Sulla natura dichiarativa o costitutiva della divisione

Art. 757 of the Italian Civil Code is either considered as a basis to maintain that the ownership division has a declarative nature or (Cass., S.U., 7.10.2019, n. 25021) just a mere reason of its retroactivity, and therefore it is compatible with its function of transferring rights and in line of continuity with the Roman law tradition. The aim of the study is to outline an ownership division-genus bearing a constitutive nature with a distributive function which could nonetheless match, in an harmonious way, the constitutive and declarative efficacy with regard to the protected interests and the parties position recognised by the law in the specific cases either within or outside the division itself. In order to pursue this aim, the study analyses the reasons of the Roman law view which considers the division as an instrument to transfer the rights and the reasons based on which such a view has been considered as outdated. It will be furthermore analysed the definition of the positions of the parties as well of efficacy of the transactions they may enter into during a joint-ownership relationship.