§ 242 BGB

Can a thief be the owner of some­thing stolen?

Can a thief be the owner of something stolen?

Again and again I am asked ques­ti­ons about the con­tent of the examination.

From now on, I will also occa­sio­nal­ly go into more detail on fre­quent­ly asked ques­ti­ons about the exam topics in the blog, espe­ci­al­ly tho­se that cau­se con­fu­si­on for many par­ti­ci­pan­ts time and again.
Just recent­ly, I recei­ved an enquiry from a lear­ner who wan­ted to use the Sub­ject mat­ter lear­ning por­tal pre­pared for the 34a exam online. He told me that the­re was sup­po­sedly an error in the test ques­ti­ons on the portal:

“When someone ste­als some­thing, they have sto­len it from someone else. The cor­rect ans­wer in the lear­ning por­tal is that the thief is then the owner of the thing. That can’t be right. How can a thief be the owner if he has taken some­thing from someone else against his will? That must be wrong!”


Let’s take a brief look at the facts under cri­mi­nal and civil law

First of all, when it comes to ans­we­ring the ques­ti­ons in the exami­na­ti­on, it is important to know whe­ther the ques­ti­on is about cri­mi­nal law or civil law — or both. Accor­din­gly, you have to look in par­ti­cu­lar at which offen­ces from the Cri­mi­nal Code (StGB) and/or the Ger­man Civil Code (BGB) apply.

If you look in the Cri­mi­nal Code under § 242 theft and looks at the facts descri­bed, one quick­ly rea­li­ses that this appli­es to the facts of the case. A per­son takes a mova­ble thing from ano­ther per­son wit­hout being allo­wed to do so, in order to appro­pria­te it for hims­elf. The thief wants to keep the sto­len goods for hims­elf. He acts unlawfully.
Howe­ver, not­hing can be found at this point on the key­words Owner­ship or pos­ses­si­on — You have to look at the BGB for that.

In the BGB, in § 854 Acqui­si­ti­on of pos­ses­si­on sti­pu­la­tes that the owner is the one who has the actu­al power over the thing has. And this brings us direct­ly back to the initi­al ques­ti­on: The The thief is the imme­dia­te owner of the sto­len thingbecau­se he exer­ci­s­es the actu­al power over the thing. He can, for exam­p­le, use the thing or move it to ano­ther place. It does not depend on the will to trans­fer, i.e. the thief beco­mes the owner, even if the pre­vious owner does not want this. Howe­ver, it is also the case that the Pos­ses­si­on of the thief defec­ti­ve is. The rightful owner has a cla­im becau­se of the depri­va­ti­on of pos­ses­si­on by the thief. Cla­im to regain his property.

In Ger­ma­ny, owner­ship is alre­a­dy gua­ran­teed by the Basic Law in Art. 14 pro­tec­ted — ever­yo­ne is allo­wed to acqui­re owner­ship of things them­sel­ves and the sta­te gua­ran­tees this right.
What is the situa­ti­on in the case descri­bed with regard to owner­ship? Does the thief also beco­me the owner of the thing? No!
While an owner has the actu­al power over a thing, the owner has the legal power. Owner and pos­ses­sor can be iden­ti­cal. For exam­p­le, if you buy a bag of rice in the super­mar­ket, you acqui­re owner­ship of the thing when you pay. At the same time, you are the owner of the bag of rice, becau­se you have the actu­al power over the thing. If you lend a neigh­bour your drill, then you remain the owner of the drill. Howe­ver, the neigh­bour beco­mes the owner and can use the dril­ling machi­ne to drill holes in the wall of his house as he pleases.
The The owner’s powers are defi­ned in § 903 BGB. regu­la­ted. In demar­ca­ti­on from the owner, the Owner not the actu­al power over a thing, but the legal aut­ho­ri­ty. If he is not the owner of the thing at the same time any­way, he can obtain from the owner of the thing, for exam­p­le, the Published so that the owner now also acqui­res the actu­al power (pos­ses­si­on) over the thing.

Brief­ly summarised

A thief is the owner of the sto­len thing as soon as he exer­ci­s­es actu­al power over the object. Howe­ver, pos­ses­si­on is dee­med to be defec­ti­ve. The ori­gi­nal owner or the owner has a cla­im for resti­tu­ti­on (pos­si­bly a cla­im for dama­ges) against the thief who unlawful­ly (in unlawful inter­fe­rence) has acted. Howe­ver, the thief is not the owner of the thing, sin­ce the sto­len object rightful­ly belongs to someone else.

Do you also have ques­ti­ons about the expert know­ledge exami­na­ti­on accor­ding to § 34a GewO in guarding?

Then sim­ply post them in the forum:
Ano­ther rea­der or I as the aut­hor of this page can cer­tain­ly ans­wer your question.


By the way: If you are com­ple­te­ly Prepa­re com­pre­hen­si­ve­ly for the exami­na­ti­on and indi­vi­du­al ques­ti­ons ans­we­red com­pe­tent­ly at all times I can give you the eLear­ning at recom­mend. You can find in this Lear­ning por­tal rese­arch the ques­ti­ons alre­a­dy asked and ask your own ques­ti­ons wit­hout limit. The ques­ti­ons will be ans­we­red the­re in a time­ly man­ner by Spe­cia­list lec­tu­r­erswho are well ver­sed in the sub­ject matter!