The Direct Action Institute for Possession Defense in the Portuguese Civil Code: some notes

Abstract

The institute of direct action in the possession defense is provided for in article 1277 of the Portuguese Civil Code. It is legitimate to resort to direct action when there is a danger of practically invalidating a subjective right. The aim of this paper is to discuss the assumptions and conditions for direct action to occur. The elaboration was based on a revisit of the Roman Private Law, the Ordinances and the various Political Constitutions until the present Civil Code. The institute is discussed on the basis of a systematic review of national doctrine and under the jurisprudence eyes. It is structured in three parts: 1. The direct action; 2. The assumptions of direct action; 3. The effects of direct action. It follows that this institute is an exceptional case in which the State places certain coercive powers in the hands of privates, to ensure the realization of a right protected by law in other ways, when they are generally conferred only on public authorities. The legislator defined a set of assumptions (art. 336 of CC) for the exercise of this institute, stating that all must be guaranteed. In the mistaken assumption that they occur , the action gives rise to compensation for the damage caused.