A comparative analysis of the Actio Publiciana and the Actio Rei Vindicatoria

Abstract

The actio publiciana and the actio rei vindicatoria have existed in the legal sphere for centuries and the survival of the actions themselves serves as evidence of their undeniable and effective protection of ownership. They have proceeded to feature greatly in Maltese jurisprudence and as studies have been made on each action separately, there has to date, not been an in depth study to distinguish the two. The actio publiciana, as derogation from the actio rei vindicatoria, has been applied by the Maltese Courts notwithstanding the fact that it is not provided for in the Civil Code. Whilst other foreign legal systems have rejected the exercise of the publiciana, the Maltese system embraced it as an indispensable part of the vindicatoria. This study will look into the necessity of the publiciana and the close relationship it shares with the vindicatoria. The history of these actions in Roman law will be studied in Chapter 1 followed by a close analysis of their current nature and purpose in the second chapter. Chapter 3 will consider the differences in the standard of proof established in both actions, introducing the theory of diritto migliore. In these chapters shall include the interweaving characteristics which compose the actions, their parallelism and dissecting the legal differences between them. The fourth and fifth chapters will deal with local and foreign application respectively, wherein a better understanding of these actions’ application will be delivered. Particular attention will also be given to a large number of local judgements. A study of the Court’s application of these actions will range from the judgements delivered at the end of the 19th Century to those delivered up until June 2014. The analysis of these actions within such judgements will be delivered with reference to the texts of foreign authors.