Besitzmittlungswille und mittelbarer Besitz

Guido Bömer presents a new look at the institution of indirect possession in German civil law. Indirect possession occurs when a person physically controls an object and that person has the status of a lessee, a pawn creditor or a similar position. The lessor, pawn debtor etc, is said to have indirect possession while the person exercising physical control has direct possession. Indirect possession has great practical importance in the law of secured transactions. According to most courts and legal scholars, indirect possession cannot exist unless the direct possessor acknowledges the indirect possessor's superior position and thus ends when the direct possessor wants it to end. The author challenges this view. For the drafters of the German Civil Code, indirect possession was to be determined by objective factors only. They did not assign any importance to the direct possessor's intentions.