Ownership

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When ownership will is the will (lat. Animus , so that here the sense of directionality) a person referred to, a thing to keep to yourself ( animus rem sibi habendi ).

If ownership is shared by several people, joint ownership arises. The mere joint use of an item does not necessarily have to justify joint ownership if it is clearly recognizable that someone else already has sole ownership of the item or that several people have joint ownership.

development

Pre-Classical Roman Law

In pre-classical Roman law , possession ( possessio ) was understood as a fact. It was enough for someone to have actual power ( corpus ) over something for him to be considered its owner. He could exercise this possession himself (own possession) or let it be exercised by other people ( property servant ) (third-party possession).

In order to gain actual control over the thing, the owner had to take hold of it physically (movable thing) or physically enter (immovable thing).

Classical Roman Law

In classical Roman law, several factors are prerequisites for possession, with different types of possession being distinguished:

  • Possessio civilis
  • Possessio ad interdicta (interdict possession)
  • Detentio (possession)

According to classical doctrine, ownership was established through the establishment of physical rule (violence) and the will to control the matter ( corpore et animo ).

According to classical doctrine, property is lost if the owner voluntarily gives up the property rule ( corpore et animo ) or involuntarily loses it ( corpore ). If, on the other hand, there is a prospect of regaining the thing, possession can also only be maintained with the will to own ( solo animo ).

Post-Classical Roman Law and Justinian

In the post-classical development of Roman law, the will to own ( animus domini ) became the central element for honest ownership. Possession changes from fact and approaches a right.

With the development of property into law, it is also assumed ( Justinian ) that for the maintenance of property it is sufficient to maintain the will to own ( animus ). In practice this means that even if physical control has been lost, the owner does not lose possession of the thing.

Further development of the will to own

The further development of the will to own is largely based on the Roman legal basis and tends in two directions:

  • Possession is understood as a fact ( BGB Germany, ZGB Switzerland);
  • Possession is understood as a right ( ABGB Austria; ABGB and PGR Liechtenstein).

Germany

Section 854 (1) BGB: “ The possession of a thing is acquired through the acquisition of actual control over the thing. "

According to the German Civil Code (BGB) and the Commercial Code (HGB), possession is actual rule (power) and it is generally not necessary that the owner has a right to exercise possession.

According to prevailing doctrine and jurisprudence in Germany, a will to establish ownership (at least implied) is required in order to obtain direct possession within the meaning of Section 854 (1) BGB.

Possession is terminated within the meaning of Section 856 (1) BGB “ when the owner gives up actual control of the thing or loses it in another way. "

Austria

§ 309 ABGB : “ Anyone who has a thing in his power or in custody is called its owner. If the owner of a thing has the will to keep it as his own, he is its owner. "

According to the ABGB, the owner is e.g. B .:

  • who keeps something for himself because he has a legal claim to it (e.g. the owner );
  • anyone who believes they have a legal claim to the thing (e.g. the person who has the right to a thing in good faith because he thinks he is the owner);
  • who keeps something to himself (e.g. the thief, the unfaithful business partner, the squatter etc.).

According to the Austrian ABGB, the will to own is a mandatory requirement for acquiring and maintaining ownership.

Switzerland

The basic regulations on ownership can be found in the Swiss Civil Code (ZGB), similar to the BGB. Art. 919 para. 1 ZGB standardizes: “ Whoever has actual control over something is its owner. “According to part of the Swiss teaching on the Civil Code, however, ownership is not required. Possession is a purely factual relationship, the existence of which depends on the prevailing public opinion. It is partly assumed, among other things, that the "actual violence" already includes the will and the will to own is not a separate element of possession.

With this legal view, this part of Swiss teaching follows the most original concept of Roman law.

Liechtenstein

The will to own is a prerequisite for ownership in Liechtenstein property law (SR). Despite the repeal of Section 309 ABGB , the general provisions of the ABGB and the PGR flow into the SR via Art. 5 Paragraph 1 SR and the need for ownership can be derived from the remaining provisions, in particular the ABGB.

literature

Web links

Wiktionary: possession  - explanations of meanings, word origins, synonyms, translations
Wikiquote: Possession  - Quotes

Individual evidence

  1. ↑ In German doctrine and jurisprudence, a distinction is sometimes made between a will to establish ownership ( § 854 BGB ) and a will to give up ownership ( § 856 BGB).
  2. ↑ Within the meaning of the BGB and the Swiss Civil Code , things can generally only be physical objects or things that the legislature has equated with physical objects (e.g. certain rights); In terms of the Austrian ABGB and the Liechtenstein ABGB and PGR , things can also be intangible things (rights) and ownership can be established on them.
  3. ↑ Prerequisite: actual power over the thing and a suitable legal reason for the acquisition ( iusta causa possessionis , e.g. purchase , donation , legacy, etc.)
  4. ↑ Owners who are protected in their property by praetorical law and who can take legal action against unauthorized interference or deprivation of property. These are e.g. B. the owner who has the will to own the property, the foreign owner to whom the praetor granted special protection (e.g. the pledgee , the dispute custodian, the leaseholder , bit heron etc.).
  5. ↑ All other foreign owners who do not meet the requirements of civilis possessio and are not interdict owners but give the appearance of being owners ( naturalis possessio, tenere or detinere ). These are e.g. B. the custodian , managing director without mandate , contractor, according to Roman law also tenants and lessees .
  6. ↑ Cf. Max Kaser : Römisches Privatrecht , p. 98.
  7. ↑ A person who is otherwise incapable of doing business can also have the will to establish ownership in order to obtain direct ownership. A lesser opinion in German teaching takes the view that the will to own is not a prerequisite for possession (possession as property rule).
  8. ↑ The giving up of actual violence is usually interpreted very broadly by the jurisprudence and is in fact equivalent to a will to give up possession.
  9. ↑ Cf. for many: Peter Tuor, Das Schweizerische Zivilgesetzbuch , 432 ff., Who also points out that Eugen Huber took a somewhat different point of view in this regard.
  10. ↑ The Liechtenstein property law (SR) combines the elements of the Swiss civil code (Art. 641 ff. ZGB) and the Austrian ABGB (öABGB) with regard to property. Property law applies in the Principality of Liechtenstein, which is largely taken from the Civil Code (1923) and at the same time a law of obligations that was adopted from the Austrian Commercial Code (1812). A final and practice-recognized review of this legal conflict on ownership in Liechtenstein civil law has not yet taken place. The case law of the Liechtenstein courts is based partly on the ABGB and the Austrian case law on the Austrian Civil Code and partly on the SR or the Swiss case law on the ZGB
  11. ^ Antonius Opilio : " Working commentary on Liechtenstein property law ", Art. 498 ff. SR, EDITION EUROPA Verlag.