Civil Protection of Possession in Egyptian and Kuwaiti Law | ||
| International Journal of Advanced Research on Law and Governance | ||
| Volume 5, Issue 2, December 2023, Pages 201-260 PDF (12.04 M) | ||
| Document Type: Original Article | ||
| DOI: 10.21608/ijarlg.2023.380466 | ||
| Authors | ||
| Mohamed Adel Abdul Rahman1; Abdullah Mda'ath Ghalab Dabas Al-Azmi2 | ||
| 1Professor of Civil Law and former Deputy Dean of the Faculty of Law, Zagazig University | ||
| 2PhD Researcher - Faculty of Law - Zagazig University | ||
| Abstract | ||
| Possession plays an important role in relation to ownership and other real rights. These rights are characterized by their connection to a tangible object, with which they are closely linked. Enjoyment of a real right requires the actual control of the object by the right holder, exercising the powers granted by their right and deriving value and benefits from this actual control. This is what constitutes possession, namely: possession of the object of the right as a possession of the right itself. While possession is understood as the exercise and use of the right, it is realized through the actual control of the object of the right. Normally, possession of the right or the object in question belongs to the right holder, such as the possession of the owner over what they own. In this case, the possessor is both the owner and the holder of the object at the same time. However, possession, as a physical fact, can also be held by someone who does not hold the right, thus becoming separate from and independent of the right. This possession, detached from the right, manifests as a physical situation characterized by the exercise of actual authority over the possessed object, along with the actions typically exercised by the right holder. The law recognizes this situation and grants it protection, establishing important legal effects. It considers it, in some cases, a simple presumption of the right that can be refuted, while in other cases, it is deemed an absolute presumption of the right that cannot be refuted. In certain cases, the legislator considers it a reason for acquiring the right. The recognition of possession in itself and its protection, regardless of whether it is based on a right or not, sometimes entails a violation of justice and an infringement on the rights of others. This is evident in cases where the possessor does not rely on a right that grants them possession of the object. However, there are considerations that justify the law's acknowledgment of possession and its protection. First, there are scientific considerations that make the protection of possession an indirect protection of the right it is based upon. Generally, possession is indeed based on a right, with the possessor being the owner or holder of another real right over the object they possess. Thus, the protection of possession, in this case, serves as protection for the very right it is based upon. Moreover, the right holder often prefers to protect their right as a possessor due to the practical ease of providing this protection; the possessor only needs to rely on the apparent status as a possessor of the right without needing to provide evidence of the right they possess, which may be difficult or impossible to present. There are also security considerations related to the stability of security and order in society, which may require, in some cases, the maintenance and protection of existing situations until proven otherwise. Consequently, infringing upon possession as an existing situation poses a threat to security and public order. Given the significant effects associated with possession, the law has recognized it and granted protection through these three actions. The actions for protecting possession differ from actions for protecting ownership or general real rights. The objective of the latter is to directly protect the real right itself; therefore, they necessarily engage with the foundation of the claimed right and its validity and legality. In contrast, actions for possession aim solely to protect the physical control over the object as a factual matter, without examining whether it is based on a right or not, and irrespective of the basis and legality of the physical control. Hence, it is not permissible to combine actions for possession with actions for claiming the right; otherwise, the claim for possession would be dismissed. Additionally, any judgment issued in any of the three possession protection actions is a provisional ruling that does not resolve the substance of the right. Actions for protecting possession are limited to the possession of real property and do not extend to movable property. The holder of movable property only needs to rely on the principle that possession of movable property serves as evidence for the holder, providing them with adequate protection without needing to resort to possession actions. Here, we will discuss the three possession protection actions through three sections: the first addresses the action for recovery of possession, the second reviews the action to prevent disturbance, and the third discusses the action to halt new activities. | ||
| Keywords | ||
| Possession; Civil Protection; Legal Provisions | ||
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