Property protection interdict

Interdicts of property protection (Latin: Interdicta possessoria ) are interdicts of Roman law , which the praetor could pronounce in property disputes at the request of a party in order to guarantee property protection.

Right of possession ( possessio )

Even in Rome, possession did not mean a right in rem , but the actual ownership of a thing, as far as it could receive legal protection. In principle, the owner was protected and the one who was in a comparable legal situation, which is why interdiction rights as property rights, the owner and legal owner were entitled to. These included beneficiaries of usufruct - and Dienstbarkeitsverträgen , hereditary tenants and leaseholders , pledgee and - because of their special legal interest - Beneficiaries from cession contracts and very occasionally tenants. The idea of property protection is not based on the principle of preventing disruptions to property, but rather on not resorting to self-help in a dispute about property. Changes in the actual ownership structure were therefore subject to legal process.

Interdicts

Interdicts of property protection are either restitutorial (aimed at restitution), exhibitorial (aimed at submission) or prohibitory (aimed at prevention). While exhibitorial interdicts serve to acquire property before the praetor, restitutorial interdicts are aimed at regaining property that has already been lost, and the prohibitive interdicts are used to defend current property during the invocation of the praetor.

The most important interdicts ( uti possidetis , utrubi , unde vi ) presuppose that possession nec vi nec clam nec precario (neither by force nor secretly nor as a bit of a series) was obtained. If these ownership criteria are met, one speaks of real or faultless ownership today .

Interdicts to obtain the ownership ( interdicta adipiscendae possessionis ):
- Interdictum Salvianum: Allows the property owner to obtain the property pledged by the lessee for the rent.

Interdicts on the conservation of possession ( interdicta retinendae possessionis ):
- Interdictum uti possidetis : Forbids the opponent of the last real owner of an immovable property to use force in order to prevent the exercise of real possession.
- Interdictum utrubi: Forbids the opponent of the longest real owner of a movable property in the previous year from using force in order to prevent the exercise of real property.
- Interdictum quod vi aut clam: This lawsuit is directed against any illegal act on the part of the person causing the loss of property.

Interdicts to regain possession ( Interdicta recuperandae possessionis ):
- Interdictum uti possidetis : Forbids the opponent of the last real owner of an immovable property to use force in order to prevent the exercise of real possession.
- Interdictum utrubi: Forbids the opponent of the last real owner of a movable property to use force in order to prevent the exercise of real property.
- Interdictum unde vi: obliges anyone who has evicted a real owner of an immovable property by force to reinstate the previous owner.
- Interdictum de vi armata: obliges anyone who has driven away an owner of an immovable property by force, with people who have been rioted or armed to reinstate the previous owner.
- Interdictum de precario: obliges the borrower of a batch to surrender the item at the request of the lender.

Other sources

Institutiones

literature

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. 7-10 (pp. 216-218).
Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau study books) ISBN 3-205-07171-9 , pp. 136-139.
Max Kaser, Rolf Knütel: Roman private law (= short legal textbooks ). 19th edition. CH Beck, Munich 2008, ISBN 978-3-406-57623-2 , p. 115 ff .

Individual evidence

↑ ^a ^b 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. 7-10 (pp. 216-218).
↑ Vat. 92 Ulpian 3int; D 43.19.1pr.
↑ D 43.18.1pr .; Ulpian 70ed.
↑ Gaius 4147.
↑ D 43.26.4.1; Ulpian 71ed.
↑ D 43.16.12 Ulpius Marcellus 19 Digesta des Celsus
↑ Gaius 4.154.
↑ D 43.17.1pr. Ulpian 69ed.
^ 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. 30-40 (pp. 227-231).
^ Herbert Hausmaninger , Walter Selb : Roman private law . Ed .: Böhlau Verlag Vienna. 9th edition. Böhlau Verlag Vienna, 2001, ISBN 978-3-205-99372-8 , p. 137 .

[Harke-1] 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. 7-10 (pp. 216-218).

[2] Vat. 92 Ulpian 3int; D 43.19.1pr.

[3] D 43.18.1pr .; Ulpian 70ed.

[4] Gaius 4147.

[5] D 43.26.4.1; Ulpian 71ed.

[6] D 43.16.12 Ulpius Marcellus 19 Digesta des Celsus

[7] Gaius 4.154.

[8] D 43.17.1pr. Ulpian 69ed.

[9] 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. 30-40 (pp. 227-231).

[10] Herbert Hausmaninger , Walter Selb : Roman private law . Ed .: Böhlau Verlag Vienna. 9th edition. Böhlau Verlag Vienna, 2001, ISBN 978-3-205-99372-8 , p. 137 .