Possession
Possession essentially implied the physical control of a corporeal object and the exclusion of other persons from such control. This might be enjoyed by the person who had ownership over the property—one of the principal rights associated with ownership was the right to possess (ius possidendi).
Despite the close connection between possession and ownership, Roman law drew a clear distinction between the two concepts: ownership was a right; possession was a factual state of affairs. This difference between being entitled to an object and having physical control of it lies at the root of the distinction between ownership and possession. Although possession was essentially a factual relation, it played an important part in the law: it was the foundation of the system of ownership, since it was in most cases possession plus another legal fact that led to ownership. For example, possession plus time entailed ownership by way of usucapio; possession plus just cause (iusta causa) entailed ownership by way of traditio. Furthermore, possession came to be protected in itself by remedies called interdicts (interdicta), and in some cases even possession that was not rightfully acquired was accorded protection.size=2 color=black face="Times New Roman">Possession assumed many diverse forms and, from an early period, the Roman jurists set themselves the task of elaborating criteria for distinguishing between protected and unprotected possession. However, they did not develop a general theory of possession as they were mainly interested in the practical questions concerning the acquisition and loss of possession rather than the abstract question of its meaning. In this respect, convenience rather than logical consistency determined the scope of the relevant possessory remedies.
In general, protected possession had to have two elements: the actual physical control of a thing (corpus); and the intention of exercising such actual control, normally as the owner (animus).The introduction of praetorian remedies designed for the protection of possession is related to considerations of public policy. While a person possesses an object, and because he possesses it, the impression is projected that such a person has a right to the object. The law has to consider this factual relationship seriously and ensure that third parties are prevented from interfering with it or taking matters into their own hands until and unless due legal process has transpired.[360] Thus, even the owner was not entitled to eject an occupier from his land. If he did, the latter could bring a possessory interdict to be restored to possession. The owner, on the other hand, could bring a vindicatory action, and if he proved his title, the wrongful occupier would then be lawfully deprived of his possession.
For present purposes a distinction may be drawn between two broad categories of property holding: possessio and possessio naturalis. The former was juristic possession, protected by praetorian interdicts. This category embraced the possession of an owner; a bona fide possessor; a mala fide possessor; a holder of a long lease of land (emphytheuta); a holder of a long-term right to the enjoyment of a house built on another’s land (superficiarius); a pledgee; a tenant at will or on sufferance (precario tenens); and a person with whom the parties to litigation deposited the object of the dispute, on the understanding that it was to be delivered after the conclusion of the litigation to the party who won the case (sequester). The term possessio naturalis (also known as detentio) denoted the possession of persons who, although they had physical control of a thing, could not seek the protection of possessory interdicts.
This category encompassed the possession of a borrower for use (commodatarius), a depositee (depositarius), a tradesman working on property and a person without capacity (e.g., an insane person or a ward without authority).3.3.3.1 Protection of Possession
In Roman law, possessory protection was achieved mainly by interdicts (interdicta), that is, praetorian orders issued on request in duly justified circumstances. Possessory interdicts were classified into three categories: interdicts aimed at obtaining possession (interdicta adipiscendae possessionis); interdicts aimed at retaining possession (interdicta retinendae possessionis); and interdicts aimed at regaining possession (interdicta recuperandae possessionis).[361] The most important interdicts were the interdictum uti possidetis, the interdictum utrubi and the interdictum unde vi. The interdictum uti possidetis protected the present possessor of immovable property against any disturbance of his possession and thus it had a prohibitory effect in this instance. However, if the present possessor had obtained his possession by force (vi), secretly (clam) or by request from the other party, then this other party was entitled to the interdict even though he was not in possession. In this instance, the interdict was restitutory, as the present possessor was commanded to return possession to the person from whom he had obtained it.[362] The interdictum utrubi protected the party who had been in possession of movable property for the longest period (as against his adversary) in the preceding year, unless he himself had obtained possession by violence, secretly or by grant at will (vi vel clam vel precario).[363] As in the case of the interdictum uti possidetis, the interdictum utrubi was bilateral and prohibitory as well as restitutory where possession of the object was awarded to the party who was not the present possessor. Finally, the interdictum unde vi restored the possession of immovables lost by force and was, therefore, solely restitutory. This interdict had to be requested within a year after possession had been lost.
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More on the topic Possession:
- Possession
- Possession
- 2. POSSESSION
- Interdictal protection of possession
- Acquisition, Maintenance and Loss of Possession
- Protection of Possession
- 1. Warranty of peaceable possession
- Possession
- So far in this chapter, we have concerned ourselves with ownership (and, related thereto, possession) as the real right that accrued to a person in respect of his own property (ius in re propria).
- Real contracts (contractus re) were agreements that became operative and binding on the transfer of possession or physical control of a tangible thing (res corporalis).
- Emphyteusis
- In the previous paragraphs, frequent references emphasized the notion of possession as a key to the acquisition of the right of ownership.
- The acquisition of proprietary interests was the chief concern of the law of property.
- Customary Law and the Leges Regiae
- Hypotheca
- CHAPTER XVI. SPECIAL CASES {amt.). S. COMMUNIS. COMBINATIONS OF DIFFERENT INTERESTS.
- Praetorian intestate succession
- THE HISTORICAL DEVELOPMENT AND THE COMPILATION OF THE EDICT
- Usucaption
- CONTENT