Il nucleo delle situazioni possessorie nel diritto inglese

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Abstract

A long line of authorities and legal writings has historicallydeveloped itself over one of the most controversial and fascinatingfields of English private law. As a matter of fact, the law of possessionin the common law has led to a number of researches aimed at findingout, in the first place, whether the origin of English possession tracesback, or not, to Roman “possessio”. In this regard a large number ofqualified authors in the late 1880’s have concentrated on the subject,mostly availing themselves of the eminent contribution of Germanphilosophers and jurists. But the English common law has alwaysmanifested a genuine, autonomous spirit in the development of thebasic features of possession, starting with the indication of the necessaryco-existence of a material and a mental element. Also judicialdecisions have played a decisive role in the setting up of the conditionswhich make it possible for a factual relationship with a givenobject to ripen into one capable of being recognized and protected bythe law. From this point of view it becomes apparent that the characteristicform of English possession, called adverse possession, containsall the fundamental elements whereby a de facto relation getsrelevant in the eye of the law.On the other hand, the very fact that a paper owner may run therisk of losing his title to a simple occupant of his land (a squatteraccording to the common terminology) through the mere lapse oftime has prompted a legislative reform, the Land Registration Act2002, which has strengthened the position of the owner. At the sametime this change of attitude seems to have re-assured the Grandchamberof the European Courts of Human Rights as to the compatibilityof the English system of adversary possession with the principlesenshrined in art. 1 of Protocol 1 of the European Convention onHuman Rights.The present study deals with all these aspects concluding thatadverse possession gives rise to an institute and a discipline which arepeculiar of the English law of possession and explains its fundamentalcharacters so as to become its most faithful representation.
Original languageItalian
Pages (from-to)559-623
Number of pages65
JournalEUROPA E DIRITTO PRIVATO
Publication statusPublished - 2017

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