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 p945  Possessio

Article by George Long, M.A., Fellow of Trinity College
on pp945‑949 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

POSSE′SSIO. Paulus (Dig. 41 tit. 2 s1) observes, "Possessio appellata est, ut et Labeo ait, a pedibus,1 quasi positio: qui naturaliter tenetur ab eo qui insistit." The absurdity of the etymology and of the reason are equal. The elements of Possidere are either pot (pot-is), and sedere; or the first part of the word is related to apud, and the cognate Greek form of ποτὶ (πρός).

Possessio, in its primary sense, is the power by virtue of which a man has such a mastery over a corporeal thing as to deal with it at his pleasure and to exclude other persons from meddling with it. This condition or power is called Detention, and it lies at the bottom of all legal senses of the word Possession. This Possession is no legal state or condition, but it may be the source of rights, and it then becomes Possessio in a juristical or legal sense. Still even in this sense, it is not in any way to be confounded with Property (proprietas). A man may have the juristical possession of a thing without being the proprietor; and a man may be the proprietor of a thing without having the Detention of it, or even the juristical possession (Dig. 41 tit. 2 s12). Ownership is the legal capacity to operate on a thing according to a man's pleasure and to exclude everybody else from doing so. Possession, in the sense of Detention, is the actual exercise of such a power as the owner has a right to exercise.

Detention becomes juristical possession and the foundation of certain rights, when the Detainer has the intention (animus) to deal with the thing as his own. If he deal with it as the property of another, as exercising over it the rights of another, he is not said "possidere" in a juristical sense; but he is said "alieno nomine possidere." This is the case with the Commodatarius and with him who holds a deposit (Dig. 41 tit. 2 s18, 30).

When the Detention is made a juristical Possessio by virtue of the animus, it lays the foundation of a right to the Interdicts, and by virtue of Usucapion it may become owner­ship. The right to the Interdicts is simply founded on a juristical possession, in whatever way it may have originated,  p946 except that it must not have originated illegally with respect to the person against whom the Interdict is claimed. [Interdictum.] Simply by virtue of being possessor, the possessor has a better right than any person who is not possessor (Dig. 43 tit. 17 s1, 2). Usucapion requires not only a juristical possessio, but in its originº it must have been bona fide and founded on a justa causa, that is, on some legal transaction. He who buys a thing from a man who is not the owner, but whom he believes to be the owner, and obtains possession of the thing, is a bona fide possessor with a justa causa. [Usucapio.]

The right which is founded on a juristical possessio is a Jus possessionis, or right of possession, that is, a right arising from a juristical possession. The expression Jus possessionis is used by the Roman Jurists. The right to possess, called by modern Jurists, Jus possidendi, belongs to the theory of Ownership.

All Juristical Possessio then, that is, Possessio in the Roman Law, as a source of rights, has reference only to Usucapion and Interdicts; and all the rules of law which treat Possession as a thing of a juristical nature have no other object than to determine the possibility of Usucapion and of the Interdicts (Savigny, Das Recht des Besitzes, p24, &c.).

In answer to the question to which class of Rights Possession belongs, Savigny observes (§ 6), — So far as concerns Usucapion, one cannot suppose the thing to be the subject of a question. No one thinks of asking, to what class of rights a justa causa belongs, without which tradition cannot give owner­ship. It is no right, but a part of the whole transaction by which owner­ship is acquired. So is it with Possession in respect to Usucapion.

The right to Possessorial Interdicts belongs to the Law of Obligationes ex maleficiis. "The right to possessorial Interdicts then belongs to the Law of Obligationes, and therein possession is only so far considered, as containing the condition without which the Interdicts cannot be supposed possible. The Jus Possessionis consequently, that is the right, which mere possession gives, consists simply in the claim which the Possessor has to the Interdicts, as soon as his possession is disturbed in a definite form. Independent of this disturbance, bare possession gives no rights, neither a Jus Obligationis, as is self-evident, nor yet a right to the thing, for no dealing with a thing is to be considered as a legal act simply because the person so dealing has the possession of the thing." (Savigny, p34).

The term Possessio occurs in the Roman jurists in various senses. There is Possessio generally, and Possessio Civilis, and Possessio Naturalis.

Possessio denoted originally bare Detention. But this Detention under certain conditions becomes a legal state, inasmuch as it leads to owner­ship through Usucapion. Accordingly the word Possessio, which required no qualification so long as there was no other notion attached to Possessio, requires such qualification when Detention becomes a legal state. This Detention then, when it has the conditions necessary to Usucapion, is called Possessio Civilis; and all other Possessio as opposed to Civilis is Naturalis. But Detention may also be the foundation of interdicts, which notion of possession is always expressed by Possessio simply; and this is the mention of Possessio, when it is used alone, and yet in a technical sense. As opposed to this sense of Possessio all other kinds of Detention are also called Naturalis Possessio, the opposition between the Natural and the Juristical Possession (possessio) being here expressed in just the same way as this opposition is denoted in the case of the Civilis Possessio. There is therefore a twofold Juristical Possessio: Possessio Civilis or Possession for the purpose of Usucapion; and Possessio or Possession for the purpose of the Interdicts. It follows that Possessio is included in Possessio Civilis, which only requires more conditions than Possessio. If then a man has Possessio Civilis, he has also Possessio, that is the right to the Interdicts; but the converse is not true. Possessio Naturalis, as above observed, has two significations, but they are both negative, and merely express in each case a logical opposition, that is, they are respectively not Possessio Civilis, or Possessio (ad Interdicta). The various expressions used to denote bare Detention are "tenere," "corporaliter possidere," "esse in possessione" (Savigny, p109).

In the case of a thing being pignorated, the person who pledges it has still the possessio ad usucapionem, but the pledgee alone has the possessio ad interdicta. It is not a Possessio Civilis which is the foundation of the pledger's title by usucapion; but by a special fiction he is considered to have such Possession, and so the case is a special exception to the general rule, "sine possessione usucapio contingere non potest."

Possessio Justa is every Possessio that it is not illegal in its origin, whether such Possessio be mere Detention or Juristical Possessio. The word Justa is here used, not in that acceptation in which it has reference to Jus Civile and is equivalent to Civilis or Legitima; but in another sense, which is more indefinite and means "rightful" generally, that is, not wrongful. The creditor who is in possession of a pledge, has a Justa Possessio, but not a Civilis Possessio; he has, however, a Juristical Possessio, that is, Possessio, and consequently a right to the Interdicts. The Missio in Possessionem is the foundation of a Justa Possessio, but, as a general rule, not of a Juristical Possessio. Possessio Injusta is the logical opposite of Justa, and in the case of Possessio Injusta there are three special Vitia possessionis, that is when the Possession has originated Vi, Clam, or Precario (Terentius, Eunuch. II.3 Hanc tu mihi vel vi, vel clam, vel precario fac tradas; Dig. 43, tit. 17 s1, 2).

With respect to the causa Possessionis, there was a legal maxim: Nemo sibi ipse causam possessionis mutare potest, which applies both to Civilis and Naturalis Possessio. This rule is explained by Savigny by means of Gaius (II.52, &c.) as having reference to the old usucapio pro herede, and the meaning of it was that if a person had once begun to possess with any particular causa, he could not at his pleasure change such Possessio into a Possessio pro herede (Savigny, p56).

Possessor bonae fidei is he who believes that no person has a better right to possess than himself. A Possessor malae fidei is he who knows that he has no right to possess the thing (Savigny, p84).

Besides these various meanings of Possessio, Possessor, Possidere, at the bottom of all which lies  p947 the notion of Possession in the sense of Detention, there are some other meanings. "To have owner­ship" is sometimes expressed by Possidere, the thing, which is the object of owner­ship, is sometimes Possessio, and the owner is Possessor. This use of the word occurs frequently in the Code and Pandect, and also in Cicero, Quintilian, Horace, and other writers. But it is remarked by Savigny that these meanings of Possidere, Possessio, &c., always refer to land as their object. The phrase "Possessio populi Romani," is applied by Cicero to public land, and it is translated by Plutarch (Pomp. 39), κτῆμα τοῦ δήμου Ῥωμαίων.

Possessio also denotes the relation of a defendant with respect to a plaintiff. For instance, when owner­ship is claimed, the demand must be against a person in possession; but this does not mean that such person must have a juristical possession. In a Vindicatio accordingly the plaintiff is called Petitor, and the defendant is named Possessor, because in fact he has the possession of that which the plaintiff claims. The procedure by the Vindicatio was also adapted to the case of an hereditas; and here also the term possessor was applied to the defendant. In many cases the possessor was really such, and one object of the hereditatis petitio was to recover single things which the defendant possessed pro herede or pro possessore. But the term possessor was not limited to such cases, for the defendant is called possessor when the petitio is not about a matter of possession. He is called Juris possessor, because he refuses to do something which the heres claims of him to do, or because he asserts his right to a portion of the hereditas (Savigny, p87).

The juristical notion of Possession implies a thing which can be the object of owner­ship: it also implies that the Possessor can be no other than a person who has a capacity for owner­ship.

The notion of possession is such that only one person at a time can possess the whole of a thing (plures eandem rem in solidum possidere non possunt). When several persons possess a thing in common, so that their possession is mutually limited, each in fact possesses only a fractional part of the thing, but does not possess the other parts, and though the division into parts is only ideal, this does not affect the legal consideration of the matter. Persons may also possess the same thing in different sense, as in the case of the debtor and his creditor who has received from him a pignus.

Though things incorporeal are not strictly objects of possession, yet there is a Juris quasi possessio of them, as for instance in the case of servitutes. The exercise of a right of this kind is analogous to the possession of a corporeal thing: in other words, as real possession consists in the exercise of owner­ship, so this kind of possession, which is fashioned from analogy to the other, consists in the exercise of a jus in re or a right which is not owner­ship. In the case of Possession, it is the thing (corpus) which is possessed, and not the property: by analogy then we should not say that the servitus or the jus in re is possessed. But as in the case of a jus in re there is nothing to which the notion of possession can be attached, while in the case of owner­ship there is the thing to which we apply the notion of possession, we are compelled to resort to the expression Juris Quasi Possessio, by which nothing more is meant than the exercise of a jus in re, which exercise has the same relation to the jus in re, that proper possession has to owner­ship (Savigny, p166).

In order to the acquisitionº of juristical Possessio, apprehension and animus are necessary. The possession of a corporeal thing is such a dealing with it as empowers the person who intends to acquire the possession to operate on the thing to the exclusion of all other persons. Actual corporeal contact with the thing is not necessary to apprehension: it is enough if there is some act on that part of the person who intends to acquire possession, which gives him the physical capacity to operate on the thing at his pleasure. Thus in the case of a piece of ground, he who enters upon part is considered to have entered upon the whole. A man may acquire possession of what is contained in a thing by delivery of the key which gives him access to the contents, in the presence of (apud) the thing. The case mentioned in the Digest (Dig. 18 tit. 1 s74) is that of the key of a granary being delivered in sight of the granary (apud horrea). The delivery of the key is not a symbolical delivery, as some have supposed, but it is the delivery of the means of getting at the thing (compare Lord Hardwicke's remarks on this matter, Ward v. Turner, 2 Vez.).

The animus consists in the will to treat as one's own the thing that is the object of our apprehension. All persons therefore who are legally incompetent to will, are incompetent to acquire a juristical possession. Infantes and furiosi are examples of such persons. If a man has the detention of a thing, he can acquire the Possessio by the animus alone; for the other condition has been already complied with.

In order that juristical possession may be acquired, there must always be the animus on the part of him who intends to acquire the possession; but the act of apprehension (corpus) may be effected by another as his representative, if that other does the necessary acts, and with the intention of acquiring the possession for the other, and not for himself (Paulus, S. R. V tit. 2 s1). There must be a certain relation between the person for whom possession is thus acquired and the person who acquires it for him, either of legal power (potestas), or of agency: the former is the case of a slave or filius familias who obeys a command, and the latter is the case of an agent who follows instructions (mandatum). A person, who is already the representative of another, and has the Possessio of a thing, may by the animus alone cease to have the Possessio for himself and have it for that other, retaining only the bare detention.

Possessio, that is the Right of Possession, can be transferred, without the transfer of owner­ship. In this case of derivative Possessio the apprehension is the same as in the case of acquiring a juristical possessio; but the animus with which the thing is apprehended, cannot be the "animus domini," but merely the "animus possidendi," that is, the will to acquire the Jus Possessionis, which the Possessor transfers, and nothing more. The Detention of a thing may be transferred without the owner­ship, but the transfer of the detention is not always accompanied by a transfer of the Jus Possessionis. There are three classes into which all acts may be distributed which are accompanied with a transfer of Detention: 1, those which are never the foundation of a derivative Possessio, 2, those which always are, and 3, those  p948 which are sometimes. The First class comprehends such cases as those when the detention of a thing if transferred to an agent (procurator), and the case of a Commodatum [Commodatum.] The Second class comprehends the case of the Emphyteuta, which is a Possessio, but only a derivative one, as the Emphyteuta has not the animus domini; it also comprehends the case of the creditor who receives the detention of a pignus by a contractus pignoris, and with the detention, the Jus Possessionis; but it does not comprehend the case of a Pignus praetorium, Pignus in causa judicati captum, nor a Pactum hypothecae. In the case of a contractus Pignoris, when the thing was delivered to the creditor, he had Possessio, that is, a right to the Interdicts, but not Possessio Civilis, that is, the Right of Usucapion. The debtor had no Possessio at all, but by virtue of an exception to a general rule, the usucapion that had been commenced, still continued. The Third class comprehends Depositum and Precarium.

The Right of Possession consists in the right to the protection of the Interdict [Interdictum], and this protection is also extended to Jura in re. The relation of the Juris quasi possessio to Possessio has already been explained. The objects of this Juris quasi possessio are Personal servitutes, Real servitutes, and Jura in re which do not belong to the class of Servitutes, of which Superficies is the only proper instance (Savigny, p525). In all the cases of Juris quasi possessio, the acquisition and the continuance of the right of possession depend on the corpus and animus; and the animus is to be viewed exactly in the same way as in the case of possession of a corporeal thing. The exercise of Personal servitutes (particularly usus and ususfructus) is inseparable from the natural possession of the thing; and the possession of them is consequently acquired in the same way as the possession of a corporeal thing. As to the Juris quasi possessio of Real Servitutes, there are two cases: either he who has a right to the Servitus, must do some act, which if he had not the right, he might be forbidden to do (servitus quae in patiendo consistit); or the owner of property has no right to do some particular thing, which, if the right did not exist, he might do (servitus quae in non faciendo consistit). As to the first class, which may be called Positive Servitutes, the acquisition of the Juris quasi possessio consists merely in doing some act, which is the object of the right, and the doing of this act must be for the purpose of exercising the right (Dig. 8 tit. 6 s25). This rule applies to the Jus Itineris, Actus, Viae, and others, which are independent of the possession of any other property by the person who claims the Jus. Such an act as the Jus tigni immittendi, or the driving of a beam into the wall of one's neighbour's house, is a right connected with the possession of another piece of property, and the possession of this right consists in the exercise of it. As to the second class which may be called Negative Servitutes, the Juris quasi possessio is acquired in consequence of the person whose right is thereby limited, attempting to do some act contrary to the right of the person who claims the servitus, and meeting with opposition to such act and acquiescing in the opposition (Dig. 8 tit. 5 s6). This Juris quasi possessio may also be founded on a legal title, that is, on any juristical transaction which can give such right.

Every possession continues so long as the corpus and the animus continue (Savigny, p339). If both cease or either of them ceases, the possession is gone (Dig. 41 tit. 2 s3.46). As to the corpus, the possession is lost, when in consequence of any event the possessor cannot operate on the thing at his pleasure, as before. In the case of moveable things, the possession is lost, when another person has got hold of them, either by force or secretly: in the case of immoveable things, it is lost when a man has turned another out of the possession; but if in the absence of the possessor, another occupies his land without his knowledge, he does not lose the possession till he attempts to exercise owner­ship over the land and is prevented by the person then in possession of it, or through fear does not attempt to recover his possession. The possession thus acquired by the new possessor is a violenta possessio. If the former possessor knows the fact and acquiesces by doing nothing, he loses the possession by the animus alone. In the case of possession being lost by animus alone, it may be effected either expressly or tacit­ly; the only thing necessary is that there must be an intention to give up the possession. The possession is lost corpore et animo, when the possessor gives up a thing to another to possess as his own. In the case of a Juris quasi possessio, as well as in that of Possessio proper, the continuance of the possessio depends on the corpus and animus together. There can be no Juris quasi possessio without the animus possidendi; and if there be merely the animus possidendi, the Juris quasi possessio must cease.

Possessio can be lost by means of a person who represents the Possessor. Such person may himself acquire the possession by exercising the animus possidendi, when it is accompanied with a sufficient corporeal act: in the case of moveable things, this is furtum; in the case of immoveable things, it is violent dispossession. The possession can be lost through the representative, in all cases in which it would have been lost by the possessor, if there had been no representation.

In many of the systematic expositions of Roman Law, the theory of Possessio is treated as introductory to the theory of Ownership (Dominium). The view which has here been given of it, is also not universally acquiesced in, but it is the correct view. For instance, Gaius in his chapter on Possession (System des Röm. Civilrechts im Grundrisse, &c.) begins with the two following sections:—

§ 103. Darstellung der verschiedenen herschenden Meinungen über den Besitz.— Der Besitz ist kein blosses Factum, und entsteht nicht als Recht, durch den umweg des Unrechts.

§ 104. Der Besitz als das Eigenthum nach der Seite des bloss besonderen willens. — Anfangendes präsumtives Eigenthum.

Savigny's view on the contrary is briefly this: "Possession is a fact (Factum), so far as a mere factish (unjuristical) relation (detention) is the foundation of it. But Possession is also a Right, so far as rights are connected with the bare existence of the relation of Fact. Consequently Possession is both Fact and Right."

Also — "The only Right arising from bare Possession is a Right to the Interdicts" — and "the Right to the Interdicts is founded on the fact of the Exercise of Ownership being obstructed wrongfully, as for instance, by force."

 p949  On what ground is bare Possession to be maintained, if it is not a Right? The answer is, that Possession cannot be disturbed except by force, and force is not allowed. The fundamental notion then is this; a violent disturbance of Possession is an attack on a man's personality, on his freedom.

It is shown in the article Agrariae Leges that the origin of the Roman doctrine of Possession may probably be traced to the Possessio of the Ager Publicus. Possessio, Possessor, and Possidere are the proper technical terms used by the Roman writers to express the possession and the enjoyment of the Public Lands. These terms did not express owner­ship (ex jure Quiritium): they had in fact no more relation to owner­ship than the Possessio of which this article treats. Still the notion of this kind of use and enjoyment was such, that one may easily conceive how the term Possessio became applicable to various cases in which there was no Quiritarian owner­ship, but something that had an analogy to it. Thus in the case of Damnum infectum, with reference to the second missio in possessionem (ex secundo decreto), the Praetor says "possidere jubebo," which is equivalent to giving bonitarian owner­ship with the power of usucapion. A ususfructus which could only be maintained by the Jus Parium, was a Possessio ususfructus as opposed to Dominium ususfructus. The expressions Hereditatis or bonorum possessio do not mean the actual possession of the things, but the peculiar character of the Praetoria hereditas: for this Bonorum possessio has the same relation to the Hereditas that Bonitarian has to Quiritarian owner­ship. [Dominium; Heres.] Now there is a clear analogy in all these instances to the Possessio of the Ager Publicus, which consists in this, that in both cases an actual exclusive enjoyment of a particular person to a particular thing is recognized. This will also explain how property in provincial ground came to be called Possessio: such property was not Quiritarian owner­ship, but it was a right to the exclusive enjoyment of the land, a right which the word Possessio sufficiently expressed. Thus the name Possessio was transferred from the Right to its Object; and Ager and Possessio were thus opposed: Ager was a piece of land which was the object of Quiritarian owner­ship, and Possessio a piece of land which was either accidentally an object only of Bonitarian owner­ship, as a fundus Italicus of which there had been merely tradition; or it was land that could not be the object of Quiritarian owner­ship, such as Provincial land (Javolenus, Dig. 50 tit. 16 s115), and the old Ager Publicus.

Other matters relating to Possessio appear to be explained by this view of its historical origin. The Interdictum recuperandae possessionis relates only to land, a circumstance which is consistent with the hypothesis of the origin of Possessio. The nature of the Precarium also is explained, when we know that it expressed originally the relation between the Patronus and the Cliens who occupied the Possessio of the Patronus as a tenant at will and could be ejected by the Interdictum de precario, if he did not quit on notice. Further, we may thus explain the apparent inconsistency in the case of a lessee of Ager Vectigalis, who though he had only a jus in re, had yet juristical Possessio: the Ager Vectigalis was in fact fashioned according to the analogy of the old Ager Publicus, and it was a simple process to transfer it to that notion of Possessio which had existed in the case of the Ager Publicus. [Emphyteusis.]

This article read in connection with the article on the Agrariae Leges, and the Licinian Rogations [Lex, pp693, 694], will give the reader an outline of the law of Possession both in relation to the Ager Publicus Privatus.

The preceding view of possession is from Savigny, Das Recht des Besitzes, fifth ed. 1827. There is an analysis of this excellent work by Warnkönig, "Analyse du traité de la possession par M. de Savigny, Liège 1824;" and a summary view of Savigny's Theory is given by Mackeldey, Lehrbuch, &c. II p7. See also Puchta, Inst. II § 224; Gaius, IV.138‑170; Inst. 4 tit. 15; Dig. 41 tit. 2, 3; 43 tit. 16‑23, 26, 31; Cod. 7 tit. 32; 8 tit. 4, 5, 69; Cod. Theod. 4 tit. 22, 23.

The Author's Note:

1 "Sedibus." — Ed. Flor.

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