Property II Outline

Chapter III: Acquisition of the Right of Ownership
(Art 916)
S. 1 – Possession and Acquisitive Prescription
Mazeaud, Mazeaud et Chabas, Leçon de droit civil – Biens : Droit de propriété et ses démembrements
 
Possession
–          Power of right : The owner of a real right has a juridical power that exists independently of his level of exercising of the right of ownership. « Pouvoir de droit »
–          Power of fact :The person who has the power of fact has no right on the thing but comports himself as if he was the owner. Possession is a power of fact « pouvoir de fait ».
There are many justifications for the protections that the law gives to possession:
1.     Where the possessor is the owner, focussing on possession allows easier proof of ownership. In order for the owner to have the protection of the right of ownership, he must first establish a right. [According to Carbonnier, this is the primary justification for the presumption of ownership granted to the possessor.] 2.     In some cases, the possessor is not the owner. However, it is still important to protect possession; this is the case, firstly, for the maintenance of public order. Not to protect the possessor would authorise acts of violence. On the other hand, by protecting possession, when a person claims to be the owner of a good that he/she does not possess, he/she can only address the courts in order to recognise and proclaim his/her right.
3.    Another justification for protecting possession is economic interest: the owner who is not in possession of his/her goods directly or through an intermediary leaves his/her things unproductive.
4.     There is also the argument of interest of the security of transactions: in order to ensure the security and facility of transactions, one must relieve third parties of the fear that they will be prejudiced by the sudden appearance of the “real owner”.
However, there is something troubling about the fairness of allowing a possessor to acquire ownership at the expense of the real owner. In this vein, the drafters of the Civil Code occupied themselves largely with the morality of the possessor. Thus, the distinction was made between good and bad faith of the possessor.
Things “hors de commerce” are not susceptible of possession. As well, juridical universalities (patrimonies, inheritances) and factual universalities [because they themselves cannot be the object of ownership but only the elements which comprise them] are not susceptible of possession.
 
Art 916 
Property is acquired by contract, succession, occupation, prescription, accession or any other mode provided by law.
(2) No one may appropriate property of the State for himself by occupation, prescription or accession except property the State has acquired by succession, vacancy or confiscation, so long as it has not been mingled with its other property. Nor may anyone acquire for himself property of legal persons established in the public interest that is appropriated to public utility.
–          Says “property” à any patrimonial right. 
–          Some modes are applicable to any type of property – Contract, sucession.
–          Some relates specifically to real rights: Occupation, accession (both to only ownership), aquisative prescription (ownership and dismemberments).
 
Acquisitive Prescription
One of the effects of possession is acquisitive prescription
AP – also referred to as Usucapio
 
Notion of Possession:
921-933, 939-941, 957-964 2910-2920 (acquisitive prescription)
–          In the domain of real rights
 
New Code:
–          Has rephrased the stuff on possession. It is much clearer. Significant change has to do with the delay of acquisitive prescription.
Art 921
Possession is the exercise in fact, by a person himself or by another person having detention of the property, of a real right, with the inte