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p974 Publiciana in Rem Actio

Article by George Long, M.A., Fellow of Trinity College
on p974 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

PUBLICIANA IN REM ACTIO, was given to him who had obtained possession of a thing ex justa causa, and had lost the Possession before he had acquired the ownership by Usucapion. This was a Praetorian action, so called from a Praetor Publicius; and the fiction by which the Possessor was enabled to sue, was that he had obtained the ownership by Usucapion (Gaius, IV.36, where the intentio is given). This actio was an incident to every kind of possessio which was susceptible of Usucapion (the thirty years' excepted). In the old Roman Law, this Actio resembled the Vindicatio, and in the newer Roman Law it was still more closely assimilated to it, and consequently in this actio, mere Possession was not the only thing considered, but the matter was likened to the case where ownership and Possession were acquired at the same time by Occupatio or Traditio. Accordingly Possessio for the purposes of Usucapion may be viewed in two ways: viewed with respect to the ownership of which it is the foundation, it is an object of jurisprudence as bare Possession; viewed with reference to the Publiciana Actio, which is incident to it, it is viewed as ownership. The owner of a thing might avail himself of this action, if he had any difficulty in proving his ownership.

This action was introduced for the protection of those who had a civilis possessio, but that only, and consequently could not recover a thing by the Rei vindicatio, an action which a man could only have, when he had the Quiritarian ownership of a thing. According to this definition a man could have this actio both for a thing which he had in bonis and for a thing of which he had a civilis possessio, without having it in bonis. When he had the thing in bonis his action was good against the Quiritarian owner, for if such owner pleaded his ownership, the plaintiff might reply that the thing had been sold and delivered and therefore was his in bonis. The Publiciana actio of the plaintiff who had a civilis possessio, without having the thing in bonis, was not good against the owner, who had the right of ownership, in fact, while the plaintiff had it only in fiction; nor was it valid against another who had a Civilis possessio as good as his own. His action was good against a Possessor who had not a civilis possessio. In this action the plaintiff had to prove that he possessed civiliter, before the time when he lost the possession. [Possessio.]

The object of the action was the recovery of the thing and all that belonged to it (cum omni causa). In the legislation of Justinian, the distinction between Res Mancipi and Nec Mancipi was abolished, and ownership could in all cases be transferred by tradition. The Publiciana actio therefore became useless for any other purpose than a case of bonae fidei possessio, and this seems to explain why the words "non a domino" appear in the Edict as cited in the Digest (6 tit. 2 s1), while they do not appear in Gaius (IV.36).

The Publiciana actio applied also to Servitutes, the right to which had not been transferred by Mancipatio or In jure cessio, but which had been enjoyed with the consent of the owner of the land. As the legislation of Justinian rendered the old forms of transfer of servitutes unnecessary, the Publiciana actio could then only apply to a case of Possessio.

(Dig. 6 tit. 2; Inst. 4 6; Savigny, Das Recht des Besitzes, p13, 5th ed.; Puchta, Inst. II. § 233; Mackeldey, Lehrbuch, 12th ed. § 270, and the notes).


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