In the previous paragraphs, frequent references emphasized the notion of possession as a key to the acquisition of the right of ownership.

For instance, our discussion of the institutions of occupatio, traditio and usucapio noted that assuming possession of an object was the basis of acquiring dominium thereof.

Despite the close connection between possession and ownership, Roman law drew a clear distinction between the two concepts. As already observed, the right of ownership in respect of an object was the most comprehensive real right recognized in private law. On the other hand, possession was essentially a factual state of affairs, namely, the physical control of a corporeal thing. 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.^{^[454]} Although possession was theoretically a matter of fact rather than a right, it was a fact that the law protected by according the possessor certain remedies against others who interfered with his possession or deprived him of it. But why did the law protect possession? The answer to this question seems to lie partly in historical factors and partly in public policy.

In the earliest form of the concept, possession appears to have been invoked in connection to land and, more specifically, public land (ager publicus). As pointed out earlier, the expansion of Roman territory entailed large tracts of land falling under the control of the Roman state in Italy and the provinces. Such land was parcelled out and given to individuals for their use and enjoyment as possessors rather than as owners because ownership was vested in the Roman people as a whole.^{^[455]} Although such possession was recognized as rightful, its holders could not institute the rei vindicatio when they were deprived of it. To remedy this situation, the praetor at a very early stage initiated steps to protect possessors by means of certain remedies known as possessory interdicts (interdicta).

This manner of protection was soon extended to other forms of rightful possession, such as that of a pledgee, until it became the usual form of possessory protection.

The introduction of remedies designed for the protection of possession is also 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. The notion that an existing possessory situation must be protected for the time being is expressed by the maxim “Qualiscumque enim possessor hoc ipso quod possessor est, plus iuris habet quam ille qui non possidet”: “He who has possession has by virtue of his being a possessor a greater right than somebody who does not possess.”^{^[456]}^{^[457]} Although possession by itself was deemed worthy of legal protection, the element had much wider consequences when combined with other factors. As already noted, it was the foundation of the Roman system of ownership as in most cases possession plus another legal fact entailed dominium}'⁸²

Possession in a broad sense 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).

Although the classical jurists did not adopt a uniform terminology and their views appear unclear or contradictory on certain issues, for present purposes a distinction may be drawn between three types of possession: possessio civilis; possessio ad interdicta; and possessio naturalis or detentio.

Possessio civilis (also known as possessio ad usucapionem) was a form of protected possession that could lead to full ownership through usucapio.

The requirements for this type of possession encompassed the actual physical control of the object and a just legal title for possession (iusta causa possessionis), such as purchase and sale or the giving of a dowry.^{^[458]} This category embraced the cases of a person who acquired a res mancipi informally by mere delivery (traditio) from the owner as well as the person who acquired an object capable of usucapio in good faith (bona fide) and based on a just cause from a non-owner. In both cases, these persons acquired actual control over the object ex iusta causa and had the animus domini. The possessio civilis was protected by interdicts and the actio publiciana mentioned earlier.

The term possessio ad interdicta (possession subject to interdictal protection, also simply referred to as possessio) denoted possession that was protected by the ius honorarium by means of certain praetorian interdicts. This category encompassed the possessor who had physical control of an object with the intention of retaining it as his own, irrespective of whether he was entitled to such possession or not. Such possessors in this category included the possessor who was an owner in accordance with Roman law, the bona fide possessor who honestly believed that he was the owner and even the mala fide possessor (such as a thief) who, although he knew that he was not the owner, did not intend to surrender the thing.^{^[459]} Furthermore, possessory interdicts were granted to persons who exercised actual control of a thing in the place of someone else, such as the holder of a long-term lease of land in terms of emphyteusis, the superficiarius,^{^[460]} the pledgee, the tenant at will or on sufferance (precario tenens),^{^[461]} and the sequester.^{^[462]} These were cases where the owner had parted with possession, while his right of ownership remained intact.

In such cases, the possessor’s animus pertained not to the exercise of dominium but to the assertion of a right to possess derived from a previous possessor. As these cases constitute departures from the general principles, they are usually explained by reference to historical factors or on the grounds of practical necessity or convenience.

Finally, 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. In such cases, the holder of the thing (detentor) did not intend to retain the thing for himself and no iusta causa possessionis existed as required for the acquisition of ownership by usucapio. This category of possession encompassed holders who exercised physical control of an object on behalf of or in the place of someone else such as the borrower (commodatarius), the depositee (depositarius), the lessee (including the lessee of land), the contractor, the mandatary and others. If these holders were disturbed in their possession or deprived thereof, they could not employ an interdict or other remedy against the dispossessor. Instead, the possessors had to approach the person on behalf of whom they held the thing as only the latter was entitled to the relevant remedies. For example, if a third party deprived the lessee of the object that had been leased, the lessor could be granted a possessory interdict against such third party. This approach to the matter was based on the assumption that the lessor (the principal) exercised his possession through the agency of the lessee (the detentor).

In the time of Justinian, the classical jurists’ classification of the various forms of possession was to some extent modified. Possessio civilis still existed but had a broader meaning that embraced the possession of the owner as well as that of the person in the process of acquiring ownership by prescription.

All other forms of possession were collectively referred to as possessio naturalis regardless of whether they were subject to protection by interdicts.^{^[463]} Furthermore, in the post-classical era the original premise that possession was merely a factual relation was gradually abandoned as the intention of the possessor to be owner of the thing (animus domini) was emphasized whilst the element of physical control (corpus) was blurred. It was thus recognized that a person could exercise possession animo solo even if the actual physical control of the thing had been lost; possession became regarded as a right (ius possessionis) and no longer merely a legally relevant factual situation.^{^[464]} The theories of nineteenth century Romanist scholars^{^[465]} has greatly contributed to this interpretation of the concept of possession evolving as the basis of modern approaches to the notion of possession in law.

3.4.1

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

In the previous paragraphs, frequent references emphasized the notion of posses­sion as a key to the acquisition of the right of ownership.

More on the topic In the previous paragraphs, frequent references emphasized the notion of posses­sion as a key to the acquisition of the right of ownership.:

In the previous paragraphs, frequent references emphasized the notion of possession as a key to the acquisition of the right of ownership.

More on the topic In the previous paragraphs, frequent references emphasized the notion of possession as a key to the acquisition of the right of ownership.: