Denunciation of New Work and of Anticipated Harm

DENUNCIATION OF NEW WORK AND OF ANTICIPATED HARM. - The actions of d. di n. o. and of d. t. are two kinds of judicial actions (deriving respectively from the Roman-law institutions of the nunciatio novi operis and the cautio damni infecti) having the purpose of protecting a state of fact, or rather of preserving the equality of the parties in a trial, by ensuring that another's innovating activity or a danger in any case impending and reasonably feared should not bring prejudice to anyone's immovable rights in favor of others. And this with a view to a possible future trial in which the balance between the parties would find itself unjustly altered, were the actions here examined not effective. The conservative character of these actions is therefore manifest.

The purpose and the presuppositions of the two actions are different.

The d. di n. o. may be exercised by one who, being owner or possessor of a thing or holder of a real right, has reason to fear some damage to his thing or to his right because of a new work (or even an innovation of an existing work) begun by others. The d. di d. t. may be exercised when the owner or possessor of a thing or the holder of a real right fears damage to this thing or right because of a building that threatens to collapse, or because of a tree or any other thing whatsoever.

In either case, the one who fears the damage reports the danger to the judge, who, having summarily examined the situation, gives provisionally the urgent measures to prevent the danger (e.g., suspension of the work or continuation subject to security, in the first case; measures to remove the danger or provision of security, in the second case), without prejudice to subsequently determining the rights of the parties in a regular trial.

Fernando Della Rocca