PRAVNI ZAPISI • Year V • No. 1 • pp. 5-65


Language: Serbian

Prof. dr dr h.c. Vladimir V. Vodinelić
Redovni profesor, Pravni fakultet Univerziteta Union u Beogradu



Pravni zapisi, No. 1/2014, pp. 5-65

Original Scientific Article

DOI: 10.5937/pravzap0-6223

theories on the reason (basis, aim, function) of possessory protection of possession; conditions for rational discussion; measures for evaluation of theories; imanent and transcendent criticism; theory of found manifestation of rights and obligations;

There are as many as five theories on the reasons for possessory protection of mere possession, some have existed for centuries, some with variations, some combined with others: the theory of peace, of personality, of property, of continuity, of the biggest economic benefit. The differences in direction, as well as the duration of discussion, to some extent also brought about differences in method. That is why the author, before presenting his own position on the issue, deals with the very question of the question on the reasons for possessory protection. To make the discussion rational, the authors should agree on a meta-level on what they believe to be necessary for a theory to be feasible: that its reasons are founded in something considered a social value; that it is applicable to all cases of infringement of possession or that it is enough that the theory applies to typical cases; that it applies to all models of possessory protection or it is enough that it suits only one of the models; that the reasons the theory employs are something specific to possessory protection or even without that. The author lists the following criteria for acceptability of theories. 1. The reason given by the theory has to be something existing as a social value. 2. The reason the theory employs has to correspond to both typical situations of infringement of possession (when an unauthorised person infringes on the possessor who has the right to be a possessor and does not have an obligation to endure the infringement, i.e. when the person infringes by force, coercion and other means in conflict with the possessor), as well as atypical situations (when the person authorised for possession infringes on an unauthorised possessor, i.e. when a person infringes on a possessor without there being a conflict between them). 3. As possessory protection does not exist in abstracto, but only in the form of a concrete model, it is sufficient that the theory suits the current model of possessory protection. This because there is signifficant difference between the model of relative possessory protection (when protection is excluded by an objection of better right to possession, objection petitorium absorbet possessorium and the possibility of a petitory counterclaim, or by one of these actions) and the model of absolute possessory protection (in which none of the above is permitted). 4. As possessory protection of possession is a specific type of legal protection, precedence should be on the side of the theory founded in something specific only to possessory protection of possession and not to petitory protection. When those criteria are applied, the result is: that all analysed theories are based on a reason representing a social value; that all can explain possessory protection of possession in typical cases of infringement of possession; that none of them can justify possessory protection in atypical cases; that none of the theories suit all models of possessory protection; that the reasons underlying none of them is in anything specific only to possessory protection; that none of the theories are able to endure some other aspects of immanent criticism. Finally, the author achieves the transcending criticism of theories by setting the theory of protection of the found manifestation of rights and obligations, which reads as follows. Every mere possession is a factual power or a factual state which represent the ‘incarnation’ of a right or an obligation; and the infringement from which the possession is protected is only such dispossession or interference of possession which would, in the case of possessor’s right and obligation, present a breach of the right or obligation. Thus, the content of the right or obligation preforms both the possession and the infringement of possession. Legal relevance and legal value of possession is provided by the fact that rights and obligations – these elementary important, fundamental legal phenomena – which can not be perceived by the senses, are manifested through factual power or conditions which can be perceived by the senses, so that the violation of rights and obligations, those elementary important and unperceivable legal phenomena, also become perceivable by the senses in the forms of infringement of possession. Possession is different from other legal manifestations of rights (including registers) in the fact that it is the most immediate factual relationship with the very thing which is the object of a possible right or obligation because only it exists on the spot – in the very place where the thing in which one comes in contact is located and at the time when one comes in contact with it. Possession as a manifestation of the possible right and obligation, thus, represents the state of affairs which is immediately found. Infringement of possession is the change of that immediately found state of affairs and it is unlawful because the change in the found state of affairs which is a manifestation of the possible right and obligation infringes the (unwritten) legal principle that the one who wishes to alter the found condition can do that only if one previously proves that one has the right to that, and it is not on the one who is the subject of the found state of affairs to prove that one has the right to that state of affairs and the right for that state of affairs not to be altered. In comparison to other theories, this one can sustain the verification in the form of immanent criticism. 1. The reason which it provides is a social value. 2. The need for protection of the found manifestation of rights and obligations can explain possessory protection in typical cases of infringement of possession. But it can, unlike other theories, justify possessory protection of the possessor which is not authorised to be a possessor and whose possession was not infringed by force nor in any kind of conflict between the possessor and the infringer: his/her protection is also legitimate because the infringement of possession of such possessor also represents a change in the manifestation of rights and obligations, the immediate found state of affairs which equally cannot be unlawfully violated without a previous proof of a right to do so, whether the possessor is authorised to possession or not, whether the infringement was violent of without a conflict. 3. The theory of protection of the found manifestation of right, unlike some others, suits the model of possessory protection of possession relativized in Serbia by the objection petitorium absorbet possessorium: as the conduct of a person who infringes possession has the same manifestation as possession, the relativizing of possession (allowing the objection of absorption) is necessary to make clear who really has the right; competition between two identical manifestations is resolved on the basis of the better right to possess. 4. Its reason is specific for possessory protection of possession, which is not the case with other theories: petitory protection is not a protection of the manifestation of the right and only of the right, while possessory protection actually is the protection only of the manifestation of right and the protection of it alone. Finally, the author demonstrates the place and the role of the reason for possessory protection of possession and the theory on that reason in the course of regulation of possessory protection of possession by the legislator.