Cases 121125. The defendant in a vindication is the party currently in possession or alleged to be in possession of the property. The plaintiff’s burden is to prove ownership. The action is not available to a non-owner plaintiff, although the latter may have other remedies, including the “Publician action” treated later in the chapter. If the property is damaged, destroyed, or transferred to another’s possession during the pendency of the proceedings as a result of the defendant’s wrongful conduct, the defendant will be liable for damages equal to the value of the loss, including the loss of fruits or profits that the owner would otherwise have realized.
Cases 126128. The defendant in an action of vindicatio is not normally liable for accidental loss, unless there has been some additional act that is deemed to be culpable. In addition to recognized delicts such as fraud, even a delay in restoring the property, if caused by the defendant’s bad faith, counts as a culpable act. Issues of this kind can arise at common law when property in the possession of a judgment creditor is lost or damaged prior to reversal of the judgment on appeal. See, e.g., Restatement (First) of Restitution § 10 (1937), Comment 15.