Last Updated on June 28, 2021 by LawEuro
German Civil Code (BGB) German law
Title 4
Claims arising from ownership
Section 985
Claim for restitution
The owner may require the possessor to return the thing.
Section 986
Objections of the possessor
(1) The possessor may refuse to return the thing if he or the indirect possessor from whom he derives his right of possession is entitled to possession as against the owner. If the indirect possessor is not authorised in relation to the owner to permit the possessor to have possession, the owner may require the possessor to deliver the thing to the indirect possessor or, if the indirect possessor cannot or does not wish to take possession again, to the owner himself.
(2) The possessor of a thing that has been alienated under section 931 by assignment of the claim for return may raise against the new owner the objections that he is entitled to use against the claim assigned.
Section 987
Emoluments after litigation is pending
(1) The possessor must return to the owner the emoluments that he receives after litigation is pending.
(2) If after litigation is pending the possessor fails to take emoluments that he could take under the rules of proper management, he is obliged to reimburse the owner to the extent that he is at fault.
Section 988
Emoluments of the possessor who makes no payment
If a possessor who possesses the thing as belonging to himself or for the purpose of exercising a right of use to which he is not in reality entitled has obtained possession without payment, he is obliged in relation to the owner to return the emoluments that he takes before litigation is pending, under the provisions on the return of unjust enrichment.
Section 989
Damages after litigation is pending
The possessor is, from the date when litigation is pending on, liable to the owner for the damage that occurs because as a result of the possessor’s fault the thing deteriorates, is destroyed, or for another reason he cannot return it.
Section 990
Liability of possessor with knowledge
(1) If the possessor, when he obtained possession, was not in good faith, he is liable to the owner starting from the date of the acquisition under sections 987 and 989. If the possessor later discovers that he is not entitled to possession, he is liable in the same way from the date when he obtained the knowledge on.
(2) This does not affect a more extensive liability of the possessor for default.
Section 991
Liability of intermediary possessor in the case of indirect possession
(1) Where the possessor derives the right to possession from an indirect possessor, the provision of section 990 with regard to emoluments applies only if the requirements of section 990 are also satisfied by the indirect possessor or litigation is pending against the indirect possessor.
(2) If the possessor, on gaining possession, was in good faith, he is nevertheless responsible to the owner for the damage set out in section 989 starting from the date of the acquisition to the extent that he is liable to the indirect possessor.
Section 992
Liability of the wrongful possessor
If the possessor obtained possession by unlawful interference with possession or by a criminal offence, the possessor is liable to the owner under the provisions on damages in tort.
Section 993
Liability of the possessor in good faith
(1) If the requirements set out in sections 987 to 992 are not satisfied, the possessor must return the fruits taken, insofar as by the rules of proper management they are not to be seen as the income of the thing, under the provisions on the return of unjust enrichment; apart from this, the possessor is obliged neither to return emoluments nor to pay damages.
(2) For the time for which the emoluments remain due to the possessor he is subject to the provision of section 101.
Section 994
Necessary outlays
(1) The possessor may require from the owner reimbursement of the necessary outlays made on the thing. However, for the period for which the emoluments remain due to him, the customary maintenance costs are not to be reimbursed him.
(2) If the possessor, after litigation is pending or after the beginning of the liability set out in section 990, makes necessary outlays, the duty of the owner to reimburse is governed by the provisions on agency without specific authorisation.
Section 995
Charges
The necessary outlays in the meaning of section 994 also include the expenses incurred by the possessor in paying charges on the thing. For the period for which the emoluments remain due to the possessor, he is to be reimbursed only for the expenses of extraordinary charges that are to be seen as based on the original value of the thing.
Section 996
Useful outlays
For outlays that are not necessary outlays, the possessor may require reimbursement only to the extent that they were incurred before litigation was pending and before the beginning of the liability defined in section 990 and the value of the thing is still increased by them at the time when the owner recovers possession of the thing.
Section 997
Right of removal
(1) If the possessor has combined with the thing another thing as an essential part, the possessor may separate the thing and take possession of it. The provision of section 258 applies.
(2) The right to separate is excluded if the possessor may not require reimbursement of the outlay under section 994 (1) sentence 2 or the separation is not of benefit for him or he is reimbursed at least the value that the component would have for him after separation.
Section 998
Farming costs for agricultural plot of land
If possession of an agricultural plot of land is to be surrendered, the owner must reimburse the costs that the possessor incurred in connection with the fruits that are not yet separated but under the rules of proper management are to be separated before the end of the business year to the extent that they comply with proper management and do not exceed the value of these fruits.
Section 999
Reimbursement of outlays of predecessor in title
(1) The possessor may require reimbursement of the outlays of a previous possessor whose successor in title he is to the same extent as the previous possessor could require reimbursement if the previous possessor had to return the thing.
(2) The obligation of the owner to reimburse outlays also extends to the expenses that were incurred before he obtained ownership.
Section 1000
Right of retention of the possessor
The possessor may refuse the return of the thing until he is reimbursed the outlays due to him. He is not entitled to the right of retention if he obtained the thing by an intentionally committed tort.
Section 1001
Action for reimbursement of outlays
The possessor may assert the claim to reimbursement of outlays only if the owner regains possession of the thing or ratifies the outlays. Until the outlays are ratified, the owner may release himself from the claim by returning the thing whose possession he has regained. The ratification is deemed to have been made if the owner accepts the thing offered to him by the possessor, who reserves the claim.
Section 1002
Extinction of the claim for outlays
(1) If the possessor returns the thing to the owner, the claim to reimbursement of outlays is extinguished on the expiry of a one-month period, in the case of a plot of land on the expiry of a six-month period, after the return, unless prior to this the claim is asserted in judicial proceedings or the owner ratifies the outlays.
(2) These periods are governed by the provisions applying to limitation of sections 206, 210 and 211, with the necessary modifications.
Section 1003
Right to satisfaction of the possessor
(1) The possessor may, notifying the amount required as reimbursement, require the owner to state, within a reasonable period determined by the possessor, whether he ratifies the outlays. After the expiry of the period, the possessor is entitled to seek satisfaction from the thing under the provisions on the sale of a pledged item, and in the case of a plot of land under the provisions on execution of judgment on immovable property, if the ratification is not made in good time.
(2) Where the owner denies the claim before the expiry of the period, the possessor may satisfy himself from the thing only when, after the amount of the outlays has been finally and non-appealably established, he has called on the owner, laying down a reasonable period of time, to make a statement, and the period has passed; the right to satisfaction from the thing is excluded if the ratification is made in good time.
Section 1004
Claim for removal and injunction
(1) If the ownership is interfered with by means other than removal or retention of possession, the owner may require the disturber to remove the interference. If further interferences are to be feared, the owner may seek a prohibitory injunction.
(2) The claim is excluded if the owner is obliged to tolerate the interference.
Section 1005
Right of pursuit
If a thing is on a plot of land that is in the possession of a person other than the owner of the thing, the owner of the plot of land has the claim defined in section 867 against the possessor of the plot of land.
Section 1006
Presumption of ownership for possessor
(1) It is presumed in favour of the possessor of a movable thing that he is the owner of the thing. However, this does not apply in relation to a former possessor from whom the thing was stolen or who lost it or whose possession of it ended in another way, unless the thing is money or bearer instruments.
(2) It is presumed in favour of a former possessor that during the period of his possession he was the owner.
(3) In the case of indirect possession, the presumption is in favour of the indirect possessor.
Section 1007
Claims of the former possessor, exclusion in the case of knowledge
(1) A person who has had a movable thing in his possession may require the possessor to return the thing if the possessor was not in good faith when he acquired possession.
(2) If the thing was stolen from the former possessor or the former possessor lost it or his possession of it ended in another way, the former possessor may require return even from a possessor in good faith, unless the possessor in good faith is the owner of the thing or he had lost possession of the thing before the time when the former possessor had possession. This provision does not apply to money and bearer instruments.
(3) The claim is excluded if the former possessor was not in good faith on the acquisition of possession or if he has given up possession. Apart from this, the provisions of sections 986 to 1003 apply with the necessary modifications.
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