POSSESSION

The nature of possession

In Roman law, a fundamental distinction is made between ownership and possession. Indeed, the jurist Ulpian goes as far as saying that “ownership has nothing in common with possession” (D.41.2.12).

“There is an obvious distinction in ordinary language between having a thing and being entitled to it. The thief is not entitled to what he has stolen but he nevertheless has it, and conversely the man who has pawned his ring is still entitled to it but the pawnbroker actually has it.”

This distinction, between ownership and possession, is fundamental to understanding Roman property law. It is not always easy, however, to under­stand whether a person is in possession of property.

Acquisition and loss of possession

There are two elements in possession, the physical (corpus) and the mental (animus), and possession is acquired when the two coincide:

“Now we take possession physically and mentally, not mentally alone or physically alone.” (Paul, D.41.2.3.1)

The physical element of possession requires some degree of physical control over the property. This control need not, however, be absolute. Thus, in the case of land, possession of a part will be equivalent to possession of the whole.

Mere physical holding, however, will not give possession in itself. One must also hold the property with the necessary state of mind. One must normally also have the intention to hold the property as owner — one must have animus domini. However, some other holders, such as creditors holding a debtor’s property on pledge, were also classed as possessors. On the other hand, a usufructuary did not have possession. The rationale for this is not entirely clear.

The juristic writings in the Digest likewise do not give a clear rule on how possession is lost.

“Just as no possession can be acquired except physically and with intent, so none is lost unless both elements are departed from.” (Paul, D.41.2.8)

However, there are texts contradicting this. For example, it is stated elsewhere that one can lose possession of a thing by losing the intention to possess even though physical control is retained. An example of this might be if I sell my land to you but we agree that I will remain as a tenant. As a tenant does not have possession, I would lose possession in this case.

The rights of the possessor

Possession is significant because it has consequences in the law, most notably in being protected. As with the distinction between real and personal rights, this again arises from the rules of procedure. If there is a dispute over who is entitled to a particular piece of property, it will be necessary to decide who is to retain the property pending resolution of the dispute. Normally, the party with possession would be left in possession until the dispute was resolved. However, it is possible that the other party would try to pre-empt the legal process by seizing possession. In order to avoid such action, the law introduced various remedies to protect the possessor. More details are given below. However, the general effect of these was that, as long as the possessor had not acquired possession vi, clam aut precario (by force, stealth or licence) from the other party, he was entitled to retain possession until a better right to the property could be shown. If he was dispossessed, he was entitled to be restored to possession pending legal proceedings.

This remedy was, however, available only against the dispossessor: as we have seen, by the act of dispossession possession is lost, and with it the possessory remedies. Thus, if the dispossessor sold the property to a third party, the original party dispossessed would have no remedy against that third party.

If in good faith, the possessor was entitled to retain any fruits of the property as long as good faith lasted. By “fruits” was meant both natural fruits (fructus naturales), such as things growing on land and the young of animals, and civil fruits (fructus civiles), meaning rents and other profits derived from the property. If he made any improvements to the property, the good faith possessor was entitled to retain the property until he was compensated for his expenses. If the property was damaged through some person’s fault, the good faith possessor was entitled to an action under the lex Aquilia (see Chapter 8) for the loss of the value of these rights.