POSSE´SSIO
POSSE´SSIO Paulus (Dig. 41, 2, 1) gives the following account of the etymology of this word:--“Possessio appellata est a sedibus, quasi positio, quia naturaliter tenetur ab eo, qui ei insistit.” We shall probably be right in taking as the elements of possidere the Latin equivalent of the preposition προτὶ (πρὸς) and sedes (see Corssen, Beitr. 87; Curtius, Gr. Etym. 286). Possessio, in its primary sense, is the control [p. 2.470]which a man has over a corporeal thing, so that he is able to deal with it at his pleasure, and to exclude other persons from meddling with it. Such possession becomes possessio in a juristical or legal sense, when it is protected by certain legal remedies in case of interference with it. Still even in this sense possessio is not in any way to be confounded with ownership. A man may have possession of a thing in the legal sense without being the owner; and a man may be the owner of a thing without having possession (Dig. 43, 17, 1.2: “separata esse debet possessio a proprietate; fieri etenim potest, ut alter possessor sit, dominus non sit, alter dominus quidem sit, possessor vero non sit; fieri potest ut et possessor idem et dominus sit” ). Ownership is the legal right to exercise control over a thing according to a man's pleasure, and to exclude everybody else from doing so; but though the owner has the jus possidendi or right to the possession, he has not possession unless he is actually exercising his right. Whether control of a thing gives a person possession in the legal sense depends on the intention of the person exercising it. If his intention is to hold the thing for himself (animus sibi habendi), then as a rule he has such possession; but if he intends to hold for another, as is the case with a person who borrows a thing, and with one who holds a deposit, he has not possessio but only detention (Dig. 41, 2, 18 pr.: “Nec idem est possidere et alieno nomine possidere; nam possidet, cujus nomine possidetur, procurator alienae possessioni praestat ministerium” ). The Greek expression signifying the intention of a possessor to hold the thing for himself or as owner is ψυχὴ δεσπόζοντος (Theoph. ad Inst. 2.9, 4, 3.29, 2; Basil. 50, 2, 7), for which animus domini has been used as an equivalent by later commentators.To have possession in the legal sense, the animus domini is generally required, though in certain exceptional cases a person who held a thing for another, and who therefore had not the animus domini, was possessor in the legal sense (see infra). A possessor who has a thing under his control exercises a right of ownership, whether he is entitled to exercise such right or not. The legal notion of possession implies a thing which can be an object of ownership, and it also implies that the possessor has a capacity of ownership, which explains why a person in the power of another could not possess on his own account (Dig. 41, 2, 49, 1: “Qui in aliena potestate sunt, rem peculiarem tenere possunt, habere, possidere non possunt quia possessio non tantum corporis, sed et juris est” ). Actual control being involved in the notice of possession, it follows that only one person at a time can possess a thing as a whole, but a number of persons can hold a thing in common, sharing the advantages of possession, though not the possession itself.
Though incorporeal things are not strictly speaking capable of possession, yet the actual enjoyment of them, as for instance in the case of servitudes, is sometimes equivalent to possession of a corporeal thing, and is called juris quasi possessio. The objects of this juris quasi possessio are certain real and personal servitudes and some jura in re aliena, which do not belong to the class of servitudes, of which SUPERFICIES is the only proper instance.
A man who has possession or even the bare detention of a thing has the advantage attached to the position of a defendant (commodum possessoris) in being free from the burden of proof, and in being entitled to retain the thing as a lien for certain claims. Thus in a vindicatio the defendant is named possessor, though he has not necessarily possession in a legal sense, the plaintiff being called petitor. The procedure by the vindicatio was also adapted to the case of an hereditas; and here also the term possessor was applied to the defendant.
The rights attached to possession in the legal sense were the following:--
(1) Such possession gives a right to the possessor to the protection of the possessory interdicts (interdicta retinendae--recuperandae possessionis) against interference with his possession and dispossession. The right to these interdicts is simply founded on legal possession, in whatever way it may have originated, as even by an act of theft, except that it must not have originated vi, clam, or precario with respect to the person against whom the interdict is claimed. [INTERDICTUM] Thus, simply by virtue of being possessor, the possessor has a better right than anyone who is not possessor, and is only obliged to surrender the thing to the owner who proves his superior title in the proprietary action called vindicatio. In the possessory interdict itself the owner was not allowed to set up his title as a defence, and hence an interdict might be successfully maintained against him. The protection of the interdicts is also extended to juris quasi possessio.
(2) Possession for a certain time may give a title to ownership by usucapion, but usucapion requires, besides possessio in a legal sense (i. e. interdict possession), other circumstances to be present, as that the possession must have been bonâ fide--that is, acquired by a person without knowing that any one else has a better right to possess than himself--and that it must have been justa causa. He who buys a thing from a man who is not the owner, but whom he believes to be the owner, and obtains possession of the thing, is a bonâ fide possessor with a justa causa. [USUCAPIO]
(3) Possession of a res nullius gives rise to ownership at once by title of occupancy.
The term possessio occurs in legal writings in various senses. There is possessio generally and possessio civilis and possessio naturalis. Possessio civilis is possession when it has the conditions necessary for acquiring ownership by usucapion, and all other possessio as opposed to civilis is naturalis. Hence possession as the foundation of the interdicts is possessio naturalis in this sense, as well as mere detention, which is not protected by any possessory remedies. Interdict possession is always expressed by.possessio simply: and this is the meaning of possessio when it is used alone and yet in a technical sense. There is therefore a twofold possessio in the legal sense: possessio civilis, or possession for the purpose of usucapio; and possessio or possession for the purpose of the interdicts. Possessio is included in possessio civilis, which only requires more conditions than possessio. If, then, a man has possessio civilis, he has also possessio, that is, interdict possession, but the converse is not true. Possessio naturalis has two significations, but they are both negative, [p. 2.471]and merely express in each case a logical opposition; that is, they are respectively not possessio civilis or possessio (ad Interdicta). The various expressions used to denote bare detention are “tenere,” “esse in possessione,” “corporaliter possidere.” Some eminent modern writers reject the above explanation of the terms, which is that of Savigny. Thus, according to Vangerow and Windscheid, possessio civilis and possessio are identical in meaning, signifying interdict possession as opposed to naturalis possessio, which is mere detention (Vangerow, 1.199, Anm.; Windscheid, 1.149, n. 12).
We have next to consider how interdict possession is acquired and lost. In order to acquire possessio, apprehension (corpus) and intention (animus) are necessary (Dig. 41, 2, 3.1: “adipiscimur possessionem corpore et animo neque per se animo, aut per se corpore” ). The apprehension of a corporeal thing is such a dealing with it as enables the person who intends to acquire the possession to exercise control over the thing to the exclusion of all other persons. Actual corporeal contact with the thing is not necessary to apprehension; it is enough if there is some act on the part of the person who intends to acquire the possession, which gives him the physical capacity to control the thing at his pleasure. Thus in the case of a field he who enters upon part is considered to have entered upon the whole. A man may acquire possession of what is contained in a warehouse or granary by delivery of the key which gives him access to the contents (Dig. 18, 1, 74). The delivery of the key is not a symbolical delivery, as some have supposed, but it is the delivery of the means of getting at the thing. (Compare Lord Hardwicke's remarks on this matter, Ward v. Turner, 2 Ves.)
The question whether there is sufficient to constitute apprehension can only be determined by reference to particular circumstances, which vary in different cases. If a thing is in the possession of some one, possession of it can be acquired either by his voluntary act of delivery (traditio) or by depriving him of it against his will. It was a positive rule that possession of land in the legal sense was not acquired by a secret act of dispossession. The animus consists in the will to treat as one's own the thing that is the object of apprehension (animus domini). But persons who are legally incompetent to will--such as infantes, furiosi, and juristic persons--could acquire the rights of possession by means of their representatives. If a man has merely detention of a thing, he can acquire the possessio by the animus alone, for the other condition has been already complied with. Possessio could be acquired without the animus domini, so that a person holding property from another was entitled to the possessory interdicts, in the following exceptional cases:--
- 1. When a thing was delivered to a creditor as security for his debt.
- 2. When a person held a thing at the leave of another (precarium).
- 3. When a thing was deposited with a person to hold as sequester.
- 4. When a person held land as emphyteutic tenant (jus in agro vectigali, emphyteuta), though this case is a doubtful one.
In these cases of derivative possession the usucapion possession belonged to the person for whom the interdict possessor held the property, except in case of sequestration, which interrupted possession. In all the cases of juris quasi possessio, the acquisition and the continuance of quasi-possessio depend on the corpus and animus; and the animus is to be viewed in exactly the same way as in the case of possession of a corporeal thing, though the intention here is not to control the thing as a whole, but only in certain limited respects (Randa, Der Besitz, § § 24-36). A person might acquire possession by means of those who were subject to his power (potestas), what was delivered to such persons being considered as delivered to their superior, since they were incapable of possessing for themselves.
An extraneous agent acquired possession for his principal, if the agent did the necessary acts, and with the intention of acquiring the possession for the other, and not for himself, but there had always to be the animus on the part of the principal to acquire possession. In order to show such animus it was not necessary that the principal should expressly commission the agent to take possession of a thing, or that he should know of the fact of possession having been taken on his account. It was enough that the agent took possession for the principal, and that his act was within the scope of his commission (cf. Inst. 2.9, 5: “per procuratorem etiam ignoranti acquiritur;” Windscheid, 1.155). A person who is already the representative of another, and has the possessio of a thing, may by the animus alone cease to have the possessio for himself and have it for that other, retaining only the bare detention.
Every possession continues so long as the corpus and the animus continue. If both cease or either of them ceases, the possession is gone (Dig. 41, 2, 44.2). The animus or the corpus can, however, only be put an end to by a contrary act (Dig. 50, 17, 153: “ita nulla amittitur, nisi in qua utrumque in contrarium actum [est]” ). Hence possession may continue under circumstances which could not have given rise to its acquisition. As to the corpus, the possession is not lost because there is not the present and immediate possibility of operating on the thing at pleasure, but only by the existence of some circumstance which prevents any further operating on it: e. g. possession of land is not lost by the possessor having ceased for a time to exercise acts of ownership over it, but only by adverse possession on the part of some one else. In the case of land there was also a positive rule of Roman, law that, if in the absence of the possessor another occupied his land without his knowledge, he was not to use possession till he had knowledge of the occupation, and did not thereupon put an end to it.
In the case of movable things, the possession is put an end to when another person has got hold of them, either by force or secretly, or if they are lost. In the case of possession being lost by the animus only, there must be a determination on the part of the possessor no longer to hold the thing for himself. This determination may either be expressly declared or it may be implied from conduct. The possession is lost corpore et animo, when the possessor gives up a thing to another to possess [p. 2.472]as his own or when he abandons it (derelictum). In the case of a juris quasi possessio, as well as in that of possessio proper, the continuance of the quasi-possessio depends on the corpus and animus together. There can be no such possessio without the animus possidendi; and if there be merely an animus possidendi, the juris quasi possessio must cease. Possessio can be lost by means of a person who represents the possessor. It may be thus lost either by the person represented ceasing to have the intention to possess or by the representative ceasing to intend to hold the things for the person he has previously represented, or by his ceasing to have the thing under his control. It was, however, ultimately settled by Justinian after some question that the mere abandonment of a thing by a representative did not deprive the person he had previously represented of the possession.
It was necessary that the intention of the representative to hold the thing for himself or for some one else should be expressed in some way, in order to change the possession. According to a prevalent opinion, the possession of a movable thing was not affected unless there was a handling of the thing (contrectatio) on the part of the representative for himself or another.
Possession, as a legal relation concerning objects of ownership, has a close connexion with proprietary relations, and so in many of the systematic treatises of Roman law is properly treated as introductory to the theory of ownership. [DOMINIUM] Savigny regards possession both as a fact and a right--a fact in so far as de facto control of a thing apart from any right to possess is the foundation of it, a right in so far as rights are connected with the existence of such control; the only right arising from bare possession is a right to the interdicts. On what ground, he asks, is bare possession protected by the law, when the possessor has not a right to possess? The answer he gives is, that possession cannot be disturbed except by force, and force is not allowed. The fundamental notion then is this: a violent disturbance of possession is an attack on a man's personality, on his freedom; hence engendering an obligatio ex delicto.
Another explanation is, that possession is presumptive ownership, i. e. the law protects the possessor because he is probably owner. Ihering in an exhaustive treatise on the subject tries to prove that the ground of the possessory interdicts is the proper protection of ownership. As a rule, he says, the possessor is owner, and possessory remedies are more beneficial to an owner than proprietary, since in making use of them he is not called on to prove his title, often a difficult matter to prove; but this benefit of possessory remedies cannot be given to a possessor who is owner without also being given to a possessor who is not owner.
Again the protection of possession by interdicts is often based on the general ground that it is a consequence of the freedom of the will, each man being entitled to exercise his will as he pleases in respect of external objects without interference, until it is shown that his individual will is in conflict with the general will, i. e. with the law. (For an examination of these and other theories on this subject, see especially ihering, Ueber den Grund des Besitzesschutzes.）
It is shown in the article AGRARIAE LEGES that the origin of the Roman doctrine of possession may probably be traced to the possessio of the ager publicus. Possessio, possessor, and possidere are the proper technical terms used by the Roman writers to express the possession and enjoyment of the public lands. A person who occupied such lands by lease of the state had not quiritarian ownership, the ownership. being in the state; but it is probable that he was maintained in his possession against third parties by interdicts. The Interdicta uti possidetis and unde vi, which relate only to land, may have been first established in respect of such possession.
The nature of the precarium is explained, when we know that it expressed originally the relation between the patronus and the cliens. who occupied the possessio of the patronus as a tenant at will, and could be ejected by the. Interdictum de precario if he did not quit on notice. Property in provincial soil came to be called possessio; such property was not quiritarian ownership, but it was a right to the exclusive enjoyment of the land [PROVINCIA]. Thus the word possessio, which properly means the fact of possession, sometimes signifies a right to the possession of land, i. e. a right of property; it is also used to signify the object of the right: ager was a piece of land which was the object of quiritarian ownership, and possessio was of land that could not be the object of quiritarian ownership, such as provincial land (Javolenus, Dig. 50, 16, 115) and the old ager publicus. The expression bonorum possessio does not mean the actual possession of property, but the peculiar character of the praetorian as opposed to the civil inheritance. [HEREDITAS]
（Dig. 41, 2; Cod. 7, 32; Savigny, Das Recht des Besitzes; Bruns, Das Recht des Besitzes im Mittelalter und in der Gegenwart; Lenz, Das. Recht des Besitzes und seine Grundlagen; Puchta, art. Besitz in Weiske's Rechtslexicon; Windscheid, Pandekten, 1.148; Büchel, Ueber die Natur des Besitzes; Ihering, Ueber den Grund des Besitzesschutzes, and Der Besitzwille, i.)