Can a thief legally use force to prevent you from take your property back, in Germany

Question

In this comment on another stack a user claims:

Even in thoroughly socialist places such as e.g. Germany where criminals have more rights than lawful people (see e.g. BGB 858 and 859 which not only say that you (the owner) aren't allowed to take back your property from a "possessor" (thief) against the thief's will, but the thief is even entitled to use physical force against you)

I found this hard to believe so I checked the mentioned paragraph § 859 BGB online.

Section 2 states:

Wird eine bewegliche Sache dem Besitzer mittels verbotener Eigenmacht weggenommen, so darf er sie dem auf frischer Tat betroffenen oder verfolgten Täter mit Gewalt wieder abnehmen.

(I used google tranlate for this because I lack the vocabulary to translate a juristic text)

If a movable thing is taken away from the possessor by means of a unlawful interference of one's own, then he may forcibly remove it from the perpetrator who has been affected or persecuted in the act.

However § 858 BGB says in section 2:

Der durch verbotene Eigenmacht erlangte Besitz ist fehlerhaft. Die Fehlerhaftigkeit muss der Nachfolger im Besitz gegen sich gelten lassen, wenn er Erbe des Besitzers ist oder die Fehlerhaftigkeit des Besitzes seines Vorgängers bei dem Erwerb kennt.

The possession obtained by unlawful interference is faulty. The defective property must be held against the successor in possession, if he is the heir of the owner or knows the defectiveness of the possession of his predecessor in the acquisition.

I say because an object came into a persons possession by unlawful interference, § 859 BGB does not apply to that person because it only applies when the possession is not faulty. So it grants me as the lawful owner to get my things back by force, if necessary but does not grant the same right to the thief although he is technically the new owner of the object.

However the user claimed in another comment

Besitzer is the one who is currently holding the item in his hands (so ,e.g. a thief coming out of your house), and this is orthogonal to being the legitimate owner. And yes, the law thus explicitly allows the thief (who then is the Besitzer) to exercise force against you, if you try to reclaim your stolen goods. Which is just what I said

So the user is interpreting it as it doesn't matter how you got in possession of an object, the only thing that matters is that you have it right now and therefore § 859 BGB does apply to you too.

To me his interpretation does not make much sense. Especially because it would allow people to steal from each other in an endless loop. However maybe I'm just missing something important here.

I'm a laymen when it comes to law, so maybe I'm just not getting it.

Answer 1

The Law

The relevant sections of the German Civil Code (BGB) for posession and protection of posession of movable things (not land) are (semi-official translation):

Section 858 Unlawful interference with possession

(1) A person who, against the will of the possessor, deprives the possessor of possession or interferes with the possessor’s possession acts, except where the deprivation or the interference is permitted by law, unlawfully (unlawful interference with possession).

Section 859 Self-help by the possessor

(1) The possessor may use force to defend himself against unlawful interference.

(2) If a movable thing is taken away from the possessor by unlawful interference, the possessor may use force to remove it from the interferer who is caught in the act or pursued.

The posessor (Besitzer) is the one who has the actual control of the thing (§ 854 I BGB), e.g. holds it in his/her hand. (There are also some more complex forms of posession, but they are not relevant here.) Ownership (Eigentum) is totally seperated of that. Often the owner posseses the thing, but also often the possessor is not the owner, but e.g. a tenant.

If someone (e.g. a thief) takes away a thing from the posessor, the one acts in unlawful interference with possession (verbotene Eigenmacht, § 858 I BGB). While the thief tries to take the thing away, the posessor may use force to defend himself, § 859 I BGB.

After the thief obtained actual control he/she is the new posessor. The old posessor ends to be the posessor. This only reflects on the factual situation, not on legitimacy.

The old posessor now may use force to get the thing back from the new posessor (thief), if the thief is caught in the act or pursued, § 859 II BGB. It is controversial which time frame this implies. There is at least one judgement that accepts the discovery after 30 min.

If the old posessor gets the (posession of the) thing back through force, he/she does not act in unlawful interference with possession, because it is explicitly allowed in § 859 II BGB. So the thief is not allowed to "steal back" although he/she was posessor (for a short time).

If the old posessor acts too late, the new posessor has the full defense rights against force of the old posessor. The old posessor has to begin judical action. He/she has a right of restitution, § 861 BGB.

Reasons

One of the most important principles of (German) civil law is the Monopoly on violence of the state (Gewaltmonopol des Staates). Normaly only the state is allowed to use physical force (for the enforcement of the law). Only in special cases, e.g. a clear situation or the necessity of immediate action, the affected is allowed to use force for defense. In all other cases he/she has to go to court and in the end let the state use force for him/her.

After a theft there are two people claiming to be the legitime posessor and one who has the thing. No one knows (without further investigation) who is right. So everything should stay as it is until a court decides.

If a thief is caught in the act or pursued, the situation is much more clear. So the old posessor may use force and has not to wait for a court. If the thougth thief is the legitime posessor, this may be clarified by the courts afterwards.

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source: Hanns Prütting: Sachenrecht, 2017, § 13

Every German law student learns this in his second year. So there is plenty of teaching literature (and probably websites) on this topic.

Answer 2

IANAL, but it seems to me that the original thief never accrued any right on the thing, including the right to take it back, as his posession is faulty ('Der durch verbotene Eigenmacht erlangte Besitz ist fehlerhaft.'). So the rightful owner can take it back - with force - but the original thief cannot 'take it back' as he never accrued the right to have it. It would just be a second theft - or worse, if he uses force.