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

Raluca Tomescu ()
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Raluca Tomescu: "Andrei Saguna" University of Constanta, PhD student at Nicolae Titulescu University, Bucharest, Romania,

Juridical Tribune (Tribuna Juridica), 2018, vol. 8, issue 1, 147-154

Abstract: The present study aims to discover in the doctrine the reason that has generated the basis for which the legislator not only 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 imposed 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 perspective, joining the full right of property. Without limiting the importance of possession to its main effect - acquiring the right to property by means of an acquisitive prescription, apodictically possession corresponds to the property right itself, being 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. (search for similar items in EconPapers)
JEL-codes: K11 K15 K41 (search for similar items in EconPapers)
Date: 2018
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