Possession

(D.41.2., 43.17.)

6.5.1 Introduction

Ulpian, Edict, book 70: Ownership has nothing in common with possession... (1X41.2.12.1.) Ulpian's pithy statement will serve as an introduction to an aspect of property law that held considerable interest for the jurists.

Ulpian, Edict, book 72: Pomponios discusses the question whether, when stones had been sunk in the Tiber in a shipwreck and some time later salvaged, the ownership of them remained intact throughout the time that they were submerged. My view is that I remain owner of them but I do not possess them... (0.41.2.l3pr.)

If we were to make an absolute truth of Ulpian’s statement (in D.41.2.12.1.), we would mislead ourselves and do Ulpian an injustice in stating that there is ‘nothing in common' between possession and ownership. The man in possession is often the owner, and his possession is some evidence (though not conclusive) of his ownership. Imagine a society such as Republican Rome, where title deeds were used infrequently and where there was no system of land registration until Augustus (the use of title deeds did not become common until the later Empire).

Paul, Edict, book 54: The younger Nerva says that the ownership of things originated in natural possession and that a relic thereof survives in the attitude to those things which are taken on land, sea, or in the air; for such things forthwith become the property of those who first take possession of them. (D.41.2.1.1.)

This passage makes clear that possession was an important factor in obtaining own­ership. Several of the modes of acquiring ilomiiiinw were based on possession. For example, occupntio, the mode described in the passage, consisted of taking posses­sion of certain types of property (see 7.2.3). And trsttcapio was the acquisition of ownership through possession for a prescribed period of time (see 7.2.1). Indeed, the title on possession in the Digest (D.41.2.) is sandwiched between those on own­ership and usucapio, probably as a prelude to an appreciation of the latter. The fact that only a relatively short period of prescription was required in usucapio reinforces the close affinity between ownership and possession.

A complicating factor in the understanding of possession in Roman law is that there were three different types or degrees of possession. We are primarily concerned with interdictal (sometimes called 'legal') possession—the possession that was protected by possessory interdicts. A variant of this form was known as 'civil' or usucapio possession, i.e. the possession that could ripen into ownership through lapse of time. Third, there was 'natural' possession (detentio), which consisted of being in physical control or custody of a thing. It was strictly not possession at all. On this form of possession, see MacCormack, G., ‘Naturalis Possessio' (1967) 84 Z5S (rA), 47-69, where the author discusses the scope and evolution of this concept in relation to mere possessio and possessio civilis.

6.5.2 The acquisition of possession

We will look in vain for a satisfactory definition of possession in the texts, it is as if the jurists deliberately refrained from defining what is, in any case, a difficult concept. The absence of a clear definition was not necessarily a bad thing. A cer­tain flexibility in the notion of possession had jurisprudential merit, preventing over-rigidity in the categorization of the persons regarded as having possession. As Baldus, 'Possession in Roman l.aw^r', 538 has noted: 'Roman law does not have a unified doctrine of possession. Phis is not owing to the presence or absence of "doctrine” in Rome, but because of the purposes for which Roman jurists addressed effective control: usually in the context of cases and from two or three essential per­spectives.' It is perhaps safest to describe Roman possession as such physical control over property as was protected by possessory interdicts.

Despite the jurists' reluctance to define possession, they did the next best thing— they tell us how possession was acquired. Paul states:

Paul, Edict, book 54: Now we take possession physically and mentally, not mentally alone or physically alone. ID.41.2.3.1.)

Paul's assertion that possession requires physical control (corpus) and mental intent (animus) is generally regarded as an accurate and authoritative representation of classical law, and one that has considerably influenced the jurisprudential analysis of possession in subsequent ages. To possess 'with body and soul' is an apt image in this context (Baldus, 'Possession in Roman Law', 546).

6.5.2.1 Corpus

As a basic rule, a person could not possess without taking effective physical control of the property. It followed that possession could only be acquired over corpo­real things. It was impossible, therefore, to possess a servitude, e.g. a right of way. Whether effective physical control was taken of a thing depended on the circum­stances. For example, the possession of land could be acquired if the boundaries were indicated to the intending possessor—no actual physical holding (or contact) was required.

6.5.2.2 Animus

No clear picture emerges of the meaning of animus from the classical texts, although it was not seriously doubted that some form of mental element was required in pos­session. Possibly it meant the intention to hold the property as one's own. If so, that could explain why certain holders were regarded as having or not having possession in Roman law. Or animus might have signified the consciousness of being in physi­cal control of the thing. One could not acquire possession if one lacked or was incapable of the required awareness. For example, an insane person or one who was asleep could not acquire possession. The requirement of animus meant that you did not necessarily possess everything that was in your physical control; there had to be an awareness of what it was that you controlled:

Paul, Sabinus, book 15: A person possessing a building as a whole is not deemed to pos­sess the individual things in the building. The same applies to a ship and to a cupboard. (D.41.2.30pr.)

Of course, if a person were aware of the things contained (or likely to be) in the building, ship, or cupboard, then he would have possession.

Could one acquire possession by animus alone? In principle, it would seem not but textual authority on the issue is unclear, see MacCormack, G., 'The Role of Animus in the Classical Law of Possession' (1969) 86 ZSS (rA), 105-45, where the author explains the Roman jurists' conception of this term. It was possible—in late law at least—to transfer possession by mere agreement in some circumstances. But it is arguable that the words used in such cases constituted both the corpus and the animus.

6.5.2.3 Acquiring possession for another

Possession could be acquired by one person on behalf of another, e.g.

Papinian, Questions, book 23: The question was asked why possession is acquired for those who know nothing of it through a slave in respect of his peculium. I said that for reasons of convenience, the rule was adopted as an exception so that owners would not be obliged to find out at any given time the forms and titles of peculia. (D.41.2.44.1.)

On this matter, see Watson, A., 'Acquisition of Possession per Extraneam Personam' (1958) 29 TR, 22-42, where the author argues that the ability to acquire possession through third parties was an invention of classical Roman law that was extended, first to tutors and curators, and before the end of the classical period to any extranea persona; Watson, A., 'Acquisition of Possession and Usucapion per Servos et Filios’ (1962) 78 LQR, 205-27, for a discussion of whether the owner/ master's knowledge of the acquisition of possession was indispensable; Barton, J. L., 'Animus and Possessio Nomine Alieno’, in New Perspectives, 43-60, a difficult text, where the author presents an interesting argument concerning the men­tal prerequisites for possessio nomine alieno.

6.5.3 Who had possession?

Anyone who was entitled to a possessory interdict to protect his holding was regarded as having possession. Primarily, this included persons who were in physi­cal control of property as owners, or as potential owners (e.g. those who were in the course of usucapio), or those acting as if they were owners. It did not matter whether the possessor was acting in good or bad faith: thus, a thief could have possession (but could not become an owner) (see Baldus, 'Possession in Roman Law’, 543-44).

In addition, there was a category of derivative possessors, i.e. those whose hold­ing was derived from the dominus. For example, if two parties were disputing the ownership of property, it could be deposited with a stakeholder, who had posses­sion of it until the dispute was solved. If a loan was secured under the contract of pignus (see 9.5.4), the creditor obtained possession of the security and could retain it until the debt was paid. Another example was the bailee of property under the contract of precariiim (see 9.7.5). The owner could revoke such a bailment at any time—it was a bailment at will—but during its continuance the bailee was regarded as having possession. And tenants with long leases of land owned by the State were regarded as having possession.

There were a number of derivative holders who were not regarded as having inter- dictal possession—they had mere custody (detentio) of the property. Why they were denied possession in law is not always obvious. Among the most important exam­ples were borrowers, hirers, and depositees, all having contractual rights in the property, but not possession. The difficult case is that of the usufructuary: despite having the right to use and enjoy property, and to own its fruits, he was not regarded as having possession. When it is borne in mind that usufructuaries sometimes held their interests for life, it seems all the more curious that they were not regarded as having possession. But in theory a usufruct was regarded as an incorporeal thing and therefore could not, strictly, be possessed.

The range of persons regarded as having possession in Roman law was clearly nar­rower than in most modern systems, common law and civilian. In English law, for example, bailees are normally regarded as having possession, including the type of derivative holder to whom it was denied in Roman law. See Buckland and McNair, Roman Law and Common Law, 70 ff.

6.5.4 The loss of possession

The rules on the acquisition of possession (i.e. the necessity for corpus and animus) were tolerably clear. The same cannot be said for the rules on the loss of possession. Consider, for example, the following conflicting texts, both attributed to Paul:

Paul, Edict, book 54: If I deliver a thing to someone else, I lose possession of it. For it is settled that we remain in possession until either we voluntarily abandon it or we are ejected by force. (D.41.2.3.9.)

Paul, Edict, Book 65: Just as no possession can be acquired except physically and with intent, so none is lost unless both elements are departed from. (D.41.2.8.)

D.41.2.3.9. is unobjectionable in suggesting that possession ceases if either animus or corpus is lost: if both elements are required for the acquisition of possession, the loss of one of them should result in its termination. But D.41.2.8. seems to imply that possession could be retained even though the possessor had lost animus or corpus. There were perhaps some exceptional situations where it was recognized that possession could be retained despite the loss of one of the elements, e.g. if a possessor was asleep (hardly an exception—the loss of animus is inevitable and temporary). But D.42.1.8. cannot be supported as stating a general principle: there were many situations in which the loss of either animus or corpus was fatal to the retention of possession. For example, possession ended if property was stolen, or seized by force, or simply lost:

Pomponius, Quintus Mucius, book 23: If we possess something and lose it in such circumstances that we do not know where it is, we lose possession of it. (D.41.2.25pr.)

And where corpus was retained, but animus lost, the general rule was that possession ceased:

LUpian, Edict, book 76: There is this difference between ownership and possession: that a man remains owner even when he does not wish to be, but possession departs once one decides not to possess. (D.41.2.17.1.)

Such texts provide evidence that late classical law regarded animus as probably the major constituent of possession. However, as with the acquisition of possession, the rules relating to its loss depended more on pragmatic development and ad hoc decisions by jurists than on general principle. For example, escaped slaves (and possession of slaves generally) caused the jurists particular difficulty. Clearly, the master has lost physical control—but has he lost possession? No text can be safely selected as an authoritative answer, but the most plausible view is that the mas­ter retained possession through animus alone—an exceptional occurrence. Schulz observes that 'the classical lawyers required for the acquisition of possession a fuller physical control than for its continuance' (Classical Roman Law (1951), 435). See also Hausmaninger, Gamauf, and Sheets, Casebook, 70-110.

Possession ended on the death of the possessor; it did not automatically pass to his heir. But if the latter took physical control of the property, his possession related back to that of his predecessor and was regarded as one continuous period for the purposes of prescription under usucapio.

6.5.5 The protection of possession

Ulpian, All Seats of judgement, book 5: The outcome of a dispute over possession is simply this: that the judge makes an interim finding that one of the parties possesses; the result will be that the party defeated on the issue of possession will take on the role of plaintiff when the question of ownership is contested. (D.41.2.35.)

Since possession was a form of presumptive ownership, effective remedies were needed to protect it. But, as the previous passage makes clear, a dispute about pos­session was frequently a preliminary step to the resolution of the issue of owner­ship. Whoever was held entitled to possession would be in a strong position in any subsequent contest over ownership. The possessor would be the defendant, the presumptive owner. The non-possessor would be the plaintiff, having to bring a vindicatio and prove that he was dominus (see Baldus, 'Possession in Roman Law', 542-3). However, a dispute over possession was not always followed by a vindicatio. Sometimes the adjudication of the question of possession could end the whole mat­ter, e.g. if a person who had been wrongfully dispossessed succeeded in recovering possession from the wrongdoer. See Hausmaninger, Gamauf, and Sheets, Casebook, 95-102.

6.5.5.1 Possessory interdicts

The standard remedies in disputes about possession were the possessory interdicts issued by the praetors (see Baldus, 'Possession in Roman Law', 540-2). Process under possessory interdicts was generally much speedier and less cumbersome than in a vindicatio. It may be that interdicts originally had a limited application—protecting the holders of public land—but in time they came to be used extensively to protect the possession of private property. Some of the interdicts were introduced for the specific purpose of recovering possession of property that had been taken by force, e.g. the interdict unde vi. Others, such as those for retaining possession, demon­strated the desire of the praetors to prevent disorder: such interdicts prohibited the use of force against the person in possession.

Possessory interdicts were classified according to their purpose:

(a) Acquiring possession The claimant sought possession of property that he had not previously possessed. The main example was the interdict quorum bonorum, which lay in favour of a person who was allowed possession of an estate, or part of it, under the praetorian rules on inheritance. (D.43.3., C.8.2.)

(b) Retaining possession The possessor sought an interdict to protect his posses­sion (cf. Inst.Gai.4.148.; Inst.4.15.4.). The appropriate interdict for land was uti pos­sidetis (D.43.17., C.8.6.); for movables, utrubi (D.43.31.). In each case the possessor succeeded providing that his possession had not been acquired from the other by force, stealth, or permission, i.e. nec vi, nec clam, nec precario (see 9.7.5). The inter- dictal proceedings were concerned with the position of the possessor as against his opponent. It was irrelevant if such possession was flawed as against someone else. Paul, commenting on utipossidetis, states:

Paul, Edict, book 65: It makes no difference in this interdict whether the possession against others is just or unjust. For every kind of possessor has by virtue of being a possessor more right than the nonpossessor. (D.4.3.17.2.)

In proceedings for uti possidetis possession was normally awarded to the actual possessor; but in utrubi it was given to the party that had been in possession for the longer time in the previous year.

(c) Recovering possession Where force had been used to obtain possession, the appropriate remedies were utrubi for movables, and the interdicts unde vi (C.8.4.), and de vi armata (D.43.16.) for immovables. (These interdicts are at the centre of Cicero's Pro Caecina. The technicalities of this case are thoroughly discussed in Frier, Roman Jurists.) The interdict unde vi ordered the restoration of land to one who had been evicted by force, providing that his possession had not been acquired from the other party by force, stealth, or permission. The interdict had to be sought within a year. The person evicted was entitled to be restored to the position before eviction:

Ulpian, Edict, book 69: Whoever has been forcibly ejected must recover whatever damage he has sustained on account of his ejection; for he must be replaced in the original state in which he would have been if he had not been ejected. (D.43.16.1.31.) (cf. Inst. 4.15.6.)

De vi armata differed in that it allowed recovery of possession without the limi­tation of a year, and even if the evicted person had previously held the land by force, stealth, or permission as against the evictor. The interdict applied only if armed force had been used, whether by an individual or by a gang, although it was for the latter case that the remedy was primarily designed. What constituted armed force?

Ulpian, Edict, book 69: Arms are all weapons, that is, not only swords, spears, and lances, but also sticks and stones. [3] Plainly if one or another held a stick or a sword, the possessor is considered to have been ejected by arms. [4] One must go further and say that even if they came unarmed, but got to the point of taking up sticks and stones, it will be armed force. [5] Those who came armed but did not use arms for the ejection, yet did eject, are held to have done so with armed force. For terrorizing by arms is enough to be held as ejection by arms. (O.43.16.3.2.-5.)

A decree of AD 389 (C.8.4.7.) attempted to stop the use of force in the pursuance of property claims. It provided that an owner who forcibly seized property should forfeit both ownership and possession; a non-owner had to restore the property and pay its value as a penalty. T his decree reduced the importance of the interdicts: unde vi became infrequently used, while de vi annata disappeared altogether.

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FURTHER READING

Those with a keen interest in specific aspects of this topic may also wish to consult Ilaube, 1)., ‘Fashions and Idiosyncrasies in the Exposition of the Roman Law of Property', in Theories of Property, 35-50; Stein, I’. G., ' Equitable Remedies for the Protection of Property', in New Perspectives, 185-94; Westbrook, R., 'Restrictions on Alienation of Property in Early Roman Law’, in New Perspectives, 207-13.