Actio rei vindicatoria

Abstract

Actio rei vindicatoria owes its' origin to Roman Law. The petitory nature and the real character of this action may be deducted from the purpose i. e. the acknowledgement of ownership and the consequent restitution of the thing to its' owner by the possessor. The pre-requisites for the exercise of this action are two - that the plaintiff is the owner and that the defendant is the possessor. And here there lies a difference between our section 322 and the Italian Article 948 because the latter expressly provides for the legittimazione passiva of the detentor. Furthermore, doctrine and jurisprudence have contributed to the widening of the concept of plaintiff and defendant The Actio Rei Vindicatoria is directed against the possessor so that he is condemned to restore the property to the real owner. In other words this action implies that the defendant is the possessor who is not the owner. It follows that the possessor has nothing to prove at all (possideo quia possideo ), all he has to do is to hear the alleged accusations and proofs the plaintiff (i.e. the dispossessed owner) has to do against him. On the other hand, the plaintiff must not only prove that he has the right of ownership but he has also to prove that the defendant is possessing the thing without any title. Moreover, in cases where there is_transfer of ownership the plaintiff must also give proof of the dominium auctoris. Where there is a derivative rather than an original title, "In ciascuna trasmissione di proprieta' vi e' una pruova a fare di giusa che a ciascun passo si indietreggia per cosi dire in luogo di avanzare. None' senza ragione che gli antichi interpreti chiamavano diabolica la pruova del titolo." (-Laurent) In Roman Law, this rigourous proof was mitigated by the actio publiciana Does this action still exist in modem Codes? Is there room for the application of the theory of the diritto migliore? What are the effects of the Actio Rei Vindicatoria? "La rivendicazione ha per obietto la restituzione della cosa rivendicata:tale e' l'oggetto principale dell'azione, tale e' altresi l'effetto."(-Laurent). Regard must also be had to the fact that during the time that the defendant was in possession obviously he was making use of the thing which he possessed withoutbeing entitled to possess. Therefore, an examination must be made of the relationship between the owner and the former possessor as regards benefits and fruits, nay improvements and damages done to the property.