Possession (Austria)
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:
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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.
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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- real possession : possession nec vi (not forcibly withdrawn), nec clam (not secretly withdrawn), nec precario (not based on a bit series)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
literature
- Peter Apathy, Gert Iro: Civil law . tape 4 : Property law. Springer, Vienna 2002, ISBN 978-3-211-83761-0 .
- Gunter Wesener : On the dogma history of legal ownership. In: Festschrift Walter Wilburg for his 70th birthday. Graz 1975, pp. 453-476.