to have lapsed when they have not been used for twenty years, or sometimes even less.
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SLATER, Manual of Moral Theology (New York, 1908); TAUNTON, The Law of the Church (London, 1906); SABETTI, Compendium theol. moral. (Ratisbon, 1902); BALLERINI, Opus theol. morale (Prato, 1899).
JOSEPH F. DELANY. Transcribed by Douglas J. Potter Dedicated to the Sacred Heart of Jesus Christ
The Catholic Encyclopedia, Volume XIICopyright © 1911 by Robert Appleton CompanyOnline Edition Copyright © 2003 by K. KnightNihil Obstat, June 1, 1911. Remy Lafort, S.T.D., CensorImprimatur. +John Cardinal Farley, Archbishop of New York
Fuente: Catholic Encyclopedia
Prescription
I. This expression, borrowed from the civil law, has in the Roman Catholic Church a canonistic meaning. In order to put limits to the contests about mine and thine in rights, obligations, and possessions, that Church has fixed terms which invest with legality the possession of rights and goods, unless proof be produced that these rights or goods are of an alienable kind, or have been acquired by illegal means (usurpation or theft time does not consecrate). If the lawful term be elapsed, the possessor is confirmed in the possession of said rights or goods, and he who is bound by certain obligations cannot call them in question. The term of prescription varies with the nature of the object: movable property prescribes quicker than immovable, the property of adults quicker than that of minors, the property of those present quicker than that of absentees; ecclesiastical property is prescribed only after forty years. According to the rules of the papal chancery, the possessor of an ecclesiastical office, after a three years’ possession, if it be not obtained by violence or simony, cannot be lawfully expelled from it. There is prescription in his favor.
II. Tertullian transplanted this expression to the theological domain by his work on prescriptions against heretics, a kind of argument against erroneous doctrine. This is what he means: The Catholic Church enjoys, in her doctrines and discipline, the right of prescription; what she teaches and practices at the present hour she has taught and practiced from times immemorial-learned it from the apostles, as the apostles learned from Christ, as Christ had it from the Father. The catholic doctrine is the true one, because it is the old and original one, and rests on the divine revelation; the doctrines of heretics and sectarians, on the other side, are false, because new, because they have not prescription in their favor, and consequently are not founded on divine revelation. Irenaeus taught similarly. It is easy to see that this proof by prescription is much the same as the proof by tradition, and that this mode of arguing can have no acceptability in Protestantism, where the Bible alone is regarded as the true test, and the apostolic or early Church practices have only an advisory influence, not authority. Of course, High-Churchmen, by their ritualistic tendency, can hardly be said to come under the full influence of Protestantism, and are therefore not to be considered as included in the exponents of evangelical Christianity. See Elliott, Delineation of Roman Catholicism, p. 61, 95, 407. SEE AUTHORITY.
PRESCRIPTION is also a law adopted in Presbyterian churches. If a scandal is not noticed for five years after it happens, it cannot be revived, but is then said to be prescribed.