Yaell Emerich, ‘Why Protect Possession’

Using a comparative analysis – mainly looking at French civil Law and English Common Law – this paper studies the effects of possession through the example of possessory protection in Quebec law. The main objective of this paper is to consider the appropriate parameters of possessory protection in relation to its functions. It is argued that the possessory action has a larger function than the protection of ownership, given its supplementary purpose of protecting against violence. The argument consists of three parts. First, following the examination of the notion of possession and its justifications, I submit that the person with detention of property should benefit from possessory protection. Second, I argue that this action should not be subject to the conditions set for a useful possession. Indeed, doing otherwise confuses the concepts of possession and acquisitive prescription and undermines the aims of possessory protection. Finally, I submit that the domain of possessory protection should be extended to movables in order to transcend the obsolete maxim res mobilis res vilis.

Emerich, Yaell, Why Protect Possession (2014). Eric Descheemaeker (ed.), The Consequences of Possession, Edinburgh University Press, May 2014.

First posted 2014-04-13 19:20:39

Leave a Reply