The thesis topic is the allocation of the patrimonial loss between the landlord and the tenant, due to a conflict of two different legal claims, having a partially identical object: the enjoyment of a real estate. On a side, the rental agreement gives to the tenant the right to use the good; on the other side, the good’s owner has the right to use it as well. In all the studied cases, there are three subjects interested in the legal sequence: the good’s owner, who claims the property on it; the tenant, who has the legal right to use the good and the landlord, who is bound to the good by a legal of a factual claim. The first part of the thesis is about the landlord who has a legal claim towards the good in the moment of the rental agreement and, during the contract execution, loses the legitimateness of legally disposition. In the first chapter, the landlord is the owner of the good and suffers the expropriation by a public authority. In the second chapter, the landlord-usufructuary dies during the term of the rental contract. In the third chapter, the landlord is bound to the good by a legal claim: he has sublet the good to a third party. Lastly the landlord-owner sells the good during the rental term. In the second part of the work, the landlord has never been bound to the good by any legal claim. He has only the factual disposition, when he rents the good. Two cases are presented: the good faith landlord suffers the eviction; the landlord, who knows the lack of any right to lease the good, and, nevertheless, rents the good. In all the decisions, the owner’s claim is preferred to the tenant’s one. All the jurists adopt Servius’ teaching to solve the cases. Servius prescribes two rules to decide if the landlord has to compensate the harms caused to his tenant, deprived by the good enjoyment, or has only to remit the debt. In Servius’ opinion, landlord’s behaviour is the guideline to decide the case. The first rule is applicable only if the landlord has a legal right at the moment of the rental agreement. In case the landlord is able to prevent the fact, which brings to the expulsion of the tenant, and he doesn’t, he has to compensate all the harms. Instead, it’s just a matter of remission of the debt. The second rule concerns the landlord who never had a legal claim on the good. Here the decisive parameter is the knowledge of the alienness of the good. According to this guideline, the good faith part, who thought to have a legal right, has just to remit the debt; the one, who knew to have only a factual power on the thing, has to compensate all the harms.

SI FUNDUS QUEM MIHI LOCAVERIS. CONFLITTI E SOPRAVVENIENZE NELLA LOCAZIONE-CONDUZIONE / A.s. Giumelli ; relatore: I. Fargnoli ; correlatore: F. Gnoli. - : . Università degli Studi di Milano, 2015 Jan 27. ((26. ciclo, Anno Accademico 2013. [10.13130/giumelli-anna-sara_phd2015-01-27].

SI FUNDUS QUEM MIHI LOCAVERIS. CONFLITTI E SOPRAVVENIENZE NELLA LOCAZIONE-CONDUZIONE

A.S. Giumelli
2015

Abstract

The thesis topic is the allocation of the patrimonial loss between the landlord and the tenant, due to a conflict of two different legal claims, having a partially identical object: the enjoyment of a real estate. On a side, the rental agreement gives to the tenant the right to use the good; on the other side, the good’s owner has the right to use it as well. In all the studied cases, there are three subjects interested in the legal sequence: the good’s owner, who claims the property on it; the tenant, who has the legal right to use the good and the landlord, who is bound to the good by a legal of a factual claim. The first part of the thesis is about the landlord who has a legal claim towards the good in the moment of the rental agreement and, during the contract execution, loses the legitimateness of legally disposition. In the first chapter, the landlord is the owner of the good and suffers the expropriation by a public authority. In the second chapter, the landlord-usufructuary dies during the term of the rental contract. In the third chapter, the landlord is bound to the good by a legal claim: he has sublet the good to a third party. Lastly the landlord-owner sells the good during the rental term. In the second part of the work, the landlord has never been bound to the good by any legal claim. He has only the factual disposition, when he rents the good. Two cases are presented: the good faith landlord suffers the eviction; the landlord, who knows the lack of any right to lease the good, and, nevertheless, rents the good. In all the decisions, the owner’s claim is preferred to the tenant’s one. All the jurists adopt Servius’ teaching to solve the cases. Servius prescribes two rules to decide if the landlord has to compensate the harms caused to his tenant, deprived by the good enjoyment, or has only to remit the debt. In Servius’ opinion, landlord’s behaviour is the guideline to decide the case. The first rule is applicable only if the landlord has a legal right at the moment of the rental agreement. In case the landlord is able to prevent the fact, which brings to the expulsion of the tenant, and he doesn’t, he has to compensate all the harms. Instead, it’s just a matter of remission of the debt. The second rule concerns the landlord who never had a legal claim on the good. Here the decisive parameter is the knowledge of the alienness of the good. According to this guideline, the good faith part, who thought to have a legal right, has just to remit the debt; the one, who knew to have only a factual power on the thing, has to compensate all the harms.
FARGNOLI, IOLE
Settore IUS/18 - Diritto Romano e Diritti dell'Antichita'
SI FUNDUS QUEM MIHI LOCAVERIS. CONFLITTI E SOPRAVVENIENZE NELLA LOCAZIONE-CONDUZIONE / A.s. Giumelli ; relatore: I. Fargnoli ; correlatore: F. Gnoli. - : . Università degli Studi di Milano, 2015 Jan 27. ((26. ciclo, Anno Accademico 2013. [10.13130/giumelli-anna-sara_phd2015-01-27].
Doctoral Thesis
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/2434/253881
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