Introduction

1. Research question. The Code Napoléon seems to treat the acquisitive and the extinctive prescription as a unity. They are both treated in the same title (Book III, Title XX Prescription). They share the same noun, only modified by an adjective. Many rules, especially those on the running of time (suspension, interruption, calculation), are common. And both consolidate facts that have existed during a certain time without being disputed. Does this mean that the prescription is a unity, that there is no real difference between acquisitive and extinctive prescription?

To study this question, we will start with a short explanation of the majority theory, which posits the disunity (dualism) of both types of prescription. Then we will analyse some arguments in favour of the unity (monism) of the two types of prescription, and finish with an analysis of these arguments.

2. Relevance. Why is the unity or disunity of prescription of any interest? Traditionally, extinctive prescription obeys other rules than acquisitive prescription. Extinctive prescription is considered to require only the inaction of the creditor, while acquisitive prescription requires possession. If the two types of prescription are a unity, then extinctive prescription would also require possession. That possession will need to be qualified, without vices (i.e. without qualities that render it suspicious and thus ‘unworthy’ of having legal effects): it has to be “une possession continue et non interrompue, paisible, publique, non équivoque, et à titre de propriétaire”, a possession which is “continuous, peaceable, public, unambiguous and as owner” or in other words nec vi, nec clam, nec precario (Article 2229 C.Nap.). In a unitary (or monist) theory of prescription, it would become more difficult to extinguish a debt by prescription.

3. Studied countries. This contribution takes Belgian law as its starting point. As Belgian civil law is, in its origins, mainly French, French law is also studied. Next to these, Dutch, German and English law are studied too, but only in a subsidiary way.