L'abuso del diritto. Riflessioni dei giuristi romani in tema di aqua pluvia

The research examines the salient features of the modern conception of property and its limits, developed in the 19th and 20th centuries, by means of a debate on the Roman legal sources regarding water. To this end, after overviewing the actual doctrinal state, the research starts from the general concept of abuse of the right and focuses on emulative acts, with reference to property right. The historical outline of historiography offers an essential help to verify how the interpretation of the classical and Justinian’s legal solutions influenced the modern concept of property. In fact, on the basis of Roman legal sources, on the one hand, some Authors considered property as an absolute right without limitation, but, on the other hand, since the second half of the 20th century, a new hypothesis of the social function of property and its limits was put forward. For this reason, the exegesis of the writings of Roman jurists contained in D. 39.3 plays a key role to understand how the Roman lawyers of the Severian age and Justinian solved the complex issues regarding rain water and whether and to what extent these solutions contributed to create the modern idea of property. Finally, the research shows that the Roman classical legal thought on our topic, closely linked the social-economics customs and traditions, reflects how the border between public and private property conception changed, remarking the property social importance.