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Revista de estudios histórico-jurídicos

versão impressa ISSN 0716-5455

Resumo

SOZA RIED, María de los Ángeles. Building works. Historical background of articles 668 and 669 of Chile’s Civil Code. Rev. estud. hist.-juríd. [online]. 2019, n.41, pp.367-397. ISSN 0716-5455.  http://dx.doi.org/10.4067/S0716-54552019000100367.

During ancient times the romans contemplated how to resolve two kinds of problems. First, if a person builds over his land but with other person’s materials; second, if a person builds in the land of another one. In both cases the landowner becomes the owner of the building through accession as a consequence of an ancient Roman law principle: superficies solo cedit (what is adhered to the land is considered to be an accession to it). In the first case, the owner of the materials was not permitted to separate them from the construction based on an old prohibition. However may get, through an action, the double value of them. According to modern Civilian law, this action is substituted, in the article 668 of our Civilian Chilean Code, by a lawsuit for compensatory damages. This change is due to the Justinian’s legislation, which stablishes that in this case the owner loses the material’s property, but has the right to claim for the value of them. In our mind, the wording of this article is inspired by the project of Spanish Civil Code written by García Goyena. In the second situation, the Roman law resolves the possessory problem by giving the landowner the action to recover possession. Nowadays -in the article 669 of the Civilian Chilean Code-, the question is decided in a similar way. In fact, if the landowner wants to recover the possession, he must pay the improvements made in the land. Nevertheless, this article offers an option that never appeared in Roman law. Probably this option is connected with article 404 of the project of Spanish Civil Code written by García Goyena, which presents this alternative. The article provides an ingenious solution that is equivalent to Celso’s answer in the case of a poor proprietor of the land. The historical method used in this research has permitted us to discover the marks of roman’s solutions in the current legislation. We have used also the exegetic method; in one sense as a way to analyze the most difficult texts of Roman law related to this topic; in the other, in order to examine the current rules with respect to this issue. In this second sense, the legislative’s interpretation has been enlightened by the solutions created in Roman law.

Palavras-chave : Land; tignum iunctum; construction; materials; accession.

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