Acquisition, Maintenance and Loss of Possession

The Roman law pertaining to the acquisition, maintenance and loss of possession was highly casuistic and no single comprehensive theory of possession capable of accommodating all the relevant rules has been offered.

It is thus unsurprising that many ‘anomalous’ cases of possession exist that may only be explained either historically or on the grounds of convenience. It is sufficient to surmise that in classical law the acquisition of protected possession required the acquisition of physical control of the thing (corpus) with the intention of retaining it under such control, normally as an owner (animus).^{^[466]}

From an early period, it was recognized that possession could be acquired by representation in certain cases. For example, a paterfamilias could acquire possession through persons in his potestas, a procurator could acquire possession for his principal^{^[467]} and a tutor could acquire possession for his ward. By the time of Justinian, possession could generally be acquired through a third party. In such cases, the representative was regarded as exercising the necessary animus on behalf of his principal.

Protected possession continued to exist as long as the possessor exercised actual or effective control over the property in question with the requisite intent.^{^[468]}However, what amounted to effective or actual control depended on the nature of the object in question as well as on the opinion that prevailed in the community as to what constituted such control in different situations. For example, a greater degree of physical control may be said to have been required for the acquisition of possession of a cart than of a pile of bricks, of a sheep than of a tract of land. Obviously, it was not necessary for a possessor of a plot of land to be present at all times on all parcels of the land.

Indeed, land was one of those things with respect to which the element of physical control may be minimal in some cases. A well-known example found in the sources is that of the so-called winter and summer pastures. The possessor of such land did not remain on the property all year, yet in his absence he was still considered to retain possession of it. This interpretation prevailed based on the generally accepted practice in the community that such land was left unoccupied during certain periods of time. As previously noted, during the later imperial era the tendency developed to regard possession as a right and it was thus deemed acceptable that possession could be retained by the exercise of the requisite animus alone.

Protected possession was lost as soon as one or both of the essential elements for its existence, namely corpus and animus, disappeared. This event could occur where the possessor voluntarily surrendered or abandoned the object in question; where he lost the physical control of the thing against his will (e.g. where an animal in his possession wandered off); and where the physical control was externally retained but the person no longer intended to exercise such control.^{^[469]} By the time of Justinian, the principle prevailed that a person could retain or relinquish possession animo solo.

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Acquisition, Maintenance and Loss of Possession

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