1896de Book3 Chapter01

GERMAN CIVIL CODE OF 1896

• Based on the English Translation by: Wang, Chung Hui (1907). The German Civil Code, translated and annotated with historical introduction and appendices. London: Stevens and Sons. [available on Archive.org]
• Original Version in German.

Book III. Low of Things.

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Chapter I. Possession.

Section 854.

• [I] Possession of a thing is acquired by the attainment of actual power over the thing.
• [II] A real agreement between the former possessor and the acquirer is sufficient for the acquisition of possession if the acquirer is in a position to exercise power over the thing.

Section 855.

• Where a person exercises actual power over a thing for another in the latter's household or business, or in a similar relation by virtue of which he has to follow the directions of the other concerning the thing, then only the latter is possessor.

Section 856.

• [I] Possession is lost by reason of the fact that the possessor relinquishes or otherwise loses actual power over the thing.
• [II] Possession is not lost when the exercise of the power is prevented by some cause which is temporary in its nature.

Section 857.

• Possession passes to the heir of the possessor.

Section 858.

• [I] A person who deprives a possessor against his will of his possession, or disturbs him in his possession, acts unlawfully (i.e., unlawful interference), unless the law authorizes the deprivation or disturbance.
• [II] Possession acquired by unlawful interference is defective. The defect avails against a successor in possession who is the heir of the possessor, or who knew of the defect of his predecessor's possession at the time of acquiring it.

Section 859.

• [I] A possessor may forcibly resist unlawful interference.
• [II] If a moveable is taken away from the possessor by unlawful interference, he may retake it by force from the wrongdoer if he be caught in the act or immediately pursued.
• [III] If a possessor of land is deprived of possession by unlawful interference, he may, immediately upon being dispossessed, recover possession by the expulsion of the wrongdoer.
• [IV] The possessor has the same rights against a person who according to 858, par. 2, is in defective possession.

Section 860.

• A person who exercises actual power on behalf of the possessor under 855 is also authorized to exercise the rights which the latter has under 859.

Section 861.

• [I] If a possessor is deprived of possession by unlawful interference, he may demand relinquishment of possession to him from the person who is in defective possession as against him.
• [II] The claim is barred if the possession of which the possessor has been deprived was defective as against the present possessor or his predecessor in title, and was acquired within a year prior to the deprivation.

Section 862.

• [I] Where a possessor is disturbed in his possession by unlawful interference, he may require the disturber to remove the disturbance. If further disturbance is to be apprehended the possessor may apply for an injunction.
• [II] The claim is barred if the possessor is in defective possession as against the disturber or his predecessor in title, and the defective possession was acquired within a year prior to the disturbance.

Section 863.

• As against the claims specified in 861, 862, a right to possession or to disturb the possessor may only be asserted to establish the contention that the deprivation or the disturbance of the possession is not unlawful interference.

Section 864.

• [I] A claim based upon 861, 862, is extinguished on the expiration of one year after the act of unlawful interference, unless within such period the claim has been enforced by bringing action.
• [II] The claim is also extinguished, even though after the act of unlawful interference it is established by a non-appellable judgment that a right over the thing belongs to the wrongdoer by virtue of which he may demand restoration of possession in a manner corresponding to his act of interference.

Section 865.

• The provisions of 858 to 864 apply also in favour of a person who possesses only a part of a thing, e.g., separate rooms for habitation or other rooms.

Section 866.

• If several persons possess a thing in common, no possessory action lies as between themselves, in so far as the question relates to the limits of the use belonging to the individuals.

Section 867.

• If a thing comes out of the power of its possessor and is afterwards found on a piece of land in the possession of another, the possessor of the land shall permit him to search for and remove it, unless the thing has been taken possession of in the meantime. The possessor of the land may demand compensation for any damage arising from the search and removal. He may, if injury is to be apprehended, refuse his permission until security is given; the refusal is not permitted if there is danger in delay.

Section 868.

• If a person possesses a thing as usufructuary, pledgee, ordinary or usufructuary lessee, depositary, or in a similar relation by virtue of which he is for a time entitled or bound to possess the thing on behalf of another, then such other person is also possessor (i.e., indirect possession).

Section 869.

• If unlawful interference is committed against a possessor, the claims specified in 861, 862 belong also to an indirect possessor. In case of deprivation of possession the indirect possessor is entitled to demand relinquishment of possession to the former possessor; if the latter cannot or will not re-assume possession, the indirect possessor may demand that possession be relinquished to himself. Under the same conditions he may, in the case provided for by 867, demand permission to search for and remove the thing.

Section 870.

• Indirect possession may be transferred to another by the assignment to the latter of the claim for the return of the thing

Section 871.

• If the indirect possessor stands to a third party in a relation of the kind specified in 868, such third party is also an indirect possessor.

Section 872.

• A person who possesses a thing as belonging to him is a proprietary possessor.