Prescription (Scots law)

In Scots law, prescription refers to the creation or extinction of legal rights and obligations by the lapse of time. It is a key aspect of property law, contract law, and delict (tort) law, among others. Prescription operates on the principles of legal certainty and repose, preventing stale claims and ensuring that long-standing situations are given legal recognition. It is distinct from limitation, although the terms are sometimes used interchangeably outside of legal contexts.

Scots law recognizes two main types of prescription: positive prescription and negative prescription.

• Positive Prescription: This allows a person in possession of land, or exercising a right, to acquire ownership or the right itself after a certain period of uninterrupted possession or exercise, provided certain conditions are met. The most common period for positive prescription of land is ten years, based on possession following registration of a deed which is ex facie valid and constitutes a title to the land. Positive prescription is governed primarily by the Prescription and Limitation (Scotland) Act 1973. The Act specifies various requirements, including that possession must be open, peaceable, and without judicial interruption.

• Negative Prescription: This extinguishes a legal right or obligation if it has not been exercised or enforced within a specified period. The period for negative prescription varies depending on the nature of the right or obligation. The most common period is five years, applicable to obligations such as those arising from contract or delict. However, longer periods apply to other types of obligations, such as heritable rights and some types of obligations arising from trust. The consequence of negative prescription is that the creditor loses the right to enforce the obligation. Negative prescription is also governed by the Prescription and Limitation (Scotland) Act 1973. Interruption of negative prescription can occur, for example, by relevant claim or acknowledgement, which resets the prescriptive clock.

The Prescription and Limitation (Scotland) Act 1973 is the primary legislation governing prescription in Scotland. Understanding the nuances of this Act, as well as relevant case law, is essential for determining whether prescription has operated in a specific situation.

The concept of prescription is designed to bring stability and certainty to legal relationships. It addresses the difficulties of proof that can arise with the passage of time and ensures that those who have acted on the assumption that a right no longer exists are protected.