a third person is in possession of his property: ubi rem meam § 65. invenio, ibi vindico. It is therefore the action by which an owner who is not in possession sues a non-owner who is in possession. If the defendant has some right in respect of the thing which entitles him to withhold it from the owner (e. g. a right of pledge, a usufruct, a right as hirer), such right is protected by means of an exceptio. In the absence of any such right however, he must restore to the successful plaintiff (the owner) the thing itself with all its accessions (cum omni causa)'. II. Actio Negatoria. The actio negatoria is the action by which an owner protects himself against a mere disturbance of his possession. It is therefore, as a rule, the action by which an owner who is in possession secures the integrity of his possession. The defendant is the person who has disturbed the possession of the owner. He is compelled to discontinue the disturbance and to pay the owner full compensation for damage. § 65. The Protection of Usucapio Possession. If a person is in usucapio possession of a thing belonging to § 66. another, and continues in such possession till the usucapio is complete, he acquires, of course, together with the ownership of the thing, the remedies incident to ownership, viz. the rei vindicatio and the actio negatoria. In certain cases, however, the praetor deemed it desirable to protect a usucapiens even before his usucapio was complete. It was with a view to this purpose that he introduced the actio Publiciana in rem. The actio Publiciana in rem was an action for the protection of ownership which was granted by the praetor on a fiction that the plaintiff's period of usucapio was already complete-granted, in other words, to a possessor who needed 1 Hence the above-mentioned liability of the bonae fidei possessor to restore (or pay compensation for) the fruits as well as the principal thing (supra, p. 344). The liability of the malae fidei possessor is still more rigorous; for since he knows he is in possession of another 66. nothing but the lapse of a certain time in order to become full owner (supra, p. 274). The practical result accordingly was that the usucapiens obtained a rei vindicatio (in the form, namely, of an actio Publiciana) even before he had acquired full ownership. In the same way he was allowed to avail himself of the actio negatoria. But inasmuch as the plaintiff, in such cases, was not yet the real owner, the actio Publiciana was weaker in two respects than the action of a genuine owner. For, in the first place, if at the time of the action the true owner was either in possession himself, or was disturbing the possession of the usucapiens, he could meet the actio Publiciana with an exceptio dominii and could not therefore be condemned. In the second place, if the defendant had usucapio possession of the same thing which the plaintiff formerly held in usucapio possession, but subsequently lost-in such a case the plaintiff could only succeed if both he and the defendant derived their title from the same auctor, and his (the plaintiff's) title was prior to that of the defendant. If, on the other hand, the defendant's title was derived from a different auctor, or if, though derived from the same auctor, it was prior to that of the plaintiff, the defendant was likewise protected by an exceptio and was accordingly entitled to judgment. In other respects, however, the result of the actio Publiciana was the same as that of a genuine action of ownership. Thus where possession was withheld, the actio Publiciana in rem took the place of a rei vindicatio; where possession was merely disturbed, it served the purposes of an actio negatoria. When we speak of the actio Publiciana, simply, we usually think of it as used for the former purpose, in lieu, namely, of a rei vindicatio; when used for purposes of an actio negatoria, it is known as the 'actio Publiciana negatoria.' The object of the actio Publiciana was not to enable a usucapio possessor to deprive the owner of that which belonged to him-it was for this very reason that the owner had the exceptio dominiibut rather to protect a usucapio possessor against any person whose title was weaker than his own. The protection afforded by the actio Publiciana was only relative. But the actio could also be employed for yet another purpose. The owner himself might resort to it, if he had occasion to take legal proceedings on account of the § 66. withholding or disturbing of possession. And for this reason: he might urge that, quite apart from the question of his ownership, the requirements of usucapio possession were certainly satisfied in his case. Like a usucapio possessor he had purchased the thing, or acquired it on some other lawful ground. His possession was likewise accompanied by bona fides. That was quite sufficient to entitle him to the actio Publiciana, and to enable him to defeat an adversary who had no right in the thing. There was no need for him to proceed by a formal rei vindicatio and to prove that he had already acquired full ownership. This last remark leads us to what was really the chief practical function of the actio Publiciana in the common German Pandect law. In actual practice—in the vast majority of cases, that is-the actio Publiciana was brought by the owner, not however in his capacity of owner, but in his capacity of usucapio possessor. The practical object of the legal rules concerning the protection of usucapio possession was to supply ownership with a second group of remedies available under easier conditions than those required in the formal and genuine actions of ownership. That such was the ultimate purpose of the actio Publiciana is clearly shown in Roman law itself. The action was open not only to a usucapio possessor who had acquired a thing a non domino, but also to a bonitary owner who had acquired a thing (a res mancipi, namely, by simple traditio) a domino-a bonitary owner being also a usucapio possessor in regard to quiritary ownership (cp. supra, p. 340). In classical Roman law therefore the actio Publiciana was employed, even formally, as an action of ownership, for the purpose, namely, of protecting bonitary ownership. GAJ. Inst. IV § 36: Datur autem haec actio (Publiciana) ei qui ex justa causa traditam sibi rem nondum usucepit eamque amissa possessione petit. Nam quia non potest eam EX JURE QUIRITIUM SUAM ESSE intendere, fingitur rem usucepisse, et ita, quasi ex jure Quiritium dominus factus esset, intendit veluti hoc modo: JUDEX ESTO. SI QUEM HOMINEM A. AGERIUS EMIT, ET IS EI TRADITUS EST, ANNO POSSEDISSET, $66. $67. TUM SI EUM HOMINEM DE QUO AGITUR EX JURE QUIRITIUM L. 17 D. de Publ. act. (6, 2) (NERATIUS): Publiciana actio non § 67. The Protection of Furistic Possession. From ownership we must distinguish possession. Ownership is the legal, possession, as such, merely the physical, control over a thing. To possess is to exercise ownership, and, generally speaking, the law intends the owner to be at the same time the possessor. Hence in ordinary language ownership and possession are often used as convertible terms. Nevertheless the conceptions of ownership and possession ought to be clearly distinguished. I may be owner without having possession and, conversely, I may have possession-as in the case of theft, for example-without being owner. The conception of possession is opposed to that of ownership in the same sense in which the conception of factum is opposed to that of jus. Now it is obvious that there may be a great many different kinds of possession, or actual control over things. In the first place, I may hold a thing in my hands, and may perhaps hold it in my own interests (e. g. a book which I have borrowed), but may nevertheless acknowledge another person (in this case the lender of the book) to be the real dominus of the thing, so that, in taking care of it, or in otherwise dealing with it, it is my intention to preserve it, not only for myself, but primarily for the other person. In this instance I have merely the corpus, i.e. the external element, of possession. I am without the animus of possession, i.e. the will coinciding with the physical relationship. Though I hold the thing in my hands, I do not wish to hold it for myself alone, but, in the last resort, for some one else. The holder in this case lacks the animus rem sibi habendi. What he has is § 67. rather the animus rem alteri habendi. Such a relationship is described as mere 'detention.' A person who has detention (e. g. a borrower, hirer, lessee, depositary, mandatary) possesses the thing in subordination to another person. In possessing, he represents another person. This other person (viz. the lender, lessor, &c.) possesses through the person who has detention. In the second place, however, I may hold a thing in my hands and may intend, at the same time, to hold it for myself alone, either because, say, I am the owner, or at least believe myself to be the owner, or, perhaps, in spite of my knowledge that I am not the owner, it being my decided intention to keep the thing for myself alone, notwithstanding my knowledge of its ownership. An example of the latter alternative occurs in the case of a thief (whose actual relation to the thing he holds is indistinguishable from that of an owner), and also in the case of a pledgee, whose position is like that of a thief in so far as it is his intention, quâ pledgee, to shut out everybody, including the owner, from the possession of the thing'. In all such cases I have not merely the corpus, but also the animus of possession, i. e. I have the will coinciding with the physica' relationship. I not only hold the thing in my hands, but intend hold it for myself alone. This is the animus rem sibi habendi or, as it is called by modern writers, the 'animus domini.' It is my intention to exclude every one else from the thing. So far as the exclusion of others is concerned, I hold the thing in just the same way as if I 1 According to Roman law the relation of a pledgee to the thing pledged is different from that of (say) a hirer or commodatarius to the thing hired or borrowed. The hirer does not intend to exclude his lessor from the thing; on the contrary, he intends, in dealing with the thing, to act as the intermediary of the lessor, so that, legally speaking, the latter possesses through him. For the right which the hirer claims to exercise is not a real right, but only an obligatory right—the right, namely, to require his lessor to allow him to use the thing (cp. p. 326). Whenever the hirer makes use of the thing, he may be said-in law -to be acting, in each case, on a permission granted him by the lessor; that is to say, he may be said, in each case, to be realizing the lessor's right to control the thing. The hirer only excludes strangers from the thing, but in so doing, he is acting-legally speaking-in the service of, or as the instrument of, the possession of the lessor. To eject the hirer is, in the eye of the law, to eject the lessor. The hirer has not the will to possess (the animus domini), the pledgee has. The pledgee does not intend to serve the possession of the pledgor; on the contrary, he intends to exclude it. |