All You Need Is Control.
Italian Perspectives on Acquisitive Prescription of Immovables

by Francesco Mezzanotte

The aim of this paper is to shed some new light on the classic topic concerning the constitutive elements of possession. The cultural diatribe originated with the juxtaposed views of Savigny and Jhering does not seem to have resulted, at least in Italy, in settled positions in the current academic landscape, with subjectivist and objectivist scholars still advocating their preferred interpretation relying on different literal, historical, comparative or systematic arguments. The issue is considered here under a normative approach, widening the scope of the analysis in order to evaluate which of the different theories better suits the rationales that support the application of acquisitive prescription, one of the most important juridical effects of possession. It is surmised that an objective interpretation of possession, deprived of the traditional element of animus domini, and merely based on the physical control of a good, is not only more consistent with Italian legislative provisions, but also more effective in supporting the goals generally attributed to the doctrine of acquisitive prescription.

DOI 10.23815/2421-2156.ITALJ           ISSN 2421-2156

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