Unit 22- Security rights possession

Question 1

What are security rights?

Answer 1

Security property rights are created to secure the payment of a claim

Question 2

What are the two main types of security property rights?

Answer 2

1. The right to pledge: created on movables

e.g. Debtor grants the creditor a security interest in the property, which serves as collateral for the debt

2. The right to hypothec: created on immovables

e.g. creditor may have the right to initiate a forced sale

Question 3

What are the two prerogatives of security property rights?

Answer 3

1. Run with the asset
2. Priority: holders with a property security right may claim their money before the creditors who hold only personal claims

Question 4

When is a person a possessor?

Answer 4

The fact that a person has actual control over a good, regardless of the circumstances by which he obtained such control, irrespective of whether the possessor is legally entitled to the good or not

Question 5

Situations in which owner and possessor are different subjects

Answer 5

1. Stolen goods
2. Buyer of a good under a void contract
3. Goods taken from the owner in good faith

Question 6

What is the protection of possession?

Answer 6

The legal system attributes important legal consequences to the actual controls over an object and grants the possessor the right to defend his position

Question 7

What is self help in protection of possession?

Answer 7

The possessor is entitled to defend his position by self-help in a limited series of cases

• through self defence
• through physical recovery of his possession immediately after the interfering act has occurred

Question 8

What is legal protection in protection of possession?

Answer 8

Whenever self help is not able to be used, protection of possession is granted only through judiciary actions

Question 9

What is restoration action in legal protection?

Answer 9

If the possessor has been violently or secretly deprived of his physical control over the good, he may sue the dispossessor in order to be restored in its possession

Question 10

What are the two types of restoration actions

Answer 10

1. Restoration of possession (state of facts): temporary restoration of possession
2. Recovery of ownership (situation at law):

Question 11

What is the general principle on possession of movables?

Answer 11

Nobody can transfer a property right that he did not have himself in the first place

Question 12

When do people acquire ownership of movables from a non owner

Answer 12

• The movable is delivered to him
• He is in good faith at the time of the transfer
• There is a suitable title for the transfer of the right of ownership

Question 13

What is rationale: transparency and reliability of transactions?

Answer 13

By stating that the possessor in good faith acquired the right of ownership, legal systems promote the circulation of wealth, by protecting prospective purchases who, in good faith, relied on the state of fact

Question 14

What is the doctrine of acquisition prescription?

Answer 14

The continued and uninterrupted possession over a predetermined period of time leads to the acquisition of a right of ownership on any good, movable or immovable

Question 15

What elements may vary according to the specific rules of each jurisdiction?

Answer 15

• The period of time
• The subjective element