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This is a tiny contribution to the 007 discussion, and I think that Lionel has made it already. But the point is important. If it is not open to doubt, it might as well be nailed. If it is open to doubt, let the doubts emerge.

The point is that the question whether one is looking at a vindicatio cannot be answered by looking to the nature of the order that the court makes or can make.

The Roman vindicatio went thus: 'If it appears that the painting which is the subject of this action belongs to Aulus Agerius by Quirtary title, judge, unless in your discretion the painting is given back, condemn Numerius Negidius for whatever that painting is worth; if it does not appear, absolve him.' ('by Quiritary title' is just a poetic twiddle = 'at civil law' or, as we would say 'at common law'.)

In classical Roman law the universal rule was that judges had to reduce the matter to a money judgment, giving rise to a judgment debt -- a personal obligation to pay the amount of the award. The character of the vindicatio is not affected by that. It is determined by what the Romans called the 'intentio' of the pleading, that part in which the plaintiff set out the proposition upon which he took his stand: 'I say that this painting is mine by Quiritary title!' That is, the crucial factor is that the plaintiff's claim is the bare assertion of a proprietary entitlement.

By contrast in an English action of conversion or, in more modern terms, interference with goods, the plaintiff stands on a wrong. This is no less true in the light of the undoubted fact that the assertion of the wrong is parasitic upon a right to possess. The wrong consists precisely in interference with a res which the plaintiff had a right to possess: 'I say that, because you have wrongfully interfered with such and such a painting which I had a right to possess, you ought to pay me damages.' Such an allegation can be made to do the work of a vindicatio but cannot be described as a vindicatio. It is not a pure or bare assertion of proprietary entitlement.

The classical vindicatio and our modern discretion to order specific surrender of the subject-matter of an action for interference with goods show, respectively, that a pure proprietary claim (a vindicatio) can be reduced to a personal money judgment and a personal claim arising from a wrong can lead to specific recovery.

It is at this level and only at this level that the word 'remedy' has some work to do. That is, it is useful to describe that which a court will actually do about a right which is successfully asserted and, in particular, useful in identifying those cases in which what a court will do or order done diverges in some degree from simple realization of the right successfully asserted. In 90 cases out of 100, the 'remedy' is an order for the specific realization of the right. But it need not be. In a vindicatio it cannot be, because the assertion is inert: 'That is mine!' But it is not only in the vindicatio that the remedy can be diverge from simple realization of the right on which the plaintiff stood. From this it follows that, at least so long as one is classifying claims, one must not be misled by the nature of the 'remedy' (scil. by what the court can order done in the event of the claimant's success).

Peter Birks
Regius Professor of Civil Law
University of Oxford

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