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possession ( Latin possession ) In the legal language, the actual rule over one thing is defined against property ( Latin dominion ) that means the legal power of rule. With the exercise of ownership, someone has the matter in his violence , whereby the legality or illegality of the exercise of ownership (for example due to effective rental contract or due to illegal appropriation) does not matter.

The term possession basically presupposes the will to own, where my mind is to be held ) (in Germany, for example, regulated in § 872 BGB) and will be distinguished, depending on whether the owner wants to consider the matter “as belonging to him” or want to have “as a foreign” thing as part of an ownership relationship.

In terms of content and ownership, generally – legally inaccurate – ownership and property are often used synonymously.

The continental European ownership of ownership is rooted in Roman law. This difference between civil law ( possession of civil ) Power effective ownership ( just cause ) and natural possession ( possessor natural ), in which the exercise of mere subject rule was sufficient. The concept of possession became more diverse at the time of the Holy Roman Empire (HRR) in the scope of common law. Here, the canonical law and in the final phase of the HRR influenced the three large natural rights codifications, including the Alr and the Code Civil. After the fall of the HRR 1806, F. C. v. Savigny, co -founder of the historic legal school, methodically new to the legal institute. His guidelines flowed into the Civil Code (BGB) in Germany.

Acquisition and ownership of the ownership and ownership of documents compared to today’s understanding. Comparable to German law today, ownership could be acquired in an antique Rome, i.e. acquired by a non -authorized person (Ergage). To do this, the good faith only had to be available at the time of the reasoning (possession as a legal license). In the Middle Ages it was then required that the good faith was available throughout the entire possession. Ownership became illegal if malaison was used after the acquisition. Public claims were also excluded if an owner gave up the possession on one thing. As a result, the “teaching of the good -faith acquisition of ownership” was subsequently developed to the roots of Roman law. Owner protection measures, on the other hand, improved in common law compared to antiquity, because possession investigators (tenants, tenant) also received defense rights to protect their (indirect) property (action for spolia). In particular, self -help measures should be avoided, at least to a limited extent. From the 19th century, the institute of interim legal protection developed from this.

In the 19th century, the question was discussed on Savigny whether possession was a right or mere fact (actual property domination). ^[first] In order to protect the legal system from “legitimation” by theft, the possession was assigned to the right if there was also a “will to possess” for the authorized person. This was associated with whether ownership (apprenticeship since Baldus), mandatory (Savigny) or independently of the personality of nature (puchta) nature was independent.

The owner must have an proximity to one thing, i.e. have it in his power or in his custody, i. H. “Actual violence over the matter” ( corpus ) have. ^[2] In addition, the owner must exercise the matter of ownership (the mind of possessing, the mind is to be held) .

This does not matter. According to this definition, the thief of a thing is owner of the matter. Ownership is not a subjective right.

While ownership describes the actual relationship of a person to one thing, ownership refers to the legal relationship of a person to a matter. The owner is entitled to dispose of the matter freely and to exclude others from any influence on them, unless the laws or rights of other people are opposed. The owner (the legal property owner) can request the publication of the matter and thus the granting of the actual property as a lawyer (the legal property owner) and enforce no right to possess the property.

In contrast to possession, the abstract power of rule of property does not need a direct connection between person and cause. For example, a person living in Europe can have ownership of a tenement house in Japan without having immediate possession on it. In this context one also speaks of one Ownership relationship . The tenant in Japan would be immediate owner (third -party owner) , the owner in Europe indirect owner (own owner) .

Lays often confuse the terms possession and Property Or consider it synonymous from the outset. Consequently, for example, the Duden – not a legal specialist dictionary, but a dictionary of general language use – records under the synonyms of the keyword possession also Property . Accordingly, the keyword Property among other things possession specified as synonymous. ^[3] Using a theft, the difference can also be explained relatively easily for the layperson: If someone steals one coat (e.g. from a wardrobe), the thief is then in possession of the coat, but the coat is not Property ; that is, a thief is Owner , but never owner .

Occasionally the term is also in scientific texts possession with the meaning of Property used. Among other things, this is due to the fact that there are different property theories. In historical contexts and to certain societies, an application of the terms is possession and Property not possible in the modern sense. ^[4]

Colloquially and scientifically outside of the legal technical language, “possession” also refers to the things about which one direct Violation of disposal has the Have , Legally the Inhabung or a Factual concept (mathematically spoken: a “quantity” of things belonging together).

• Johann Braun: The right of ownership between Carl Friedrich von Savigny and Eduard Gans . In: Florentine notebooks . Band 9, 1980. S. 457–506.
• Dieter Krimphove: European property law. A comparative analysis according to the comparative institutional economics . Eul, Lohmar 2006, ISBN 3-89936-429-5, S. 45 ff .
• Therese Müller: Ownership in Europe. A comparative examination of the civil protection of the actual property rule . Mohr Siebeck, Tübingen 2010, ISBN 978-3-16-150220-0 (Zug. Diss. Freiburg 2009).
• Friedrich Carl von Savigny: The right of possession. A civilian treatise , 1st edition , Heyer, Gießen 1803.
• The Register of Afner: On the dogm history of legal property. In: Commemorative publication Walter Wilburg , 1975. S. 453–476.
• Jan Wilhelm: The possession. Property right , Beleld, boasting, fonton. It is Ginayon, 2021, Sp. 255–315.

1. ↑ Georg friedrich puchta: Textbook of the Pandecken . Publisher by Johann Ambrosius Barth, Leipzig, 1838.
2. ↑ See in Germany: § 854 Paragraph 1 BGB; in Austria § 309 ABGB and in Switzerland Art. 919 Paragraph 1 ZGB
3. ↑ See. possession and Property At Duden online, section “Synonyms”.
4. ↑ W. Theil: Ownership and obligation: some legal aspects. In: H.J. Stadmann, O. Steiger: Commitment economics. Property, freedom and liability in the money economy. S. 175–200 (Online-Version, PDF; 187 kB) ( Memento from October 9, 2007 in Internet Archive )