The subject of the comment is related to the recent view granting the protection provided by article 1168 c.c. to cohabiting partner. The previous prevailing view, which is now outdated, spoke about detention for hospitality reasons, comparing the cohabitee to a guest and denying active legitimation to recovery. More recently, the Supreme Court of Cassation has however pointed out that must be granted a position ascribable to autonomous possession to the cohabitee who enjoys the availability of the property with the partner, possessor or qualified holder of the same property. On this subject, the impression is that there is a high risk of getting carried away by extra-judicial worries. In any case, if we admit that the title justifying co-possession derives from the emotional bond as if by magic, the permanency of that title once the affectio has ceased remains unexplained. It is not clear how – and especially why - the above-mentioned title, by then no longer existing, could then be enforced against the (third) holder, compared to whom the cohabitee is an irrelevant legal entity for the purposes of possession. There is the risk of creating an unnatural connection between the ratio of the protection of possession and the need, which is certainly legitimate, to safeguard the cohabitee.
Legitimatio spolii del convivente more uxorio
CICERO, CRISTIANO
2014-01-01
Abstract
The subject of the comment is related to the recent view granting the protection provided by article 1168 c.c. to cohabiting partner. The previous prevailing view, which is now outdated, spoke about detention for hospitality reasons, comparing the cohabitee to a guest and denying active legitimation to recovery. More recently, the Supreme Court of Cassation has however pointed out that must be granted a position ascribable to autonomous possession to the cohabitee who enjoys the availability of the property with the partner, possessor or qualified holder of the same property. On this subject, the impression is that there is a high risk of getting carried away by extra-judicial worries. In any case, if we admit that the title justifying co-possession derives from the emotional bond as if by magic, the permanency of that title once the affectio has ceased remains unexplained. It is not clear how – and especially why - the above-mentioned title, by then no longer existing, could then be enforced against the (third) holder, compared to whom the cohabitee is an irrelevant legal entity for the purposes of possession. There is the risk of creating an unnatural connection between the ratio of the protection of possession and the need, which is certainly legitimate, to safeguard the cohabitee.
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