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Actions in rem for an immovable.

[002] 1Actions in rem are those given against a possessor, [he who possesses in his own
[003] name, not in another's, no matter by what causa,] because he has or possesses the
[004] thing2 and can restore it or name its owner, as where one claims a specific thing,
[005] an estate or a piece of land, from another and asserts that he is its owner,3 and
[006] seeks the thing itself, not its price or its value or an equivalent of the same kind,
[007] and it is an immovable, corporeal thing that is claimed, for whatever reason,
[008] against one who is under no personal obligation.4 [If] a demandant, asserting that
[009] the thing in dispute is his, institutes an action against the tenant and the tenant
[010] denies it, the action or plea will be in rem. It will be such whether the demandant
[011] claims the thing in his own name or in the name of a thing he possesses, as men of
[012] religion or rectors who possess in the name of their churches,5 or others who possess
[013] in the name of a universitas,6 as a thing held in common, and whether the principal
[014] object of his claim is the thing itself or a right which inheres in the thing or tenement
[015] and cannot be separated from it, as where one claims the advowson of a church, or
[016] common of pasture, or a right of way, or some other thing that exists in contemplation
[017] of law, the action or plea will be in rem,7 because all such rights are
[018] things incorporeal and are quasi-possessed and inhere in corporeal things and can
[019] neither be acquired nor retained apart from the corporeal things in which they
[020] inhere,8 nor aliened9 without the corporeal things to which they belong.10

Actions in rem for movables.

[022] 11What was said above applies if the thing sought is an immovable. Now we turn
[023] to movable things, a lion, an ox or an ass, a garment, or something reckoned by
[024] weight or measure. It seems at first sight that the action or plea ought to be both
[025] in rem and in personam, since a specific thing is being claimed and the possessor is
[026] bound to restore that thing. But in truth it will only be in personam, because he
[027] from whom the thing is sought is not bound to return the thing absolutely but
[028] disjunctively, to restore it or its value. By simply paying its value he is discharged,
[029] whether the thing itself is in existence or not. Thus if one vindicates his movable
[030] carried off for some reason or lent, in his action he must state its value and frame
[031] his action in this way, ‘I, such a one, demand that such a one restore to me such a
[032] thing worth so much,’ or ‘I complain that such a one wrongfully detains from me
[033] (or ‘has robbed me of’) such a thing worth so much.’ Otherwise, no value being
[034] named, the vindication of the movable will fail. The same will be true if movables
[035] reckoned by weight, number or measure are claimed, as goods in bulk, money or
[036] grain, or others reckoned by liquid measures, as wine and


1. Br. and Azo, 170-71

1-2. Azo, Summa Inst. 4.6, no. 10: ‘illae in rem que dantur contra aliquem ratione possessionis, id est, quia habet rem vel possidet’

3. Inst. 4.6.1: ‘et possessor dominum se esse dicat’

4. Ibid.: ‘qui nullo iure ei obligatus est’

5. Supra 53, 228-9, infra iii, 127, 331, iv, 175

6. Infra iii, 182

7. Inst. 4.6.2: ‘Aeque si agat ius sibi esse fundo forte vel aedibus utendi fruendi vel per fundum vicini eundi agendi vel ex fundo vicini aquam ducendi, in rem actio est,’; infra 294

8. Infra iv, 151, 184, 185

9. Reading: ‘nec alienari’ for ‘nec aliquando,’ as Maitland, Br. and Azo, 171, n. 1

10. Supra 161

11. Br. and Azo, 171-3

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