Introduction
The Roman jurists drew a distinction between possession (possessio), meaning actual control over a thing, and ownership (dominium, proprietas) as the legal right to the thing: “Ownership and possession have nothing in common” (Ulpian);[9] “[Possession] is properly a factual, not a legal, issue” (Ofilius and Nerva the son).[10] Legal consequences, however, did attach even to mere possession, especially in its most significant manifestations: possession protected by “interdict” and possession leading to “prescription.” These forms of possession could sometimes prevail even over the claims of a non-possessing owner, as in the following situations: (1) In order to preserve societal peace, the legal order must restrict the use of self-help in pursuing a legal right.
That means that even wrongful possessors were given temporary protection (by the process of “interdict”) against intrusion by third parties or even by the rightful owner himself.[11] (2) In order to settle disputed or uncertain legal claims, the legal order allows good-faith, undisturbed possession over a prescribed period of time to ripen into ownership (by “prescription”).[12]Moreover, whoever wishes to transfer ownership to a res nec mancipi must provide possessio of the thing to the acquirer by means of traditio ex iusta causa (delivery pursuant to a recognized basis for acquisition, such as sale, gift, etc.). If the owner has lost possession of his property, he can sue to have the possessor surrender the property.
Because of the important legal consequences that attach to possession, the Roman jurists gave special attention to the processes of acquiring possession and losing possession.
The doctrine of the classical Roman jurists regarding acquisition and loss of possession is to be found chiefly in Title 41.2 of the Digest, entitled “Concerning the Acquisition and Loss of Possession.”[13] [14] As a guide to the creation of this title Justinian’s compilers used Book 54 of the Commentary on the Praetor’s Edict by the late classical jurist, Paul.
Paul begins his discussion of acquiring possession with detailed statements regarding who has the capacity to acquire possession. (D 41.2.1.2-22; D 41.2.2) Compare, for example, D.41.2.1.2-3: “We acquire possession through ourselves.
A lunatic or ward acting without the authority of his guardian cannot commence to possess”[15] with D.41.2.1.5: “Likewise we acquire possession through a slave or a son who is in paternal power.”[16] Then he gives a brief indication of what can be possessed. D.41.2.3 pr.: “Things that are corporeal can be possessed.”[17] Finally he turns to the means; i.e., how one acquires possession. D.41.2.3.1: “We acquire possession ‘corpore et animo’ [with body and intent].”title="">[18]We shall begin our discussion of possession with the means (types of acquisition) and at the conclusion take up the topic of capacity to acquire possession.
A.