Original scientific paper
https://doi.org/10.31141/zrpfs.2020.57.138.1057
The question of active legitimacy for the application of an interdict qoud vi aut clam in classical Roman law
Marko Sukačić
Abstract
This paper deals with the question of active legitimation for the application of interdictum quod vi aut clam in the classical Roman law. The first part sets out general characteristics of said interdict, it’s potential mention in Cicero’s speech Pro Tullio, the presentation in the text of the praetorian edict, interpretations of classical jurists on the issue of the passive legitimation, and the analysis of the phrase vi aut clam. This is followed by the elaboration of the active legitimation for its application, detailing Julian’s interpretation that the prerequisite for the use of the interdict is the existence of interest, which is analyzed in particular on the issue of a sale contract with thein diem addictio. The next part of the paper consists of an analysis of Ulpian’s approach to the same legal problem, who states that the issue of possession is relevant for the active legitimation for the interdict. The last part of the paper contains a comparison of both approaches, gives concluding reflections of the author on potential reasons for their divergence, and finally answers the question of whether differences in the concepts may influence the question of the active legitimation.
Keywords
interdictum quod vi aut clam; interest; possession; condition; Roman law
Hrčak ID:
245693
URI
Publication date:
29.10.2020.
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