FIRST FORMULATION OF THE THEORY OF NORMAL USE: SPANGENBERG AND HIS ROMAN THEORY OF THE EMISSION. THE MOST ADVANCED VISION OF IHERING AND HIS NEW EMISSION CONCEPT
FIRST FORMULATION OF THE THEORY OF NORMAL USE: SPANGENBERG AND HIS ROMAN THEORY OF THE EMISSION. THE MOST ADVANCED VISION OF IHERING AND HIS NEW EMISSION CONCEPT

Summary/Abstract: The prohibition of the behaviors carried out by the owners in the exercise of their respective rights by the mere fact that their effects spread towards adjoining or nearby properties could not be understood in a sense too strict. Even though the Roman jurists used to emit their judgments on the basis of general prohibition of any emission, it was proved that on some occasions the rigorous application of such a rule would imply an absolute denial of some of the powers granted to the owner. Without abandoning the reciprocal behavior of concessions and tolerance, the radical prohibition of all emission would not be permissible. The elaboration of a general criteria that solved the problem of the legality or illegality of the emissions were not the work of the Roman jurisconsults, who limited themselves to resolving the specific cases. The real protago-nists in the search for general solutions were the jurists of the nineteenth centu-ry, driven by the needs of their time in which the development of the industry led to an increase in conflicts and problems in neighborhoods. Immersed in this climate of technological and industrial progress, the theory of normal use based primarily on the objective concept of emission and, of course, on the jurispruden-tial answers collected in Roman sources.

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