The Actio Publiciana

Abstract

The Actio Publiciana is the action which is allowed under the praetorian edict to a man who, after possessing a thing in such circumstances that he would in time usucape it, loses possession of it before the time for usucaption has elapsed. Such a man could by no means bring the reivindicatio as the person in question has not yet become owner. On the other hand he has a right to recover the thing from subsequent possessors who after all had no better right than himself. Hence the praetor propounded the actio publiciana. This action was based on the fiction that the time period for usucaption has elapsed, thus the judge is told to condemn as if the thing in question would have become the property of the plaintiff ex iure Quiritium had his possession lasted long enough. Consequently the first chapter analyses the historical origins of the Actio Publiciana. Our Civil Code does not provide for the actio publiciana, it is neither mentioned as a petitory action and neither as a possessory action. In fact in the Civil Code soon after the section which defines the subjective right of ownership we find as a petitory action protecting this right only the actio rei vindicatoria. For these reasons, precisely the scope of the second chapter is the study of what is the nature and character of the Actio Publiciana. Subsequently follows in chapter three a study of the theory of diritto migliore which allows a comparison of the exceptions raised by the parties. It assigns the right of possession after having examined the arguments brought by the plaintiff and the defendant. The rigorous proof required in the actio rei vindicatoria in Roman Law was mitigated by the actio publiciana. Is this action still relevant in our juridical system? This chapter sees what our Court has been saying with regards to the applicability of the Actio Publiciana. Furthermore, chapter four lays down the various reasonings of the Courts when applying the Actio Publiciana and comparing the titles brought forward by the parties. Finally, the last chapter deals with the Actio Publiciana and the theory of diritto migliore in Comparative Law.