Abstract: The protection of possession forms part of the Ius Commune between Belgium, France, and the Netherlands. This does not come as a surprise, as the armies of Napoleon have imposed on other countries the rules from Articles 23-27 of the old French Code de procédure civile. Nowadays this protection of possession can still be found in the legislation of these three countries, albeit in differing degrees of intensity. Belgium law emphasizes the “policing” function of claims based on possession: he who is disturbed in his possession can ask to be put back into proper possession. This is solely due to the fact that the other party has breached the ban on taking the law in their own hands. In contrast, Dutch law focuses on the actual function: the party in possession is protected against third parties, but not against parties having a “better” right. The French legislator emphasizes the “policing” function, but also takes into consideration the actual function by declining protection against parties from whom the aggrieved party has received the property in question. In fact, this debate is old. Does one have to opt for the protection of the parties having a “better” right, as shown in the action publiciana, or does one have to implement the ban on taking the law in one’s own hands, as done in the interdictions of Roman law?
European Review of Private Law