Prescription (law)

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Prescription (law) is the method of sovereignty transfer of a territory through international law analogous to the common law doctrine of adverse possession for private real-estate. Prescription involves the open encroachment by the new sovereign upon the territory in question for a prolonged period of time, acting as the sovereign, without protest or other contest by the original sovereign. This doctrine legalizes de jure the de facto transfer of sovereignty caused in part by the original sovereign's extended negligence and/or neglect of the area in question. Prescription can also be said to have occurred when, in the context of a territorial dispute, the situation has developed to such a degree that to restore sovereignty to the original "rightful" sovereign would disrupt the established order to such a degree as to be unfeasible; hence the transfer of sovereignty de jure to the new sovereign.

Acquiring a piece of movable or immovable property by prescription is known as "acquisitive prescription" while losing that same piece of property is known as extinctive prescription.

[edit] Examples

Under the civil law of Quebec possessors with the animus (will) to be owners can acquire a right of ownership (or to a dismemberment of ownership if animus is to inclined) as long as the nature of possession is peaceful, continuous, public and unequivocal throughout. (According to article 922 of the Civil Code of Quebec or CCQ) the prescribed period is 10 years (2917-2920 CCQ) , except as otherwise provided by law. (2918 sets a different time for unregistered property. Reduced from 30 years.)

Exceptions to Prescription: Possession cannot establish a servitude under 1181 CCQ, but non use of a servitude will extinguish it.

In the State of Louisiana, a mixed legal jurisdiction with strong civil law roots, prescription can be either acquisitive or liberative, both of which involve the creation or extinguishing of rights over time. Acquisitive prescription in Louisiana is analogous to the common law idea of adverse possession. As defined in La. C.C. Art. 3446, "acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time."^[1] Unlike the common law adverse position, Louisiana's acquisitive prescription is not a procedural bar to recovering property but the creation of a new ownership right in the property. Time periods for acquisitive prescription depend on whether the property is movable or immovable and whether the property is possessed in good faith (possessor believes they have title to the property) or in bad faith.

Liberative prescription is analogous to the common law statute of limitations. As defined in La. C.C. Art. 3447, "liberative prescription is a mode of barring of actions as a result of inaction for a period of time."^[2] It can be renewed by the party who has gained its protection. For example, a debtor's admission that a debt is still owed renews the creditor's claim against the debtor and starts the tolling of another prescriptive period. This differs from peremption, which is a fixed time for the existence of a legal right and which cannot be renewed like liberative prescription.^[3]

[edit] References

• Randall Lesaffer, "Argument from Roman Law in Current International Law:Occupation and Acquisitive Prescription."^[4]
• Government of Belize article^[5]

[edit] Notes