PRESCRIPTION Chapter 1

General Concepts:
Prescription: generally used with reference to
the acquisition of a right by the lapse of time
(common law),
Limitation: refers to the time within which an
action must be brought after the right of
action has accrued.
** Under the Civil Code, prescription is used
to cover both ideas

Aspec
t

Purpos
e
of
law

2 KINDS OF PRESCRIPTION:
1. Acquisitive
prescription
(adverse
possession, usucapcion)
- the
acquisition of a right by the lapse of
time
2. Extinctive prescription( limitation of
actions)- the loss of a right of action by
the lapse of time
Article 1106:
By prescription, one acquires ownership
and other real rights through the lapse
of time in the manner and under the
conditions laid down by law.
In the same way, rights and actions are
lost by prescription
Difference of Acquisitive and Extinctive
Prescription
Aspec
t
Basis:

Acquisitive

Extinctive

Based
on
the
assertion of
the usurper
of
an
adverse
right
for
such a long
time,
uncontested
by the true
owner of the
right, as to
give rise to
the
presumption
that
the
latter
has
given
up
such right in
favor of the
former

Based on the
probability, born
of
experience
that the alleged
right
which
accrued in the
distant
past
never existed or
has already been
extinguished; or
if it exists, the
inconvenience
cause by the
lapse of time
should be borne
by
the
party
negligent in the
assertion of his
right

1
| Compiled and Prepared by Vina Cagampang

Charac
teristic
s
Retroa
ctivity
Requisi
tes
As
a
Matter
of
Defens
e

Acquisitive

Extinctive

Both based on the negligence

or presumed abandonment by
the owner of a right, whether
patrimonial or remedial
Protect
the
diligent
and
vigilant, not the
person
who
sleeps on his
rights, forgetting
them and taking
no trouble of
exercising then
one
way
or
another to show
that he truly has
such rights

Retroactive

The plea of 1. Must

be
ownership
expressly
would
relied upon in
sufficient to
the pleadings
must
be
proof even if 2. It
proved
or
there is no
established
allegation of
with the same
prescription
degree
of
of action
certainty
as
any essential
allegation
in
the civil action
Exception:
When
the
plaintiffs
own
allegations show
clearly that the
action
has
prescribed, the
Court
may
dismiss
the
complaint on the
ground
of
prescription
3. Must

be

PRESCRIPTION Chapter 1
Aspec Acquisitive
Extinctive
t
pleaded
before trial

Exception:
It
may
be
pleaded later as
soon as the true
nature of the
claim
is
discovered,
if
before trial, a
party
has no
means
of
knowing that the
opponents claim
is barred.
Our law considers an obligation barred by
extinctive prescription as a natural one
and the same consideration can be given
to the duty to return the thing to its true
owner after it has been acquired by
prescription
Whatever is paid or delivered due to the
promptings of conscience cannot be
recovered
The voluntary return of the property, even
if not viewed as a performance of a
natural obligation can be regarded as a
tacit renunciation of prescription (Art.
1112)
Retroactivity of prescription
Once the period is completed, the new
owner is considered as having acquired
the thing or right from the moment the
period began to run.

Art. 1107
Persons who are capable of acquiring
property or rights by the other legal modes
may acquire the same by means of
prescription.
Minors and other incapacitated persons
may acquire property or rights by
prescription, either personally or through
their
parents,
guardians
or
legal
representatives

Generally, capacity to acquire property

or rights by other legal modes is
required for prescription.

2
| Compiled and Prepared by Vina Cagampang

Minor and other incapacitated persons

may also, under certain circumstances,
acquire by prescription
o Discernment is necessary intent
to appropriate the thing as
ones own is an essential
element of the possession
o When discernment is wanting,
they can acquire by prescription
only
through
their
legal
representatives
When prescription only requires just
titles, the capacity to prescribe will be
the same capacity required for the
particular title in question.
o Donation: capacity donee
is
required
o Succession: capacity to succeed
o Contract: capacity to enter into
contracts
In
prescription
where
title
is
unnecessary,
the
capacity
for
possession
is
required
because
possession is an element common to
all kinds of acquisitive prescription

Article 1108
Prescription, both acquisitive and extinctive
runs against:
1. Minors and other incapacitated
persons who have parents, guardians
or other legal representatives ;
2. Absentees who have administrators,
either
appointed by them before
their disappearance, or appointed by
the courts;
3. Persons living abroad, who have
managers or administrators
4. Juridical persons, except the State
and its subdivisions
Persons
who
are
disqualified
from
administering their property have a right to
claim
damages
from
their
legal
representatives whose negligence has been
the cause of prescription
Saving provisions of the Code of the Civil
Procedure
a.

Sec. 42: If the person entitled to bring

the action mentioned in the preceding
sections of this Chapter (title to land
by prescription) is at the time the

PRESCRIPTION Chapter 1
cause of action accrues within the age
of minority, of unsound mind, or in
prison, such person may, after the
expiration of 10 years (the period of
prescription provided for title to lands)
from the time the cause of action
accrues, bring such action within 3
years after such disability is removed

b. Sec. 45: If the person entitled to bring

any action mentioned in either of the
two last preceding sections (extinctive
prescription in all other civil actions
aside from suits on title to land) is at
the time the cause of action accrues
within the age of minority , of unsound
mind, or in prison, such person may
bring such action within 2 years after
the disability is removed

These above provisions have been

modified by Article 1108 of the CC.
The saving provisions do not apply to
Art 1108, item no. 1
But when such minors, insane persons
or persons ins prison do not have such
parents,
guardians
or
legal
representative, the saving provisions
will apply to them and they may bring
their actions within 3 or 2 years, as the
case may be, after the disability has
been removed.
The saving provision in Act. 190
applies only to persons who are under
disability at the time the cause of
action accrues
Once the period of prescription has
begun to run, a disability arising
subsequently
cannot
stop
its
operation.
Before the statutory saving clause in
favor of a minor can be effective, it
must appear that the right of action
originated in the life of such minor; the
saving clause cannot apply to persons
born after the cause of action accrued.

Article 1109
Prescription does not run between
husband and wife, even though there be
a separation of property agreed upon in

3
| Compiled and Prepared by Vina Cagampang

the marriage settlements or by judicial

decree.
Neither does prescription run between
parents and children, during the minority
or insanity of the latter, and between
guardian
and
ward
during
the
continuance of the guardianship
Reason: influence or affection may often
prevent one from bringing an action against
the other
Exception:
a. When the law specifically provides for
a period of prescription in actions
between the spouses
i. Article 57, FC
ii. Article 96, 124, FC
Prescription is not suspended
Article 1110
Prescription, acquisitive and extinctive,
runs in favor of, or against a married
woman
Article 1111
Prescription obtained by a co proprietor
or a co-owner shall benefit the others

It is not necessary for the other coowners to ratify in order that prescription
obtained by one co-owner may benefit
them if the property is owned in
common. But if the property is not owned
in common, ratification is necessary
But mere existence of the relationship of
co-owners will not in itself suffice to give
the benefit of prescription by one in favor
of all the others
o Ex: A, B and C are co-owner of a
parcel of land in Manila; A then
takes possession of a piece of land
in Zamboanga, not only for himself
but also in behalf of B and C. The
prescription cannot benefit B and
C, unless they ratify the possession
acquired by A for them, under the
provisions of Art. 523 of the Civil
Code (Possession is the holding of a
thing or the enjoyment of a right)
o Because possession must be in the
concept of owner in order to ripen
into ownership by prescription, it

PRESCRIPTION Chapter 1
seems juridically incompatible that
co-owners who not ratify and may
not even know the possessory acts
of another co-owner, should be
considered also in possession in
concept of owner
Article 1112.
Persons with capacity to alienate property
may
renounce
prescription
already
obtained, but not the right to prescribe in
the future.
Prescription is deemed to have been tacitly
renounced when the renunciation results
from acts which imply the abandonment of
the right acquired.

The
renunciation
of
prescription
already acquired is a unilateral act,
and does not require the acceptance of
the person to be benefited by it.
No formality is required; it may even
be tacit (implied)
Tacit renunciation: Where a party
acknowledges the correctness of a
debt and promises to pay it after the
same has prescribed and with full
knowledge of the prescription, he
thereby
waives
the
benefit
of
prescription.
A simple acknowledgment, which
contains no new and positive promise
to pay the debt which has prescribed,
such as a promise to pay only one half,
or even a part payment, does not
amount
to
renunciation
of
the
prescription.
A renunciation of prescription in
advance is void.
No renunciation can be made, at the
time of entering into a contract, of the
right of pleading a prescription which
may thereafter be acquired.
An agreement that the obligations
arising from the contract shall not be
subject to prescription, is not binding.
Only a person with capacity to alienate
property can renounce prescription
already obtained.
An administrator or executor is without
power
to
renounce
or
waive
prescription after it has been acquired
in favor of the estate he represent.

4
| Compiled and Prepared by Vina Cagampang

A guardian cannot revive against his

ward a debt which has prescribed;
hence is a guardian pays a debt of his
ward
prescribed
before
his
administration began, he will be liable
for the amount.

Article 1113
All things which are within the commerce
of men are susceptible of prescription,
unless otherwise provided. Property of
the State or any of its subdivision not
patrimonial in character shall not be the
object of prescription

Common things, property of public

dominion, and intransmissible rights
cannot be acquired by prescription
Plazas destined to public use are not
subject to prescription
Shores and lands reclaimed from the
sea, while they continue to be devoted
for public use and no grant whatever
has been made of any portion of them
to private persons, remain a part of
the public domain and are for public
uses, and until they are converted into
patrimonial property of the State, such
lands thrown up by the action of the
sea, and the shores adjacent thereto
are not susceptible of prescription,
inasmuch as being dedicated to the
public use, they are not subject of
commerce among men.
Navigable rivers are part of the public
domain
and
one
cannot
build
fishponds
therein
without
the
permission of proper authorities.
Therefore, the river cannot be the
object of appropriation for the
exclusive use of individuals, because it
is outside the commerce of men.

The following, although within the commerce

of men, cannot be acquired by prescription:
1. Movables possessed through crimes
2. Lands registered under the Torrens
System

Property of the State or any of its

subdivisions
not
patrimonial
in

PRESCRIPTION Chapter 1
character shall not be the object of
prescription
Only properties NOT patrimonial in
character
should
be
free
from
prescription
Patrimonial property can be acquired
by prescription against the State or
any of its subdivision
Article 1114.
Creditors
and
all
other
persons
interested in making the prescription
effective may avail themselves thereof
notwithstanding the express or tacit
renunciation by the debtor or proprietor

Creditors may plead prescription

o The law accords to all creditors
and persons who have an
interest in the extinguishment
of an obligation, the right to
plead
prescription
for
themselves, even if the person
bound by the obligation should
renounce such prescription

5
| Compiled and Prepared by Vina Cagampang

Prescription pleaded by one

creditor does not inure (come
into operation) to the benefit of
another creditor

Article 1115
The provisions of the present Title are
understood to be without prejudice to
what in this Code or in special laws is
established with respect to specific cases
of prescription.
Article 1116
Prescription already running before the
effectivity of this Code shall be governed
by laws previously in force; but if since
the time this Code took effect the entire
period herein required for prescription
should elapse, the present Code shall be
applicable, even though by the former
laws a longer period might be required.