Why Does the Possessor Lose Good Faith During the Statement of Defense and not After Notification? The Problem in Colombia

Abstract

In the regulation of the vindicating action, the Colombian, Argentine, and Chilean civil
law use different procedural moments to determine when the loss of good faith and the
duty to restore the fruits of the claimed assets occur. The Argentine Civil Law uses the
legal notification of the demand, while the Colombian and Chilean Civil Code use the statement of defense. However, in Colombia, doctrine and jurisprudence, opposed to the
text of articles 964 and 966 of the Civil Code, interpret that good faith is lost with the
legal notification of the demand. The present work —making comparative lines between
the legislations of the referred countries— tries to outline what are the reasons behind
choosing one or another procedural moment and, with this, elucidate why, if the Chilean
and Colombian academy both start from an equal norm, they end up arriving at different
interpretations, opposed to each other.