Possession

The most important distinction in the law of property was that between ownership (dominium) and possession (possessio). While ownership was the supreme and most unrestricted right over a thing, possession was the actual holding of the thing, the state of having effective control over it.

Roman law does not provide a unified doctrine of possession, and the terminology in the sources remains vague and ambiguous. Roman sources distinguished three kinds of possessions: natural, civil, and praetorian. Natural possession was the mere holding of a thing without any kind of specific legal protection. This was the sort of possession thieves had over stolen items, but also the kind had by anyone who held things as result of a contract with their owner: e.g., the bailee of an item loaned for use, the lessee of a piece of land, and so on.

Civil possession was possession ad usucapionem - the kind of possession that would enable the holder to acquire ownership based on continuous pos­session for a prescribed period of time (i.e., by usucaption). Civil possession required both the effective taking of control of a thing (corpus) and the intention to hold it as one’s own (animus). The depositee, the borrower, and the hirer were not civil possessors because they did not have this intention.

possible to obtain civil possession through a procurator, tutor, or curator when they did not take possession in their own name (Paul, D. 42.1.20). The civil possessor ordinarily was also a praetorian possessor.

Praetorian possession (also called interdictal possession) was protected by means of possessory interdicts - quick provisory remedies granted by the praetor to protect the status quo (see next section). The praetor protected the praetorian possessor because the latter had a specific relation to an item that demanded protection separate from the protection given the owner. For example, a pledgee needed protection from the pledger in order to secure repayment. And a sequester - someone responsible for holding an item until a dispute over its ownership was resolved - needed his own protection, different from that given the litigants claiming ownership over the item.

These three kinds of possession, though related, constituted three indepen­dent legal concepts. Thus, one individual could have natural possession of an object, another praetorian possession, and still another civil possession. Sup­pose Titius threw out his wedding ring after divorce, and it was found by Caius, who then gave the ring to Sempronius as a pledge, while Sempronius lent it to his daughter Servia to wear to a party. In this case, Caius would be a civil possessor, Sempronius a praetorian possessor, and Servia the natural possessor.