CHARACTERISTICS OF DETENTIO ACCORDING TO THE LEGISLATION OF FOREIGN COUNTRIES (FRANCE, GERMANY AND ENGLAND)
Journal Title: Часопис цивілістики - Year 2018, Vol 29, Issue
Abstract
The article examines the peculiarities of the use of detentio and possession in the legislation of France, Germany and England. The peculiarities of protecting the interests of the actual holders of things in contractual relations in accordance with the basic systems of civil law (France, Germany), based on Roman private law, as well as common law of England, are related to the nature of their rights to the transferred thing (detenntio or possession). It is noted that improvement of legislation in Ukraine in the field of protection of real rights is impossible without studying the pecularities of institutions of detentio and possession, their origins, the study of foreign legislation and trends in the development of legal regulation of these institutions. Detentio were considered by Roman law as the actual possession of thing without the intention to regard it as its own and was established on the basis of a contract for the transfer of things for a certain use (hire, commodatum, depositum etc.). The difference between possession and detentio under Roman private law was in presence of the intention to possess, according to one’s own and another’s name. French civil law, like Roman private law, distinguishes possesio and detentio. Under French law detentio is not recognized as the basis for the acquisition of property by continuous possession, regardless of the term of possession of things. German law in general does not distinguish institutions of possesion and detentio. At the same time, intermediary possession is present in German Law, as an analogue of the Roman derivative possession (holding with independent possession protection). In English law, the institution of bailment combines contracts about the transfer of possession of movable property. Bailment is characterized by a certain amount of authority on the side of the holder relative to the thing given to him, which is smaller than that characteristic of the owner (the dependent holder has no right to transfer thing and sometimes use it), but greater than that of ordinary possession.
Authors and Affiliations
Влада Олександрівна Гончаренко
Keywords
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