This is the second part of a 2-part series on property law actions emanating from civil law in respect to the notions of ownership and possession. The first part of this series focused on the enforcement of property ownership rights.
Actiones petitoriae are possessory actions protecting the possession of the possessor. This may be even against the owner since the notions of ownership and possession are separate. This article shall focus on actio manutentionis and actio spoli.
The actio manutentionis is a legal action designed to protect possession from being threatened or molested. It is an action that allows a possessor, whether they hold an immovable object like land or universitas of movables, to retain their possession in the face of disturbances. The central idea behind this action is possideo quia possideo (I possess what I possess). This reflects the principle that possession itself is a state deserving of protection, regardless of the possessor's ownership status.
For the actio manutentionis to be invoked, certain criteria must be met:
Molestation is a crucial factor for the use of this legal action; it refers to any act that threatens or disrupts possession. There are two types of molestation:
However, it's important to note that the actio manutentionis is preventive; it applies only when the possessor is still in possession of the object and faces threats to his possession.
The remedies provided under the actio manutentionis aim to maintain the possessor’s current state. Courts may issue orders to stop the defendant from further disturbing the possession, with any violation potentially leading to liability.
A notable case illustrating the actio manutentionis is Grace Agius et noe vs. Angelina Cutajar, where the Court underscored the importance of four elements for the action to succeed:
Contrasting the actio manutentionis, which aims to protect existing possession, the actio spolii is designed for cases where possession has already been lost due to spoliation. The actio spolii serves to restore possession to its rightful holder. This reflects the spoliatus ante omnia restituendum (one who has been despoiled must be restored before all else) legal principle.
This action is particularly stringent, offering the possessor the right to reclaim possession within two months of spoliation, even if the defendant is the legal owner of the object.
The actio spolii covers a broader range of possessions than the actio manutentionis. It applies not only to immovable property and universitas of movables but to any corporeal movable, thereby encompassing a wider scope of property.
In the case of Angelo Pisani vs. Edwin Ferris[1], the Court emphasized that the actio spolii is rooted in the need for juridical stability. This action ensures that possession cannot be transferred outside the legal framework, preserving social order by requiring legal processes to be respected.
One of the unique aspects of the actio spolii is its disregard for the defendant’s ownership. Even an owner can be guilty of spoliation if they use unlawful means to take possession. The only relevant factors in this action are the legitimacy of possession and the act of spoliation. Other legal issues, such as ownership rights, are deferred until after possession has been restored.
Hence, this action is very much associated with ragion fattasi. Ragion fattasi gives rise to criminal liability and may be linked due to the taking of possession from the possessor because a person exercises pretended rights.
The case between Pulizija vs. Bongailas[2] concerned the change of locks of the property by its owner.The link between ragion fattasi and actio spolii is made evident when the Court stated “L-Artikolu 85 tal-Kodiċi Kriminali li jittratta dwar ir-ragion fattasi, bl-ewwel rekwiżit tiegħu, kjarament iqis bħala aġir kriminali kull att ta' xi ħadd li jfixkel lil xi ħaddiehor fil-pussess ta' xi ħaġa li qed igawdi. L-imsemmi artikolu, għalhekk, jittutela l-pussess tal-ħaga u mhux neċessarjament ukoll il-propjeta' tagħha.[3]” The Cout went on to state that the offence of ragion fattasi in this case was included because the possession was taken in an arbitrary and abusive manner.
Nonetheless, there still are counter judgements in the involvement of ragion fattasi when changing locks of a property. The Court in Pulizija vs. Buhagiar[4], cited a judgement from the Italian Court of Cassation and stated “ma kienx ġie integrat ir-reat ta’ ragion fattasi [ma’ dak ta’ spoll] fil-każ fejn il-proprjetarju ta’ stabbli biddel is-serratura ta’ bieb t’aċċess għal uffiċini u b’hekk għalaq l-aċċess lill-kerrejja tal-istess uffiċini…[5]” because the action was not in an arbitrary manner.
In Pulizija vs. Vassallo[6], the Court stated “Id-diċitura ta' l-artikolu hija ċara u l-leġislatur ċertament ried illi jiġi evitat kull tfixkil, hu ta' liema natura hu, anki fis-sempliċi pussess.[7]”
A unique exception to this action is the vim vi repellere licet (it is permitted to repel force with force) principle. If a possessor successfully resists an attempt to take possession by force, there is no spoliation. However, this exception applies only in the immediate context of the confrontation, underscoring the narrow circumstances under which self-help is legally permissible.
This may be seen in The Police vs. Deguara[8], where the Court stated that “if the person who was in actual possession does nothing as soon as he becomes aware of the change, he cannot [r]eturn two, three or four days later and break into the premises in exercise of his pretended right to re-acquire possession of the place”.
The actio manutentionis and actio spolii are powerful tools in the protection of possession. While the former acts as a means of protection against threats to possession, the latter serves as a means of attack to restore possession after unlawful dispossession. Together, these actions underscore the law’s commitment to maintaining social order by ensuring that possession, a fundamental element of property law, is both protected and respected.
Author: Neil Gauci
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[1] Angelo Pisani vs. Edwin Ferris, First Hall Civil Court, 30 January 1989.
[2] Pulizija vs. Joseph Bongailas, Court of Criminal Appeal, 22 October 2001.
[3] English translation: Article 85 of the Criminal Code which provides for ragion fattasi, its first requisite, clearly identifies every act disturbing a person’s enjoyment of possession as criminal behaviour. The quoted article hence, safeguards the possession of a thing and not necessarily the property too.
[4] Pulizija vs. Anglu Buhagiar, Court of Criminal Appeal, 26 September 2023.
[5] English translation: Ragion fattasi was not included [with the actio spolii] in a case where the owner changes the locks of the door giving access to the office and therefore, barred access to the tenant of the office…”
[6] Pulizija vs. John Vassallo, Court of Criminal Appeal, 22 March 1991.
[7] English translation: The article’s wording is clear and the legislator clearly wanted any disturbance to be avoided, regardless of the level of disturbance, even in simple possession.
[8] The Police vs. Jane Deguara, Court of Criminal Appeal, 5 December 2003.