The possessory actions

Abstract

The protection of the law to a person molested in his rights has always been a hallmark in any legal system of any civil society, that claims to be regulated by the Rule of Law. Possessory remedies protect the possessor from molestations and aggressions, even against the owner himself, but do not deprive the owner of the right of claiming the object in the legally, namely via the petitory actions. This thesis sets out to describe, analyse and comment on the aims, nature , requisites and effects of Possessory Actions. Extensive in-depth research has been made of local case law covering over a hundred years on these actions that enjoy a centrally important role in our legal system and which have over the centuries persistently captivated the attention of many a great jurist. A deliberately conscious yet unpretentious attempt has been made to fill the glaring lack of organised research on the local scene trusting that it would pave the way, indeed fillip, the embarcation of a journey leading to the publication of an authoritative text-book for local students. It has been found expedient and conducive to the above objective to deal with each action separately adopting a one by one approach keeping in mind that each individual action is an integral part of a bigger whole. The systematic description of each action and its ngorous analysis, though generally inexorably intertwined, support each other with the added benefit of facilitating systematic thinking and parallel critical analysis allowing for the sporadic comments made, including recommendations as to what and why needs to be essentially retained, understood better and changed. The thesis has been structured under four sections. The Introductory Part covers the theoretical and historical aspects. It presents these actions as the rights of the possessor rather than exclusive tools for the maintenance of public order. The history of these actions dates back to Roman Law. Part Two comprises Chapters Two, Three, Four and Five. Chapter Two deals with the actio manutentionis, with special emphasis on the interpretation of the term precario and the non-availability of this action to the mere holder. An expose of the thorny issue of prescription is followed by the less problematic issue of evidence. Contents of this Chapter have been liberally referred to in subsequent Chapters to avoid repetition. Chapter Three covers the actio spolii, focussing on the elements of animus spoliandi and clandestinity and the rule of non-cumul. Chapter Four deals with the novi operis nunciatio and compares and contrasts it with the warrant of prohibitory injunction. Chapter Five outlines the actio de damni infecto. Part Three is the Conclusion where specific recommendations are made.