Defending a state of affairs through a lawful action. Possession and possessive action

• Author: Raluca Tomescu
• Position: University of Constanta, PhD student at Nicolae Titulescu University, Bucharest, Romania
• Pages: 147-154

Defending a state of affairs through a lawful action.

Possession and possessive action

Assistant professor Raluca TOMESCU

1

Abstract

The present study aims to discover in the doctrine the reason tha t has generated

the basis for which the legislator not o nly recognized the institution of possession alongside

the sacred and complete right of property but also confers defence to a state of affairs

through a real action specific to the defence of a states of law. The possessive action is

recognized as a real action, which in principle requires an action aimed at capitalizing on

a real immovable right, but in this hypothesis the possessive action protects only the state

of fact called possession, without questioning the state of law. If property is right,

possession is nothing but the fact, but possession has, over time, been imp osed as a

fundamental institution of civil law. The major importance that the possession has

developed in the context of the civil circuit of values has ensured it a constant legislative

consecration throughout history. The unanimously recognized possession as state of fact is

gaining value through its legal effects, occupying both the theoretical and the practical

concerns of the jurists, both from a theoretical and from a practical p erspective, joining the

full right of property. Without limiting the importance o f possession to its main effect -

acquiring the right to property by means o f an acquisitive prescription, apodictically

possession corresponds to the property right itself, b eing an attribute of it. Under these

circumstances, the defence of possession through a real action is merely a situation of

normality.

Keywords: possession; possessive action; civil law; Civil Code.

JEL Classification: K11, K15, K41

1. Introduction

The notion of possession undoubtedly has been put forward well before the

emergence of the notion of law. Since ancient times man has developed this

relationship that characterizes the connection between the individual and the

possessed good.

The institutionalized origin of possession is acknowledged, however, as

belonging to Roman law. The first historical recognitions of the possession

institution are attributed to the Romans who state the concept of this state of affairs

in connection with the use of the public field (ager publicus) that was given for use

to private individuals (patricians), thus there was a private possession for the

benefit of the citizens. In time, the patricians were given the opportunity to

subcontract some of the lands owned (possessiones) to their clients. Because in

time customers refused to return the land at the request of the patrons, and the

1

Raluca Tomescu – "Andrei Saguna" University of Constanta, PhD student at Nicolae Titulescu

University, Bucharest, Romania, ratomescu@gmail.com.