Actio Publiciana (Roman Law)

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The actio publiciana was probably one in Roman law in the last century BC. Chr. Created praetoric surrender action , which served the protection of the former owner of a ( presentable ) thing. The prerequisite was that he had brought the matter into his possession in good faith ex iusta causa .

In contrast to civilly acquired and therefore exclusively protected property , the legislative action of Publicana became relevant when fair ownership of a lost thing was obtained through an unauthorized third party. In case of doubt, this could happen several times in a row (double sale), the prerequisite was always that the matter passed ex iusta causa. If the honest owner had not yet inherited the thing due to the inheritance period , he enjoyed the rights of property protection by virtue of fiction .


According to the report of Gaius, the actio Publiciana was due to the owner of the estate, whose acquisition of property had failed (for the time being) because he had owned the acquired movable property for less than a year and the property for less than two years. The formula of the actio was:


"If it turns out that the matter at issue, quiritisches property would of Aulus Agerius must be after he ( good faith bought) after he passed on was and if he would have owned for a year etc."

- Gai 4, 36.

In the claim, it was faked that the plaintiff had already inherited the disputed matter. Since the actio Publiciana only faked the passage of time of the prescription in the case of the plaintiff, the plaintiff had to submit the requirements for an acquisition:

  1. Thing subject to possession - res habilis
  2. original, then lost possession - possessio civilis
  3. Time of prescription - tempus
  4. Reason for acquisition - iusta causa , titulus
  5. Good faith - bona fides at the time of purchase

The plaintiff was exempted from the third requirement of possession ( tempus ). With the actio Publiciana, the owner of the estate could assert himself against everyone if he had received the thing from a civilian owner. In the case of acquisition by the unauthorized person, he could not assert himself against the real owner. He had the objection of legitimate ownership, exceptio iusti dominii . In the case of res mancipi , the plaintiff could be countered with the replicatio rei venditae et traditae , with the result that the buyer prevailed.


For the real owner, actio Publicana was an alternative to vindication, because the burden of proof for ownership lay not with the plaintiff, but with the defendant. He had to prove that he was either the owner himself or that the plaintiff was not in good faith when purchasing the property. The action thus fulfilled the same function as the interdict of ownership . It helped the plaintiff to property control and thus improved his own position for a surrender suit from the true owner.

Protection of bonitarian property

The actio Publiciana was available to the owner of the estate even if the real owner had given him a res mancipi , which was bound by strict formal requirements, in a formally incorrect manner, which is why he only became the property owner . The classic lawyer Iulian describes the applicability in the case of multiple sales with honest acquisition of ownership .

Origin of the actio Publiciana

Substantive law theory

According to Sturm / Lenel / De Visscher, the actio Publiciana is said to have been created to protect the so-called bonitarian owner. The praetor wanted to protect the acquirer of a res mancipi , to whom it was merely handed down by the owner, even though he did not acquire civil property until the end of the period of possession. The acquisition of property by usucapio started with the acquisition from the owner and was only later extended to the acquisition from the non-owner. There were already cases of the informal tradition of res mancipi at the time of the XII Tablets , whereas an acquisition from the non-owner, a non domino , even at the time of Gaius, could not lead to acquisition of property through possession because the thing was usually considered to be was considered stolen, which ruled out any acquisition. With the usucapio , the actio Publiciana, which is closely related to it, also developed.

Litigation theory

Felix BJ Wubbe sees the aim of the actio Publiciana in protecting the buyer ex iusta causa . Initially, it does not matter whether the plaintiff actually became the owner or whether he would only do so as a result of usucapio . Because the actio Publiciana should protect the plaintiff against less entitled owners and thus relieve him of the difficulties that the transition from the legislative process to the form process and the associated change from relative to absolute ownership brought with it. If in the legisl actio sacramento in rem the defendant had also claimed that the matter belonged to him and the judge awarded it to the relatively better entitled person, in the sponsorship procedure and above all in the per formulam petitoriam procedure only the plaintiff claimed to be the owner. This led to the fact that he only prevailed if he could prove his (absolute) property right, the mere proof of better entitlement was not enough. Even if this proof of ownership did not necessarily have to become a probatio diabolica , there were plaintiffs who would have triumphed in the legis actio sacramento in rem , but whose rei vindicatio had to be rejected because they were unable to prove the property of their foreman . For these the Praetor Publicius had created the complaint named after him; In doing so, he had closed the gap, as it were, which had arisen as a result of the change in the ownership process and the related understanding of ownership. Wubbe's theory builds on Kaser's theory of property development.

Unifying theory

According to Peter Apathy, the objection to the first theory can be that the fiction of the expiry of the presidential term in the lamentation formula is inexplicable if the praetor wanted to help the plaintiff exclusively over the lack of formal mancipatio or in iure cessio . Because the actio Publiciana not only protects against the informal acquisition of a res mancipi , it also saves the plaintiff from having to prove the property of his foreman.

In addition, the possession of foreign objects goes back to the republican era, for example in the cases of the usucapio pro herede . The seizure of a thing belonging to the dormant inheritance ( hereditas iacens ) was not qualified as a furtum , so that the acquisition of property a non domino through possession was by no means a late occurrence.

This is confirmed not least by the fact that the prerequisites for ownership of the bona fides were developed long before the actio Publiciana was created. But if the actio Publiciana did not come into being until the first century BC, i.e. at a time when ownership was also open to the bona fide purchaser from the non-owner, then this speaks against the view that initially only the protection of the one res mancipi has acquired formless a domino . Lenel wants to explain this with the fact that the bonitarian owner would have been unprotected in the old Roman legislative process. If this were to be the case, it would remain questionable why the actio Publiciana was created relatively late and also at a time when the legislative process had already been replaced by the form procedure. Both procedural and substantive elements were likely to have been decisive for the creation of the actio Publiciana. The core argument is the idea that the actio Publiciana protects the owner of the estate and is not simply open to every legitimate purchaser. In particular, the procedural approach did not take sufficient account of the fact that the actio publiciana in classical Roman law was of eminent importance, especially for those who had acquired a res mancipi informally . If the thing was stolen from him and it got to the current owner, he could not be helped against him either with interdicts or with the rei vindicatio . This suggests, however, that the praetor wanted to protect the group of property owners with the creation of the actio Publiciana, since he did not attach any great importance to the formal business of mancipatio . Therefore, it is more likely that the praetor was inspired by several motives to create this lawsuit. With the reference to the usucapio in the form of the actio Publiciana it is clear, according to Kaser, that the praetor did not want to protect every better legitimate buyer, as Wubbe thinks. This is where the weak point of Wubbe's theory, already uncovered by Kaser and Franz Wieacker, lies . By asserting that the defendant could not object to the plaintiff that the thing had been stolen from a third owner, and further that the plaintiff had acted in bad faith when he bought it, insofar as furtivity and bad faith, mala fides , do not affect the relationship between the parties, he eliminated in truth, with this understanding of the actio publiciana, its reference to the possession of the public. This reference and restriction would be understandable, however, if one regards the bonitarist owner as an essential cause for the creation of the actio Publiciana, because he is only dependent on this lawsuit until the expiry of the period of probation. In that the praetoric actio publiciana does not simply protect the better entitled owner, but only the owner of the estate, it is based on the values ​​of the ius civile . This has avoided a divergence between civil property protection and praetorical protection of the rightful purchaser. The actio Publiciana therefore rather complements the basic function of the usucapio of being the link between (legitimate) possession and property rights.

The actio Publiciana when buying twice from the non-owner

The case was discussed that two buyers bought successively from the same non-owner or from different ones. The question was debatable. In both cases, Neraz wanted to focus on the priority of the handover (D. 19, 1, 31, 2). According to Julian (D. 6, 2, 9, 4) this was only valid if both had bought from the same non-owner. According to Julian, the general principle of beatus possidens was applied in the case of acquisition from different people . The defendant always has the advantage that the plaintiff has to prove his better right. When purchasing from the same non-owner, it all came down to who was given the property first. Nothing else was valid here than in the case of multiple sales by the owner.

Actio Publiciana with Justinian

For the further development of the actio Publiciana it was crucial that under Emperor Justinian I in his Institutiones Iustiniani , contained in what was later known as the Corpus iuris civilis , the mancipatio was dropped, so that a uniform concept of property was created. The actio Publiciana was intended to protect the owner of the estate who acquired from the non-owner, non a domino . And then there is talk of the one who has not yet become the owner of his thing, necdum eius rei dominus effectus est . The period of presidency was extended to three years for movable and ten or twenty years for immovable property (C. 7,31,1). The aspect of facilitating evidence took a back seat. This further development merged the actio Publiciana and the property lawsuit. The digest title “ De Publiciana in rem actione ” sees itself as a “public property lawsuit”.

Justinian's reform had the effect that the doctrine of common law, after its reception, was based on a uniform transfer of ownership.

Actio Publiciana in the Middle Ages and Modern Times

In the Middle Ages, the actio publiciana played a role for the dominium utile , quasi dominium or sub-property, which is important in feudal affairs, in order to make the difference to the rei vindicatio based on the dominium directum clear.

In the 12./13. In the 19th century the glossators made a strict distinction between the rei vindicatio and the actio Publiciana, according to which the owner could only sue with the rei vindicatio but not with the actio Publiciana.

Even the representatives of the usus modernus such as Jacques Cujas granted the actio Publiciana only to the bonae fidei possessor in the 16th century , whom they called the fictitious owner, who was held to be the owner by virtue of a legal presumption, praesumptione quadam iuris . Difficulties arose when the plaintiff doubted whether he had become the owner. The alternative lawsuit of rei vindicatio ( dominium directum ) and actio Publiciana ( quasi dominium ) used by forensic practice was therefore successfully criticized by Johann Oldendorp .

Another problem was that canon law required that the owner be in good faith for the duration of the presidency. As a result of the close interweaving of the actio Publiciana with the presidency, the question arose whether this change should also include the actio Publiciana. Nevertheless, in common law it was predominantly the opinion that the actio Publiciana only depends on good faith in the acquisition. As a result, in the Middle Ages and in common law, the actio publiciana was relaxed by the usucapio . Christian Friedrich von Glück justified this different development of the mala fides superveniens in actio Publiciana and in the late 18th century by stating that, in contrast to usucapio , the actio Publiciana did not lead to any exclusion or disenfranchisement of the true owner.

The petitarian property protection is regulated in Germany in § 1007 BGB.

The actio Publicana is codified in Austrian law in §§ 372 ff. ABGB.


  • Peter Apathy: The publician lawsuit: the relative real right of the rightful owner. Vienna 1981.
  • Peter Apathy: The actio Publiciana when buying a double from the non-owner. In: SZ 99, 158.
  • Georg Thielmann : Again: Double sale by unauthorized persons - D. 19, 1, 31, 2 and D. 6, 2, 9, 4. In: SZ 111, p. 197.

Individual evidence

  1. ^ Max Kaser, Rolf Knütel: Roman private law. 19th edition. CH Beck, Munich 2008, ISBN 978-3-406-57623-2 , § 27 Rn. 25th
  2. ^ Jan Dirk Harke : Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 13 no. 36.
  3. Julian , Dig. . 6,2,9,4; with legal grounds, ex iusta causa (Dig. 6, 2, 9, 1 pr.) and in good faith, bona fide (Dig. 6, 2, 7, 11).
  4. Inst. 2.1.40.
  5. D. 6,2,1 pr.
  6. Inst. 4,6,4.
  7. Karin Nehlsen-von Stryk : UMP , on D. 6.2 No. 1.
  8. ^ Jan Dirk Harke: Roman law. From the classical period to the modern codifications . Beck, Munich 2008, ISBN 978-3-406-57405-4 ( floor plans of the law ), § 13 no. 40.