Yun-Chien Chang, The Problematic Concept of Possession in the DCFR: Lessons from Law and Economics of Possession (February 25, 2016). European Journal of Property Law, 2016; University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 750; U of Chicago, Public Law Working Paper No. 567. Available at SSRN
The concept of possession in law has been a complicated one for hundreds of years, and many civil codes are complex in their own idiosyncratic ways. (Draft) Common Framework of Reference is no exception, and it even contains arguably one of the most complicated possession stipulations ever. This article first summarizes the gist of each chapter in a new book the author edited, Law and Economics of Possession. Then, this article applies the economy of concept theory developed by Henry Smith to the concept of possession and critiques the DCFR for manipulating the notion of physical control. To demonstrate the downside of cerebral concept, this article provides several examples where the DCFR contradicts itself. As an alternative, this article contends that possession defined as physical control and without any exception is both simple and useful. No doctrine needs to be changed substantively. The doctrines are only constructed more clearly. In addition, the DCFR raises the question of whether possession is a fact or a right, but fails to provide a sound explanation. This article argues that possession is both a fact and a subsidiary right, depending on which dimension of possession is discussed.