Resumen de Acquisitive prescription and adverse possesion: morality, utility, legitimacy

Yaëll Emerich

• Acquisitive prescription in civil law and adverse possession in common law produce particular/y strong ejfects in law since they are means whereby property may be gained through the passage of time. Good faith plays a relatively modest role in acquisitive prescription/adverse possession, which does not necessarily means that acquisitive prescription or adverse possession are immoral. Not only good faith has a certain role, both substantial and formal, but there are theoretical justifications. that justifY acquisitive prescription/adverse possession and renders those mechanisms legitimate. Aside from justifications founded upan moral and economical arguments, what justifies it above ali is a justification founded on social arder related to the public interest. Moreover, additionally to a theoretical legitimacy, acquisitive prescription/adverse possession has an utility or practica! legitimacy, especially in traditions where registration of rights are essentially a matter of opposability to third parties, but also to a lesser extend in Torrens-like registration systems. Finally, the argument can be made according to which acquisitive prescription is a form of private expropriation. A compensation of the disposed owner could then in/use greater legitimacy to the law of acquisitive prescription/adverse possession.