Introduction
Loss of possession is dealt with in the same title of the Digest as acquisition of possession: D 41.2 de adquirenda vel amittendapossessione [“Concerning the Acquisition or Loss of Possession”].
Attempts at systematic theoretical treatment recur in the late classical jurists.Paul D 41.2.8 believes that possession would be lost in the same way as acquired: corpore et ammo,[94] although the limited application of this principle soon reveals itself. Frequently the loss of just one element (e.g., the physical relationship in situations of involuntary loss of possession; the possessory intent in certain cases of voluntary surrender of possession through delivery of property) can already by itself bring about the end of possession.
As with acquiring possession, the issue of the physical relationship necessary for keeping possession will be examined through cases. From these there emerges a more flexible conception of physical relationship than that which applies to acquiring possession. Indeed, despite great attenuation of the physical relationship, any spatial connection can serve to preserve possession (e.g., of summer and winter pasturage, and especially of fugitive slaves).
Naturally the possessory intention plays a particularly important role in this connection. Paul's longer discussion of the element of intent in bk. 54 ad edictum [“On the Praetor's Edict”] was reproduced by the compilers in obviously abbreviated form at D 41.2.3.6-11.[95] The structure of the late classical overlay comes out most clearly from an (also abbreviated) excerpt of the Papinian tractate at D 41.2.44.2ff (Case 51). According to the latter, one must distinguish in regard to loss of possession whether (1) someone possesses the property itself corpore et animo; or (2) whether the physical relationship is established through an intermediary (possessio animo nostro, corpore alieno); or (3) whether someone retains the possession solo animo.
Because of the grave consequences of losing possession (interruption of prescription, loss of the advantageous position in litigation over ownership, dependency of acquiring possession through a slave on having possession of the slave, etc.), the Roman jurists made great efforts to enable the preservation of possession for as long as possible. This protection of the possessor following the loss of physical control must have come into conflict with the principle of possession as actual control over the property.
Juristic controversies and divergent interpretations resonate in the sources, but the lines of development are recoverable only with difficulty, if at all.Literature:
Rabel, Ernst. “Zum Besitzverlust nach klassicher Lehre,” in Studi in Onore Di Salvatore Riccobono Nel XL Anno Del Suo Insegnamento, vol. 4, Salvatore Riccobono and Giovanni Baviera eds. Palermo: Arti grafiche G. Castiglia (1936) 203 ff. (reprinted in Gesammelte Aufsätze IV [1971] 580 ff.).
Wieacker, Fr. “Der Besitzverlust am Den Heimlichen Eindringling,” Festschrift Für H. Lewald. Basel: Helbing & Lichtenhahn, 1953, 185-200, at 185 ff.
Moehler, R. “Der Besitz am Grundstück, Wenn der Besitz es verlässt.” ZRG 77 (1960) 52-124.
MacCormack, G. “The Role of Animus in the Classical Law of Possession.” ZRG 86 (1969) 105-145.
Ankum, Hans. “Das Verlassen von Liegenschaften.” ZRG 114 (1997) 402-422.
A.