2. POSSESSION

There is an obvious distinction in ordinary language between having a thing and being entitled to have it. The thief is not entitled to what he has stolen but he nevertheless has it, and conversely the man who has pawned his ring is still entitled to it but the pawnbroker actually has it.

Protection of possession. Possession by itself has in Roman law only the barest legal consequence—that it is protected. Subject to what is said below, the possessor has remedies by which he can restrain others from interfering with his possession and by which he can recover possession from anyone who dispossesses him.

There are here three features which should be particularly noticed, (i) The remedy lies only against the dispossessor. If B is in turn dispossessed by C, or voluntarily delivers the land to him, A has no remedy against C unless he is also owner,¹ when

¹ In the classical law this was not necessarily so of movables. For in regard to them it was sufficient if A had had possession for longer in the previous year than C. The reason for this rule was presumably the ease and frequency with which movables may change hands. It had however disappeared by the time of Justinian.

he has a vindicatio. (ii) The title of either party is altogether irrelevant. The dispossessor may not even plead in defence that he is owner. What is in issue in a possessory interdict is possession, and to that in the Roman view ownership can have no relevance. This is the meaning of the Roman maxim: ‘ownership has nothing in common with possession.’ The Roman insistence on this rigid separation leads of course to circuity. If B is owner of the land of which he dispossesses A, the latter’s victory in the possessory interdict will be short-lived, since B can immediately assert his ownership by a vindicatio. But this circuity was prefer­able to the blurring of the sharp outline of a basic concept, and it also had the practical advantage of discouraging self-help.¹

(iii)    The possession which is in issue must not have been obtained vi, clam, or precario from the other party.

Importance of possession. The main advantage of the possessory remedy lies in the simplicity of proof. Because of its factual character possession is as easy to prove as ownership is difficult. Even, therefore, if A, who has been dispossessed by B, believes himself to be owner, he will, if he is wise, proceed by possessory interdict rather than by vindicatio, thereby leaving to B the burden of proving title in a subsequent vindicatio. As Gaius puts it, the possessory interdict serves to determine which party shall be defendant in a vindicatio.

Although possession by itself has only this one legal conse­quence that the possessor can assert or recover his possession in an interdict, it has much wider consequences when combined with other factors. In particular, as was said above, it lies at the

¹ Cf. the Assize of Novel Disseisin of the early Common law.

² ‘Adversus extraneos etiam vitiosa possessio prodesse solet’ (against third parties even a ‘vicious’ possession is effective).

root of the two most common methods of acquiring ownership, traditio and usucapio,¹ and therefore occupies a central place in the law of property.

Who has possession? There are, we have said, two reasons why the answer to this question cannot simply be that the man who has the thing has possession of it.

(i) What categories of holder are in principle capable of having possession? In English law the answer to this question is simple. Any holder is in principle a possessor except a servant or a person holding for a temporary and limited purpose, such as a railway porter. In Roman law it is quite otherwise. With a few exceptions, no one who holds in pursuance of a contract with the owner can possess, nor can anyone who holds in exercise of a right in rem less than ownership (in modern terms a ius in re aliena}^{[42] [43]}—for example the usufructuary, who has what is in effect ownership for life or for some shorter period. Of these two restrictions the former is the more important. It excludes from possession not only the borrower {commodatarius} and the depositee {depositarius} but also the hirer, including the lessee of land. Such holders have in consequence no remedy against third parties who interfere with their holding. They hold on behalf of the owner, who has possession through them. In the case of a lease, for example, the lessor can proceed by either vindicatio or possessory interdict against a third party who inter­feres with the lessee’s occupation of the land, but the lessee can only proceed in personam against the lessor by an action on the contract. This may well be inconvenient if the lessor is, for example, absent or dilatory. The exclusion of beneficiaries of iura in re aliena is of less practical importance, because they could always assert their right by an action in rem, and because at any rate the usufructuary was eventually given a variant {utilis} form of the possessory interdicts and therefore had in this respect possession in all but name. There still remained, however, the important consequence that iura in re aliena could neither be conveyed by traditio nor acquired by usucapio.

The list of those who hold without in law possessing is so substantial that we should abandon the natural assumption that ‘possession’ has essentially the same meaning in Latin as in English, in Roman law as in English law.

Again, the usufructuary, though he has for the time being all the enjoyment of an owner, acknowledges the superior right of the actual owner. There is indeed in the case of such iura in re aliena the simpler objection that they were incorporeal things and therefore were, as we have seen, incapable of being pos­sessed. This is easy enough to understand in the case of the more limited rights, such as a right of way. For the person who is in ‘possession’ (i.e. in de facto enjoyment) of a right of way obviously does not purport to possess the land over which he walks, and in the Roman view there was nothing else which he could possess. There is more difficulty, however, with the usufructuary, who is for the time being in exclusive control of the land (or other thing) over which he has a usufruct. Why should he not therefore have possession, not indeed of the usufruct but of the land itself? The Romans themselves were evidently uncom­fortable about the denial of possession in this case, and eventu­ally, as has been said, compromised by granting interdicts in utilis form.

¹ It has been suggested that the etymology of the word bears this out.

Even if one admits that the Roman ‘possessio’ had this stronger, more restricted meaning than the English ‘possession’, there remain several anomalous cases of possession which are probably to be explained either historically or on grounds of convenience.¹

The Romans had no consistent single term to indicate a holding which did not amount in law to possession, but modern lawyers commonly use the word ‘detention’. The Roman tenant, therefore, is a detentor and his landlord a possessor. This terminology is convenient provided that one bears in mind that ‘detention’, unlike the lawyer’s usual technical words, indicates not the presence of legal consequences but their absence. To say that the lessee is a detentor is merely to emphasize that though he is physically in occupation of the land he has legally no relation to it.

(ii) What amount of physical control is necessary for possession? The answer we have given to the preceding question is not a Roman answer. The Romans offer no definition of possession. They take it for granted that the lessee, the borrower, &c., do not possess. What they are interested in is not the abstract question of the meaning of possession, but the practical question of how it is acquired and lost. This question offers peculiar scope to that evolution of principle from a multitude of hypothetical cases which is the delight and strength of the Roman lawyer, and his analysis and terminology have been adopted not merely by his civilian successors but also by the jurists of the common law.

In the Roman analysis the acquisition of possession has two aspects, mental and physical. ‘One acquires possession’, says Paul, ‘by an act of the mind and an act of the body (animo et corpore); the act of the mind must be one’s own, but the act of the body may be supplied by another.’ The modern jurist, with his greater liking for abstract thought, transfers the analysis from the acquisition of possession to possession itself, and speaks

’ The pledge-creditor (i.c. the person who is given something as security for a debt) and the sequester (i.e. the person with whom a thing is deposited to await the outcome of a dispute concerning it) both possess, and yet both hold in pursuance of a contract. The explanation is probably simply the demands of convenience: the purpose of their holding would be frustrated if they did not possess.

The explanation of the possession of the holder precario (by grant at will) and of the holder of public land lies probably in the history of these institutions. This is too large a question, however, to be adequately discussed here.

of animus and corpus as the two ‘elements’ of possession, but the difference is one of method, not of substance.¹

We can consider here no more than the outlines of the Roman analysis. The corpus of possession (to adopt the modern way of speaking) requires the effective power of control, but what amounts to such an effective power must depend on the nature of the object. Thus a greater degree of physical control is necessary for the acquisition of possession of a book than of a pile of logs, of a horse than of a plot of land. Indeed the example of the land shows that it is impossible entirely to separate the corpus from the animus. If I wish to take possession of a farm, how else can I do so than by entering on some part of it with an intention to take control of the whole? Here indeed the physical element is whittled away to very little, but the Roman law nevertheless insisted on this minimum. I could not acquire possession by an act of intention alone (animo solo). But again, though this minimum is sufficient when possession is taken with the consent of the previous possessor (i.e. by a traditio), it will not be so where there is a rival claimant to possession—for example, if I am a squatter on your land or if both I and you are attempting to take possession of land which has hitherto been vacant.

The requisite animus is the intention to exercise the control which constitutes the corpus. Here again, of course, the two elements cannot be thus simply distinguished—an unintentional control is in the ordinary case a contradiction in terms, but a madman may exercise a very effective control and yet be incapable of forming an intention. And there are more difficult questions. Intention involves knowledge, but how detailed must my knowledge be? If, having bought a book from you, I ask

¹              The analysis was used by Savigny in his famous book on possession (1803) to provide an answer to the question, which we have just discussed, of the meaning of possession in Roman law. He found the differentiating factor between possession and detention in the animus, which he defined as animus domini (intention to be owner). The detentor had no possession because he had no animus domini. The cases of the pledge-creditor, sequester, holder precario, and holder of public land were explained as in the preceding note. Jhering (1889) rejected this emphasis on animus and declared that the corpus was the essential—that any conscious holding was in principle possession and that the cases of detention were exceptions for special reasons. The main objection to Savigny is that there is no evidence that the Romans saw the distinction between possession and detention in terms of animus and corpus, and to Jhering that his explanation of the non-possession of the detentors is very forced.

you to put it in my drawer and actually see you do it, clearly I acquire possession at that moment, and, equally, if I have neither asked you to put it there nor know that you have done so, I cannot have possession. But what if I have asked you to put it there but am not aware of the precise moment at which you do so? Is such an anticipatory animus sufficient? (This question becomes important if the book is taken from my drawer before I know it is there. If my animus was sufficient I shall have not merely the possessory but also the proprietary remedies, and the action for theft, if any.) The related problem, which has much agitated English lawyers, whether I possess something which, unknown to me, is buried in my land or hidden in my house, is answered in the negative—I have not the necessary animus.

For obvious reasons of convenience the requirements of the law are not so strict for the retention of possession as they are for its acquisition. I do not lose possession of my house and its contents merely by going away for a short time, nor do I lose possession of a book which I have put in a cupboard and for­gotten. This presumption of possession was taken even further in the case of what was called retention animo solo (by mere intention). The recurrent example is that of pastures used only in winter or only in summer; a more likely modern case is that of the seaside cottage. During the greater part of the year when the cottage is left unoccupied, the corpus of possession is totally lacking, but for convenience I am allowed to retain possession, and this is explained as retention animo solo. But what if, unknown to me, squatters have broken in and are in full occupation? They have both the necessary animus and the necessary corpus, and there­fore they and not I should possess, but the Romans eventually preferred the specious argument that what is retained animo can only be lost animo, and therefore I shall not lose possession until I know of the intrusion of the squatters and fail to evict them.

Possession as a fact. The Romans often declare that possession is a fact, and this has given rise to some debate among modern jurists, who commonly prefer to see it as a right. There is, however, a danger of being bemused by words unless one inquires first what the Romans meant by possession as a fact. And one should perhaps begin with what they did not mean. The preceding pages show that possession was not a fact if by that one means that it was unregulated by law. In the case, for example, of my taking possession of a farm, whether I have entered on the land is indeed a question of fact, but whether such an entry, assuming it to have occurred, amounts to a taking of possession is a matter governed by legal rules. What the Romans did mean by possession as a fact can be seen by con­trasting possession with ownership, which is in this sense not a fact but a right. Ownership exists whether or not there is any material manifestation of it, whereas possession is dependent for its existence on such manifestation. If my handkerchief is picked out of my pocket I cease to possess it (I have lost possession corpore), but I still own it. Similarly, I can acquire ownership without knowing it, but not possession. To put it in another way, possession can be terminated by a wrongful act, whereas ownership cannot (unless, of course, the wrongful act destroys the object owned). If the facts on which possession rests cease, however wrongfully, possession ceases.

It was in this sense that the Romans declared that possession was a fact, but their desire to favour the retention of posses­sion led them eventually, as we have seen, to allow substantial inroads on this factual character. For possession is no longer a fact when I retain possession of my seaside cottage even though six strong men are in effective occupation of it. As between myself and the squatters this stretching of possession makes no difference: even if they had possession it would be as against me a ‘vicious’ possession and therefore I should succeed in the interdict. But as between the squatters and third parties (e.g. if they themselves are evicted) the difference is crucial. The squatters have no remedy, and the reason for this is in substance that their occupation is vicious as against me, or, in other words, that I have a better right than they; but this is a denial of the basic principle that title is irrelevant to possession. In short, the Romans were tending to treat possession as a right and were thereby blurring the line between possession and ownership which otherwise they so rigorously maintained.

3.