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The Consequences of Possession$
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Eric Descheemaeker

Print publication date: 2014

Print ISBN-13: 9780748693641

Published to Edinburgh Scholarship Online: May 2015

DOI: 10.3366/edinburgh/9780748693641.001.0001

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PRINTED FROM EDINBURGH SCHOLARSHIP ONLINE (www.edinburgh.universitypressscholarship.com). (c) Copyright Edinburgh University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in ESO for personal use.date: 28 March 2020

Possessio civilissima in Spanish and German Law: Protecting Possession between Fact and Fiction

Possessio civilissima in Spanish and German Law: Protecting Possession between Fact and Fiction

Chapter:
(p.141) 7 Possessio civilissima in Spanish and German Law: Protecting Possession between Fact and Fiction
Source:
The Consequences of Possession
Author(s):

Descheemaeker Eric

Publisher:
Edinburgh University Press
DOI:10.3366/edinburgh/9780748693641.003.0007

In German Law, possession is generally regarded as a question of fact, whereas property is a legally undefined bundle of rights and privileges combined with the right to exclude others. Nonetheless, the clear line between right and fact gets blurred if possession is grounded on fiction as in case of possessio civilissima. This chapter focuses on this special form of possession, comparing German with Spanish law. Possessing civilissime means to possess without corpus and animus. So once a testator dies, his heir becomes possessor independently from being in control of the testator’s tangible items. Possessio civilissima, it is argued, calls into question the strict distinction between property and possession.

Keywords:   German law, Spanish law, possessio civilissima, Erbenbesitz, testator, Heir, le mort saisit le vif

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