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Emerich, Yaëll --- "Possession" [2017] ELECD 210; in Graziadei, Michele; Smith, Lionel (eds), "Comparative Property Law" (Edward Elgar Publishing, 2017) 171

Book Title: Comparative Property Law

Editor(s): Graziadei, Michele; Smith, Lionel

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848447578

Section: Chapter 8

Section Title: Possession

Author(s): Emerich, Yaëll

Number of pages: 20

Abstract/Description:

This chapter compares the law of possession in a number of legal systems, notably France, Quebec, England, Canada, and Germany, with additional forays into the law of Switzerland and the United States. Comparing each approach to the traditional definition of possession, which includes a physical element and an intentional element, it discusses the protections which arise from possession, and also explains the conceptual independence of possession from any underlying right of ownership. Although these features are accepted in the major legal systems, the approach taken by each system to these features may vary. There are points of contention between jurisdictions, the most prominent being the proper formulation of the elements of possession, namely requirement of a physical and mental elements of possession. There are also disagreements surrounding legal actions which protect possession, notably over who should be entitled to benefit from such protection. One can, however, identify commonalities between the various legal traditions regarding the elements of possession and the conceptual approaches to possession. Moreover, infringement of possession may be remedied in all legal systems and adverse possession or its functional equivalent of acquisitive prescription permit a possessor to acquire ownership through the passage of time.