prescription the process of acquiring rights, immunities or obliga- tions as a result of the passage of time. Prescription is founded on the idea that a person who has enjoyed quiet and uninterrupted posses- sion of something for a long period of years is supposed to have a just right, without which he would not have been allowed to contin- ue in enjoyment of it. In particular, easements and profits may be acquired by prescription if enjoyed without interruption for the appropriate length of time (usually 20 years in the case of easements and 30 years in the case of profits). Prescription may be:
(1) under the common law rules,
(2) under the doctrine of lost modern grant, or
(3) under the provisions of the Prescription Act 1832.
In Scotland the word is used in a similar way in relation to the acquisitions of rights: see the Prescription and Limitation (Scotland) Act 1973 (as amended). The positive prescription in Scotland is ten years. It allows a person who has possessed land openly, peaceably and without interruption on the strength of an ex facie valid record- ed title covering the land in question, to obtain a good title to it. In cases of the acquisition of servitude rights or rights in the foreshore or salmon fishings, the positive prescription is 20 years. In Scotland the word prescription is used in a negative sense of shutting off stale claims in a way very similar to that sense denoted by the word limi- tation in England. Limitation was not a native Scottish concept. Thus, there is a five-year short-negative prescription that cuts off very many claims – the most significant being mostly claims for damages or payment with the exception of claims for personal injuries, which are dealt with by way of limitation. The main difference between prescription and limitation is that limitation must be pled whereas prescription operates by law and can be noticed by the court. There is in addition a long-negative prescription of 20 years, which shuts off claims not already closed by the limitation period or the short nega- tive prescription or a category of obligation known as imprescriptible,
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presumption
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the most significant of which are obligations under solemn deeds and the obligations of a trustee in respect of trust property. See
LATENT DAMAGE, LIMITATION, PRODUCT LIABILITY.