Sergey Korolev

“Is Possession in Russia a Right Concurrent

to Ownership?” • A Brief Historical Outline of Real, or

Proprietary Rights Theory in Russia • with special reference to Meier, Pobedonostsev

and – to a lesser extent - Sukhanov

Is the legal order of contemporary Russia integrated in the Civil Law

tradition?

• The history of Russia witnesses several “fits” of modernisation, or westernisation of Russian social life beginning at least from Peter the Great onwards.

• In this process Holland, Sweden and most of all Germany played the major part. Especially Russian legal education and then Russian legal science were a bilateral Russian-German product. In the Tsarist Russia it was impossible for a candidate to get a chair at any faculty of law without spending some time as a post-graduate at some renown German university.

• This practice seemed to have tied the legal culture of Russia to German legal culture and via Germany to Roman law culture for all. But the bolshevist revolution smashed this tradition to pieces. With it the so called classical period of the Russian Civil Law science was gone.

• The bolshevists despised law in principle for its “exploiter-oriented bias” and its allegedly servile function in the capitalist state which is inimical to the needs of the working class.

• Nowadays the bolshevists as a social force have perished and the Civil Law tradition in contemporary Russia seems to regain force. But two factors at least hamper this rejuvenation process. One is the historical fact of bolshevist discontinuity and the other is the worldwide expansion of the Common Law tradition.

Common Law Tradition is Inductive, Or Case-oriented

Common Law tradition is first of all inductive in the negative sense. It means that absolute notions or principles are not allowed as a point of departure of any legal research. It is also inductive in the positive sense. It means that a researcher has to accumulate experience in dealing with a bundle of related problems before he could formulate any more general rule or notion. From this it follows that Common Law tradition is case-oriented, i.e. only “individual stories” matter, not abstract schemes. The terms “claim”, “title”, “power”, “authority” are often used interchangeably meaning a specific right. The term “right” lacks a general meaning, it is only exemplified as a “title”, “power” etc.

The term “estate” as a visiting card of Common Law proprietary rights

• The term “estate” denotes the so called net worth, or net assets of a person.

• In its negative sense this term excludes all the liabilities, a person might be burdened with.

• In the positive sense it enumerates all the assets, a person might enjoy at the given time.

• Thus, “estate” may be regarded as a “financial visiting card” of the given person. In its legal meaning “estate” denotes a bundle of all actual titles to various kinds of assets. This is estate in the broad sense.

• “Estate” in its narrow meaning may indicate one of two possible bundles of titles, namely

• a) real estate or• B) personal estate.

Real estate vs. personal estate in the Common Law tradition

• Real estate is also called real property. Personal estate is also called personal property. Thus, via the term “property” it becomes possible to compare Common Law tradition with the Civil Law one.

• Real property embraces land property and all that is somehow connected or referred to land (ponds, canals, roads, dams, buildings and machinery). Thus, if on a specific land plot all these items could be found, then theoretically there could be 7 (sic!) various titles (estates in the narrow sense) jammed on the said land plot and each title may be owned by a different person.

• Personal property may also be called movable property, or things that can be easily “follow its owner” (home computer, handy, TV-set, fridge, car are a few examples of personal property). Thus, using the Common law terms we can say, that the aim of this presentation are real estates, not personal ones in the first place.

Civil Law Tradition is Deductive, or System-Oriented

• Civiil Law tradition is deductive in the sense that the results of legal research are deemed to depend on

• a) existence of appropriate tools, i.e. strict and unambiguous legal terms and

• b) appropriate use of these tolls by a specific researcher.

• Moreover these legal terms must be arranged in a systematic way, that is why French and German legal scholars are known for their perfectionist trends.

• Building “legal systems” is a special “visiting card” of Roman - German jurisprudence, that is why it begins with the most abstract definitions (for example, “law is a legal order among persons”).

What is a “subjective right” and how Civil Law scholars do theoretical things with it

• The term “subjective right” in the Civil Law tradition correlates with the term “objective legal order” (Objektives Recht, droit objectif) but does not oppose it, because the legal order is the foundation of all possible subjective rights.

• The category of subjective rights is a broad one, including all possible kinds of rights that may be enjoyed by “subjects of law (order)”.

• The said subjects, too, may be of two kinds:• a) physical persons and• b) legal (juridical, or moral) persons, often called in the concurrent Common Law tradition “corporate entities”.

Two classical definitions of a “subjective right”

• The both concurrent definitions of a “subjective right”, coined especially for legal science, stem from German scholars Bernhard Windscheid and Rudolph von Jhering.

• Both Windscheid and Jhering take for granted the Kantian definition of a subjective right as “a measure of individual freedom” meaning for an individual to be at liberty to do anything which does not encroach on analogous and proportionate liberties of someone else.

• Thus, a subjective right in legal sense is• 1) “a will power recognised by the legal order” (Windscheid),• 2) “a legally protected interest” (Jhering) • Legal scholars in the Tsarist Russia usually criticise both the

will power theory of Windscheid and the interest theory of Jhering (see below)

Legal interestWill power

Dichotomy as a theoretical tool in the Civil Law tradition

• The Greek word “dichotomy” means “branching (dividing) something into two opposing parts”, considered to be in contrast with each other.

• Following the Roman Law tradition the Civil Law theory often uses dichotomy as a means of classification. Thus, following the “jus in personam” - “jus in rem” distinction the Roman-German jurisprudence sharply discriminates between a “personal right” and a “real, or proprietary right”. The first being hanged upon the subject of the legal relation, the latter upon the object. In other words the target, or aim of a personal right is an individual and the target of a proprietary right is an impersonal “thing”.

Dimitri Meier as a Civil Law scholar and a Teacher

(I) • Dmitri (Dietrich) Meier (1819-1856) was born in St. Petersburg into a family of a court musician of German descent. On finishing gymnasia he joined the division of legal sciences of the Chief Pedagogical Institute and graduated from it with excellence in 1841.

• As an excellent graduate he was sent for two ears to Germany, where among others he attended lectures of Puchta and Ranke at the Berlin university.

• On returning to Russia he was sent to Kazan university, where he spent most of his academic life. Short before his premature death he was called to university of St. Petersburg.

Dimitri Meier as a Civil Law scholar and a Teacher (II)

• During his life Meier had been publishing only research papers and never managed to publish his Civil Law course. One of the reason is that he lectured with no textual support. His Kazan course was published in 1858 by his enthusiastic student and later professor Alexander Vitsin.

• Meier is famous for introducing into teaching practice the so called “law clinic”, where he like a Roman jurist demonstrated to his pupils the art of solving “down-to earth” cases which were brought by common people of Kazan.

• Meier is considered as the founding father of the Russian Civil Law theory and sometimes criticised for his “Romanist, i.e. German bias”. Nevertheless his Kazan university course in the Russian Civil law remains an unattainable master-piece both of lucidity and acuteness of mind.

Ambiguity of the term “personal right” in the doctrine of Meier• In his university course Meier suggested to reinterpret the

meaning of the term “personal right”. The dominant German tradition says that personal rights are only there to protect human dignity (Menschenwürde) of right-holders, for example the inviolability of personal data.

• Meier would call this kind of a legal right a „non-object right“ as opposed to „object rights“ having their aim outside the personal, highly sensitive area of the right-holder.

• Meier holds that a personal right is any (a) non-proprietary right, which (b) has some other person for its object. For example, a parental authority over children not yet of age will fit in the Meier’s category of personal right.

• The revolutionary thought of Meier that a person may be in some circumstances regarded as an object of legal relationship was doomed to obscurity perhaps due to the fact that it was first coined in Russian.

• We will see later what interesting results this heretical idea of Meier may perform if it is combined with the non-proprietary interest theory of prof. Muromtsev and prof. Gambarov.

Relevant dichotomies pertaining to “real

rights”

• Real rights in the sense of rights to belongings (=Vermögensrechte) include both material (=rebus corporali) and immaterial assets (=rebus incorporali) and are opposed in the Civil Law tradition to personal, or highly individualistic rights (=Persönlichkeitsrechte).

• Real rights in the narrower (physical) sense of „jures in rem“, or „rights to things“ (=dingliche Rechte) exclude immaterial assets, such as a right to inheritance and are opposed to contract rights, or more precisely, to „obligation, or binding rights“(=Schuldrechte).

• One more relevant Civil Law dichotomy is that of absolute rights vs. relative rights. Absolute rights guarantee legal protection of the right-holder against anyone else. Relative rights are effective only vis-a vis a specific duty-holder.

• Both real rights in the broader sense (including immaterial assets) and personal (individulistic) rights are deemed by the dominant opinion as absolute whereas „obligation, or binding rights“ are tagged as relative.

A relativist approach of Meier to the “real rights vs. binding

rights” dichotomy • Meier holds that there is only a relative boundary among all three categories: 1) real rights (in the narrower sense), 2) obligation, or binding rights and 3) personal rights as authoritative rights over other persons.

• A binding right has a clear affinity with any personal right (=authority) because both of them are related to the conduct of some other person and are devoid of sense without such a relation. The difference lies in the target, or object of the relationship: the target of any binding right is “res”, or the underlying proprietary interest of the right-holder. The target of any authoritative right lies in a personal relation between the right-holder and the other person qua “object-person” with no clear connotations of proprietary interests on the part of the right-holder.

• This proprietary interest makes a binding right similar to any real right. But again the involvement of another person qua legal duty-holder into the binding relationship presupposes the existence of at least two autonomous individual wills whereas within a proprietary relationship there is possible only one will, that of the right-holder.

Binding rights

Authoritative rightsReal rights

Meier on Ownership, or Property in General

• Meier did not elaborated his own property theory and seemed to support the dominant German approach to ownership of his time. Nevertheless his vision in this respect does not seem outdated. First of all his approach may be characterised as

• a) pluralistic, or atomistic and• b) systematic.• ad a) Meier rejects a monolithic, indivisible notion of

ownership as something self-contained, immovable, “eternal and sacred”.

• ad b) Thus, ownership in the legal sense is only a system of its parts, or elements which may be in principle assembled or reassembled according to social evolution and human progress.

Meier on legal Ownership, or Property in Particular

• According to Meier legal ownership is “summa” of its ingredient parts in the first place. If these parts (see below) get out of proportion ownership as a legal institution may annihilate itself, i.e. it may cease to perform its social function. Legal order must contain ownership as a legal institution in its legally defined boundaries.

• This goal may be achieved – in modern terms - by monitoring the interplay of ingredient parts of ownership as a legal institution.

• These parts are known from Latin times: jus utendi (=right of user), jus fruendi (=right of enjoying), jus abutendi, inclusive jus disponendi (=right of consommation, inclusive right of alienation).

Jus utendi

Jus abutendiJus fruendi

Meier’s Partial Distortion Of the Classical Latin Formula of Property

• It is not quite clear if Meier alone is responsible for the current Russian definition of legal ownership which differs in some crucial details from that of other national Civil Law systems. Nevertheless his definition was afterwards “canonised” and repeated by almost all other Russian scholars and remains in use till today.

• Meier gave the following definition of legal ownership in his famous Civil Law course: “Right of ownership is legally recognised domination of a person over a thing. As a result the person may possess, use and dispose of this thing.”

• Thus, Meier has twisted the classical Latin formula in the following way: 1) he introduced a new element (=possession) that was absent or latent in the classical definition of ownership; 2) he merged jus utendi (=use as such) with jus fruendi (=use meant to extract utility) and 3) last but not least jus abutendi in his definition dwindled away to simple jus disponendi, which again was understood not as a general right to dispose of a thing, but as a right of alienation (as a right to sell the owned thing in the first place).

jus possidendi

Jus disponendiusufructus

The theoretical and practical consequences of Meier’s definition of ownership

• Meier’s accent on possession as the crucial element of ownership may stem from the objective fact that the Russian legal mentality defies the strict separation between the factual aspect of domination over a thing (=possession) and its legal refinement through the institution of ownership, which is an undeniable feature even of the mass legal psychology in contemporary Russia.

• The theoretical consequences were as follows: a) the accentuated attention to discrimination of the right of ownership from that of possession; b) the non-discrimination of simple using a thing from its qualified use with the aim to extract utility.

• The practical consequences amounted a) to the ambiguous and volatile status of those possessors in Russia who had or still have difficulty to prove their ownership rights and b) to merging two different types of contract – renting and leasing – into one unifying type.

Meier’s appraisal of the possession theory of prof. Hans

• Meier starts with a Latin distinction between the only factual domination over a thing (=detentio) and such domination that leads to legal consequences (=possessio in the strict sense).

• Then he goes over to a brief analysis of the possession theory of prof. Hans, who regards possession as a “real right”, only weaker than the right of ownership.

• Hans argues e contrario: If violation of possession is not permitted by legal order then possession must be a sort of legal right.

• Meier is reluctant to accept the attempt of Hans to legally refine possession making it sort of substitute of ownership.

Meier’s appraisal of the possession theory of prof. Puchta

• Puchta holds that possession as such is devoid of legal value. Possession has only a “reflex value”, which it receives from the possessor as a person.

• It is only due to the fact that the legal order holds human beings in high esteem that possession is granted legal attention.

• In other words, not possessed thing, but possessor as a person is target of possession protection.

• In Meier’s view attempt of Puchta to reinteprete possession which is basically an “object right” in the terms of “personal, or non-object right” lacks coherence

• Moreover it muddles up the basic Latin distinction between “jus in rem” and “jus in personam”.

Meier’s appraisal of the possession theory of Rudolph von Jhering

• For Jhering possession is not a “weaker form of absolute right”, as for Hans, nor is it a “non-object right”, as for Puchta.

• Possession is just a fact, vested in doubt, that may be cleared away and then possession will reappear in the form of ownership.

• In other words, possession is imbued with potential ownership. The legal order protects possession only because it may turn out to be a genuine ownership.

• Meier does not agree with Jhering’s attempt to regard possession as a means of protection latent, or potential owners because it raises the problem of “two-tier ownership” with the “first-class” owners opposed to the “second-class” ones.

Meier’s appraisal of the possession theory of Friedrich Carl von Savigny

• Savigny was the “doctor-father” of Puchta who in his turn was the “doctor-father” of Jhering.

• Thus historically Savigny was and still remains the exponent of the dominant German view on possession.

• According to Savigny there is no need to stick to the reductionist view in the sense of Hans who delimitates the sphere of legal science with the bundle of pure legal phenomena, such as legal norms and legal rights.

• Factual phenomena may also be included in the scope of legal order phenomena provided that this inclusion helps to prevent or alleviate social conflicts.

• Possession is legally protected only in the more general context of protecting legal order itself which is opposite of arbitrariness, or forcible assertion of one’s rights.

• Usurpation of power is inconsistent with the legal order even if this usurpation is practiced by someone who eventually may turn out as a genuine owner.

• Legal order always starts from status-quo, or evident facts, such as possession. Thus the presumption of ownership on the part of possessor remains in force so long as the legal order itself, not a would-be owner, decides otherwise.

• Meier joins this approach with no qualifying comments whatsoever.

Meier’ s concluding remarks concerning possession theory (I)

• Following the Latin tradition Meier strictly differentiates a mere detentio (=keeping, or retention) from possessio recognised by the legal order. But this differentiation is of no help: a thief is not only a detentor of an alien thing but he must also be recognised as a possessor of it in the strict legal sense for the reasons outlined below.

• This example raises a grave problem of bona fide (=good faith). It is clear, that a thief must lack bona fide because he knows that he keeps an alien thing and retains it in breech of law and order. But what about a detentor other than a thief?

• There must be an additional (subjective) element that makes a possessio a geniune one. Latin jurists had named it animus rem sibi habendi (=intention to possess the thing for oneself). Thus, possessio is established when a factual detentio is combined with the ideal, or psychological animus rem sibi habendi.

• In other words, a (legal) possessor must have the same feelings about the retained thing as a genuine owner. But still what about bona fide? If someone has a thing in possession which he has not brought under his power in a criminal way, must he be excluded from bona fide presumption on the grounds that he knows that he is retaining an alien thing?

Meier’ s concluding remarks concerning possession theory (II)

• Possessio is established in the moment when the possessor has externalised it, i.e. has made it known to other persons in an unambiguous way. For example? Someone has found a broken bike while taking a walk in a forest. He has taken it home and has repaired it. Afterwards he went by bike back to the forest and decided to have a rest a little bit but. At the same time he took precautions against possible encroachments upon the possessed thing. Thus the young man in the picture has externalised his animus to preserve the bike as his property.

• This example seems to fit perfectly in the category of bona fide possessions. But what about if this broken bicycle had been stolen by his previous detentor?

• There is no answer to this problem in Meier’s investigation of legal aspects of possession, but we return to this problem later on.

Meier’ s concluding remarks concerning possession theory (III)

• Apiscimur possessionem corpore et animo, neque per se animo aut per se corpore".(Wir erreichen den Besitz durch Körper und Geist, und nicht durch den Geist oder den Körper für sich alleine.)

• Meier also raises the question if a juridical person (=corporate body) could be regarded as a possessor under some circumstances. He answers the question in the affirmative with two qualifying remarks:

• a) a corporate body must be represented by some physical person and

• b) this person must feel a qualified animus, i.e. animus rem sibi habendi must gave way to animus rem personae morali habendi.

• This approach is fully consistent with the dominant German view: Die juristische Person ist selbst Besitzerin. Der Besitz wird durch ihre Organe ausgeübt.

• Two men sitting on the elephant in the picture below may be mere representatives of a corporation “Elephants for 2”, driving the animal to the place of destination.

Meier’s conception of “jus in re aliena” (I)

• Among various jura in re aliena (=rights in alien property) Meier concentrates his attention on landed servitude and personal servitude (easement).

• The theoretical difference between these two is that landed servitude is regarded as a real (proprietary) right whereas personal servitude belongs to the category of binding (contract) rights. Target, or object of the first is res (for example, a specific plot of land), whereas the target, or object of the second is the specific conduct of the duty-holder, who is in our example called the owner of the servient estate, or plot of land. Thus, landed servitude is a non-contract right, but personal servitude is always of contractual nature between a specific right-holders and a corresponding duty-holder.

• The practical difference is of two-fold nature: • a) landed servitude represents direct restriction of

scope of ownership for the duty-holder which weighs heavily on the ownership as such; it may be disposed of only with the alienation of the estate itself reducing its selling price;

• b) personal servitude does not guarantee continuity of relationship and always ceases with the change of either contract party.

Meier’s conception of “jus in re aliena” (II)

• As we see, landed servitude may develop very harsh consequences for the owner of the servient estate (=duty-holder), whereas personal servitude is often responsible for the insecure position of the right-holder.

• According to Meier national legal orders try to mutually offset these dangers but usually end up with either the “landed-servitude bias” or the “personal-servitude one”.

• Thus, in the Roman State landed servitude was high priority and there existed a very elaborated system of them, whereas in the Tsarist Russia more attention was paid to personal servitude.

• The reason for the Russian option lies in the fact that the population regarded the so called fiscal forest, i.e. the forest in the state ownership, as “nobody’s land” under the motto “The State Treasury is rich all the same”. As a result vast areas were practically deforested. The Tsarist government restricted use of landed servitude and introduced personal servitude as a countermeasure to this devastating practice. The basic idea was that a right-holder of a personal servitude is far less inclined to regard the determined plot of forested land as owned by no one.

Konstantin Pobedonostsev as a public man and a “public enemy”

• Konstantin Pobedonostsev (1827-1907) belonged to a medium-range nobility in his mother’s line of descent and to orthodox clergy in his father’s line. Nevertheless he managed to become a close political adviser of Emperor Alexander III. and was attached as tutor in jurisprudence to the prince who became later the last Russian Emperor Nicholas II.

• Pobedonostsev is known first of all in his quality of High-Procurator of the Holy Synod. Actually it meant that he performed functions the “ lay Minister of the Russian Orthodox Church”. He had no close friends outside his family circle His only (no quite intimate) friends were Theodor Dostoevsky and a known conservative publisher Michael Katkov.

• Pobedonostsev was highly esteemed by the conservative circles and deeply despised by the liberals and the leftists. From these ones he got his nickname (“Great Inquisitor”). The liberals imputed him the guilt of “having chilled Russia”, having made it immovable, because Pobedonostsev was an avowed enemy of constitutionalism, parlement government, freedom of press etc.

Pobedonostsev as a legal scholar• For Russian lawyers Pobedonostsev

is of great interest first of all as the second “founding father” of the Russian civil jurisprudence.

• Pobedostsev’s Civil Law course appeared in 1868, i.e. a decade later than the analogous course of Meier (1858). Objectively Pobedonoststev could have furthered the Meier’s more “westernised direction” of thougt but he preferred his own way and style of research.

• Scientific inclinations of Pobedonostsev are more akin to the inductive and case-oriented method of the Common Law tradition than to the deductive procedure of Meier. This approach had its assets and liabilities.

Assets of Pobedonostsev’s jurispridence

• Among the assets of Pobedonostsev’s approach to Russian Civil Law issues one should single out the following ones:

• Consequent attention to the evolutionary aspect of the Russian legal order;

• The first attempt in the Russian jurisprudence to combine a systematic and historical methods within the analysis of the Russian legislature;

• Concentration on “down-to-earth” issues which reflected basic needs and legal aspirations of the society;

• Analysis of substantive Civil Law in the unity with adjoining procedural issues;

• Axiomatic conviction that any living law must have firm foundation in the social morality.

• Attempt to methodologically converge theory and practice with the aim to shun “pure theory” out of the realm of Russian jurisprudence (it is interesting to speculate on what Hans Kelsen would say to this feature of Pobedonostsev’s jurisprudence…)

Liabilities of Pobedonostsev’s jurispridence

• Among the liabilities of Pobedonostsev’s approach to Civil Law issues one should single out the following ones:

• The unsustainable axiom that inductive method may be practiced independently of deduction, which is in principle impossible according to the actual stand of logics as a science;

• One-sided estimation of social morality as absolute value opposed to law being only a value in relation to morality. As we have seen in the analysis of Meier’s jurisprudence social morality is not always a reliable measure for law. Social morality may be wrong and even aggressive, as in the case of “deforestation morality” of many Russians till today.

• Overestimation of the evolutionary aspect of national legal order. As Jhering taught us legal reality is not “all roses”, it is often a battle-field for one’s own rights in the first place.

Historical school of Savigny (I)• For Savigny it was crucial to

establish harmonious unity between legal science and legal study. Following Alexander v. Humboldt Friderich Carl v. Savigny held that science schould «invade» legal study via scientific method.

• In other words law students schould not only listen to lectures and memorise the lecture material, they must learn to work scientifically and be free enough to face any scientific authority for the sake of science.

• For Savigny the historical approach was the legal method, it was “the contemplation of legislature as being self-moving and self-growing during a certain period of time”.

Historical school of Savigny (II)• At the Berlin university founded by

Alexander v. Humboldt in 1810 there was introduced a wholly new program of study based on the idea of unity of study and research.

• This Humboldt’s idea of unity was translated by Savigny in the realm of legal science. As a result Savigny thought to have eliminated the dichotomy “Recht vs. Gesetz” ( Law vs. legislation). No matter how inappropriate, any legislative act contains the objectivity of law, or the legal aspect of the “Volksgeist” (=folk spirit).

• Legal study becomes synonymous with the diligent study of legal texts and legal science in its turn is nothing else but a thorough analysis of the same texts.

• Law is latent behind the legislature, but according to Savigny this latent entity is well-ordered. Through evident legislature act law must be “reassembled” as a “system for us”, with its dynamic aspect having priority over its static one.

Historical school of Savigny and its impact on Pobedonostsev’s

methodology• Pobedonostsev fully shared both the

Humboldt’s idea of unity of research and study and the Savigny’s idea of legal order as ever-growing, self-contained and self-propelled objective reality.

• Law like a national language is akin to natural phenomena. Because one can not prevent grass from growing, one must adapt oneself to this process. Acts of legislature – even in the Thomistic sense of “lex corrupta” – cannot prevent the national legal order to evolve along its own lines.

• Thus, Pobedonostsev agreed also that any national legal order is but a latent system behind acts of national legislature which could be reconstructed by legal science in the terms of principles, basic rules etc.

Pobedonostsev’s theory of property (I)

• Pobedonostsev distinguished not only between property in the strictest sense (=material assets) and property in broader sense (material assets + immaterial ones) but also between actual property (property as factum) and potential property.

• He describes the latter in the terms of “internal, organic forces” of a human being. These forces may acquire economic, or productive meaning when applied to items of “external world”.

• In this sense the Rodin’s penseur may represent in his static form the process of accumulating inner power needed to resolve some grave economic problem. In other words, the capacity itself to rational analysis is a great asset that may easily translate itself into some or other material form.

Pobedonostsev’s theory of property (II)• But according to Pobedonostsev this potential property

becomes actual primarily through juris nexus (legal relation) of the bearer of this potential property and someone else, who becomes a right-holder.

• The bearer of potential property, on the other hand becomes a duty-holder in this legal relationship and should – volens-nolens - actualise his inner power with the agreed upon economic effect for the sake of the other party of the contract.

• Thus, potential property makes (legal) sense primarily in the context of binding, or contract rights. It seems that Pobedonostsev dismissed this potentiality as a serious factor of initiating proprietary rights. Perhaps as an avowed Christian he held the view that most humans are lazy, irrational and unenthusiastic and are not inclined to initiate a good beginning with no external pressure whatsoever.

• The idea of potentiality seems to be very dear for Pobedonostsev. Thus, the known dichotomy “real rights vs. binding rights” he corroborates with adjoining dichotomy “realised rights vs. realisable rights”. Although both types of rights target some property. Only real rights have a direct impact on property whereas binding, or contract rights to property are always mediated through the in principle uncontrollable will of the other party.

Pobedonostsev on movable and immovable property

• Pobedonostsev mingles the legal analysis of two kinds of property (movable vs. immovable) with his conservatism. First of all he stresses the obvious fact that owners of real estates – volens-nolens – are tied to the corresponding country not only psychologically but also politically. In this sense they represent the most reliable social support to the existing political regime and national law and order.

• On the contrary, owners of movable property tend to be “cosmopolitans”. They easily follow their capitals and feel at home everywhere provided their financial capital is not endangered. It follows that they are unreliable citizens no matter where they settle themselves.

• This ideological bias of Pobedonostsev’s analysis of movable and immovable property is rational and makes sense under conditions of the Tsarist Russia but it became absolutuly irrelevant in the oviet times. Whether it may prove its validity for the contemporary Russia is very uncertain considering a topsy-turvy social structure of those who may regard themselves as land-owners.

Movable or immovable property: Case-oriented flexibility of Pobedonostsev’s

methodology • Pobedonostsev raises the following question: Is a house built

on an alien plot of land movable or immovable property? • His first answer is: “It depends…” In other words, there can

not be a valid solution for all cases in all possible circumstances.

• If this house is meant for sale, one must learn first in what way it is meant for sale. If it is for sale as it is, i.e. in his actual capacity and his actual complexity and real involvement in the surroundings, then it falls in the category of immovable property.

• If, on the other hand, it is meant for sale without such involvement in the surroundings, for example, as a house to be pulled down and then reassembled somewhere else, then it falls into the category of movables.

• The practical consequence of this distinction is obvious: in the first case the sale contract is subject to more strict legal procedure and state supervision, in the second case the transaction goes by far easier.

• But Pobedonostsev is reluctant to pronounce his final judgement on this question and demonstrates a serious of cassation decisions in this respect, whixh lack consistency.

“May Orthodox icons be treated as movable property?” (I)

• This question seems irrelevant now and could only be raised by a future Chief Procurator of the Holy Synod. But it is interesting to follow Pobedonostsev’s line of argument.

• Unlike a Roman-German jurist he is reluctant to begin with general notions or ideological retreat to the Holy Script.

• Instead he tries to demonstrate why an orthodox icon may be regarded as “movable” but can not be regarded “property” in the strict legal sense.

• The Tsarist legislature imposed twofold restriction on those who may be regarded as right-holders as far as Orthodox icons were concerned.

• Thus, only Orthodox Christians were recognised as legitimate right-holders in this respect. It had the practical consequence that an Orthodox icon possessed by a Catholic or a Protestant or a Jew or a Muslim was breach of law and was subject to confiscation.

“May Orthodox icons be treated as movable property?” (II)

It is obvious that also Orthodox Christians were restricted in enjoying their rights in relation to icons. Actually only one proprietary right remained intact – the right of possession.

• Jus utendi was restricted exclusively to religious purposes. Jus fruendi was impossible, because no one Orthodox Christian in those days could have conceived the possibility of “leasing his icon” to someone else. Jus disponendi was restricted at least ideologically because orthodox icons were not regarded as “items for sale”.

• Formally they were only “items of exchange, or barter”. Today we may assess this practice as being somehow hypocritical in the case where there was a real economic interest on the part of the “exchanger”, because he was exchanging the icon for cash, not for another icon.

• Orthodox icons were excluded from the property of debtors. If no creditor was ready to accept the icons as part of repayment of credits at a price handled out for each icon individually then those icons were subject to be handed over in the property of the parish church.

“May icon settings be treated as accessories?”

There still remains a very delicate question of correlation of icon image and icon setting (=framework). Could an icon image be treated as a “main thing” and an icon setting as a mere “accessory”?

• Pobedonostsev seems to regret that it was not a crime in the Tsarist Russia to dissemble icons, taking apart the icon board and its setting (usually made of silver and ornamented with precious stones).

• In his view after setting was “in his place”, framing the icon board, it was inappropriate to raise a question about “a main thing” and its “accessory”. Thus, in his view one should regard orthodox icons in their integrity as religious items which are not subject to dessembling.

• But Pobedonostsev admits realistically that icon settings may be offered “for sale” after their transformation into silver bars apart from precious stones. But this transformation – so Pobedonostsev – remains a heavy sin on the conscience of those who practice it.

Pobedonostsev on muzzy legislative approach to movables (I)

• Pobedonostsev’s way of thinking is so flexible (not to be taken for methodological opportunism) that he is ready to drop his inductive method if there is no other way round to get to the problem.

• Thus he bewails the archaic style of the Tsarist legislature with its accent on the exemplifying method in organising normative texts.

• The exemplifying method is used, for example, in the Holy Scripture. Perhaps the best illustration would be the 10th Commandment:

• “Neither shall you covet your neighbour’s wife. Neither shall you desire your neighbour’s house, or field, or male or female slave, or ox, or donkey, or anything that belongs to your neighbour”.

• According to Pobenostesev the exemplifying style of the Russian legislature must be replaced (sic!) by indication on “general principles”. In other words, as far as legal definitions are concerned, deduction, not induction has absolute priority.

• The deductive deficiency of the Tsarist legislature is, for example, felt in its incapacity to distinguish in some acceptable way between movable and immovable property.

Pobedonostsev on muzzy legislative approach to movables (II)

• For example, the legislative exemplification had left out a whole category of “mass” of property, that being movable qua individual items, gets its economic and legal meaning exclusively in intrinsic connection with a specific immovable property.

• And vice-versa, the respective immovables get “imbued” with this intimate connection and may be easily “underpriced” when being sold as “nude immovable” with no connotation to the mentioned “mass of property”.

• Pobedonostsev mentions a store or, better still, drug-store in this respect. He stresses that the theoretically movable stock of items for sale is actually “uncomfortably-movable”. And really what is a drug-store but a “haunted emptiness” without its specific stock of various types of medicins, pills, etc.?

Pobedonostsev on occasional absurdity of legislature

• Another problem with the legislature is its occasional absurdity. And again this absurdity stems from the deductive deficiency.

• Thus, the Tsarist legislator tries persistently to squeeze all proprietary relations in the dichotomy “movables vs. immovables”.

• For example, a right of a lease-holder to dwell in the leased house is interpreted by the law as “movable property”. The legislator forgets that there is another dichotomy “material assets vs. immaterial ones”, or re corporali vs. re incorporali, which was constructed by Roman jurists specially for the case above.

• Clearly Pobodonostsev is almost impatient with the legislator’s lack of flexibility or, perhaps, even with the lack of legal knowledge.

Pobedonostsev on the “Sergeyeva-Case” (I)

• The “Sergeyeva Case” got its notoriety due to the fact that it was tried by the State Senate of the Russian Empire in its quality as cassation court, i.e. as the last instance. The gist of the story boils down to the following question: May the owner of an old factory claim his/her property rights to the accrued equipment of the factory bought and installed by the lease-holder, if there is said nothing about the future destiny of such equipment in the lease contract?

• Another question: if the owner of the factory does have property rights to such additional equipment, should he compensate for it the lease-holder or not?

Pobedonostsev on the “Sergeyeva-Case” (II)

• The State Senate denied the possibility of extensive interpretation of the property rights in this case.

• In other words, the owner of the immovable property has no legal power to claim his rights to the movable property accrued to his real estate only on the grounds of his title as owner of the said immovable property.

• The Russian law – so Pobedonostsev – grants the property rights to their movable assets (=belongings) even to unconscientious (unfair) possessors of the real estates.

• Lease-holder has a legitimate right to any additional equipment ot other movable property bought by him that may be easily detached from the immovable property.

Pobedonostsev on the “Sergeyeva-Case” (III)• On the other hand, a lease-holder is not permitted to detach

(disconnect) the equipment, installed by him at his expense if this detachment entail damage to the immovable property of the owner. This is possible only if the owner demands restitutio, i.e. restoration of the previous state of the immovable property. Silence of the owner is interpreted by the law as his consent to retain the accrued items of movable property.

• In this latter case the owner of the immovable property must compensate the lease-holder but not at the market price paid for those items by the lease-holder, but only to the extent that this additional equipment had contributed to the overall value increase of the immovable.

• Moreover the owner of the real estate is freed from paying such compensation in tow following cases:

• a) if the new items of equipment were made from material belonging to the owner of the real estate and

• b) if the additional items of movable property are luxury items and are therefore useless in economic sense.

Pobedonostsev’s critique of Speransky’s odd views on property rights

• Pobedonostsev rejects profane confusion of ownership and possession. Still more critical becomes he when this confusion steal into legislative acts or even legal opinion.

• As an example of the latter Pobedonostsev indicates the case of Graf Michael Speransky (1772-1839). Speransky was a famous Russian reformer, a man of brilliant mind and of huge capacity for intellectual work. He was personal state secretary of Alexander I. before the Napoleon’s invasion of Russia.

• Then he became the almost lonely compiler of the Code of laws of Russian Empire under Nicholas I. He had also drafted the first Finnish Constitution.

• Nevertheless his opinions on propriety rights were ambiguous. Thus, Speransky held that a rent-holder has a property right to the rented property. In his view there is only a quantitative difference – not a qualitative one - between such a “rented property right” of the rent-holder and a property right of the owner. The scope of the former is tight, the scope of the latter is broad.

• The main idea of Speransky, as it seems, was that a right of possession due to a rent contract may be the only cause for an emerging right of property. (we will return to this idea later on).

Pobedonostsev’s distinction of real rights and personal rights (I)

• This distinction may appear absurd because unlike his predecessor Meier Pobedonostsev does not place personal rights into the category of “non-proprietary rights”. Personal rights in the Pobedonstsev’s jurisprudence are practically merged with binding (contract) rights.

• In other words Pobedonostsev holds that both real rights and personal rights always emerge, change and cease on the basis of some specific proprietary interest of a right-holder.

• But there remains one serious reason to differentiate one right from the other. This reason is the following: real rights – so Pobedonostsev – fall directly on a “thing”. They produce a direct legal connection between a right-holder and a specific material asset.

• Personal rights are also based on proprietary interests of their right-holders. But they do not fall directly on a (desired) thing. Therefore, they can not effect such a direct connection between a person and a corresponding “thing”. They can only initiate a process of realisation of the underlying proprietary interest of the right-holder.

Pobedonostsev’s distinction of real rights and personal rights (II)

• Into this dichotomy “real rights vs. personal rights” Pobedonostsev embedded an accessory dichotomy “absolute rights vs. relative rights”. Real rights are always absolute, personal rights are always relative – so Pobedonostsev. My domination over my “things” is absolute in the sense that no one else can legally share this power. My claim to my debtor Ivan is relative, because only through Ivan can I come to my property again and the positive outcome is never guaranteed.

• We know that constitutionalism – a “nightmare” idea for Pobedonoststev – destroyed this clear line of thought. Constitutional rights are always personal, even if they embrace corporate entities. They are personal in the sense that they protect all aspects of human dignity. Thus, the constitutional property right is a personal right in the first place. Its proprietary aspect is only of “servient” and subsidiary nature as far as the dominant constitutional doctrine is concerned.

• Moreover, constitutional rights may be classed either as relative or absolute depending on the line of argument. They are relative because they are related to the only national state which agrees to maintain them. They are absolute in the sense that no encroachment on them whatsoever is permitted, not even on the part of the state itself.

Pobedonostsev’s distinction of real rights and personal rights: the first rule

• “You are owner of a country-house. You have been neglecting your real estate for a long period, which you are in the right to do provided no damage emerged from this to legitimate interests of someone else and no law was breached by your inaction.

• In your absence a cunning person took possession of your real estate and sold your property to another person after some period of interrupted possession. This person resold your property to a third one.

• Accidentally you decided to activate your property rights. Arriving at your destination you encounter in your cottage an alien person who tells you that he is the owner, because he has bought the house in a proper way.

• Pobedonostsev’s Judgement: You must remember the first rule “Real rights break personal (binding) rights”. Even if the second and the third buyer of your cottage were fair people and knew nothing of the dishonesty of the first seller, it makes no difference ti you, because your property right is absolute in the sense that no one can stand between you and your property. The third seller can only help himself by a regressive action against the second buyer claiming return of his money and the latter can do the same against the author of the whole scheme with very little success though.

Pobedonostsev’s distinction of real rights and personal rights: the second rule

• You have acquired a house from your neighbour, who turned out to be a dishonest person. He decided to sell his house again to a third party and accomplished his plan with success. What is your legal position now?

• Pobedonostsev’s Conclusion: Even if the third party is an honest purchaser, who knew nothing of the first contract with you, his claim nonetheless would be illegal. You must remember the second rule: “The property right concerning a specific “thing” can be transferred by the owner only once”.

• In other words, all other successive actions concerning the once sold property are null and void, because the “seller” is not owner any more. He only abuses his status as possessor in order to mislead a third party and actually commits a crime known everywhere as fraud.

• Illustration: In the picture below crossed fingers behind the back of the fraudulent person mean “I nullify my obligations”.

Pobedonostsev on ownership in correlation with possession

• One very subtle distinction made by Pobedonostsev in the context of his proprietary rights theory is often ignored by the contemporary Russian jurisprudence. Pobedonostsev makes a clear distinction of terms “ownership” and “ownership right”. This distinction as such is of course trivial. But Pobedonostsev insists that both terms have legal meaning.

• The difference is the following: “ownership” stresses the external, or tangible aspect of any property, whereas “ownership right” accentuates the internal (“spiritual” in terms of Pobedonostsev) aspect of property. We will see later how Pobedonostsev inserts this difference in the context of his possession theory.

• Beyond Pobedonostsev’s scope of argument we may add to this issue another question: what is the difference – if any – between a “right of ownership” and “right to ownership”? As it seems the difference really exists and clearly fits in the dichotomy “real rights vs. binding (contract) rights”.

• The preposition “of” triggers the connotation of an achievement, of a factual status quo (“I have a thing, I have done it”). The preposition “to”, on the contrary, targets some future event and leaves us – more or less - with the feeling of anxiety, that something may go wrong and our future right would not be realised.

• A crazy (or stupid?) person in the picture seems to have tried a moment ago to get under his control such immaterial asset as electric current

Pobedonostsev on possession in correlation with ownership (I)

• Coming back to the Speransky’s idea we may conclude that it is not incurably odd after all. We may reinterprete it in the sense that a rent-holder possesses by his title a right to the rented property which may for some legal reason effectuate itself as a right of (the once rented) property in future.

• But by giving such interpretation we have made one hidden problem quite evident: May the institution of possessio embrace not only tangible “things”, but also intangible rights? (we will return to this question).

• Pobedonostsev seems to be reluctant to share the non-disputed modern view that possession as such never was a legal institution with its own history of development – apart and independent of ownership. He seems to believe that quite on the contrary possession was then “elevated” to the status of right of ownership.

• Well, we may antedate a fuzzy bundle of relations of humans to “things” with a term “possession”, but the idea of possession became – more or less – clear after the idea of ownership had been established. In other words, “possession” is a correlative term to “ownership” in the first place.

• As we have seen, possession as a legal institution is characterised first of all by its subjective element, i.e. the will, or the once externalised intention of the possessor to exercise his exclusive power over the specifis “thing”. This subjective element is the crucial structural feature of possession as such.

• Without its subjective element possession disintegrates into mere detentio (=keeping, or retention) of a “thing”. Detentio exists of one and only element that is objective in nature and that boils down to the mere fact of keeping a thing. For example, my wife has left something in my car and now wants to fetch it. If I give her give the keys of the car, it does not mean that I have given her the possession of them. She is only going to keep them for a while with no intention of animus rem sibi habendi.

Pobedonostsev on possession in correlation with ownership (II)

• According to Pobedonostsev – and here he follows the possession theory of Meier – possession is the most crucial structural element of ownership. Pobedonostsev is himself so “possessed” by this idea, that he occasionally commits the same sin of which he accuses Speransky. I mean the confusion of “property” and “possession”.

• In one place Pobedonostev distinguishes between two kinds of possession: complete and incomplete, meaning, as in seems, property indeed. In another place, he corrects himself and refers to “complete property”, alluding by this reference to “incomplete property” as well.

• Thus, in the case of complete property, where the owner retains all three classical elements of ownership (jus utendi + jus fruendi + jus disponendi), possessio may be the integrative structure of ownership, embracing all three elements, being their prerequisite. In other words, without possessio no property element can be exercised by the owner at all.

• Picture: they say that cats in general are better equipped than some humans to exercise jus utendi, not knowing the term itself though.

Pobedonostsev on possession in correlation with ownership (III)

• In the case of incomplete property, where the first two classical elements of ownership (jus utendi or jus fruendi) may be externalised, i.e. attached to persons other than the owner, possessio dwindles to its subjective element (=animus rem sibi habendi), detaching detentio from itself as a mere factual keeping of a “thing”.

• But even in this reduced form possessio represents the power of the owner to exercise control of his property. The crucial element of this control is jus rem sibi revocandi (=a right to revoke either jus utendi, or jus fruendi, or both).

Possessio in the context of “real rights vs. personal (binding) rights” (I)

• Pobedonostsev uses possessio as a systematic tool in order to alleviate discrepancy between the category of real rights and the category of binding rights.This approach may appear absurd and self-contradictory, i.e. unsystematic, because the intrinsic value of scientific terms lies in their strictness or at least their unambiguity.

• But we know that Pobedonostsev was an empirical scientist in the first place and he never worshipped any theory for her sake.The result of this negligence in our case is worth scrutinising. Actually the process of his analysis is even more interesting.

• Pobedonostsev begins with a casual assumption, that a personal right may be connected – and often does – with a specific legal position of its right-holder. For example, a claim to a debtor remains in force even after the debtor’s death. The creditor is in position to legally believe that the heirs of the debtor will recognise this debt. Thus, after the death of the debtor the claim remains in effect but ceases to be only a relative right in the previous sense.

Possessio in the context of “real rights vs. personal (binding) rights” (II)

• Pobedonostsev calls this position of the creditor “quasi-possession” of the claim. Especially, all third parties have to recognise this “quasi-possessio”. At least two more times attempted Pobedonstsev to solve the problem of “possessiveness” of personal (binding) rights, but each time he ended up by concluding that the problem “is not sold by the science yet”.

• All this would have seemed rather clumsy, were it not for one practical problem, which had provoked Pobedonostsev to face the issue of “possessiveness” of personal (binding) rights.

• The problem lies in the possibility of injustice for the owner if he is regarded as possessor in all possible cases regardless their individual features. Pobedonostsev presents such an odd case of intolerable owner’s possessio.

The absurd possessio issue in the Samara case (I)

• In 1776 one good-hearted landowner from Samara region was accosted by his bondage peasants with the plea to cede a waste plot of his land.

• He himself had no idea of how to use that considerable plot. So he conceded to the collective plea on very favourable terms for the peasant community.

• Thus, the peasants get the leasehold of the said plot for 90 years at the price of 1200 roubles which is paid in total immediately on making the deal.

The absurd possessio issue in the Samara case (II)

• In the next century a new District (Zemsky) Duties Statute is adopted. According to Art. 53 and 55 of it the owner must pay yearly duties for all land plots in his possession even for his waste lands as well as his rented lands.

• The idea lying behind this legislature is quite reasonable: landowners must be “stimulated” to dispose of waste lands by renting them or by selling them.

• As a result the heir of our Samara landowner is confronted with the necessity to pay for the good-heartedness of his deceased relative. The plot immediately turns out to be a financial liability because the heir has no regular influx of leasehold payments. On the contrary, the peasant community, which has been exploiting the said land plot for dozens of years, is free from such an obligation.

Pobedonostsev’s solution of the Samara case (I)

• Despite the fact that the said Statute distinguished between two titles subject to land duty payment (complete property of land and possession of land), the relevance of this distinction was often defied by practice. For an average duty collector the said distinction appeared as to “subtle” to be of any practicality.

• Thus, possession as a distinct title was taken into account by a duty collector only in the case of life-time possession or some other forms of indefinite possession. It means that an average duty collector in those days was really at pains to identify the holder of the land property title in the first place as the optimal procedure for his professional goal.

• If it was impossible he switched to a subsidiary procedure and tried to identify the holder of the strongest possession title. Thus, title of the life-time possession is stronger than title of the fixed-date possession, even if the latter is fixed for a term of 90 years, which exceeds the average span of life-time even in contemporary Russia for at least one third.

Pobedonostsev’s solution of the Samara case (II)• Pobedonostsev, as it seems, holds that in the Samara case a new possession

title would be not out of place, namely “leasehold or rent possession”. At this point he cuts short his line of argument. But we can proceed and suggest the “life-time” - notion as a measure, or border-line for such title to be both just and legally manageable.

• In other words, if a proprietary right, emerged out of a contract with the owner, is so long as to embrace or even exceed the usual or legally defined span of life-time, then the rent or leaseholder is to be regarded by law as possessor. The ownership possession is not extinguished in this case but regarded by law as “latent, or suspended” for the period of the leasehold or rent relationship.

• Illusttraition: “Sorry… I do not deal with lease issues” – says the Oriental Spirit.

The neglected Russian legal term in the controversy issue “property vs. possession” (I)

• There is one important word which is constantly in use both by Meier and Pobedonostsev and which is now absolutely outdated as legal term. As a result it often can not be grasped even by many Russian students of law.

• This term sounds in Russian as “ukreplenije” and may be somehow clumsily rendered in English as “fixing”, or “attaching”, or “fastening”. Perhaps, the last one is the least disputable.

• Pobedonostsev calls ukreplenije-fastening an external sign of a property right. Legally ukreplenije-fastening is a process, which results in making a krepostj (see below).

• For example, many Russian students of law (not to mention other humanitarians) can not acquire an adequate notion of “krepostnoje prawo” (the so called bondage law), because they do not know the meaning of the term “krepostj” in the legal context.

The neglected Russian legal term in the controversy issue “property vs. possession” (II)

• By the way, the general English term “bondage” has semantically nothing to do with the legal Russian term “krepostj”. In its general meaning “krepostj” denotes the same as “fortress, or stronghold”. But in its legal use “krepostj” means an “act of fastening together of a “thing” (movable or immovable) and a corresponding person”, or exclusively attaching this “thing” to this specific person”.

• The legal consequence of making a krepostj is emergence of a proprietary right of some or other sort for the said person. Thus, krepostnoje prawo came into existence as a subjective right. Whether the term acquired subsequently the meaning of objective law in the sense of “bondage system”, maintained by the state power, is quite another question, which can not be discussed here.

Possessio inside ownership and possessio in defiance of ownership (I)

• Krepostj as a legal act should be strictly distinguished from rukobitje (=a habit of mutually clasping the right hand of each other as a sign of making a deal). Rukobitje is also known as a stage in Russian wedding ceremony. As a form of making a deal rukobitje has survived in its simplified version of handshake till nowadays, for example, in small building or renovating contracts.

• The term “krepostj” (“fastening”) in its legal sense is very crucial not only in the context of the Russian Civil Law controversy “property vs. possession”, but also for ranging various types of possession.

• Thus, a “property krepostj” (= a legal act, fixing the fact, that a specific person has acquired a property right of a specific “thing”) is always stronger than a mere “possession krepostj”.

Possessio inside ownership and possessio in defiance of ownership (II)

• But one of the gravest problems of the Tsarist Russia, inherited in many respects by the contemporary Russian Federation, was the “jungle” of inconsistent legislative acts concerning proprietary rights in immovable property on the normative side and an entangled bundle of various types of krepostj on the practical side of the problem.

• According to Pobedonostsev the main difference in practice consisted a) in the appropriate identification of various types of krepostj with their varying legal force and b) in disentangling numerous conflicting claims based on the same (dominant) type of krepostj, namely “kupchaja krepostj” or simply “kupchaja” (= a purchase contract of land or other immovable property).

Possessio inside ownership and possessio in defiance of ownership (III)

• Pobedonostsev defines property right as possession, based on ukreplenije, namely on a process resulting in creation of krepostj as legal document in the above defined sense.

• Possession may detach from the property right in two ways:

• 1) by inertia, i.e. inactivity of the owner and• 2) by the act of ceding, a specific contract concluded by

the owner and the future possessor.• In the first case possession by inertia alienates itself

from the former owner and the actual possessor acquires the property right according to the so called long-standing possession, for example, in case of 30 years of uninterrupted and non-violated enjoyment of the “thing” possessed.

• In the second case the owner is only ceding his possession for a fixed period of time. The German Civil Law doctrine says, that in this case the owner retains “den mittelbaren Besitz” (= “mediated possession”).

Possessio inside ownership and possessio in defiance of ownership (IY)

• In the Tsarist Russia – especially in centuries, preceding the life span of Pobedonostev – numerous disputes over immovable property were generated in the absence of property titles whatsoever. In other words, holders of various types of possession contested titles of each other.

• In order to solve disputes of the kind two procedures of adjudication were eventually elaborated.

Possessio inside ownership and possessio in defiance of ownership (Y)

• The first procedure was the dominant one. It may be called a “down-grading”, or eliminating procedure now. The aim of adjudicator was to compare conflicting possession titles and to eliminate them as legally irrelevant one by one except the last title as legally the most strongest.

• The second procedure was, as it seems, of subsidiary nature and was applied very cautiously. It may be called an “upgrading”, or sublimation procedure. With many conflicting possession titles approximately of the same legal force it was very important for a tolerable dispute resolution that the adjudicator could spot some subtle differences of one the least disputable title which he may use for its “legal sublimation”, thus elevating the legal force of this specific possession title in relation to the other ones.

Bochensky and the cemetery dilemma of

Pobedonostsev • According to the known Catholic

philosopher of Polish origin Jozef Maria Bochensky (1902-1995), cemetery is not a Christian topic, it is a form of idolatry. We all of us know that Bochensky has remained a lonely voice in the Christian world.

• And all this despite the impeccable consistency of his view with the spirit of Christianity (=Christ is the God of the living, not of the dead).

• Especially in contemporary Russia – no matter Orthodox or not – cemetery theme is a very matter-of-fact and almost trivial aspect of family life despite its gloomy nature. Of course, there are no home altars dedicated to ancestors as in China, but if you have ever visited any Russian cemetery, you know what I mean (see the following slide).

Cemetery dilemma of Pobedonostsev (I)• On the right there is a photo of a standard “family grave” on a typical Russian cemetery with its wild and disorderly landscape.

• As you can see, a family grave is actually a tiny cemetery land parcel almost always surrounded by a metallic fence (=metallic lattice). This looks like a genuine possessio case with its clear indication at the animus rem sibi habendi.

• If you look carefully, you may notice photos on the both tombstones. Photos indicate in a latent way that the fenced place is “occupied”, or “dwelled” by the “persons” on the photos.

Cemetery dilemma of Pobedonostsev (II)

• By the way, the photos for the tombstones are almost always a great dilemma. Bochensky was born in the Russian Empire. If he had lived in Russia afterwards and would have survived the Stalinist terror and would have died peacefully in his bed, guess which of the two pictures, presented on the previous slide, he would have accepted as his “tombstone photo”. “None” – would have said Bochensky and I see no reason to disagree.

• “The young Bochensky” with his evident spiritual vigour has nothing to do with the gloomy atmosphere of the Russian cemetery. “The old Bochensky” looks so old indeed that cynical people may be provoked to astonished remarks in the sense that one can not live so long and look so old at that. So last pictures are always ambiguous, too.

Cemetery dilemma of Pobedonostsev (III)• “Alas, poor Yorick”-attitude actually reveals an inherent drive of any human being to transcend the boundaries of the visible world.

• Thus, cemetery may be regarded as a social institution as if specially designed for “communication” with “dear people” from the “land of the dead”. At least in Russia, this quasi-social function of the cemetery institution is evident.

• This “land” to be mentally perceived at all needs some basic features, similar to that of the “land of living”. Hence, the more or less pretentious fencing, photos, and during great Orthodox solemnities, called days of “remembrance of the dead”, there is also a very Non-Orthodox meal “for the dead” with indispensable glasses of vodka for them, too.

Cemetery dilemma of Pobedonostsev (IY)

• Now, we can return to Pobedonostsev at last. His attitude to cemeteries is not as critical as the view of Bochensky and not at all “materialistic” as the dominant attitude in Russia.

• He simply realistically accepts this institution as a socially necessary one in the sense of a very matter-of-fact Finnish word for cemetery “hautausmaa”; i.e., as a “land plot for burials” in the first place.

Cemetery dilemma of Pobedonostsev (III)• Pobedonostsev poses several very down-to earth legal questions:• 1) Are cemeteries in private use legally permitted? (here on

use + exploitation)• 2) Could old cemetery land plots when out of use be earmarked

for some other use or alienation?• 3) May a cemetery land parcel, bought off by a person, as a

future burial place for himself or his family in general, be regarded as his property?

• We will add to these original questions some more detailed ones:

• 4) May this cemetery land parcel be regarded as an object of any proprietary rights?

• 5) What is the status of the buyer (owner, possessor, detentor etc.)?

• 6) What kind of a proprietary right may have emerged on the grounds of the concluded contract of purchase?

Pobedonostsev’s solution of the Cemetery dilemma (I)

• ad 1). The first question is resolved by Pobedonostsev – not without some hesitation - as follows:

• Privately-run cemeteries, i.e. as business enterprises are inconsistent with the Civil Law tradition. According to it cemeteries as institutions serving a specific public need fall in the category of public law institutions.

• Pobedonostsev admits, however, the special status of monastery cemeteries in the Russian Empire. They are accessory property of the specific monastery and are included in its revenues. But still a monastery cemetery even if it can not be used free of charge by lay Orthodox Christians can not be regarded as a business enterprise, because monastery itself is not – at least should not be - a capitalistic enterprise.

Pobedonostsev’s solution of the Cemetery dilemma (II)

• From the contemporary view the first question in this Cemetery dilemma seems more profound than Pobedonostsev is willing to admit. The problem for today’s Russia is the following: Can a municipality-run cemetery only retain a «nude property right», leasing the use of it to various external accesory firms? (we will return to this question later on: use+exploitation

• ad 2). On the second question Pobedonostsev gives the following categorical answer: old cemeteries out of use still retain its special status and cannot be used in any other way. First of all, they can not be used as ploughed fields.

• ad 3). The third question is most interesting in our theoretical context. Pobedonostsev rejects any ownership status of the right of the purchaser as far as the purchased cemetery land parcel is concerned.

• In his opinion, the purchaser has acquired a contract right to use the said land parcel exclusively for burial purposes. It is not a real, or proprietary right in the first place. In other words, it is not a right of ownership. Pobedonostsev, as it seems, holds that it is not a right to (some future) ownership. Here – actually at a very interesting point – he suddenly stops his analysis of this problem. Let us go on.

Extended analysis of the Cemetery dilemma (I)

• ad 4). As we have seen, Pobedonostsev rejects the possibility of acquiring any proprietary right of the said cemetery land parcel. Not only actual ownership rights, but also actual possession right are excluded. He concludes that the purchaser of the said land parcel may only acquire jus utendi in future without any chance of getting jus possidendi.

• It is quite consistent with common sense that a corpse subject to burial can not be the subject of jus possidendi (per definitionem). But there still remains a paradoxical outcome of Pobedonostsev’s line of argument. Indeed, how can a corpse being a “dead thing” retain jus utendi despite its impossibility to effectuate jus possidendi?

Extended analysis of the Cemetery dilemma (II)• See the cartoon on the left and

imagine a following case: A granny, “born to rock”, with no relatives, no children, no close social ties whatsoever has spent all his savings on buying a cemetery land parcel for herself and all the burial paraphernalia needed when “the time comes”.

• We can gather from the picture that her timing can not be judged as absolutely premature. Now imagine that the “contract event” has occurred and the cemetery guys are at work now.

• Is there any legal guarantee that all the contract clauses would be strictly observed with no one living soul sympathetic enough to the deceased being ready to control and to supervise the whole mourning procedure?

Extended analysis of the Cemetery dilemma (III)

• One can conclude that our Granny while still living may be regarded as possesing the right to be buried according the clauses, agreed upon in the said purchase act. But this “possession” may only be of relative and life-time nature.

• Thus, opposing the Pobedonostsev’s view, we may argue that in this extreme case no legal rights whatsoever are guaranteed. It is here even doubtful that they can merge at all. Nonetheless with one contract party vanished, the contract ceases to exist, which legally eliminates the other party, too.

• The cemetery guys are only restricted in their actions by ethical norms. In principle, they have only to dispose of the “dead thing” in some or other socially tolerable way without fear of pending legal prosecution.

Pachmann’s Cases: jura in re aliena (I)

• In his statement of claim the plaintiff protested against the conduct of his neighbour who had barred access to a lane that was used by the plaintiff for at least 40 years as a passage to his barn.

• The defendant did not deny the imputed deed, but argued that the said lane was part of his inheritance, he had got from his father. He had barred the lane because he did not need it as a passage for himself.

• The decision of the rural district court (Volostnoi Sud) was as follows: “In order to stop hostilities between the two neighbours the passage has to be restored in such a way, that each party hat to cede a sazhenj (=2,14 m) to be used freely by both parties.

Pachmann’s Cases: jura in re aliena (II)• The plaintiff complained

to the Rural District Court about the conduct of his brother who had barred the lane at the side of their jointly owned homestead (=tenancy in common).

• The defendant agreed with the imputed deed but argued that instead of the lane he had fenced off, he had paved another passage from the other side of the homestead. This passage was broader and led to the river.

• The witnesses testified that the new passage was more comfortable than the old one.

• The Court decided to dismiss the case.

Pachmann’s Cases: jura in re aliena (III)• In his statement of claim the

plaintiff asserted that his neighbours drain the rain water into his drain ditch which gets easily overfilled because it was dug out in the opposite direction to the river-side. As a result the drain water spreads all over his homestead.

• On hearing all the parties concerned the rural district court (Volostnoi Sud) decided the case as follows: The neighbours of the plaintiff shall refrain from draining the excessive water from their land plots into the said drain ditch, which turned out to be very unfortunate for this purpose.

• Instead, each of the parties concerned shall dig out a new drain ditch in the river direction. Moreover, the court obliged each party to maintain the corresponding drain ditch in workable condition.

Pachmann’s Cases: jura in re aliena (IY) • The plaintiff claimed that his neighbour denied him the access to the draw-well which had used to be in their joint use from “immemorial times”.

• The defendant argued that the draw-well was located on his territory and he had renovated it his own expense.

• The court decided that the plaintiff shall have free access to the draw-well but should pay the defendant one rouble as a yearly fee.

Sergey Muromtsev’s profile • Sergey Muromtsev (1850-1910) was not only a famous lecturer in law, a brilliant lawyer (barrister), the editor-in-chief of the influential journal “Juridical Herald” (1879-1892), but also a public man, who had to experience the social burden of being officially filed as a “public enemy”.

• He was one of the founding fathers of the Constitutional Democratic Party (Kadetskaya Partiya). Thus, in the political sense prof. Muromtsev may be regarded as the opposite of Pobedonostsev.

• After the Revolution of 1905 he was elected in the First State Duma and was her Chairman.

Muromtsev on the Italian glossators and German dogmatists (I)

• In the Tsarist Russia Muromtsev was the supreme authority in Roman law theory. As a romanist he battled on the same ideological ground as Jhering against the so called dogmatists, represented mostly by Savigny and his German proponents.

• In our context it is only appropriate to single out those Muromtsev’s views on Roman possession theory which may be of practical interest.

• Thus, after scrutinising the “rules” of famous Roman jurists, like Papinianus and Paulus, Muromtsev ascertained the following: The glossators of the Middle Ages and the German dogmatists of the 19th century had established the pernicious habit of ascribing to Roman jurists the drive to generalising which actually contradicts the inductive and case-oriented nature of Roman law.

Muromtsev on the Italian glossators and German dogmatists (I)

• Even when Latin jurists did use the generalising method, they were always prone to what Muromtsev calls “imprudent generalisation”. According to Muromtsev this methodological sin was passed over from Latin jurists to the Italian glossators and then it was inherited by the German dogmatists.

• Moreover, glossators and the dogmatists tend to formulate new “general principles” on the basis of similar case-oriented opinions of Roman jurists. It can only be done by systematic dismissal of all incongruent opinions as “exceptions”.

• The main problem is that German dogmatists have a very unrealistic idea of Roman jurists in general, who are regarded as “logical machines”, destined to worship perfectionism.

• Alas, - so Muromtsev – Roman jurists were not modern-time Catholic perfectionists and they had no scruples to contradict their previous decisions if those decisions did not fit the circumstances of new cases.

Muromtsev on classical possession theory (I)• Muromtsev takes for example a known opinion of Paulus that possessio

can be only lost by disappearance of both elements: corpus (the objective fact of possession) and animus (the subjective intention to dominate the thing for oneself), because legal facts perish in the same procedure as they come into existence. In other words, both elements of possession must change in their opposite, or simply disintegrate (quibus modis adquirimus, isdem in contrarium actis admittimus).

• Muromtsev shows then that this opinion could hardly have had a status of a “general rule” meant for all possible cases, since there are plenty of contradicting views of other Latin jurists.

• Thus, sympathetically citing Jhering, Muromtsev argues that Latin jurists also recognised loss of possession in cases of neglected possession. In other words, if a possessor ascertains in some or other way his indifference to the “thing”, possessed by him, his possession title would be gone.

• A certain possessor of a goat may systematically neglect his animal, for example, by letting it go astray in the fields for a whole night. Does it mean, that he rejects by this conduct both corpus and animus of his possession title? “No,” – say Jhering and Muromtsev.

Muromtsev on classical possession theory (II)

• Muromtsev compares two conflicting possession theories, which may be described as possession-fact theory and possession-right theory.

• He rejects the argument of the first theory, that possession is a mere fact that is only granted legal protection for some or other purposes.

• Muromtsev argues that the legal element of any legal right exits exclusively in granting of legal protection. In this respects he sees no difference between possession and “genuine” legal rights.

• Illustration: Is sitting on a chair in the waiting hall a “passenger right to sit”? Is it protected by the legal order?

Muromtsev on classical possession theory (III)

• Muromtsev then goes over to the analysis of the so called holding (tenancy). He discriminates between natural holding and legal one.

• The scope of activity of the holder is the same in both cases and is always restricted by natural forces and boundaries.

• The difference lies exclusively in the expansion of the circle of persons, who are legally bound to refrain from any encroachment on the legal holding.

• A person who is confident, that no one will impede his holding of a given thing, acts in a different way than a person who has no confidence in this respect.

• Photo: Two pick-pockets in Prague looking back at their angry intended victim who turned out to be very well prepared to protect her belongings.

Muromtsev on classical possession theory (III)

• Muromtsev also thinks that difference between legal and non-legal relations should be subject to one more criterion, namely legitimacy of acquisition of the thing in question.

• We have already seen that a thief usually demonstrates both elements (corpus and animus) of his possession. This fact amounts to the dire statement, that a dishonest possessor can be a legal one.

• This dire statement is the main argument of all proponents of the idea, that possession must not be recognised as a right after all.

Muromtsev on classical possession theory (IY)

• Muromtsev rejects this idea by arguing that a dishonest possessor is protected by the legal institution of possession only against third parties, but not against the legitimate (first) possessor, who will always gain the legal dispute over the dishonest possessor.

• Muromtsev reaffirms the conclusion of Jhering’s possession-right theory: “Possession is but manifestation of the property right and Roman Law excluded any possibility of possession in all those situations where there existed subjective or objective obstacles to the right of property”.

Shershenevich on possession theory (I)• Professor of Kazan and then Moscow University Gabriel Shershenevich (1863 – 1912) may be regarded as one of main opponents of the sociological school of Civil Law in Russia (Muromtsev and Gambarov).

• Unlike Muromtsev who firmly asserts the validity of the possession-right theory in the sense of Jhering, Shershenevich is hesitant to reject the possession-fact theory altogether. Thus, Shershenevich holds that possession is factual domination of a person over a thing, adjoined with the intention to own it.

• He accuses Jhering of extinguishing the subjective element (animus) of possession, degrading the whole institution to the level of a mere detentio (kepeing, retention).

Shershenevich on possession theory (II)

• Moreover, Jhering’s possession-right theory is allegedly intrinsically dualistic. The unitary possession has been split into:

• a) possession as a mere object of legal protection and

• b) “sublime” possession pregnant with the right of property as in the case of long-standing possession.

• He also accuses Jhering of inconsistence because in the case a) the latter denounces the importance of the subjective element but the same element is surreptitiously reintroduced in the case b), because – so Shershenevich – in is impossible to become an owner without animus rem sibi habendi.

Shershenevich on possession theory (II)• Despite all his critique Shershenivich can not free himself from the

spell of Jhering’s line of argument. He ends up as a « surreptitious Jhering’s disciple” by saying that possession is a kind of right after all ,not a mere fact.

• “Possession may be acquired and lost, both acquisition and loss are impossible with facts”.

• Moreover, possession may be inherited, which presumes that possession is actually a bundle of legal rights and duties.

• Unlike Muromtsev Shershenevich stresses the positivist aspect of possession. In other words possession is not a sociological institution, which may evolve for hundreds of years from time immemorial. A gipsy tribe holding a pasture for a while and preventing all aliens from entering this area do non possess the pasture in the legal sense, although the sociological fact of holding is undeniable. Possession comes into existence by a legislative act via lex positiva, possession does not exits for ages as immutable lex naturalis.

Sershenevich as legal positivist (I)

• Legal positivism is the avowed ideology of Shershenevich. It is evident in his habitual alluding to the legislature as the authority of the last resort.

• Thus, he rejects possession of rights (possessio juris) simply on the grounds that this institution is not mentioned in the legislature of the Russian Empire.

• After mentioning two classifications of possession which are known to the Russian legislature (legal vs. illegal possession and bona fide vs. mala fide possession) Shershenevich concentrates on bona fide – theme.

• He deplores absence of the rule which gives protection to the bona fide possessor against the owner as far as the Russian legislature is concerned.

Sershenevich as legal positivist (II)

• In this respects, he refers to the famous clause of the Code Civil «En fait des meubles possession vaut titre» (Code Nap. § 2279), which may rendered in English as follows: “In the case of movable property possession is equal in strength to (property) title”.

• In practice it means, that a civil action of owner against a bona fide purchaser is dismissed, provided the object of dispute was not stolen or lost.

• He also fixes deficiency of the Russian institution of possession in the fact, that unlike Code Civil, where possession is regarded as presumptio juris et de jure (=presumption of law and of right), the Russian legislature knows only presumption of law.

• In other words, it is the objective law and order, that is protected by possession as legal institution, not possession as the right of the possessor himself.

Non-proprietary interest theory of Yuri Gambarov (I)

• Non-proprietary interest theory of Prof. Yuri Gambarov has two aspects: a negative one and a positive one.

• In the negative part this theory bewails the one-sidedness of the Civil Law doctrine which concentrates on protection of proprietary rights only and the underlying pecuniary interests, ignoring legitimate non-proprietary interests of right-holders.

• In the positive part this theory pleads for introduction of punitive elements into the Civil Law institute of liability in the sense of the Common Law institute of punitive damages.

• This mostly American institution is very unusual in the light of the Civil Law strict dichotomy of public and private law.

Non-proprietary interest theory of Yuri Gambarov (II)

• It is interesting, that Gambarov, not being a Marxist in any way, actually accuses the dominant Civil Law tradition of the evident “social bias” in favour of business world and at the expense of average consumers.

• “Why – raises he a rhetorical question – does the hotel owner get legal protection, when a building society has erected a huge house on the opposite side of the street? On the contrary, a traveller, who has reserved a hotel room from abroad and only came to the destination to learn the nasty news, that the “house is full”, is denied such protection?”

• “It is the proprietary bias of the Civil Law, that leads to such unfair solutions” – asserts Gambarov. The hotel owner is granted legal protection because it is supposed that his revenues would radically go down as a result of landscape deterioration. The unlucky traveller who had to walk the half or the whole night from one hotel to another has not any revenue loss in view, no missed gain (lucrum cessans) in this case. Actually he is himself to blame for miscalculation of the honesty of the hotel owner and must be wiser next time.

Personal right theory of Meier vs. the non-proprietary interest theory of Gambarov

• Merging the idea of Meier that some other person may be regarded by the right-holder as an object inside the legal relationship with the non-proprietary interest theory of Gambarov we may get to a notion of dualistic structure of most legal rights.

• For example, a contract, that an author concludes with an editor, may be regarded by the author as a source of both a proprietary right, concerning the manuscript and a personal right (in the sense of Meier), concentrating on the editor as the duty-holder, or target person, or person-object in this specific relationship.

• If the editor fails in his role as the target person, i.e. the principal duty-holder, then he must undergo a heavy pecuniary punishment in the sense of anglo - american “punitive damages”.

• Thus, the Roman-German principle of “confidence, or trust protection” may be made “tool-like” in order to genuinely protect moral and psychic strains of a right-holder if they have built upon the “pure” performance of his proprietary interests.

Sukhanov’s profile (I)• Evgeny Sukhanov (b. 1948) is the only living Civil Law scholar presented in this brief outline. In the “wild 90s” Sukhanov was elected as the dean of the law faculty of the Moscow State University.

• I myself was part-time lecturer there at the time and may testify that the whole system of higher education was on the verge of collapse. It is undeniable merit of Sukhanov that he has managed to preserve this renowned law faculty as an institution at all.

Sukhanov’s profile (II)

• Nonetheless, for many jurists Sukhanov is a controversial figure, because of his active involvement in the preparation of the Civil Code of Russia currently in force and his latent credo, according to which the Russian civil jurisprudence is the actual legal science of Russia with other branches being at best only the half-rotten displays of the Soviet past.

• Some jurists – not to mention conservative politicians – regard the Civil Code currently in force as ideologically biased, torn apart by intrinsic contradictions and lacking a clear theoretical anchorage (we will return to some of these accusations later on).

Sukhanov’s profile (III)

• The group that was assigned the task of preparing the Civil Code currently in force was not a numerous one. The main figures were Alexander Makovsky, Vasily Vitryansky and Sukhanov himself. All three retain their influence till present time.

• Sukhanov remembers that the group was “nicknamed” by some people “the Twelve Apostles”. Perhaps, those people alluded to strict confidentiality of the meetings of the group. Sukhanov himself seems to agree with this unfortunate “nickname” neglecting at least two dire consequences.

• Firstly, many people – common or sophisticated ones and not only in Russia – would hardly grasp the humour side of this “nickname”. The Twelve Apostles theme” is no joke at all.

Sukhanov’s profile (IY)

• Secondly, and this is even more disastrous for the “12 apostles” of the Russian Civil Code, one must bear in mind that one of the evangelical Apostles turned out to be an appalling figure. Thus, a seemingly “nice” nickname easily lends itself to very uncomfortable connotations…

• Sukhanov is also known as a radical proponent of the so called unity of the Russian Civil Law. In doctrinal context it means the rejection of western European dichotomy of “Civil law vs. Trade Law”. In actual political context of the contemporary Russia it also means the claim of excellence and priority of civil jurisprudence over adjacent branches of law, such as economy (business) law and land law.

• Nevertheless, Sukhanov is a man of intellectual integrity and personal courage, which was a rare quality among university lecturers in the Soviet times and remains unchanged in many respects till today.

Sukhanov’s profile (III)• He does not conceal his «German quirk»

and openly sticks to the classical Russian tradition of Civil Law which was in many respects a joint German-Russian tradition.

• Deep in his heart he may cherish the idea of being the only man among Russian Civil Law scolars of his age strong enough to shoulder the task of the « post-Soviet Meier ».

• Should it be true, then he must also admit that some other person would try to shoulder the task of the « post-Soviet Pobedonostsev ». Although Sukhanov seems to hold Pobedonostsev as a scholar in high respect, he occasionally reveals impatience with contemporaries holding opposing views.

• As it seems the main problem with Sukhanov for the Russian civil jurisprudence is that he does not only wish to represent the dominant doctrinal view, he does wish to represent the Civil Law science as such with no « dissenting opinions » of any kind. And this is, of course, very Un-Germanlike...

Sukhanov on dichotomiesof the Russian Civil Law legislature today (I)

• From analysis of main Sukhanov’s works one could get the idea that his world outlook must be monistic.

• In order to support this argument we do not need many examples. We already know that Sukhanov rejects the so called Civil Law dualism (Civil Code + Trade Code). He also rejects the peculiary Russian dualism (Civil Code + Land Code) at least as far as proprietary rights are concerned.

• But our monistic thesis concerning Sukhanov becomes untenable if we turn to his more sophisticated opinions. Thus, Sukhanov is one of the main proponents of the basic Civil Law dualism “real rights vs. binding rights”. One could say that it is impossible within the Civil Law tradition to reject this dualism.

• Well, Sukhanov knows otherwise and he indicates at an astonishing example of how the contemporary Russian legislature confuses real rights and binding (contrary) rights (see the next slide).

Sukhanov on dichotomies of the Russian Civil Law legislature today (II)

• It was the Civil Code of Soviet Russia of 1922 (Art.170) that introduced for the first time the rule, that rent (lease) holders should be recognised as holders or proprietary rights. This rule persisted ever since and is reintroduced in the legislature currently in use.

• It actually means that rent (lease) holders enjoy not only correspondent contract rights they retain proprietary rights to rented (leased) property. Like genuine possessors they could file possessory claims in order to retain their rented (leased) property. And they could do it not only against third parties but also against owners of the rented property.

• Absurdity of this “Soviet rule”, now epitomized in Art. 305 of the Russian Civil Code currently in force, becomes even more evident if we take into account that the owner can use against the other party only a liability claim. He can only use possessory claims against third parties but not against his contract party.

Sukhanov on dichotomies of the Russian Civil Law legislature today (III)

• A Young university teacher from Kemerevo S. Krasnova shares the approach of Sukhanov in general. But unlike him she is eager to conciliate “ice and flames”, possessory claims and liability claims in one and the same legal relationship.

• Thus, she asserts that in principle only genuine possessors should be granted possessory actions against all non-possessors. On the other hand, rent (lease) holders may also be recognised as legitimate holders of rented (leased) things.

• So they must also be granted protection but not in the form of possessory claims. Krasnova puts forward the idea of the so called “absolute claim” in this case. This claim must be distinct both from possessory claims and liability ones.

• All this is very well done looks very “case-oriented” and “Romanistic”, but should we really pile up new notions and institutions without ever trying to use the “Occam razor”?

Sukhanov on dichotomies of the Russian Civil Law legislature today (IY)

• As we remember, Pobedonostsev played some time with the idea of recognising lifelong (and even longer) rent (lease) as a special title of possession. But the underlying idea was that the owner should be freed from unfair land taxes.

• It had nothing to do with the idea of mingling “rent (lease) possessors” with genuine possessors as it was done in the Civil Code of RSFSR in 1922, 1964 and ever since.

• The impatience of Sukhanov with the logical incongruity of confusing real (absolute) rights and binding (relative) rights in one and the same legal situation is quite justified.

• At first sight, Sukhanov seems to target the “Soviet past” of the Russian civil jurisprudence. This warlike stance does not necessarily need some sort of anti-Soviet ideology, but simply because the Soviet past of the Russian civil jurisprudence is systematically corrupting the future of Russian Civil Law. (we will return to this later on).

Sukhanov on the split ownership of immovables (I)

• In the contemporary Russia there is a huge problem of unifying the two forms of real property, namely the still dominant state (or municipal) land property, on the one hand, and private ownership of buildings, on the other.

• Here Sukhanov again betrays his “monistic drive” and rigorously rejects plans of introducing the principle of the unified object of real property. This concept in his view is but a misunderstood application of the Latin principle “superficium solo cedit” (= the legal fate of the building follows that of the land plot).

• His arguments are somehow muzzy and need careful disentangling. Sukhanov seems to think that this Latin principle was actually based on the monistic idea: the land plot is the “main thing” and all above it may be called “its accessory”, or, more accurately, “accessories”.

• Thus, the Roman owner was holder of one and only land property title, because the accessories were automatically “within” this title. It is only in this sense that they did “follow” the legal fate of the land site. If my interpretation of the Sukhanov’s line of argument is correct, then I see no reason to disagree with him.

• If the land plot in the first picture is sold, then the red house is sold, too. If the exotic island in the second picture is sold, what will be the “legal destiny” of the red arm-chair?

Sukhanov on the split ownership of immovables (II)• But what about contemporary

Russia? The Post-Soviet reality is characterised by “coexistence” of two separate types of immovables. The introduction of the Latin principle according to Sukhanov would merge the private ownership of buildings with the state (or municipal) land ownership. The private property would be again at the mercy of state power.

• Moreover, even in Moscow region it is quite possible that a building price is estimated much higher than the price of the land plot, with which this building must form a unified object of real property. The discrepancy may gradually arise eastwards of Moscow and reach astronomical disproportion somewhere on Kamchatka.

• What can be done about it? Can the split institution of property in Russia be eliminated or at least alleviated?

Sukhanov on the split ownership of immovables (III)• Sukhanov thinks that the best solution would be eventual elimination of the

state (or municipal) land ownership. In other words, so long as it exists the private building property would be always at risk. Now and again attempts would be made to downgrade it to a mere private “superficium”, a building in private ownership but standing on state or municipal plot of land.

• But Sukhanow is very well aware that his idea of eliminating state ownership of land is doomed to failure. It could hardly be ever realised both due to subjective (ideological) and objective reasons.

• The objective side of the problem lies in the Soviet legacy of municipal service. For example, urban water-supply systems and sewerage are highly centralised. Under these circumstances making all private building owners to holders of land titles would mean inevitable collapse of the whole urban civilization in Russia.

• Thus, there only remains a half-hearted and suboptimal solution. Sukhanov proposes that all private building owners get some or other restricted proprietary title.

• In the picture you see a huge and partly rotten item of the water-supply system of the town of Akhtubinsk (Astrakhan region).

Restricted real (proprietary) rights currently in force in Russia

• The Russian legislature currently in force knows the following types of restricted real rights (some of them are hardly to be rendered in decent English):

• 1). Lifelong heritable possession• 2). Right of indefinite use• 3). Right of “economic conducting” (business, or enterprise management) and

• 4). Right of “operational administration”. • There are also some additional restricted real rights, but they are of little interest to us: firstly, they are derivatives of one of the four rights enumerated above and, secondly, they almost exclusively refer to Russian housing law, which we can not analyse here in detail.

On the entrenched “Civil Code vs. Land Code” dichotomy

• Sukhanov deplores numerous incongruities between clauses of the Civil Code and Land Code. But he does not seem to listen to the arguments of the other side.

• The structural problem of this more ideological than theoretical conflict between Civil law scientists and Land Law proponents lies in the fact that Civil Law is per definitionem private law, whereas Lad Law is public law in the first place.

• The practical consequence of the “public law vs. private law” dichotomy is among others formulated as the undeniable principle: “Public law breaks Private law” in the sense that the Private law legislature must follow the “directive lines” of the Public law legislature.

Restricted real rights torn apart by “hostilities” between the Civil Code and Land Code of Russia

• Sukhanov seems to be reluctant to live up to this restriction of the civil jurisprudence and deplores the sector-based distribution of the restricted real rights mentioned above. Despite ideological undertones of his critique, we shall agree with his statement, that

• a) lifelong heritable possession, right of indefinite use and easement (servitude) are considered the “territory of the Land Code” whereas

• b) right of “economic conducting” (business, or enterprise management) and right of “operational administration” are deemed as exclusively the “Civil Law topics”.

• Here again Sukhanov embraces his latent inclination to “monistic Civil Law strategy”. In practice it means his systematic attempts of expanding Civil law legislature beyond its “home territory”. Sukhanov is actually ready to “fight on the enemy’s territory”, trying to use the two last forms of restricted real rights as “Trojan horse”-tools.

Restricted real rights, “appropriated” be the Land Code (I)

• It may appear paradoxical but Sukhanov is very impatient with analogous monistic trends of the Land Code (2001) currently in force.

• He is very critical of the Land law policy of the last decade of the preceding century with its aim to eliminate the “Soviet-made” restricted land use rights and to eventually merge all of them with the full ownership right of land.

• Well, the restricted real rights of the Soviet epoch are not abolished altogether. They will last at least so long as the life time expectancy of those land use holders who were born in the SU.

• Due to this fact the function of the survived restricted real rights may be reinterpreted in the light of Sukhanov’s proposals.

Restricted real rights, “appropriated” be the Land Code (II)

• Sukhanov thinks that the survived restricted real rights may function as useful tools to bridge the dichotomy between state (municipal) land ownership and private building ownership. In other words, private owners may substantiate their buidilng ownership rights by firmly adjoining them to the state (municipal) ownership right.

• The result of this legal procedure may seem paradoxical, namely state (municipal) ownership is likely to be restricted by restricted real rights for ever and this is the most cherished wish of Sukhanov. But actually this outcome is quite usual.

• Unfortunately Sukhanov is not the only one who knows about the eventual effect of interaction of full ownership and restricted real rights, introduced within the « core » of full ownershp not by a mere contract, but by some sort of « estate », or title.

• In the picture you can see a « nail house » (China), which exemplifies the amount of hostilities between the owner of the land plot and the owner of the building. By the way, no one is deprived of one’s own title, but I do not think that Sukhanov would agree to be both the owner of the « nail house » and of the corresponding servitude (=right to the passage or access to the house).

Lifelong heritable possession • Now we can try to verify (or falsify) the viability and

appropriateness of the Sukhanov’s monistic drive to “civilise” the Land Code, i.e. to make it appear more friendly to the Civil Code of Russia. For this purpose we must briefly analyse both lifelong heritable possession and the right of indefinite use.

• Lifelong heritable possession was first introduced by the previous Land Code of RSFSR in 1991. Beneficiaries of this title could be physical persons who already had or were going to have possession state land plots, especially allotted to them by some or other decision of a state authority. The purpose of this allotment was easement of life conditions of many Soviet people who now could use the allotted land plots for cultivation of fruit and vegetables.

• This title was meant as a substitute of full land ownership at first but without the right of alienation: it could only be inherited, not sold (hence the name). But the SU collapsed in two years. And the new Russian Constitution (1993) introduced the title of private property at last. As a result, lifelong heritable possession turned out to be only of intermediary nature as far as the alleged strategy of the Russian Constitution of 1993 is concerned.

• The new Land Code of 2001 currently in force did not abolish lifelong heritable possession as such but “suspended” it in the sense, that those holders of this title, who already enjoy this title, retain it, but new allotments of land plots with this title are banned. Moreover, the retainers of the title were encouraged by the Land Code to convert their title into full land ownership.

Right of indefinite use (I)• This type of restricted real rights is known

since 1917. Consequently, it has the same age as the Soviet power itself. Prior to adoption of the Land Code of 2001 this title was granted to all sorts of beneficiaries (physical persons as well as factories, administrative authorities of all kind, universities, public organisations etc.).

• All these title holders could lease corresponding land plots or transfer them to anybody else for gratuitous use only. No right of alienation was admitted.

• The Land Code (2001) currently in use restricted both the circle of beneficiaries and the content of this right. Thus, ban of alienation was maintained, at the same time the lease right was abolished. The right of indefinite use is not to be granted to physical persons any more, but those citizens, who are already holders of this title, may retain it or convert to full land ownership.

• In the first photo (1958) you see a morning inspection of the “whole personnel” at a typical Young Pioneer camp (=a Soviet version of young scout camp), situated on a state land plot. The right of indefinite use of this suburban land was exercised by one of the Tula factories in those times.

• The second photo may give you an idea of how most former Young pioneer camp may look today.

Right of indefinite use (II)• The corporate entities or individual business persons as the title holders turn out

to be the most entangled issue in the controversy of the Civil Code and the Land Code. There is no place here to go into details, but the basic points are as follows: Due to the Land Code of 2001 it was impossible for the corporate title holders to retain the title automatically. The circle of the possible corporate title retainers was exclusively reduced to the following categories: state or municipal organizations, fiscal (public) enterprises and state or municipal authorities (Art.20, Land Code of 2001).

• Those corporate entities, that were left out of the exhaustive regulatory list of the Land Code, had to convert their prior title either to full land ownership, or to a mere lease or rent title.

• The most controversial issue for judicial practice turned out to be the case of individuals as retainers of the title, who at the same time were registered individual businessmen or –women. persons. Thus, as physical persons they had the right to retain the indefinite use title, but as representatives of business world they were via analogy “subsumed” under the category of “enterprise corporations” and thus denied the status of title retainers (we will return to this issue later on).

• In the photo below you see a typical small business lady from a provincial town, if she happened to to have inherited a tiny land plot, previously granted by the state to her parents on the basis of indefinite use, she may be obliged to “buy off”, i.e. to redeem the said land plot out from her “commercial gain”.

Restricted real rights, “assigned” to the Civil Code (I)

• The rights in question are (1) the right of “economic conducting” (or enterprise management) and (2) the right of “operational administration”.

• (ad 1). The right of economic conducting was granted by the Civil Code (1993) exclusively to fiscal (public) enterprises and may be exercised in regard to the state or municipal property only. The content of this right is more extensive than the scope of the right of operational administration. The owner can not lease or withdraw the transferred property mass. Actually this real right is restricted only in the sense that the beneficiary can not exercise the right of lease or alienation.

• (ad 2). The right of operational administration was introduced by the Civil Code of 1993. At first it was only granted fiscal (public) enterprises (Art. 296 of the Civil Code). But then the circle of beneficiaries was enlarged and now includes social organisations, political parties and consumer associations. Thus, this right is applied both in the sphere of public and private law. The owner may give directions as to how to use the property mass, singled out for operational administration. He may also withdraw the whole mass or part of the transferred property and may directly give orders as to how to use the property.

• The first cartoon illustrates some risk of economic conducting, when the (state) owner learns occasionally that the factory he “owns” is “dead” for two years already. The second cartoon illustrates the unnatural “power-submission” relationship, if a mere “screw -nut” is the bossing owner and the deft and experienced “spanner” is only a submissive “operational manager”.

Restricted real rights, “assigned” to the Civil Code (II)

• One can not easily grasp the Sukhanov’s idea of using these kinds of restricted real rights as tools to bridge the legal vacuum between the state ownership of land and private building ownership.

• The right of economic conducting seems to be out of place altogether, since it has nothing to do with private law. In my opinion, Sukhanov may only allude to the necessity of widening the scope of beneficiaries of this right and including in it private corporations as it was done to some extent with the right of operational administration.

• But there still remains a question: “What for?” Suppose, the circle of beneficiaries of the economic conducting was enlarged and includes private corporations. But the whole “Sukhanov’s story” may only be of interest to expanding corporations.

Restricted real rights, “assigned” to the Civil Code (III)• And what corporations do expand worldwide in the first place? Exactly,

multinationals! Thus, the “Sukhanov’s scenario” may look as follows: A certain multinational company, operating in Russia but still landless, can now acquire a perpetual title to a specific land plot, lasting so long as the Russian Federation itself.

• How can it be done? The said multinational only needs qua holding company to establish a Russian affiliate as intermediary company which may be given by the right of economic conducting of the specific land plot. Legally the state or municipal ownership is preserved but only in the restricted form for ever.

• This the whole story. In regard to the right of operational administration it can be repeated with the necessary modifications. Thus, the owner (the state or municipal authority would not be so drastically restricted in the scope of ownership and would retain the right of intervention in land use all other conditions being the same as with the right of economic conducting.

Sukhanov’s restricted real rights doctrine: summing up (I)

• First of all, it is hardly a doctrine in the strict scientific sense. The widespread reproach of ideological bias of Sukhanov’s jurisprudence seems to hold water.

• His unsystematic oscillations between the monistic program of expanding civil jurisprudence beyond its home territory and occasional embracement of pluralistic approach, can only be explained in the light of his ideological prejudice.

• Sukhanov’s civil jurisprudence,as it seems, is imbued with latent servility to the sociallly strong strata of the contemporary Russian society. He is ready to use any tool – monistic, dualistic or pluralistic – which may prove its usefullness in order to achieve a specific interest of the « upper ten thousands », i.e. holders of economic power in the contemporary Russia.

• This conclusion may be corroborated by following examples of his theoretical inconsistency and oscillations between monism and dualism (see the next slide).

Sukhanov’s restricted real rights doctrine: summing up (II)

• 1) When Sukhanov vindicates the unity of the Russian Civil Law, he may be suspected of being a victim of the “Freudian syndrome”. The latter compels him to supplant the “horror dreams” of his subconsciousness picturing the capture process of the most lucrative sections of the “unified Civil Law of Russia”, such as corporate law, trust law, trade mark law etc. by some brilliant or simply impertinent legal scholars.

• The most horrific consequence of this “disintegration” of the “unified Civil Law” would be the emergence of legal schools outside of Sukhanov’s eminence and control and the inevitable diversification of the “leading opinion” as such.

• 2) When Sukhanov rejects the concept of the unified real property object, he actually has in mind some fears of big business. Actually it may called another “Freudian syndrome”, picturing an impending social revolution. The new “revolutionary leaders” would use the title of state ownership of land as pretext to deprive big business of all “land accessories”, such as luxury buildings (in case of commercial banks, for example), machinery etc.

• My question is: What is the source of those fears? My answer is: The Russian big business is not national business at all as far its social responsibility is concerned. Otherwise such fears would be groundless.

Sukhanov’s restricted real rights doctrine: summing up (III)

• 3) When Sukhanov defies the conflicting potential of the specifically Russian dichotomy “Civil Law vs. Land Law”, he is absolutely right as far as stability and predictability of sale contracts of land plots is concerned. But again what is the primary motive of this defiance? One may suspect that Sukhanov is first of all impatient with numerous Land Code barriers, restricting or even banning the possibility of “business-like turnover of lands” in Russia. Well, “business-like” does not necessarily means “fair and just” for the weaker party of the land sale contract. It may turn out to be a common person and absolutely unsophisticated in “business-like” affairs “à la Sukhanov”.

• 4) When Sukhanov stands up for the basic Civil Law dualism of “real rights vs. binding (contract) rights”, he seems to be theoretically impeccable, but this impression may be misleading. Again his theory is a perfect match to his ideological task. For him real rights mean “restricted proprietary rights” in the first place. And the tool of the restricted real rights is needed in order to dissolve the institution of state (municipal) ownership.

Conclusion (I)

• It would be better for Sukhanov’s scientific profile if he openly espouses the interests of the Russian big business. At least it would be intellectually fair. But It would be even more more consistent with the said dualism if he espouses the idea of making each Russian citizen a title holder of any land right whatsoever.

• In my concluding remarks I would like to refer to one perennial theoretical question of Russian civil jurisprudence which is constantly reemerging in the form of various practical problems.

• As we remember, the classical Latin formula of the property right was reformulated by Meier among other his novelties in the sense, that jus fruendi (=the right to extract, or gain some profit) was “subsumed” by jus utendi (=the right to enjoy the “thing” as it is).

• The cartoons above chosen to show a crucial difference between rent and lease contracts. Surely you can “skip town in the middle of the night” as an “option” to a regular rent relationship. But you can not exploit rental relations in the sense of a lease back contract as in the cartoon on the right. Unfortunately this subtle financial difference between rent and lease is terra incognita for the Russian legislature due to the muddled-up concept of “rent as lease” or vice versa.

Conclusion (II)• (1) Returning to the controversial

issue if an individual registered businessman was a legitimate retainer of the indefinite use land title or not, we may conclude that this issue is nothing else but practical consequence of the confusion of a mere right of use and a qualified right of extracting some gain from the “used thing”.

• If we are willing to stick to the literal meaning of the Meier’s right of property formula, then we must identify “use” and “use in order to extract some gain”. In this case there is no logical consistency in excluding the category of the “registered individual businessman” from the more general category of other “physical persons” - retainers of the indefinite use title.

• In the photo you see a lorry with advertisement on the left body side “refuse (rubbish) removal”. The lorry is owned by the individual business and lorry driver D. Grishin. It s evident, that he uses his lorry almost exclusively as tool to extract profit.

Conclusion (II)• If, on the other hand, we are going to

interpret the property right in an extensive way, i.e. in the sense of the classical Latin formula, then the legal definition of property right must be changed accordingly.

• “Individual businessman” can not be logically subsumed by the category of “corporation”, even if it is a business corporation. Thus, the Russian judges, dismissing - by this “quasi-logical” device - individual businessmen as retainers of the said title, are evidently drawing an absurd analogy.

• On the photo you can see another individual businessman. He leves and makes his buseness in the Siberian town of Chita near the Chinese border. This is quite another case as the man presented on the previous slide. The Chita businessman owns 24 lorries and surely does not need to work as a driver himself. Ye can not operate his business without some considerable parking place for all of his lorries. So he must be a rent (lease) holder in the first place. It is a necessary prerequisite for his business.

Conclusion (III)• Well, we can now return to the question put at the head of this presentation:• “Is Possession in Russia a Right Concurrent to Ownership?”• As it seems, the dominant opinion, represented by Prof. Sukhanov, alludes to

the possibility of this concurrence in future via restricted real rights. Whether his opinion is realistic or not, is hard to say… Law and legal order in Russia is but a hostage of “Realpolitik” (in the sense of Otto von Bismarck)…

• In the cartoon below: Bismarck as puppeteer with three emperors as puppets.