RECOVERY OF PROPERTY: VINDICATION AND POSSESSORY INTERDICTS

The procedure for recovery of property based on ownership was known as vindicatio (vindication). An action for vindication would be brought by the party claiming ownership from the person currently in possession.

This preliminary stage involves the praetor issuing an order called an interdict, directing that one or other party should have interim possession. It is important to note that the decision here did not determine who was owner, and in no way prejudged that determination. Instead, at this stage it was determined simply who should have possession in the meantime and who should bear the burden of bringing proceedings for vindication.

For land, the most important interdict was called uti possidetis. In this, the praetor would award interim possession to the current possessor, unless he obtained possession from the other party vi, clam autprecario (by force, stealth or licence). It was not relevant that this person had obtained possession vi, clam aut precario from a third party. The manner in which possession was obtained was relevant only where it was obtained from the other party to the proceedings.

For moveable property, the interdict utrubi was used. In Justinian’s time, this operated in exactly the same way as uti possidetis. However, in classical law, interim possession was awarded to whichever party had been in possession for longer in the previous year, disregarding possession obtained vi, clam aut precario from the other party.

Once it was determined which party should have interim possession, the other party could bring proceedings for vindication. It could be, though, that the decision on possession ended matters, for example where the party not awarded possession was not confident of being able to prove ownership. Equally, it was possible to proceed straight to vindication, without first seeking a possessory interdict. This would be likely when it was clear that the current possessor would be successful on the possession question.

It is important to understand that vindication was not a means ofacquiring ownership. Instead, it was the way that a person could recover property by proving to the judge that he already owned it. This could be done by showing that he had acquired ownership in one of the ways described in Chapter 5.