Protection of Possession
In Roman law, possessory protection was achieved mainly by interdicts (interdicta); that is, praetorian orders issued on request in duly justified circumstances.
Some of these interdicts were available for the protection of a specific possessor, while others had general application and could be relied upon by any protected possessor.Possessory interdicts were classified into three categories: interdicts aimed at obtaining possession (interdicta adipiscendae possessionis); interdicts aimed at retaining possession (interdicta retinendae possessionis); and interdicts aimed at regaining possession (interdicta recuperandae possessionis).[470]
The interdicts directed at the retention of possession were also referred to as prohibitory interdicts (interdicta prohibitoria), since they prohibited a person from interfering with or disturbing the possession of another. This category encompassed two particular types of interdict: the interdictum uti possidetis, relating to immovables; and the interdictum utrubi, relating to movables.[471] A characteristic feature of these two interdicts was that they were directed against both parties in a controversy concerning possession (hence they were also referred to as interdicta duplicia). This means that in such cases the praetor had to determine which of the parties before him, relatively speaking, had a stronger claim to the object under dispute.[472]
Furthermore, the interdicts aimed at regaining possession (interdicta recuperandae possessionis) were also called restitutory interdicts (interdicta restitutoria) as they commanded a person who dispossessed another to restore possession to the latter.
The principal interdict in this category was the interdictum unde vi, which was used where a person had been deprived of his possession by force.[473]3.4.2.1 Interdictum Uti Possidetis
The interdictum uti possidetis applied only to the possession of immovable property. Its purpose was to protect the party who was actually in possession of such property at the time when the interdict was requested against any interference with his possession. The interdict had a prohibitory effect in this instance. However, if the present possessor had obtained his possession by force (vi), secretly (clam) or by grant at will (precario)1" from the other party, the latter was given possession and protection. In this instance, protection was granted to the party with the strongest possessory claim and, in this respect, the interdict was simultaneously bilateral (duplex) and restitutory (interdictum restitutorium) in the case where the present possessor was commanded to return possession to his adversary.[474] [475] [476]
3.4.2.2 Interdictum Utrubi
The interdictum utrubi related to the possession of movable property. It granted protection to the party who had been in possession of the object in question for the longest period (as against his adversary) during the past year, unless he himself had obtained possession from the opposing party by violence, secretly or by grant at will (vi vel clam vel precario)?01 As in the case of the interdictum uti possidetis, the interdictum utrubi was bilateral and prohibitory as well as restitutory where possession of the object was awarded to the party who was not the present possessor.
3.4.2.3 Interdictum Unde vi and Interdictum Unde vi Armata
The interdictum unde vi, also only applicable to the possession of immovables, was available to the possessor who had been deprived of his possession by force.
By means of this interdict, the praetor ordered the dispossessor to restore possession of the property in question to the previous possessor unless the latter himself had obtained his possession by force, secretly or by grant at will from his adversary. This interdict had to be requested within a year after possession had been lost.[477]Similar to the interdictum unde vi, the interdictum unde vi armata could be requested by a person who had been driven from his land by force of arms.[478] In such a case, it was not necessary for the dispossessed person to claim the interdict within a year of dispossession and it was not required that the party requesting the interdict should himself not have obtained possession vi vel clam vel precario.
3.4.2.4 Possessory Interdicts Under Justinianic Law
In the time of Justinian, the interdictum uti possidetis and the interdictum utrubi were merged whereby the principles pertaining to the former were rendered applicable to both immovable and movable property.[479] Moreover, the law of Justinian recognized only a single interdictum unde vi that did not feature any distinction between ordinary force and force of arms. The issue of whether the possession had been obtained vel clam vel precario was likewise no longer relevant, whilst the requirement that the interdict should be requested within a year probably remained in place.[480]
3.5
More on the topic Protection of Possession:
- Interdictal protection of possession
- Possession
- Possession
- Possession
- 2. POSSESSION
- Acquisition, Maintenance and Loss of Possession
- 1. Warranty of peaceable possession
- Error and the protection of the promisee
- Judicial Protection of the Lower Classes
- Protection of Servitudes
- Possession
- II THE PROTECTION OF A FREEMAN'S BODILY INTEGRITY
- Protection of human rights by the common law
- 5 The Protection of Human Rights and Fundamental Freedoms
- The protection of a freeman's life and bodily integrity
- European Union law and the protection of human rights
- So far in this chapter, we have concerned ourselves with ownership (and, related thereto, possession) as the real right that accrued to a person in respect of his own property (ius in re propria).
- Real contracts (contractus re) were agreements that became operative and binding on the transfer of possession or physical control of a tangible thing (res corporalis).
- Emphyteusis
- In the previous paragraphs, frequent references emphasized the notion of possession as a key to the acquisition of the right of ownership.