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tion and the animus domini. No one possesses who has not the exclusive physical power of dealing with an object, coupled with the intention of dealing with it as his own against all the world; the presence of these two marks entitles the person in whom they are united to the protection of interdicts. This possession, as distinct from detenlion, is called in the authorities most frequently possessio simply, but sometimes also possessio civilis (e.g. Dig. 41. 2. 24; 10. 4 7. 1; 45. 1. 38. 7); Savigny terms it 'possessio ad interdicta;' we shall call it uniformly Possession.
In respect of four cases the preceding statement requires a slight modification. Possession is ascribed in the Digest to the emphyteuta (22. 1. 25. 1), the pledgee in a pignus (41. 3. 16), the sequester or stakeholder (16. 3. 17), and ordinarily to the precario rogans (43. 26. 4. 1), yet in no case can they be said to have the animus domini, for they all recognise and respect the dominium of another person. In these cases, then, for the animus domini the law allows the substitution of an animus alienam possessionem exercendi; they are termed by Savigny cases of derivative or representative possession, and are clearly distinguishable from those of the agent, borrower, ordinary bailee, hirer, usufructuary, and the missus in possessionem (Dig. 41. 2. 3. 23; ib. 10. 1), none of whom have more than Detention.
Possession is acquired by the production of its two elements, viz. corpus or factum (when this alone is present there is detention) and animus; 'adipiscimur possessionem corpore et animo, neque per se animo aut per se corpore ' Dig. 41. 2. 3. 1. The act by which corpus, the physical control, is produced, is called usually apprehensio, or, where effected with the consent or co-operation of the prior holder, traditio. Apprehensio of immoveables most commonly takes the form of actual presence upon the land (Dig. 41. 2. 3. 1), but actual entry is not necessary if one stand near enough to overlook it all, for here one's control over it is as great as if one had actually entered (Dig. 41. 2. 18. 2). Nor, to 'apprehend' moveables, is it strictly necessary to grasp them with the hand; it is sufficient if the thing could at any moment be so actually grasped as to give the exclusive control (Dig. loc. cit. 1. 21); in both cases it is not the nearness, nor even the presence, of the object which constitutes corpus, but the capacity of physical control to the exclusion of all others; thus, a man has not detention of objects placed in his house, if it is in the occupation of another, e. g. a lessee.
The animus domini will of course usually precede, as well as accompany, apprehension. But sometimes it arises later: e. g. a
person has merely Detention, without the animus; he then determines to hold for himself exclusively; the Detention is converted into Possession (for the analogous case of detention passing into dominium see Title 1. 44 supr.). Where A has detention of an object which B possesses (e. g. if he is B's lessee), and it is then agreed that A shall possess instead of detain, A becomes possessor ipso facto. This is called traditio brevi manu; but the sole will of a person who detains by permission or on behalf of another cannot, by itself, give him Possession: see (3) p. 326 inf.
The animus domini implies volition; hence from lack of this power the following classes cannot acquire Possession: (1) Juristic persons, Dig. 41. 2. 1. 22; (2) persons of unsound or weak intellect, ib. 1. 3;
(3) pupilli of tender age, unless they have their guardians' auctoritas;
(4) persons in potestas, or manus, cannot acquire more than Detention; for, being incapable of holding property, they are incapable of animus domini, except in relation to peculium castrense or quasi castrense; 'qui in aliena potestate sunt, rem peculiarem tenere possunt, habere et possidere non possunt, quia possessio non tantum corporis sed et iuris est ' Dig. 41. 2. 49. 1. Again, certain things are excluded from possession on this ground, viz. res extra commercium; and the animus domini is inconceivable in relation to an object which carinot itself be conceived as a single individual thing. Hence the question arises, how far is it possible to acquire Possession of a single part of a whole? Where the single part is to be possessed alone, this is possible (1) where the part is in point of fact a whole itself: e. g. a plot of land of definite extent, which the previous possessor happens to have treated as part of a larger whole: and (2) where the division of the whole into parts is merely intellectual, provided the ideal part to be possessed is precisely conceived as a definite fraction of that whole. But where the part is to be possessed in and through the whole, the rule is, that though the whole is possessed, the parts individually are not. For applications of this principle, which is of great importance in the usucapio of buildings, see Poste, Gaius pp. 647-8.
We can also acquire Possession through other persons as well as through ourselves. For this the following conditions must be satisfied:
(1) The other person (whom for convenience sake we will call the agent) must have Detention, and also intend to acquire Possession for the principal.
(2) The principal, or would-be possessor, must intend to acquire Possession through the other, though this intention will be implied where that other is his own slave acquiring ex peculiari causa, a guardian, curator, or the agent of a juristic person.
(3) There must be a certain legal relation between principal and agent. Possession can be acquired through slaves by the dominus (provided he possesses the slave), the bona fide possessor, and the usufructuary; through filiifamilias by the pater (for persons in manu or mancipio see Gaius ii. 90); through guardians or curators by the ward, and through free agents by any principal who has previously given them a commission, or who has subsequently ratified their acts (Dig. 41. 2. 1. 20; ib. 9. 34. 2). Where the agent already has possession of the object prior to his commission, the mere subsequent exercise of will turns his possession into detention; the possession vests immediately in the principal. This, which is the converse of traditio brevi manu, is called constitutum possessorium.
Possession already acquired is retained by the continuing presence of its two elements; but the law does not require for its retention so much 'energy' (so to speak) on either side as for its original acquisition: see Poste, Gaius pp. 646-7. The question how possession is retained is practically equivalent to that how it is lost; and it is lost by the cessation of either corpus or animus domini: 'quemadmodum nulla possessio adquiri nisi animo et corpore potest, ita nulla amittitur nisi in qua utrumque (i. e. aut utrumque aut alterutrum, Sav. Possession § 30) in contrarium actum est' Dig. 41. 2. 8. Corpus ceases so soon as the possessor loses his ability of dealing with the thing himself, and of preventing others from dealing with it; this may occur by its destruction, by his altogether forgetting where it is, or losing it from beyond his reach (except in the case of a runaway slave, who is possessed till some one else possesses him, or unless he bona fide believes himself free, Dig. 41. 2. 13. pr.); by its being stolen, or being taken in possession under a magisterial decree; by the possessor's being taken captive, or by the thing itself ceasing to be in commercio. In order to lose Possession animo solely, more is required than a mere cessation of the previous mental attitude; there must be a new determination of the will, an animus in contrarium actus, a deliberate desire to transfer or abandon possession. Consequently, persons of weak or unsound mind and pupils cannot lose Possession animo solo. In many cases of course Possession is lost animo et corpore simul; viz. in abandonment, conveyance, manumission of slaves, and violent ejectment from land on which the rejected person fears to reenter.
As to loss of Possession through agents, it should be observed, (i) That mere intention of the principal no longer to possess is sufficient; Detention may remain, but one of the elements of Possession, animus, has ceased to exist. (2) On the other hand, if, though the principal no longer has Detention, his representative has, the Possession is not terminated: 'si quis me vi deiecerit, meos non deiecerit .... per eos retineo possessionem' Dig. 43.16. 1. 45: nor is it lost even by cessation of the representative's Detention, unless Detention becomes physically impossible, or Possession is assumed by some one else. (3) For the representative to convert his own Detention into Possession, there must be either traditio brevi manu (contrarius animus on the part of the principal), or (Dig. 41. 2. 3. 18) some contrectatio on the other's part amounting to furtum.
(4) Misdealing by the agent (i.e. conveyance or abandonment) does not terminate the Possession unless another party directly assumes it .
(5) Mere termination of the relation of principal and agent does not, in itself, extinguish the Possession, Dig. 41. 2. 38; ib. 25. 1; ib. 40. 1.
A question which has been much discussed is why Possession, apart from bona fides and title, came to be treated as a right, and protected by legal remedies. To this Savigny answers, that the violation of Possession, being in itself no wrong, can originally have been redressed only because it went hand in hand with some violation of an actual right, and that full justice could not have been done in the matter of this latter violation, unless at the same time the Possession were protected. All the possessory interdicts, he says, presuppose some wrongful act. In cases of violent dispossession this is obvious; but even where there is no violence the idea is the same; e.g. in the application of the interdict de precario there is the wrongful act of abusing another person's good nature: cf. Holland's Jurisprudence, p. 130. On the historical question, in what connection the necessity of legal protection was first felt, Savigny adopts the theory of Niebuhr, that possessory interdicts were originally devised in order to guard the interest of the individual citizen in the ager publicus, which the State permitted him to occupy and enjoy, and were subsequently extended to the Possession of private property, moveable and immoveable. In support of this it is pointed out that possessio and possidere are very uniformly used to technically denote this kind of occupation, and that the interdicts recuperandae possessionis relate only to immoveables; other arguments are derived from the known facts of precarium and emphyteusis (Savigny, Possession § 12 a). A different view is taken hy Puchta, who connects the earliest protection of Possession with the primitive form of Real Action. In this, both plaintiff and defendant were, until decision of the suit, regarded by the law as equally entitled to the dominium. It was necessary, however, that one of them should be magisterially instated in the possession of the disputed property pending litigation, and we learn from Gaius (iv. 16) how such interim possession was awarded. Having been magisterially awarded, it must also be magisterially protected, and this was done by an interdict; a remedy which came subsequently to be used for the protection of all Possession, independently of a pending suit.
Mr. Hunter (Roman Law pp. 195-222) believes that Possessio entirely changed its meaning in the course of Roman legal history. In origin he connects it with the technical incapacity of aliens to own property iure civili rather than with the occupation of ager publicus, and maintains that it properly means Equitable or Gentile ownership. When, after the edict of Caracalla, all subjects of the Empire practically became cives, its functions, in this connection, were exhausted, and it 'came to have precisely the same meaning that it has in every system of law; it is a temporary separation between the person exercising rights and the person invested by law with rights.'
There is no evidence of this change of meaning, and nothing to show that the Roman lawyer's idea of Possessio differed in the time of Justinian from what it had been in that of Cicero, or that he conceived Possession as otherwise than the very antipodes of dominium ('nihil commune habet possessio cum proprietate' Dig. 41. 2. 12. 1); or, finally, that the 'gentile' ownership of the alien (p. 187 supr.) was specially protected by interdicts; he recovered his property, not by an interdict, but by a real action, fictitia or utilis perhaps, but still a remedy which recognised his proprietorship. On the other hand, as all Possession, whether iusta or iniusta, whether bona fide or mala fide, was protected by interdicts, to dwell upon the close resemblance, the almost complete material identity, between many cases of bona fide Possession, and Equitable ownership, as Mr. Hunter does, is not to the point. The actio Publiciana was open to any possessor whose Possession could ripen by usucapio into ownership; but his interest was more than Possession; it was inchoate or Bonitarian ownership, or, adopting an expression of Mr. Poste's (Gaius p. 642), we may say that the ius in rem, and the interdict-possession, are distinct though concurrent. The fallacy of arguing that, because many cases of (bona fide) Possession are equivalent to Bonitarian ownership,