Legal Remedies Available to the Defendant Concerning Expenses Incurred on the Object of the Claim in a Rei Vindicatio
ISTANBUL HUKUK MECMUASI, vol.84, no.3, pp.1103-1116, 2026 (ESCI, TRDizin)
- Publication Type: Article / Article
- Volume: 84 Issue: 3
- Publication Date: 2026
- Doi Number: 10.26650/mecmua.2026.84.3.00015
- Journal Name: ISTANBUL HUKUK MECMUASI
- Journal Indexes: Emerging Sources Citation Index (ESCI), TR DİZİN (ULAKBİM)
- Page Numbers: pp.1103-1116
- Istanbul University Affiliated: Yes
Abstract
In Roman Law, it was accepted that in a rei vindicatio brought against an unjust possessor, the defendant could make claims for expenses incurred for the property under certain conditions. In determining the recoverable expenses, a fundamental distinction based on the types of expenses was utilized. The defendant's expenses related to the property were categorized into three types: necessary, useful and voluptuary expenses. The principles regarding whetherthese expenses could be claimed were determined in the texts pertainingto the Classical and Post Classical periods, taking into account whether the unjust possessor was in good faith or not, and were explained along with the exceptional circumstances. Within this framework, the two fundamental legal avenues available to the defendant, provided the conditions were met, were as follows: to exercise the remedy of retentio by raising exceptio doli until the expenses were paid and to exercise ius tollendi without causing damage to the property. Retentio granted the unjust possessor the right to withhold the object until the plaintiff paid the expenses that the possessor was entitled to claim depending on the presence or absence of good faith. As it could be asserted via exceptio doli, its invocation was permitted during the in iure stage in the formula procedure, and at every stage of the trial in the cognitio extra ordinem. In the Post Classical period, regulations enacted more extensively protected the interests of the unjust possessor regarding the expenses incurred on the object. Unjust possessors were allowed to exercise ius toffendi, provided that it caused no damage to the object, and mala fide unjust possessors except thieves and plunderers were permitted to claim necessary expenses.