Il problema della legittimazione attiva all'uso dell' actio damni iniuriae nel caso della distruzione o del danneggiamento di un bene-oggetto di prestazione
The Problem of the Active Legitimation for Use of the Aquilian Lawsuit in the Case of Destruction of Damaging of an Object of Prestation

Author(s): Samir Aličić
Subject(s): Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Diritto romano; Obbligazioni; Risarcimento del danno extracontrattuale; Damnum iniuria datum; Legge Aquilia; Legittimazione processuale;
Summary/Abstract: The subject of research is the question of active legitimation for bringing aquilian lawsuit (actio legis Aquiliae), known also as lawsuit for unjust damage (actio damni iniuriae), in the case of destruction of a thing that used to be object of an obligation in the classical roman law. The situations of destruction of a thing by the creditor and by a third person have been analysed, as well as the problems of concurrence of aquilian lawsuit with actio doli and with contractual lawsuits, and of the legitimation of a detentor who held the thing on the basis of a contract. By exegesis of sources, author is trying to find out in which way the circumstance that the destroyed or damaged thing was object of an obligation influences the active legitimation for the use of aqlilian lawsuit. If the destroyed thing should have been given to the creditor on the basis of an obligation, the aquilian lawsuit depends to the debtor in the quality of the owner of this thing, no matter if it was destroyed by creditor itself or by a third person. The lawsuit does not depend to him if the debtor was late with fulfillment of the obligation, as well as in the case when a third person destroyed the thing with an explicit intention to inflict damage to the creditor. In the last case to the creditor depends actio doli. Further, in the cases when aqulian lawsuit is not being given to debtor, he is being freed from the obligation if the thing destroyed has been non fungible one. The aqulian lawsuit depends to the debtor in the case of damaging of a thing that should have been given to the creditor too, but if the thing is damaged by third person, creditor has right to ask the lawsuit to be ceded to him. If a detentor destroys or damages a thing held on the basis of a contract, creditor can to use either contractual or aquilian lawsuit. If the thing is destroyed by third person, aqulian lawsuit is given to the creditor in the quality of the owner of the thing, while detentor can ask the reimbursement of damages on fruits, as their owner.

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