The Chilean Action of Precario and the scope of the prior legal relationship:

a dogmatic and jurisprudential analysis of prior titles and precontractual negotiations as grounds for justification in the possession of real property

Abstract

The precarious action arises as a response from legal practice to cases in which protection through ownership actions is inadmissible or insufficient for the owner. In this sense, the national legal system, immersed in a classic theory of registered possession coming from Bello's ratio legis, causes that in its literal application whoever maintains the right of ownership is sometimes unable to recover possession of their property given that it has been stripped from the owner by a subject to whom the status of legal possessor cannot be attributed. However, this action with a jurisprudential basis and origin has been progressively devoid of effectiveness due to the broad interpretations that the Superior Courts of Justice have outlined to the justifying cause of the so-called “prior legal link.” The purpose of this work is to analyze the precarious action in our Civil Law system with the purpose of delimiting the justifying cause of possession of the thing based on a prior legal link of a contractual nature in order to frame the scope of legitimacy under which the holder may excuse his material possession of the thing when this is based on some of the main contracts that are concluded in forensic practice and the preliminary discussions thereof.