Actio ad exhibendum

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The actio ad exhibendum ( action for presentation ) served in Roman law to enforce property claims and was aimed at the separation of previously assembled movable objects.

If two things, which had been in separate ownership, were connected to one another in a manner that was not in accordance with the agreement , the right to joint ownership basically followed the legal relationships to the main thing ( accessio cedit principali ). The ownership of the "minor matter" was not completely lost, but rather rested for the duration of the connection and came back to life after separation. The actio ad exhibendum was available to those entitled to claim in order to enforce the separation . The prerequisite for the claim was that the two things could be physically and technically separated from one another without one or both of them being destroyed or unusable. If this was not possible, the property was finally lost and claims for compensation arose.

The actio ad exhibendum thus referred to a claim to severance in preparation for the vindication ( rei vindicatio ) through “presentation to the judge”.

Connection of movables

The question of what was to be regarded as the main issue followed the nature of the matter as derived from Greek philosophy . For example, the “color” of the “wool” and the “writing” followed the “paper”, in principle without regard to the value of the item in question.

“EADEM RATIONE PROBATUM EST, QUOD IN CARTULIS SIVE MEMBRANIS MEIS ALIQUIS SCRIPSERIT, LICET AUREIS LITTERIS; MEUM ESSE, QUIA LITTERAE CARTULIS SIVE MEMBRANIS CEDUNT. ITAQUE SI EGO EOS LIBROS EASVE MEMBRANAS PETAM, NEC IMPENSAM SCRIPTURAE SOLVAM PER EXCEPTIONEM DOLI MALI SUMMOVERI POTERO. ”

“For the same reason, it is recognized that whatever someone has written on my paper or parchment, even if it is in gold letters, is mine because the letters follow the paper or parchment. Therefore, if I ask for these books or parchments and do not want to pay the expenses for the writing, then the objection of malice is opposed to me. "

- Gaius 2, 77.

How difficult it was already for the Romans to create reliable criteria for determining the "main thing" is shown by Gaius in the following paragraph:

“SED SI IN TABULA MEA ALIQUIS PINXERIT VELUTI IMAGINEM, CONTRA PROBATURE; MAGIS ENIM DICITUR TABULAM PICTURAE CEDERE. "

“But if someone has drawn something on my board, such as B. a picture, the opposite is believed to be correct; one could rather say that the board follows the picture. "

- Gaius 2, 78.

Inaedificatio

The strict principle of accession applied in real estate law . The material installed on a plot of land for a building followed the law on the ground. There was therefore a ban on demolition in the Twelve Tables Act . This principle is set out in § 946 BGB , § 417 f. ABGB and Art. 671 ZGB .

What was sown or planted on the property also became part of the property. With this correlate today § 946 BGB, § 420 ABGB and Art. 678 ZGB.

literature

Individual evidence

  1. ↑ a b Herbert Hausmaninger , Walter Selb : Roman private law , Böhlau, Vienna, 1981 (9th edition 2001). (Böhlau Study Books) ISBN 3-205-07171-9 , pp 122, 162, 380 for sale.
  2. ↑ Karl August Dominikus Unterholzner: KAD Unterholzner's source-based compilation of the doctrine of Roman law on debt relationships taking into account today's application, 1840, p. 142 [1]
  3. ↑ According to modern understanding, most likely comparable to an expectant right .
  4. ↑ a b c d Heinrich Honsell : Römisches Recht, 5th edition. Springer, Zurich 2001, ISBN 3-540-42455-5 , p. 67.