Possession (Austria)

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In the Austrian property law designated in accordance with § 309 ABGB owned by the estate will worn (animus) immediate power of disposal (corpus) of a person over a thing. As a natural law codification of the early 19th century, the Austrian ABGB is closer to Roman law than the German BGB . This is particularly evident in the case of property, where the ABGB differentiates between possession and (actual) possession in the manner of Roman law:

Ownership and possession

  • Ownership : The owner is the person who only has control over a thing.
  • Possession : The owner is the one who has animus (will to keep the thing as his own) and corpus (possession).
  • Owner: The owner is whoever legally owns the thing.

Examples: The borrower is the owner because he recognizes someone else's will to own. The thief is - dishonest - owner, because he has possession and will to own.

Types of possession

A distinction can be made between:

  • Property - legal possession
    • Property : possession of a physical thing
    • Legal ownership: Possession of rights, i.e. immaterial things ( immaterial goods ), whereby these rights relate to physical objects (e.g. rental property) and must be aimed at permanent exercise.
  • Legality - Righteousness - Authenticity
    • legal possession : possession based on a valid title (e.g. purchase)
    • Fair possession : the owner thinks the thing is his "for probable reasons".
    • real possession : possession nec vi (not forcibly withdrawn), nec clam (not secretly withdrawn), nec precario (not based on a bit series)

If all three properties (legality, honesty and authenticity) apply, one speaks of a (triple) qualified possession.

Property protection

The property is protected by:

  • Prosecution for disruption of property : A lawsuit to determine the disruption, restoration of the undisturbed possession and prohibition of further disruptions
  • Actio Publiciana : A lawsuit to establish ownership and return it
  • Self-help : If official help comes too late and there is an urgent danger, the owner may protect his property with appropriate force (§ 344 ABGB).
  • Self-defense : Harmful actions against the attacker if they are carried out to ward off an attack

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