Chapter 3 of Part 1 Section 3

Third way of acquiring Property= Prescription Icon

September 28, 2015

Prescription is founded on=

  • the supposed attachment of the possessor to what he has possessed for a long time, and
  • the supposed detachment of the old possessor to what he no longer has possessed for a long time.

There are four things needed for a right by prescription=

  1. Bona fides

If a person’s right to a thing is bad, then it is alright to deprive him of it

  1. Iustus titulus

Some reasonable foundation that the person thinks that a thing is his own, such as a charter of some kind. This itself is not a right to a thing.

Bona fides is needed for a iustus titulus. A iustus titulus is a proof of bona fides.

  1. Uninterrupted possession

If the property has often been claimed by him, the former possessor has not derelinquished his right.

  1. The time is only to be reckoned when there was a person to claim the property;

The longest uninterrupted possession when the proprietor was a minor, a lunatic, or in banishment, can give no right.

By the Roman law, bona fides was only required at the first taking possession, and, though afterwards you found a fault in your title, prescription took place.

Nature has fixed no period for prescription, and accordingly it varies according to the stability of property in a country.

At Rome, [im]moveables once prescribed in two years, but afterwards more was required. In our country a feudal lord, who continually had claims upon his neighbour, could scarce be brought to admit any law of this nature.

He was willing to revive a claim though as old as the days of Noah, and when at last they fixed on a period, they made it as long as possible, to wit, 40 years.

Among the Romans, it is to [be] observed, that if anyone’s possession was interrupted during the time required for prescription, by an enemy coming into the country, he had to begin anew again. By the English law nothing can interrupt prescription but a claim of the old possessor.

Kings seldom ever allow their claims to prescribe, at least they account no length of uninterrupted possession sufficient to do it.

However, immemorial possession will ever carry this along with it.

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