Carefully prepared complete summary for Comparative Property Law Lectures 2-5

LECTURE 2: Possession and Protection of property rights in civil law

 Functions of possession
› “Possession reflects the right of ownership” (publicity function)
› Therefore:
 Function in proving ownership
 Transfer function in a traditio system
 Acquisition by prescription

› But also:
 Mere protection of the status quo (preservation of peace)

 Function of proving ownership
› “Possession reflects the right of ownership”
› Possession is the starting point for proceedings about the right of
ownership
› Art. 2256 Code civil: “One is always presumed to possess for oneself,
and in the capacity of an owner, where it is not proved that one has
started possession by possessing for another.”
› § 1006 BGB: “It is presumed in favour of the possessor of a movable
thing that he is the owner of the thing. ”

 Transfer function in a traditio system
› To become owner, one has to acquire possession
› § 929 BGB: “For the transfer of the ownership of a movable thing, it is
necessary that the owner delivers the thing to the acquirer.”
› Art. 3:90 BW: “The delivery required for the transfer of movable objects
takes place by providing the acquirer with possession.”

 Acquisition by prescription
› The law has to be in keeping with the factual situation’
› Art. 2258 Code civil: “Acquisitive prescription is a way to acquire a thing
or a right through possession, without requiring to show a title for
acquisition.”
› § 937 BGB: “A person who has a movable thing in his proprietary
possession for ten years acquires the ownership.”

 Protection of the status quo
› Preservation of peace
› Preventing people from taking justice into their own hands
› Art. 2278 Code civil: “Possession is protected, regardless of the
substance of the right, against disturbance which affects of threatens it.”

,› § 859 BGB: “The possessor may ward off unlawful interference by use of
force.”


 Possession in French law
› Art. 2255 Cc:
 Possession is the detention or enjoyment of a thing or of a right
which we hold or exercise by ourselves, or by another who holds and
exercises it in our name
› Possession
 Factual relation between a person and an object;
 on the basis of which this person can perform, either personally or
through a third party;
 acts with respect to this object;
 which, through its external manifestation;
 correspond with the exercise of ownership;
› Two elements: corpus and animus
› Corpus Objective side of possessionThe factual exercise of
prerogatives corresponding to the right of ownership
› AnimusSubjective side of possessionThe intention to conduct
oneself as the true owner
 Not required: the belief to be the owner (animus domini ≠ opinio
domini)
› Possession = corpus + animus
› Detention = corpus without animus
 He who holds an object for another is détenteur précaire
 The détenteur acknowledges the right of ownership of someone
else
 Only the possessor can obtain ownership by way of acquisitive
prescription

 Possession in German law
› § 854 BGB:
 Possession of an object is acquired by obtaining actual control of
the object
› Possession (Besitz) = actual control (corpus)
› Very broad definition of possession:
 The existence of the animus is not required to qualify as possessor
 But can be relevant sometimes
› Eigenbesitzer (§ 872 BGB):
 A person who possesses an object as belonging to himself
› Fremdbesitzer

,  A person who possesses an object as belonging to someone else.
 Only the Eigenbesitzer can acquire by way of acquisitive
prescription

 Protection of possession in French law
› Possessory actions based on art. 2278 Code civil: “Possession is
protected, regardless of the substance of the right, against disturbance
which affects of threatens it.”
› Three types of possessory actions (old 1264 CPC)
See Casebook,p. 108-111
 Complainte
 La dénonciation de nouvel oeuvre
 La réintégration
 NB: 1264 et seq CPC were abolished in 2017
› General remarks
› Possessory actions only apply to immovables
 See Harzhouz v Kherif, p. 110
› Protection of possession, but:
 Sometimes the détenteur is also a possessor with regard to his
limited proprietary right (so called ‘right-possession’)
- See also the extension in Cornillie v Pierson, p. 113
and
 Since 1975 the détenteur précaire is also protected.
- See 2278 CC, second sentence: “Protection is also granted to
a person who holds a thing for another”
- But only: “against any other person than the one from
whom he derives his rights.”
› Protection requires disturbance/ trouble
 Facts and actions which are contrary to possession and which
imply a disputation of the possessor’s right;
 The ‘trouble’ must be a voluntary act, contesting the possession
- See Pelletier v SCI, p. 112
- Protection requires possession for at least one year
 Exception for (action en réintégration) (art. 1264 old Cc)
 Action is open within one year after the disturbance occurred
(prescription period)

› Complainte (old 1264 CPC)Actual interference

› Trouble de fait: factual contestation of the possessione.g. walking over
someone else’s land