Possession, precarious possession and holding: Possession in the Civil Code of Catalonia

Abstract

Physical possession of a thing has different legal consequences depending on the type of power that the holder exercises over it. Physical possession can be divided into three different categories: possession, precarious possession and non-possessory holding. Possession has the maximum effects: possessory presumptions, usucaption, possessory protection, acquisition of the fruits and acquisition a non domino. Precarious possession represents an intermediate situation and allows possessory protection. Non-possessory holding involves contact with the thing that is not protected by law, and has no legal consequences. Thus, one who has a thing in his/her possession should not necessarily be regarded as the possessor, but can also be a precarious possessor or a simple holder.

After analyzing the concept of possession, precarious possession and holding, this study examines their form of acquisition and effects. In this regard, the main innovations in the Catalan legislation are the regulation of the actio publiciana and the different configuration of the acquisition a non domino of chattels for good and valuable consideration by a bone fide possessor. Finally, the enormous power of the possessor who enjoys no rights vis-á-vis the owner and the desirability of currently maintaining that power are explored.