CIVIL CODE AND CIVIL LAW: The “Europeanization” of Private Law Within the European Community and the Re-Emergence of a European Legal Science

1 Colum. J. Eur. L. 63 (1994)

Reinhard Zimmermann. Dr. iur. (Hamburg), LL.D. (Cape Town), Professor of Private Law, Roman Law and Comparative Legal History, Faculty of Law, University of Regensburg, Germany; Max Rheinstein visiting Professor, University of Chicago School of Law, 1993.

Germans have, as is well-known, a predilection for complex compound words. “Fremdbesitzerexzeβ” is one of these verbal extravaganzas; and if one adds, as indeed one should, “Fremdbesitzerexzeβ” im Eigentümer-Besitzer- Verhältnis,” one is dealing with a phrase that is bound to cause consternation among novices at German law. What is its significance? Where one person is the owner, and another the possessor of an object, and where the latter does not have a right to possess, we refer to an owner-possessor relationship (“Eigentümer-Besitzer-Verhältnis”). The Bürgerliches Gesetzbuch (German Civil Code) [BGB] (§§ 987 et seq.) regards this as a source of specific obligations. Thus, the owner may, under certain circumstances, ask for compensation for damages and for the restitution of benefits received by the possessor. These circumstances, however, are rather narrowly defined. For the central feature of the owner-possessor relationship is its exclusivity. The possessor is only exposed to claims arising under §§ 987 et seq.; otherwise he escapes liability (that could arise under the law of delict or of unjustified enrichment). The policy underlying these provisions is the protection of possessors who have no right of possession but who are nevertheless acting in good faith.