Right to possession

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The right to possession (also right of possession ) describes in jurisprudence the right to own a thing . The ownership rights are particularly relevant in the context of the claim for the return of property . This is excluded if the owner of an item is entitled to possession vis-à-vis the owner .

Absolute property rights

Absolute property rights (including property rights in rem ) have an absolute effect, i.e. That is, they entitle anyone to possess it. They arise in particular from limited real rights to the thing (e.g. from a right of lien in accordance with Section 1204 ff. BGB or a usufruct in accordance with Section 1030 ff. BGB).

It is disputed whether the expectant right also gives the owner an absolute right to property. While the prevailing opinion affirms this, a counter-view rejects this on the grounds that the entitlement right is only intended to protect the acquisition of property and can do so even if the beneficiary is no longer the owner.

Relative ownership

Relative property rights (including mandatory property rights ) work relatively, i.e. That is, they only entitle the holder to possession within a contractual relationship. They arise in particular from contracts under the law of obligations (e.g. from a rental agreement in accordance with Section 535 ff. BGB or a loan agreement in accordance with Section 598 ff. BGB).

Right of retention

It is controversial whether the retention rights represent property rights. While the German BGH affirms this at least for the right of retention from § 1000 BGB, the majority of the teaching does not see ownership rights in them, but independent counter-rights, since their meaning and purpose is not the material regulation of ownership, but only the enforcement of claims.

Individual evidence

  1. OLG Karlsruhe NJW 1966, 885 f.
  2. ^ Mathias Habersack : Property law . 7th edition. 2012. No. 245
  3. ^ Medicus / Petersen : Civil law . 23rd edition. 2011. No. 465
  4. BGH NJW 1995, 2627 f.