Possession

(1) Nature of Possession

We have seen already that the distinction between real and personal rights has been very influential in the later civil law tradition. The same is also true of pos­session, and the distinction between it and ownership.

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(a) Ownership and Possession

In general usage, the word ‘possession’ is one with a fairly imprecise meaning, very much dependent on context. On the one hand, if I refer to my ‘possessions’, it is likely that I mean by that the things that I own. On the other hand, a person might be referred to as being in possession of stolen goods. We have already seen above that an acquirer of stolen goods gets no right to them. Accordingly, clearly the person who is in possession of stolen goods is not owner of them. There is, though, no contradiction in saying that that person possesses the stolen goods, for possession in this context denotes simply physically having the goods. Roman law is closer to this second meaning of possession, though it is rather more precise even than this, as we shall see below.

Roman law thus made a very strong distinction between having a right to an item of property on the one hand and, on the other, simply having the item. Unlike the position in, for example, English law,^[879] in Roman law nobody acquired ownership rights in a thing by simply having it. Equally, whether a per­son possessed an item of property was not determined by whether that person had any right to the thing. Ownership and possession are two separate things and, indeed, the jurist Ulpian went so far as to say that ownership ‘has nothing in common with possession’.^[880] This is not to say that possession was without legal consequences.

Scots law has been particularly strongly influenced by the Roman law in this area. Scots law, too, makes a clear distinction between possession and owner­ship, along Roman lines.^[881] As in Roman law, possession is ‘a distinct lesser right than property’,^[882] with important legal consequences but not in itself implying any entitlement to the property.

(b) Elements of Possession

Possession is dependent on acquiring physical control of the property, but this is not the end of the story. Not everyone with physical control of property is in possession of it. It was also necessary to hold the property with the right state of mind. Thejurist Paul said: ‘we acquire possession by body and mind, not by mind alone or by body alone’.^[883] From this, it is often said that there are two elements to possession, one physical (often called corpus, which means ‘body’) and one mental (animus·, or ‘mind’). It is doubtful whether the Romans themselves thought of it this way: in all of the surviving juristic writings, only Paul attempts to give a general account of possession with such a theoretical basis. Instead, the jurists tend to proceed on a case by case basis, considering on the specific set of facts whether a person does or does not possess. Nonetheless, the corpus/animus scheme has been influential and is generally followed in accounts of the Roman law of possession and in later systems influenced by it, including Scots law.

(2) Physical Element

The physical element of possession was based, as already noted, on control of the property. For this reason, it was said, two people could not separately possess the same thing.

This principle, though, became problematic when it was accepted that one person could possess through another's acts, as we shall see below. An example of this is a landlord retaining possession through a tenant. Normally, in such a case, the person with actual custody of the property was not considered to possess. In the example of a landlord and tenant, the tenant did not possess the property; instead, the landlord alone possessed. However, there were exceptions to this. For example, suppose that I give you a diamond ring as security for a loan of money that you give me.^[885] I still possess here, as you hold partly on my behalf. However, Roman law also gave possessory protection to you in this situation. The solution was to say that you possessed for the purposes of possessory protection,^[886] while I possessed for all other purposes.^[887]

(a) Land To possess land, it was necessary to have control of it. Thus, for example, there was no possession of land permanently covered by a river or the sea.^[888] A particular problem that arises with possession of land, though, is knowing the extent of that possession. After all, I can only stand on one spot at a time. The rule was that pos­session of a part of an area of land counted as possession of the whole, up to the boundaries of the land. It was not necessary to go around the whole of the land.^[889] The same approach is taken in Scots law.^[890] For example, in Bain v Carrick/'^[891] it was held that a farmer possessed up to the fence surrounding his land. In the same way, he did not possess a disputed strip of ground that was outside the fence of his land.

(b) Moveables

As with land, the physical element of possession of moveable things was satis­fied when control was gained.^[892] This was most easily shown by having the thing on one's person or in some secure place.

(c) Possession through Another

In modern law, it is quite possible to acquire possession through someone else. If an agent acting on my behalf acquires goods for me, it is clear in modern law that I immediately acquire possession of the goods through the agent's acts. The situation was different in Roman law, to some extent because Roman law never developed a law of agency in the modern sense.^[896] In modern law, as a general rule, the acts of my agent are considered in law to be my acts, and are treated as if I had carried out those acts personally. This is not so in Roman law. The clos­est equivalent in Roman law to an agency arrangement in the modern sense is the contract of mandate,^[897] in which one person (the mandatary) agrees to act on behalf of another person (the mandator). Where something was purchased by a mandatary on behalf of the mandator, the mandator did not acquire possession until it was actually delivered to him or her.^[898] This was the general position in classical law,^[899] although by imperial pronouncement an exception was made for acquisition of possession through someone acting as an agent with general authority.^[900] This exception was, however, interpreted narrowly.

Only in limited circumstances, then, was it possible to acquire possession through someone else's acts. The clearest cases arose from those in a person's potestas,^[902] such as slaves. The owner of a slave could acquire possession through the acts of the slave.^[903]

However, despite the difficulties of acquiring possession through another per­son’s acts, it was possible to maintain possession through another. For example, where the possessor of property leased it out or lent it to someone, possession would be retained even while the property was in the hands of the tenant or borrower.^[904] The point here seems to be that control is retained when someone else is holding on one’s behalf. Consistency would suggest the same should apply to the acquisition of possession, as it does in modern law, but this final step was never taken.

(d) Possession of Incorporeals

So far, we have been talking about possession in terms of physical control of the property. It may be thought, therefore, that possession is restricted to corporeal things, and indeed the jurist Paul is quite specific that only ‘those things that are corporeal can be possessed’.^[905] The general view among scholars of Roman law is to the same effect, and the same view is common in modern legal systems.^[906] All the same, the apparent exercise of certain rights was protected in much the same way as was possession of corporeal property. For example, we shall see in Chapter 13 that Roman law recognised a type of right, called a servitude, which allowed the owner of one area of land to make some limited, specified use of neighbouring land. A right of way over the neighbour’s land is an example of this. In certain circumstances, a person using land as if authorised by a servitude could obtain protection from the praetor in much the same way as someone pos­sessing the land itself.

In these situations, the party entitled to protection from the praetor is often said to have had ‘quasi-possession’,^[907] a name reflecting both the similarities in the nature of the protection given and also the reluctance to recognise this as involving possession. These cases will be considered in more detail later.^[908]

(3) Mental Element

(a) General Account

Not everyone who was in control of a given item of property possessed it. As well as the physical element of control, possession also had a mental element. It was necessary to have the intention to possess the property. Thus, if I am on a friend's land ‘by right of friendship', I do not intend to possess and do not possess.^[909] Similarly, the insane and young children cannot take possession, as they are not capable of forming the necessary intention.^[910]

Even then, though, not all of those with intentional control of the property were held to possess, even if they held on their own behalf. The point here is that not every kind of holder qualified for protection by means of the possessory reme­dies (considered below). From this point of view, the mental element of possession can be defined as the intention to hold on a basis justifying possessory protection.

Someone holding in the manner of an owner certainly had possessory protec­tion. Furthermore, because possession was distinct from ownership, and depended on a factual relationship with the property rather than having any kind of right to the property, such a person possessed even if not actually owner. Indeed, even a thief would have possession as long as he or she had the property. The reason for this is that the thief is treating the property as if it is his or her own.

Those holding on a different basis normally did not possess, whether they held by arrangement with a possessor (such as a tenant or hirer of property) or otherwise (such as a finder of lost property who was keeping it safe until the owner appeared).

We have seen already that a pledge creditor (i.e. a creditor holding a debtor's property as security for a debt) had possession, and so was protected against dispossession, whether by the debtor or anyone else. The same was true of one purportedly exercising a right of emphyteusis (see below).

Another example of a possessor is the precarist. This was the grantee of a precarium, or licence to use property until permission is withdrawn.^[911] It could be revoked at will, and the praetor allowed an interdict (the interdict de precario) for restoration of the property.^[912] The precarist was considered to possess the prop­erty as long as the precarium lasted,^[913] and so had possessory protection.^[914]

Another possessor was the sequester,^{[915] [916] one who held property on the basis of sequestratio.122 This was a form of contract of deposit,[917] in which the parties to a dispute over an item of property deposited it with the sequester. The sequester was then to hand it over to the appropriate person when the dispute was resolved.}

In all of these cases, it is important to bear in mind that it was not relevant for the purposes of possession whether the holder actually had a valid right in the property. For example, if I take an item in pledge from a non-owner, I will have no valid right of pledge. However, because actual right to the property is not considered in possessory proceedings, I will nonetheless have possession.

We see then that some with physical control of property were not considered in law to possess it. We need, therefore, to distinguish between those holders who possess and those who do not. Unfortunately, though, the Romans did not develop consistent terminology to express this distinction. Sometimes, the term ‘civil possession' (civilispossessio) is used for possession in the sense meant here, of a holding of property that is protected by the possessory remedies outlined below. The holder who does not have that protection is said to have ‘natural possession' (naturalis· possessio). This has the disadvantage, though, of calling someone a pos­sessor who does not have the protection of the possessory remedies.^[918] It is also confusing to Scots lawyers, for whom natural and civil possession mean some­thing different.^[919] Here, instead, the term ‘possession' will be used for the cases where a person meets the requirements for possessory protection, in other words where the person fulfils both mental and physical requirements for possession. A person who holds property without the necessary state of mind for possession will be referred to simply as having detention. A person who has detention only does not qualify for possessory protection.

(b) Theories of Animus

The meaning of the mental element of possession in Roman law is a subject of long-standing debate.^[920] It is not easy to explain in theoretical terms why one par­ticular type of holder is said to be a possessor and another is not. The two leading attempts at theoretical explanation were developed in the nineteenth century by the German scholars Savigny^[921] and Jhering.^[922]

Savigny, relying primarily on texts taken from the writings of the jurist Paul, argued that possession depended on the holder of the property having animus domini, the intention to hold as owner. The person primarily entitled to be called possessor is the person who is holding the property as if owner. Those cases where someone else is called a possessor are examples of ‘derivative possession'.

Jhering criticised Savigny's reliance on Paul.^[923] ForJhering, there was no sepa­rate, free-standing mental element in possession, beyond the simple awareness of having control of the property. Instead, for him, any conscious holder of prop­erty was considered in principle to be a possessor. Those holders who were not considered to be possessors were excluded for policy reasons. Rather than paying attention to the holder's subjective state of mind, then, for Jhering it was more important to know the objective basis on which the property was held.

Both approaches have had their supporters, but it is unlikely that very many people would give either their unqualified support. The major difficulty with Savigny's approach is that it cannot explain satisfactorily those cases where some­one holding otherwise than as owner (e.g. as pledgee) is held to have possession. On the other hand, Jhering's theory cannot explain why, for instance, a usufruc­tuary was not said to possess.^[924]

It seems most likely that the fundamental problem with both approaches is that they were looking for something that was not there to be found. Arguably, there is no grand unifying theory that can explain why some holders are possess­ors and others are not. On this view, to be a possessor is simply to be someone who has the protection of the possessory interdicts, and it is not possible to go further than that in terms of principle.

Matters are more straightforward in modern Scots law. As Stair says, posses­sion is based on the coming together of an ‘act of the body' and an ‘act of the mind'.^[925] Thus far, Scots law follows Paul and anticipates Savigny.^[926] However, the existence of anomalous cases that then have to be accounted for is avoided by stating the mental element in general terms: ‘the inclination or affection to make use of the thing detained'.^[927] Thus, in modern Scots law, anyone holding on his or her own behalf is a possessor, and is entitled to possessory protection. This includes holders recognised in Roman law as possessors, such as pledgees. It also, though, includes many holders not recognised by the Romans as possessors, such as tenants.

(c) Changing Animus

As a general principle, the view was taken from an early period^[928] that, having begun to possess on one basis, a person could not change to possessing on a differ­ent, more beneficial, basis.^[929] This rule, the purpose of which is not entirely clear, was however interpreted narrowly. For example, Paul gives the example of a person lending an item to someone, and then gifting or selling the item to the borrower. In those circumstances, the recipient could begin possessing as owner, even though he or she already had physical custody.^[930] Likewise, the jurist Marcellus gives the example of a person possessing land as if owner, then taking a lease from the actual owner. As a tenant was not held to possess, possession was lost when the lease was granted.^[931] It seems, then, that a holder of property could change the basis of his or her holding in a way that caused either the loss of possession altogether, or the acquisition of possession where it had not existed before, even if it was not possible to change from one basis of possession to another.

(4) Loss of Possession

We saw above that possession was acquired through physical control coupled with the necessary state of mind. The jurist Paul said that Just as no possession can be acquired except by mind and body, in the same way none is lost until both elements are lost.'^[932] This, though, does not seem to reflect the actual approach taken. In fact, possession could be lost where only one element was lost. For example, suppose that an owner of land sells that land on condition that the buyer will lease it back to him.^[933] The seller remains in occupation throughout. However, because a tenant does not have the necessary mental state for posses­sion, the seller loses possession.^[934] This is the case even though, here, physical control is retained.^[935]

It seems, therefore, that possession was lost if either the physical or the mental element of possession was lost. Physical control did not, though, have to be exer­cised constantly. An example given by the jurist Paul is of summer and winter pastures, which are still possessed even though they are not used at certain times of year.^[936] The key points are the intention and the ability to return. A moveable item that has been mislaid is still possessed, as long as it can be found through a diligent search. If, however, the item is lost beyond reasonable hope of recovery, possession is lost.^[937] An example would be a purse dropped in a busy street, the absence of the purse not being discovered until later.

Because two people could not separately possess the same property, posses­sion would be lost if someone else took possession of the property. An example would be squatters entering a house and taking up occupation during the owner's absence. Somewhat inconsistently,^[938] though, the position reached was that the owner in this case would not lose possession until he or she was excluded from the property on his or her return,^[939] or else the owner heard what had happened and decided not to return to the land out of fear.^[940]

It is important to understand that, just as possession does not in and of itself give any right to the property, equally the loss of possession does not directly affect anyone's rights. An example given by thejurist Pomponius is of stones lost in the River Tiber^[941] in a shipwreck.^[942] Possession of the stones is lost, as the ability to resume control at will has been lost. However, ownership is not lost. Accordingly, if the stones are subsequently recovered from the river, the owner who lost them is entitled to get them back.^[943] Equally, where an owner of land is excluded from that land by someone else, ownership of the land is unaffected even though possession is lost.

(5) Protection of Possession

The jurist Paul described possession as ‘a matter of fact, not of right'.^[944] In one sense, this is true (and from context this appears to be the sense that Paul is intending): possession arises from a factual situation, rather than being dependent on having any right to the property. If, though, Paul's words were taken to mean that posses­sion did not have legal consequences or that it was not protected, that would be false. Although possession did not give of itself any right to the property, a possessor was nonetheless protected against dispossession. This possessory protection will be discussed in more detail below. However, to state the principle in general terms, a possessor was normally entitled to keep possession of the property until anyone disputing the possessor's claim established a better right to the property through the proper legal process. A person claiming to have a right to the property was not entitled simply to take the property from the current possessor. Matheson v Stewart^[945] gives an example from Scots law, which also accepts this principle, although in a dif­ferent procedural form. In Matheson, there had been a sale of an area of land from a larger area. There was a dispute between the buyer and seller over the question of whether a particular piece of land was included in the sale. Without the agreement of the seller, the buyer simply moved into this area. The court ordered that posses­sion be restored to the seller. It is important to understand here that the court made no decision on who was right on the question of entitlement to the disputed piece of land. That was irrelevant in proceedings on possession. If the buyer thought that this piece of land was included in the sale, the appropriate course was for him to go to court to demonstrate that. The seller was entitled to be undisturbed in his posses­sion until that question was determined.

Given that even a thief qualified as a possessor of the property he or she had stolen, this may seem surprising. However, it is a consequence of the separation between possession and ownership that is characteristic of Roman property law and the systems based on it, and the principle that possession is protected apart from ownership has been received into Scots law and other modern systems.^[946] So, suppose that Quintus has stolen a vase from Publius. Subsequently, Marcus breaks into Quintus' house and removes the vase. Even though Quintus is himself a thief, his possession is nonetheless protected against Marcus, and Quintus will be entitled to have the vase restored to him. It is important to bear in mind, though, that possession gives no ultimate right to the property. In the end, assuming that he can prove ownership to the satisfaction of the judge, Publius will be entitled to the return of the vase.

As to the justification for this possessory protection, one approach is that taken by Justinian in the Institutes.^[947] Here, the settling of the question of possession is presented as simply the initial stage of the enquiry into ownership. Before asking questions about ownership, it must be decided which party is to raise the action and which defend it.

That, though, does not explain why a thief is protected. Nor does the expla­nation, favoured by Jhering, that the current possessor is most likely to be owner. As one writer puts it, ‘the person who has possession usually has good title to the thing, so protection of possession is protection of the right to the thing'.^[948] No doubt this is true in general, but we are concerned here with the special circumstance that the right to the thing is disputed. There is less reason to make assumptions in favour of the possessor here.

An alternative view, espoused among others by Savigny, is that the purpose of possessory protection is to discourage self-help. If I believe that the property you have in your possession is actually mine, the proper way to recover it is to seek your consent, failing which I should go to court to have you ordered to hand the property over. I should not simply take it from you against your will. As Cicero, an advocate of the late Republic, said:

The collecting of men together because of a disputed ownership is not right: the arming of a mob in order to maintain a right is inexpedient: nothing is so inimical to private rights as force, nor anything so hostile to public justice as that men should be collected together and armed.^[949]

In other words, the public interest in the preservation of peace trumps my right simply to retake possession. This view of the matter has been influential in Scotland. As Stair said:

by equity, every man might at any time recover the possession of that which is his own, by force... but civil society and magistracy being erected, it is the main foundation of the peace, and preservation thereof, that possession may not be recovered by violence, but by order of law...^[950]

(6) Additional Rights of a Good Faith Possessor

In addition to being protected against dispossession by improper means, a possessor who is in good faith has certain further rights. We shall consider first what is meant by good faith, before looking at what these further rights are.

(a) What Is Good Faith?

In its essentials, good faith (in Latin, bona fides) means simply lack of knowledge of another person's right.^[951] A person possesses in good faith if that person possesses in the honest belief that he or she is entitled to the property. The Roman texts contain little analysis of the concept, however, and so there is room for debate as to whether good faith is judged by an objective or a subjective standard.^[952] An objective standard would require that the holder have objective grounds for the belief, or in other words that the belief be reasonable. Modern Scots law applies an objective standard, as we see in Erskine's statement that the good faith possessor is one who ‘believes himself proprietor upon probable grounds, and with a good conscience'.^[953] A subjective standard, by contrast, would judge someone to be in good faith if the belief was honestly held, even if unreasonably so.^[954]

The jurist Ulpian tells us that good faith is lost when the possessor becomes aware of a contrary right.^{[955] [956] In real life, though, things will not always be so clear-cut. For example, suppose that I am in possession of an area of land in the genuine and reasonable belief that I am owner. You turn up and claim that you in fact own the land. Assuming that you are right, do I lose my good faith simply because I am aware of your potential claim? Or do I cease to be in good faith at some later point, perhaps when I have had time to consider the situation, or when you have begun proceedings to prove ownership, or at litis contestatio16 in those proceedings? Alternatively, do I only cease to be in good faith when the issue of ownership is finally determined by the court? Depending on the circumstances, and in particular the relative strengths of our cases, justification could be given for any of those possibilities. In modern Scots law, the matter is subject to the discretion of the court, depending on the circumstances of the particular case.[957]}

(b) Fruits

We have already seen the notion of ‘fruits', meaning the produce of property. Although these normally belonged to the owner of the property,^[958] there was an exception for good faith possessors. One who possessed property in good faith had, as we have seen, no right to keep the property itself. However, the good faith possessor acquired a right to the fruits.^[959] This right was given, says Justinian, ‘by natural reason',^[960] on account of the work involved in cultivating the fruits. It was not, though,^[961] restricted to fruits that the possessor had in fact expended effort on.

An alternative justification is the one adopted in Scots law:

they who enjoy that which they think their own, do consume the fruits thereof, without expectation of repetition^[962] or account... and if it were otherwise, there would be no quiet or security to men's minds, who could call nothing securely their own, if the event of a dubious right might make them restore what they had consumed bona fide; and as this is in favour of the innocent possessor, so it is in hatred of the negligence of the other party not pursuing his right.^[963]

In other words, where the true owner has stood by and allowed the possessor to treat the property as his or her own, it would be unfair to make the possessor account for the benefits received from the property. This is especially so given that, had the possessor considered the position doubtful, he ‘would probably have lived more sparingly' and now, by having to compensate the owner, ‘might, without the least blame imputable to him, be at once reduced to indigence'.^[964]

In the Justinianic law, the good faith possessor's right was limited to the fruits that had been consumed, and unconsumed fruits had to be restored to the owner of the property.^[965] In other words, in the Justinianic law, the good faith possessor was not given ownership of the fruits, but instead simply had a defence to a claim for consumption of fruits. In the classical law, though, it seems that the good faith possessor acquired ownership of the fruits as soon as they were separated from the property, and did not have to restore unconsumed fruits.^[966] Scots law follows the classical position.^[967]

(c) Improvements

In Scots law, where a possessor in good faith of another's property builds on or otherwise improves the property, the improvement is considered to be part of the property and so belongs to the owner of the property. However, the good faith possessor is entitled to be compensated for the value of the improvement, and is entitled to retain the property until that compensation is paid.^[968] The Roman position is similar, but not quite the same. In Roman law, the good faith improver did, if in possession, have a right to retain the property until the owner paid the cost of the labour and materials, and had a defence^[969] against any attempt by the owner to recover the property without paying up.^[970] However, it does not appear from the material available to us that the good faith improver could directly sustain an action for compensation. If the owner did not want to pay compensation, and was willing to forgo the property, there was no way of making the owner pay up.

Alternatively, the good faith improver could remove any improvements made, as long as this was done without harming the property, and it was done reasonably and without malice.^[971]

(d) Actio Publiciana

A further form of protection was available to possessors in good faith, in the form of the actio Publiciana}^[972]’ There is no equivalent to this in Scots law, so it is only considered briefly here.

As we have seen, if I buy property from you, I only become owner if you were owner. This is the case even if I am in good faith. However, we shall see in Chapter 12 that it was possible in certain circumstances for an acquirer in good faith to become owner after possessing for a period of time. This form of acquisition was known as usucapio.^[973] The praetor introduced the actio Publiciana to protect good faith possessors in the course of acquiring by usucapio. The actio Publiciana was similar to the rei vindicatio, the standard action for a claim of ownership, but included a fiction that the possessor had had the property for the required period for usucapio.¹⁸ The actio Publiciana was available to the good faith possessor against anyone except the actual owner.^{[974] [975]}

E.