Act of defense of possession
Definition of act of defense of possession
Die Act of defense of possession is a concept in German civil law and refers to a particular form of self-help that allows a person in possession to defend themselves against unlawful interference with their possession. This right is codified, in particular, in Section 859 (1) of the German Civil Code (BGB). The act of defense of possession entitles the direct possessor to defend themselves by appropriate means against interference with or deprivation of possession by a third party, for as long as the disturbance or deprivation persists.
Legal basis for act of defense of possession
Statutory regulation
The principal legal basis for the act of defense of possession is found in Section 859 (1) BGB:
“The possessor may use force to defend against unlawful interference.”
This provision is an exception to the principle that the enforcement of civil claims is, as a rule, reserved for the state courts. With the act of defense of possession, the possessor receives an autonomous, legally sanctioned means of defense.
Distinction from recovery of possession
The act of defense of possession is to be distinguished from recovery of possession (Section 859 (2) BGB). While the act of defense of possession is aimed at direct defense against a current attack, recovery of possession allows the possessor to use force to immediately end a just-completed deprivation of possession and retrieve the possession, provided this happens while the deprivation is still “fresh.”
Requirements for act of defense of possession
1. Possession by the person entitled to defend
A requirement of the act of defense of possession is the existence of actual possession under Section 854 (1) BGB. This includes both personal and third-party possession. It is not necessary that possession was acquired lawfully; even an unlawful possessor is protected.
2. Existence of unlawful interference
The act of defense of possession requires unlawful interference pursuant to Section 858 (1) BGB. Within the meaning of the law, this includes any interference with possession without the will of the possessor and without legal authorization. This covers, in particular, deprivation of possession, disturbance of possession, or other intrusions.
3. Immediacy of the attack
The defense against unlawful interference is only permitted for as long as the attack persists, that is, it is ongoing . Once the act of deprivation of possession is completed, defense of possession is no longer permitted and the remedy may then be recovery of possession or judicial assistance.
4. Legitimacy of the means employed
The defensive measures employed must only be aimed at averting the current attack and must be necessary and appropriate. They are subject to the principle of proportionality. Excessive use of force is impermissible and may itself give rise to claims for damages or even criminal consequences.
Legal consequences of the act of defense of possession
Effect of justification
The act of defense of possession excludes the illegality of actions that would otherwise be, for example, civilly or criminally relevant under Section 823 BGB or Sections 223, 303 StGB when carried out in defense. The possessor acts lawfully insofar as their conduct is covered by Section 859 (1) BGB.
Limits to the act of defense of possession
The use of force is limited to what is necessary. Injuries going beyond what is required for defense can give rise to liability. In particular, the act of defense of possession is not to be understood as general vigilantism, but serves exclusively to preserve the current state against unlawful interference.
Relationship with other self-help rights
Overlap with self-defense and necessity
The act of defense of possession overlaps with self-defense under Section 227 BGB as well as the provisions on civil law necessity (Sections 228, 904 BGB). In practice, an act of defense of possession can also constitute an act of self-defense; however, the two institutes are based on different legal foundations. The act of defense of possession is specifically aimed at the protection of possession, while self-defense and necessity are broader in scope.
Practical examples and limits
Typical case scenarios
- Defense against trespass: Expelling a third party unlawfully present in the apartment through reasonable physical action.
- Garden or property: Preventing a disturbance of possession by erecting temporary obstacles or demanding that the person leave the property, using reasonable force if necessary.
- Vehicles: Defending against a theft attempt through physical intervention, provided that no disproportionate force is employed.
Inadmissible forms of the act of defense of possession
- Excessive use of force, such as serious bodily injury or life-threatening actions.
- Retaliatory “acts of revenge” after the interference with possession has ended.
- Acts of defense of possession against police or sovereign actions, insofar as these are lawfully carried out.
Act of defense of possession versus judicial legal protection
The act of defense of possession is merely a transitional and immediate remedy; permanent protection of possession is generally ensured through judicial remedies, in particular with actions for protection of possession (Sections 861 et seq. BGB). The possessor remains entitled to seek state assistance at any time.
Act of defense of possession and criminal law assessment
The exercise of the act of defense of possession, provided it remains proportionate, may have a justifying effect both civilly and criminally. However, exceeding the allowed limits can result in criminal sanctions, for example for offenses such as bodily harm or property damage.
Literature references
For a deeper examination of the topic of defense of possession, it is recommended to consult relevant commentaries on the German Civil Code as well as specialized articles on the law of possession.
Conclusion: The act of defense of possession is a right of self-help enshrined in law for the immediate protection of possession against ongoing unlawful attacks. It is characterized by strict requirements and limitations and does not constitute a general authorization for self-implementation of subjective rights. Careful compliance with the legal requirements and the principle of proportionality is essential.
Frequently asked questions
Can the act of defense of possession also be used against the owner?
Yes, the act of defense of possession may, in principle, also be used against the owner, provided that the owner unlawfully seizes possession without the will of the possessor. Under German law – especially Section 859 (1) BGB – the possessor is entitled to protect their possession regardless of whether the disturber is the owner or not. The decisive factor is the legality of the possession at the time of the interference. Thus, if the possessor did not acquire possession through unlawful interference or other illegal means, they may defend themselves by means of the act of defense of possession against any immediate deprivation or disturbance of possession, even if this comes from the owner. However, proportionality must always be observed, meaning the means used must not be disproportionate to the disturbance and must be necessary for defense.
Are there restrictions on the use of the act of defense of possession?
The use of the act of defense of possession is not unlimited. There are significant legal boundaries, in particular the requirement of proportionality. The action must serve exclusively to immediately end the unlawful disturbance of possession. Measures purely for revenge, punishment, or prevention of future interference are not permitted. Furthermore, the act of defense of possession cannot be directed against official actions, as the principle of the state’s monopoly on the use of force applies. In addition, the use of force in the context of the act of defense of possession may be restricted in individual cases by self-defense provisions (Section 32 StGB) as well as the extent of permissible self-help (Section 859 BGB). In particular, excessive conduct can lead to claims for damages or even criminal consequences.
When does the right to act in defense of possession lapse?
The right to act in defense of possession generally lapses when the loss of possession has already been completed and the possessor has lost actual control. In that case, the remedy is no longer the act of defense of possession but at most the recovery of possession—that is, immediate regaining of possession—or judicial enforcement of the right to restitution. If the possessor has relinquished their possession right or if it has ended by law or contract (for example, through proper termination), the right to act in defense of possession no longer applies. In addition, contributory negligence or abusive conduct on the part of the possessor can lead to the loss of the right of defense.
What means may be used in the act of defense of possession?
In principle, the possessor is entitled to use all suitable and necessary means within the act of defense of possession that are required for the immediate defense against the disturbance. However, these means may not be disproportionate to the impending or ongoing disturbance (principle of proportionality). For example, a possessor may physically push back a disturber or deny them entry, if required, such as in the case of an unlawful intruder. The use of weapons or dangerous objects is, however, permitted only in absolute exceptions, such as in the case of a serious and dangerous disturbance, and must always remain within the legal limits (in particular the StGB and the law on self-defense). Disproportionately harsh or life-threatening measures are prohibited and may be punishable.
Is the act of defense of possession permissible even against minors or other especially protected groups?
In principle, the act of defense of possession is also possible against minors or other particularly protected groups—such as pregnant women, the elderly, or persons with disabilities—but particularly strict requirements as to the proportionality of the means used apply here. The use of force is only permitted if there are no gentler alternatives to defend against the disturbance. The special vulnerability of these groups requires the possessor to act with greater restraint and utmost caution. If excessive force is used, the possessor may face civil or criminal consequences, especially where excessive harshness or a danger to health is involved.
What are the consequences of an unjustified act of defense of possession?
An unjustified act of defense of possession—that is, an act carried out outside the statutory requirements or with disproportionate means—can have serious legal consequences. Civilly, the person invoking the act of defense of possession may be liable for damages to the injured party (Sections 280 et seq. BGB). Criminally, offenses such as bodily harm (Section 223 StGB), property damage (Section 303 StGB), or coercion (Section 240 StGB) may be considered, if the threshold of necessity and proportionality is exceeded. In particularly serious cases, a compensation claim under Section 823 BGB, such as for an unlawful act, may arise. An unjustified invocation of the act of defense of possession does not protect against these legal consequences.
