Original scientific paper

Actio Publiciana in Classical Roman Law

Marko Petrak ; Faculty of Law, University of Zagreb, Zagreb, Croatia

Abstract

In this article, the author investigates the basic aspects of actio Publiciana as a real property lawsuit in classical Roman law. In this context, the article first looks at the issue of genesis and definition of actio Publiciana, and analyses the problem of active and passive legitimation, and that of thema probandi in this kind of lawsuit. Further, the author analyses the formula of actio Publiciana and the content of the claim, as well as the defendant’s objections and counterclaims. On the basis of this analysis, the author compares the legal nature of the classical actio Publiciana and the classical rei vindicatio. Although similar in many respects, these two classical Roman lawsuits differed in one important characteristic: rei vindicatio was based on proven Quiritarian ownership, while actio Publiciana on fi ction as to such ownership. In the final part of the paper, the author compares the legal nature of the classical and present-day actio Publiciana. The author concludes that the Roman actio Publiciana was based on the fiction that, to the benefit of the claimant as the qualified possessor, the period for usucapion had lapsed, making the claimant a Quiritarian owner of the disputed property, while today’s actio Publiciana is based on the rebuttable presumption (praesumptio iuris) that the claimant as the qualified possessor is at the same time its owner. Therefore, the Roman and present-day actio Publiciana are based on different types of legal fact, which differ with regard to their function.

Keywords

actio Publiciana; rei vindicatio; Roman Law; possession; property

Hrčak ID:

100049

URI

https://hrcak.srce.hr/100049

Publication date:

28.12.2012.

Article data in other languages: croatian german

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