Abstract

ALCALDE SILVA, JAIME. The Claim for Damages against the False Possessor in the Chilean Law. Rev. Derecho Privado [online]. 2021, n.40, pp.237-269.  Epub Feb 08, 2021. ISSN 0123-4366.  https://doi.org/10.18601/01234366.n40.09.

This paper analyses the action for damages that the claimant may try against the defendant that, in bad faith, states to be a possessor without being so, and that the Chilean Civil Code regulates in its article 897. This case is interesting because it is ruled as a protection for the owner to be compensated, detaching from the assimilation to an action for the recovery of the possession as it was construed in the post-classic Roman law, and that is connected with the mere holder's duty to indicate the name and residence of the possessor so that the trial may continue against him. This configuration requires paying attention to the legislative history of the rule in the Chilean Civil Code and its correspondence with other codes that have maintained it, to then dissect the description of the factual assumption and the legal consequences of that rule, with special attention to the problems that its exercise may entail in terms of the compatibility with other actions, with its statute of limitations and the compensable damage.

Keywords : compensation for damages; bad faith; action for the recovery of the possession; ownership protection by means of damages.

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