Term and meaning of book possession
Die Book possession is a term in German property law and represents a specific form of possession. It is particularly relevant in connection with the acquisition of ownership of movable property by legal transaction (§§ 929 et seq. BGB) as well as in land register law. Book possession enables possession of certain items to be exercised not by actual possession (direct possession), but by entry in a public register (registered possession). The term is mainly used in connection with real estate and rights equivalent to real estate, such as condominium ownership or hereditary building rights.
Distinction from direct and indirect possession
Under German law, a distinction is made between direct and indirect possession. Direct possession exists when a person has actual control over an item. Indirect possession exists when a person does not exercise actual control themselves, but is connected to the item through a possessor intermediary. Book possession must be distinguished from this, as it is based on a register entry and thus a legally recognized possession relationship that is documented in the land register or similar public registers.
Statutory foundations of book possession
Book possession in the German Civil Code (BGB)
In the BGB, the term book possession is used, among others, in the following provisions:
- § 929 Sentence 1 BGB (Transfer by agreement and delivery): While delivery is central for the transfer of movable items, for certain rights—especially ownership of real estate—delivery can be replaced by entry in the land register. Book possession here characterizes the fundamental particularity that possession is documented by entry in a public record (e.g. land register).
- § 873 BGB (Acquisition of ownership of land): In addition to agreement, the entry in the land register is required. With the entry, the acquirer is granted registered (book) possession.
Public records within the meaning of book possession
“Public records” refer in particular to the land register (for real estate and rights equivalent to real estate), the ship register, and the register of marital property regimes. Book possession can therefore also play a role, for example, in the acquisition of ownership of ships under § 3 Ship Register Ordinance.
Function and significance of book possession in legal transactions
Book possession has two central functions:
- Possession protection and presumption of possession: Anyone entered in a public register as the holder of a right is considered the possessor of that right. This is significant for possession protection, as the person entered becomes the holder of certain protection rights.
- Facilitation of legal transactions: Since possession can be proven by the entry in the record (e.g. land register), this significantly facilitates legal transactions. Buyers, sellers, and third parties can clearly determine possession status based on the register.
Intention to possess in the case of book possession
Unlike direct possession, where an intention to possess is required, book possession does not require actual possession but rather an appropriate intention and register entry. The intention to possess is usually documented through the registration process.
Book possession and acquisition of ownership
Real estate law
In real estate law, book possession is of central importance. German property law requires both agreement and registration in the land register for transfer of ownership in real estate, § 873 BGB. The registration in the land register replaces the actual delivery of the object — thus, possession in the legal sense is granted by book possession.
Mortgages and land charges
Similarly, the creation and transfer of mortgages and land charges (e.g. mortgages, land charges) is effected through book possession. Here, the principles of book possession are applied analogously.
Ships and aircraft
Book possession also applies to certain movable property, in particular ships (entry in the ship register) and aircraft, provided they are registered in the relevant register.
Protective effects and legal protection in book possession
Protection of possession
The “book possessor” is entitled to possession protection claims, in particular under § 985 BGB (restitution claim) and other provisions for protection of possession, to the extent that these apply to public register possessors. In particular, this applies to protection against unlawful interference by third parties.
Presumption of possession
According to § 891 BGB, it is presumed that rights entered in the land register exist and belong to the registered person. This statutory presumption of possession contributes to legal certainty and protects good-faith acquirers relying on the public trust of the land register.
Significance of book possession in insolvency law
In insolvency law, the position of “book possessor” also has implications. For example, a right entered in the land register may have special security rights in the context of insolvency assets. Register entry serves to protect both the debtor in insolvency and the creditors.
Distinction from possession mediation relationships
Book possession must be strictly distinguished from possession mediation relationships (§ 868 BGB). In the latter, the intermediary maintains the intention to possess either alone or together with the entitled possessor, whereas in book possession, the possession relationship is based solely on the register entry.
Criticism and practical relevance of book possession
Book possession is central to German property law due to its significant legal clarity and transparency. It is sometimes criticized that the reliance on registration in the land register and other registers makes the acquisition and transfer of rights overly bureaucratic. At the same time, book possession serves legal certainty and the protection of legal transactions.
Literature references and further links
- Palandt, Bürgerliches Gesetzbuch, latest editions, keyword “Besitz” (possession), “Buchbesitz” (book possession)
- Münchener Commentary on the BGB, current editions, §§ 873 et seq. BGB
- BeckOK BGB, continuously updated, commentary on § 872 BGB
Note: Book possession is a complex, register-based concept of possession in German law, whose understanding is essential in particular for real estate transactions, the creation and transfer of rights equivalent to real estate, as well as for legal protection in connection with public registers.
Frequently Asked Questions
Who is legally considered the possessor of a book?
In legal terms, possession refers to actual control over an object, in the case of a book, control over the physical item. According to § 854 BGB (German Civil Code), possession is acquired by obtaining actual control over a book, regardless of whether the possessor is also the owner. The distinction between possession and ownership is essential: While the owner has the legal power of disposal over the book, for the possessor it is sufficient that he actually holds the book. It is irrelevant whether this ownership is permanent or temporary (e.g. in the case of a loan). A tenant, borrower, or finder of a book is also legally considered a (direct) possessor. In the case of joint use of a book by several persons (e.g. flatmates), co-possession may exist, which—depending on the circumstances—can lead to collective or proportional exercise.
What rights and obligations does the book possessor have in relation to the owner?
The book possessor is obliged to handle the book properly and may not make unauthorized changes or pass it on to third parties without the consent of the owner, see for example § 603 BGB in the case of a loan. The possessor has the right to possession protection (§ 859 BGB) and may defend against disturbance of possession—but always within the scope of his possession status. If the possession relationship ends (e.g. at the end of a loan period), there may be an obligation to return the book. If a book is damaged or lost, the possessor may be liable for compensation if he is at fault (§§ 280, 281 BGB). In the case of lawful possession, the possessor is protected by certain provisions (e.g. the right to self-help against unlawful actions), while the owner retains the right of restitution (§ 985 BGB).
What happens from a legal perspective in the event of loss or theft of the book?
If the possessor loses a book, ownership remains with the owner, while possession is lost. If the book is stolen, the possessor loses actual control and the thief becomes the immediate but unlawful possessor. In both cases, the lawful possessor has a claim to restitution against the current possessor, unless the latter is a “good faith acquirer” under § 932 BGB—although books are movable items and special requirements apply, such as the exclusion of good faith acquisition in the case of theft, loss or misplacement according to § 935 BGB. Depending on the contractual relationship with the owner, the possessor may also have to prove lack of fault for the loss or theft in order to avoid liability.
How can lawful possession of a book be proven?
Proof of possession is generally provided by actual holding or by clear indication of intention to possess (for example, if the book is kept in one’s own room or actively used). In cases of dispute, additional evidence such as purchase receipts, loan agreements, gift certificates, or a handover protocol is helpful, although in a strictly legal sense, actual control is decisive. In cases where several persons lay claim to possession, the burden of proof for entitlement to possession typically lies with the claimant. It is important to note that, in turn, for claims of ownership, proof of ownership must be provided, which is generally weighed more heavily than mere possession.
What are the legal consequences of unauthorized retention of a book?
Unauthorized retention of a book, for example after the loan period has expired or after a request for return by the owner, constitutes a disturbance of possession or even unauthorized self-help (§ 858 BGB). In such cases, the owner has a restitution claim under § 985 BGB against the unlawful possessor. In addition, claims for damages under §§ 987 et seq. BGB can be asserted if, for example, the book is damaged during the period of unauthorized possession. In the case of intentional and unlawful withholding, criminal consequences such as embezzlement (§ 246 StGB) may also be considered.
Can possession of a book be transferred by delivery, and what forms exist?
Possession of a book can generally be transferred through delivery under § 929 BGB. This occurs either by “physical delivery” of the book or by a “constitutum possessorium” (§ 930 BGB), if the book remains in the possession of the previous possessor but, by agreement, is kept on behalf of the new possessor (e.g. consignment). Delivery by symbolic act (§ 294 BGB), for example by handing over the key to a storage cabinet, is also recognized as legal transfer. There is also the possibility of “instruction of possession” (§ 931 BGB), for instance when a third party acts as intermediary. It is important that with delivery, the new possessor acquires the right of possession, but not necessarily ownership.
To what extent is the book possessor liable for damage or loss of the book?
The possessor’s liability depends on the specific legal basis (e.g. loan, lease, deposit). For a loan, the possessor is generally liable under § 604 BGB for careful handling of the book and must return it after use. In the event of negligent or intentional damage or loss, there is typically an obligation to compensate the owner (§ 280 BGB). However, if the possessor is not responsible for the destruction or damage of the book (force majeure, loss without fault), liability is generally excluded. It is important that the burden of proof for lack of fault often lies with the possessor, unless the law provides for a reversal of the burden of proof (e.g. in leases or deposits). Any divergent agreements between owner and possessor apply only within the limits of the statutory provisions.
