I. Different approaches regarding claims based on property under national law
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National laws equip owners of goods to a diverging degree with specific claims based on property. Many continental European legal systems follow the approach of Roman law and provide the owner with a claim to vindicate the goods from the unlawful possessor.1108 This kind of claim is aimed at (re) gaining possession of the goods. Swiss law may serve as an example. Article 641(2) of the Swiss Civil Code reads:
“[Der Eigentümer] hat das Recht, sie von jedem, der sie ihm vorenthält, herauszuverlangen und jede ungerechtfertigte Einwirkung abzuwehren.”1109
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In contrast, English law and the law of common law jurisdictions following a similar approach, favor protecting the owner with remedies in tort law rather than allowing for specific property claims.1110 These remedies, however, are generally not aimed at reallocating possession, but rather seek to compensate the owner financially through damages.1111 Pollock wrote in his famous essay on possession in the common law that “the Common law nev
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In Nordic laws, there are no specific remedies in statutory property law to protect property, mirroring the general (adverse) stance toward a uniform concept of property.1113 It goes without saying that an owner of goods is not without protection in these legal systems. Under Norwegian law, for example, the idea that the owner of a good can claim possession is so self-evident that it is not even spelt out in the written law.1114
| 1108 | See the overview of this type of claim under German, Greek, Austrian, Swiss, Dutch, Italian, Spanish, Portuguese, French, and Belgian law, von Bar/Clive, pp. 5175–5187 paras. 1–11. |
| 1109 | “He or she [the owner] has the right to reclaim it [the object] from anyone withholding it from him or her and to protect it against any unwarranted interference.” This is the non-binding English translation of the Swiss Civil Code provided by the State administration in Switzerland, which is available on the Swiss government’s website. |
| 1110 | Birks, 11 King’s College Law Journal (2000), 1, 6–12. For English, Welsh, and Irish law, von Bar/Clive, p. 5188 para. 13. |
| 1111 | Tettenborn, Conversion, Tort and Restitution, p. 825; von Bar/Clive, p. 5188 para. 13. |
| 1112 | Pollock/Wright, p. 5. |
| 1113 | von Bar/Clive, pp. 5188–5189 paras. 14–16. For the general approach to property matters in these laws, see above paras. 51 et seq. |
| 1114 | von Bar/Clive, p. 5188 para. 14. |
Property in Goods and the CISG (2024), S. 240
