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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: 30 March 2020

Possession of Incorporeals

Possession of Incorporeals

Chapter:
(p.171) 8 Possession of Incorporeals
Source:
The Consequences of Possession
Author(s):

Descheemaeker Eric

Publisher:
Edinburgh University Press
DOI:10.3366/edinburgh/9780748693641.003.0008

This chapter explores the notion of possession of incorporeal (intangible) things in its historical development and ask the question what – if any – role it can play in modern legal systems. When the Roman sources use the term res (things), they usually referred to corporeal things; however, in a few texts, it is explicitly stated that the term comprises both corporeal (or tangible) and incorporeal things (res incorporales). Besides, possession in Roman law was, at least in principle, based on physical control. Since it is hardly conceivable that incorporeal things be physically controlled in a similar way, there was no possession of res incorporales. However, again, a few texts allude to a ‘quasi-possessio’ of certain intangibles. Taken together, these texts gave later interpreters the opportunity to develop a broader concept of possession of incorporeal assets. The writers of the ius commune were ready to accept as ‘things’ in the legal sense objects that the Roman lawyers probably never would have included in that category (like the view from a certain geographical point). They were also ready to extend the notion of quasi possessio beyond the situations in which it had been used in Roman law. Modern German law only recognises the possession of corporeal things. In other legal systems, like the Austrian, the situation is less clear. This chapter asks whether the notion of quasi possession of intangible property can have any legitimate place in the modern economic world where intangible assets are more important than ever. In particular, it discusses which of the traditional remedies granted to the possessor of a corporeal thing can be granted to the quasi possessor of an intangible assets and how the extension of the concept of possession needs to be limited.

Keywords:   Roman law, German law, Austrian law, ius commune, incorporeals, quasi-possession, Hommel

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