Possession ( lat . Possessio ) denotes the actual control over a thing in legal jargon . “Possession” means that someone actually has something at his disposal , it is in his power . This applies regardless of whether the thing is his property or not, for example even if the thing is rented or illegally appropriated.
On the one hand, the owner must be close to something, i.e. have it in his power or in his custody, i. H. Have “actual power over the matter” ( corpus ). On the other hand, the owner must also have a property will have, that is to keep the matter as its own (the will animus possidendi, animus rem sibi habendi ).
A legal reason does not matter here. According to this definition, the thief of a thing is also its owner. Ownership is not a subjective right .
Difference to property
While possession denotes the actual rule of a person over a thing , property denotes the legal rule of a person over a thing. The owner is entitled by virtue of his property to dispose of the thing freely and to exclude others from any influence on it, unless laws or rights of other people conflict with this. So the owner (the legal ruler) can demand from the owner (the actual ruler) the surrender of the thing and thus the granting of the actual property control and enforce it in court, as far as the owner cannot assert a right to possession.
In contrast to property, the abstract rulership of property does not need a direct relationship between person and thing. For example, a person living in Europe can own an apartment building in Japan without having direct ownership of it. In this context, one speaks of an intermediary relationship . The tenant in Japan would be the immediate owner ; the owner in Europe only indirect owner .
Laypeople often confuse the terms possession and property or consider them to be synonymous from the outset. Consequently recorded example of the Duden - not a legal specialist dictionary, but a dictionary of common language usage - among the synonyms of the keyword ownership and property . Accordingly, when it comes to property , property is given as a synonym. Here can be the basis of a theft , the difference also relatively easy to explain for the layman: (. Eg from a wardrobe) If someone steals another a coat, the thief is indeed then in the possession of the shell, but the shell is not his property ; that is, a thief is an owner , but never an owner .
Occasionally the term possession is used in the sense of property in scientific texts . One of the reasons for this is that there are different theories of property . In historical contexts and in relation to certain societies, the terms possession and property cannot be used in the modern sense.
Colloquially and scientifically outside of the legal jargon, "possession" also refers to the things over which one has direct control : the possessions , legally the ownership or an item (in mathematical terms: a " quantity " of things that belong together).
Legal situation in individual countries
- Germany: possession (Germany)
- Austria: possession (Austria)
- Switzerland: possession (Switzerland)
- Liechtenstein: possession (Liechtenstein)
- Dieter Krimphove: The European property law. A comparative law analysis based on comparative institutional economics . Eul, Lohmar 2006, ISBN 3-89936-429-5 , pp. 45 ff .
- Therese Müller: Property Protection in Europe. A comparative study of the civil law protection of actual property rule . Mohr Siebeck, Tübingen 2010, ISBN 978-3-16-150220-0 (Zugl. Diss. Freiburg 2009).
- See in Germany: BGB ; in Austria Austrian Civil Code and in Switzerland Paragraph 1 of the Civil Code Paragraph 1
- See possession and ownership at Duden online, each section “Synonyms”.
- W. Theil: Ownership and obligation: some legal aspects. In: HJ Stadermann, O. Steiger: Verpflichtungsökonomik. Property, Freedom and Liability in the Money Economy. Pp. 175–200 (online version, PDF; 187 kB) ( Memento from October 9, 2007 in the Internet Archive )