Prescription and forfeiture in civil law

Abstract

The institutes of Prescription and Forfeiture represent the necessity of certainty in juridical relationships. Whenever a state of fact is incongruent with the state at law, the damage to society, caused by the uncertainty which such a state creates becomes unbearable, and consequently a remedy must be found in order to convert such state of fact into a state of law. Prescription and Forfeiture achieve this result conveniently through one of the elements · which affects everything, and which has long been recognised by civilisation. The element of time. It is said that time heals all wounds, but while this is true for the juridical structure of a society, the loss of rights through the operation of these institutes has at times been described as unjust and immoral. Jurists however regard these institutes as the most essential for the well being of the juridical framework of a society. Prescription dates back to Roman law, which is the origin of today's civil law. Through Prescription, a person may either acquire a right or be released of an obligation, when certain conditions subsist for the time required by law. In acquisitive prescription, or Usucapio, as it is commonly known, what is required is lawful possession for the period specified by law, whereas in extinctive prescription, what is required is the inactivity of the creditor for the period specified by the law. The passage of time may be prevented, suspended or interrupted, and prescription acquired may be renounced. The institute of forfeiture is similar to extinctive prescription, with the major differences consisting in the manner time operates. But the institute of Forfeiture unlike Prescription is not regulated by law, and consequently, jurists and Court decisions are the main sources of this institute. Needless to say, as a result of this, many conflicting opinions surround the institute, and adequate rules are desirable.