Roman Law and the Legal World of the Romans (9781139751995) by Riggsby Andrew M

Author:Riggsby, Andrew M.
Language: eng
Format: epub
Publisher: Cambridge Univ Pr
Published: 2010-11-14T16:00:00+00:00

Possession

As we have just seen, the rules of ownership had a certain logic, but were in danger of getting too far removed from reality. Anyone who could win ownership in court probably deserved it, but many people who were equally deserving likely could not prove ownership. Eventually, the Edict was used to create a more flexible, more realistic situation. The general idea was to give some legal protection to the mere possession of property (when ownership had not been established), and the means of doing so was not the vindicatio, but rather an order from the praetor called an interdict. Protecting ownership is an attractive idea for a couple of reasons. First, it can be a partial stand-in for ownership. That is, all other things being equal, the original possessor of an item is more likely to be the true owner than a later one, and the order of possession is likely to be a lot easier to prove. Second, even if possession does not always line up with ownership, protecting the former can help limit antisocial behavior. You don’t, for instance, want people using force to recover anything to which they believe they have title (no matter how sincere that belief), since either party, or even innocent bystanders, could be permanently harmed. Protecting possession encourages the resolution of property disputes through proper legal procedure.

An interdict was essentially a conditional order. For instance: With whichever person the slave at issue in this case lived for the greater part of the past year (as long as he was not there by stealth, force, or permission), I forbid force to be used to prevent that person from taking him back [the so-called interdict utrubi, named after its first word in Latin].

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