Acquisitive and Extinctive Prescription

by Katrina Borg-Cardona

In his Manuel de Droit Civil, Pierre Voirin defines prescription as follows:-

"La prescription est un moyen d'acquerir la propriete d'une chose par un possession prolonge de cette chose."

Similarly, subsection 1 of section 2107 of the Maltese Civil Code defines prescription as

"a mode of acquiring a right by continuous, uninterrupted, peaceable, open and unequivocal possession for a time specified by law."

Subsection 2, also of the said section goes on to state the following:

"Prescription is also a mode of releasing oneself from an action, when the creditor has failed to exercise his right for a time specified by law."

Although at first sight this might appear stage, one must note that the above quoted section deals both with acquisitive as well as with extinctive prescription. This is due to the fact that there exist between them various similarities and differences which render them inherently correlated. Baudry Lacantinerie et Tissier argue that the two concepts of prescription are comparable in that the same rules on the calculation of the prescriptive period apply, the same rules on suspension and interruption of prescription generally apply. The fact that they are not considered to be vested rights until the prescriptive period has run its full course also renders them similar. However, acquisitive and extinctive prescription do differ in that the former is based essentially on possession by the person pleading it, whilst, on the contrary, extinctive prescription is based on the inaction of the creditor. In the case Farrugia v. Farrugia it was stated that

"Il-preskrizzjoni estintiva hi bazata fuq l-inerzja tat-titolar tad-dritt li kontra tieghu tigi opposta, imma s-semplici inerzja tal-proprjetatrju tal-haga mhix bizzejjed biex ittellfu jew tnaqqaslu d-dritt tieghu ta' proprjeta. Il-proprjeta ma tintilifx bis-semplici inerzja tat-titolar tad-dritt, billi dan ma jaghmilx uzu minnha sakemm ma jinsorgix l-operat ta' haddiehor li jippossjedi dik il-haga bhala tieghu, u dan il-pussess idum ghandu tletin sena bl-inerzja tas-sid u jkun animo domini u jkollu l-korrtetri l-ohrajn preskritti mill-ligi."

Moreover acquisitive prescription grants an action as well as a defence, whilst extinctive prescription, despite its granting only a defence, is wider in application since acquisitive prescription operates only on property and real rights excepting hypothec and servitudes.

The 1942 edition of the Italian Civil Code, no longer deals with the two types of prescription under a single heading. In Istituzioni di Diritto Civile, Trabucchi states that

"Prescrizione (causa di estinzione di un diritto) e usucapione (modo di acquisto a titolo originario) si fondano entrambe sul decorso del tempo, e hanno molti punti in comune nel loro regolamento; pero la prima trova la sua disciplina nel libro della tutela dei diritti, proprio in fine al codice civile, mentre l'usucapione e' regolata come modo d'acquisto nel libro della proprieta."

A judgement of the Italian Court of Cassation has succinctly summed up the disparity between them:

"La prescrizione estintiva e l'usucapione non hanno nulla in comune tranno del fatto temporale."

In Roman Law, the first requirement of usucapio was uninterrupted possession for the statutum tempus ie. possession had to be continuous and uninterrupted. The second requisite was that of bona fides, which good faith, apart from being imperative only at the start of possession, according to Buckland, did not require either belief of ownership nor the knowledge that no-one had the right to take the particular thing away. What was actually necessary was the conviction that the holder had the right to hold the thing as his own. Article 2143 says that prescription cannot be opposed by lack of title or good faith. Title here refers to "il fatto giuridico dal quale derive il diritto che intendiamo esercitare merce' il possesso," and not the animus domini in the possessor which renders the possession itself inexistent. Title is not required because of the impossibility of producing proof of the existence of the title after such a long time and also because it is not an element of the animus domini.

It is also clear that good or bad faith is irrelevant insofar as the thirty year prescriptive period is concerned, since the contrary would entail detailed investigation into the good or bad faith of previous possessors. Similarly, in the forty year prescriptive period title and good faith are not requisites, but in a 1922 case Cremona stated that

"essa va soggetta alle cause che impediscono, interrompono e sospendono la prescrizione".

Our legislator, in the Civil Code, has dealt with three different prescriptive periods, the general period being that consisting of thirty years and provided for in section 2143 of the Code.

"All actions, whether real, personal, or mixed, are barred by the lapse of thirty years..."

It would appear that such provision is meant to regulate solely extinctive prescription, but in reality this is not so, for both doctrine and case-law entertain the belief that such section operates also as a mode of acquisitive prescription. Thus section 2107 says that prescription is a "mode of acquiring", whilst section 560 states that

"Ownership and other rights over things, or relating to things , may be acquired and transmitted by succession, or by virtue of an agreement or by means of prescription."

Neither of the two distinguish between the ten year and the thirty year prescriptive periods. Indeed, the latter quoted section cannot be intended to refer only to the ten-year period, as this applies only to a limited variety of rights over things. To say that the thirty year presriptive period grants only a defence to the actio rei vindicatoria and does not vest ownership in the prescriber would defeat the purpose of consolidation of ownership and run contrary to Section 560.

The ten year prescriptive period is a special prescription in that it requires the concurrence of some conditions over and above those required for the thirty year period. A title capable of transferring ownership is necessary, implying that a putative title will not provide a basis for the ten-year acquisitive period. Good faith throughout the whole period is necessary, in the sense that "A person who , on probable grounds, believes that the thing he possesses is his own is a possessor in good faith". Our law requires that good faith contain the subjective and the objective element, and the effect of such combination is that the possessor is not in good faith if he believes that the thing belonged to third parties, but if he actually believes that the thing belongs to him, then it is further required that such belief is founded on probable grounds. Our Civil Code also provides that

"... if the title derives from an act which according to law, must be registered in the public registry, the prescriptive period does not commence to run except from the day of the registration of such act."

Moreover, like the Napoleonic Code and the 1865 Italian Code, Maltese law does not expressly require that the possessor must have acquired the thing from a non-owner in order for the ten-year acquisitive period to apply. However the application of general principles may lead one to conclude that such acquisitive prescription presumes as an essential requisite procurement from a non-dominus. Where the alienor is an owner who has a resoluble or an annullable title, the question is not whether the possessor acquires ownership by acquisitive prescription, but whether the cause of nullity or of recision or dissolution operates only between the alienor and his author or also against third parties in possession. If it operates only interpartes, the possessor's right is immune from any attack as soon as he acquires it from the defective owner. However, if it operates also against third parties, the possessor will be subject to attack by the original owner, but the latter's action for recision is subject to extinctive prescription. The ten-year acquisitive period is also more restricted as regards the rights to which it applies. Our law mentions another special acquisitive prescription, namely that of forty years, which is applicable to immoveables and actions belonging to churches and other pious institutions. The possession required for the ten-year acquisitive prescription is not different from that of any other acquisitive prescription. It must not be founded on sufferance, nor must it be based on acts of violence or clandestine acts. It must be continuous, uninterrupted, peaceable, open and unequivocal, as well as being animo domini.

Prescription may be interrupted either naturally or civilly. Natural interruption is defined in our Code as a situation

"...where the possessor is deprived for more than one year, of the enjoyment of the thing, whether by the owner or by a third party."

Such interruption is possible only in the case of acquisitive prescription. Logically interruption should occur as soon as possession is lost, but the law grants the possessor one year within which to recover possession. If the possessor tries to recover trough judicial action, it is sufficient that he institutes the action within the year without it being necessary that a judgement be delivered. In order for that one year period to apply, possession must not have been lost voluntarily by the possessor: in such a case interruption would occur immediately, even if subsequent to this the possessor changes his mind and recommences exercising possession over the thing. This would constitute a new possession and a fresh period for acquisitive prescription would start to operate. In the case Raines v. Smith, the Court stated that

"Il nuovo corso della prescrizione incomincia toto che sia cassata la caua della interruzione. La prescrizione che incomincia dopo la interruzione, se l'atto intermittivo non produce norazione e di natura e di durata uguale a questa che correva prima della interruzione."

The causes of civil interruption of acquisitive prescription are those common to extinctive prescription, but the governing rules may be modified in their application to the ten-year acquisitive period. According to our Civil Code, when prescription is interrupted, the portion of the period which has already gone by shall not be taken into account, but prescription shall recommence. The application of the second part of this rule might sometimes be impossible in relation to the ten-year acquisitive period, because the interruptive cause may have had the effect of destroying the good faith of the possessor.

The general rule that prescription may not be set up by the Court applies also to the ten-year period, just as they apply to all other types of prescription. This is so because the requisites of prescription, ie. inaction or possession, according to whether the prescription is extinctive or acquisitive, cannot be verified by the judge unless it has been raised by the parties. Pugliese explains that prescription is only a logical consequence of a rule that the judge must decide solely upon the basis of the facts as placed before him. The parties are at liberty whether or not to invoke the acquisitive prescription.

Acquisitive prescription in general applies only to those rights capable of possession. Hence all rights of obligation are excluded absolutely and with no exception. It therefore follows that only real rights may be acquired by prescription, and even within this category there exists a further limitation. The issue of whether movables may be acquired by prescription or not is also a subject of much discussion between various authors.

The Italian Civil Code of 1865 defined extinctive prescription "as a means whereby, given certain determinate conditions, and the passing of a certain period of time, one is freed from performing an obligation." A literal interpretation of this section could lead to the mistaken conclusion that only rights referring to obligations can be the subject of extinctive prescription. This would mean excluding rights "in re aliena". Such comment is also true of Maltese Civil law, for a correct interpretation of Section 2107 could only be arrived at after an examination of all the other provisions relating to the subject, the majority of which lay clearly provide that rights "in re aliena" may also be subject to extinctive prescription. Extinctive prescription does not merely give rise to a defensive plea but may form the basis and be taken advantage of as an action.

Extinctive prescription is made up of three elements:-

a right which is capable of being exercised;
inactivity on the part of the holder of such a right; and
such inactivity must subsist throughout the period prescribed by law.

It consists in the extinction of a right which could and should have been exercised, and which on the contrary has not been exercised throughout a period of time which is predetermined by law. A title holder is "inactive" in this sense when he could, had he so wished to, exercise his right but failed to do so. This is manifest from the Civil Code itself which provides that the term necessary for the running of the prescriptive period is suspended in the case of rights and actions which are subject to a condition or a term.

In order to be able to calculate when such time has commenced to run, one must be able to ascertain the precise moment when the right or action could be exercised. Prescription starts to run only from the moment when the right may be exercised and the ordinary prescriptive period is that of thirty years. The time period is calculated by whole days and not in hours, whilst the months are calculated in accordance with the calendar. The prescriptive period expires on the very last day of the predetermined span, unless this particular last day happens to be either a Saturday or a public holiday, whereupon the last day would be deemed to be the expiration of the first succeeding day which is not a public holiday.Legal title and good faith are not required in extinctive prescription - as regards possession, opinions tend to vary.

Does prescription affect the right or the action? It is true that Section 2107 defines prescription as a "mode of releasing oneself from an action, and that sections 2137 and 2143 mention prescription of actions. However, there exist certain sections in the Code such as those relating to the extinction of easements and praedial servitudes, as well as to the extinguishment of privileges and hypothec - the right of accepting a vacant inheritance too, is prescribed by the lapse of thirty years. All these sections refer to the extinction of a right and not to the extinction of an action. Moreover Section 2095 holds that "prescription applies to rights and actions vested in any person, institution or body corporate, ..." This section must be read in conjunction with section 2138 which provides for prescription of actions. The Italian Civil Code states that

"Un diritto si estingue per prescrizione quando il titolare non lo esercita per il tempo determinato dalla legge."
"Non sono soggetti alla prescrizione i diritti indisponibili e gli altri diritti indicati dalla legge."

As in the case of acquisitive prescription, the plea of prescription can only be raised by the debtor or the interested parties and never by the judge ex officio. The fact that the interested party does not raise the plea undoubtedly means that some vital issue, such as the expiration of the required time has not been sufficiently proven.

It is a principle of general application that if one is the plaintiff one can protect one's rights through action; if defendant, then the latter's rights are protected by exception in three ways

either by absolute negation of the fact upon which the plaintiff bases his claim;
or by allegation of facts that extinguish the right claimed;
or by allegation of a right or fact which renders the claims of the plaintiff unfounded at law.

The effects of extinctive prescription are immediately connected to its functions. In acquisitive prescription, the functions are twofold. Chiefly, it serves a material or substantive purpose as well as a procedural one, depending on the time when it is raised. In the former sense it is a means of acquiring a perfectly valid legal title; in the latter sense it serves as irrebuttable evidence as a defence made by the "owner" in the actio rei vindicatoria. This twofold function is also true of extinctive prescription, although there are many legal writers who have attributed to extinctive prescription a more procedural function, ie. a defence plea which is raised in an action demanding the fulfilment of an obligation.

Extinctive prescription certainly has a function in substantive law, and this can be clearly inferred from such law. It is true that the effects of extinctive prescription cannot be equated to the effects of fulfilment of the obligation, but still its effects are made to be similar by the law. True also is the fact that one of the functions of extinctive prescription is a procedural one - when the obligation never had a valid existence, and the interested party raises as his defence the plea of prescription. The material and substantive law effects of extinctive prescription are the following:

It acts directly against the right as a mode of its extinguishment. Its efficacy is of at law equal to that of the other legal modes of extinguishment of obligations.
It protects the right, when the actions of nullity and recision are extinguished by prescription.
An otherwise precarious title may be recognised as a perfectly valid one.
It has a retroactive effect.

Perhaps the following paragraph, extracted from Torrente & Schlesinger's Manuale di Diritto Privato, concisely sums up the similarities and the differences between acquisitive and extinctive prescription -

"E agevole distinguere l'usucapione dalla prescrizione estintiva: in entrambi gli istituti hanno importanza il fattore tempo e l'inerzia del titolare del diritto, ma nella prescrizione questi elementi danno luogo all'estinzione, nell'usucapione all'acquisto di un diritto. Inoltre la prescrizione ha una portata generale, in quanto si riferisce a tutti i diritti tranne eccezioni (la piu importante, la proprieta); l'usucapione riguarda invece solo la proprieta ed i diritti reali di godimento."

For private educational use only. Any other use is strictly prohibited under Maltese law and international treaties. The article does not purport to give any legal advice.