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045 POSSESSIO.

except that it must not have originated illegally with respect to the person against whom the Inter­dict is claimed. [!nterdictum.] Simply by virtue of being possessor, the possessor has a better right than any person who is not possessor. (Dig. 43. tit. 17. s. 1, 2.) Usucapion requires not only a juristical possessio, but in its orgin it must have been bona fide and founded on a justa causa^ that is, on some legal transaction. He who buys a thing from a man who is not the owner, but whom he believes to be the owner, and obtains possession of the thing, is a bona fide possessor with,a justa causa. [usucapio.]

The right which is founded on a juristical pos­sessio is a Jus possessionis, or right of possession, that is, a right arising from a juristical posses­sion. The expression Jus possessions is used by the Roman Jurists. The right to possess, called by modern Jurists, Jus .possidendi, belongs to the theory of Ownership.

All Juristical Possessio then, that is, fPossessio in the Roman Law, as a source off rights, has reference only to Usucapion and Interdicts ; and all the rales of law which treat Possession as a thing of a juristical nature have no other object than to determine the possibility of Usucapion and of the Interdicts. (Savigny, Das Redd des Besitzes, p. 24, &c.)

In answer to the question to which class of Rights Possession belongs, Savigny observes (.§ 6), — So far as concerns Usucapion, one cannot sup­pose the thing to be the subject of a question. No one thinks of asking, to what class of rights a justa causa belongs, without which tradition can­not give ownership. It is no right, but it is a part of the whole transaction by which ownership is acquired. So is it with Possession in respect to Usucapion.

The right to Possessorial Interdicts belongs to the Law of Obligationes ex maleficids. " The right to possessorial Interdicts then belongs to the Law of Obligationes, and therein possession is only so far considered, as containing the condition without which the Interdicts cannot be supposed possible. The Jus Possessionis consequently,, that is the right, which mere possession gives, consists simply in the claim which the Possessor has to the Inter­dicts, as soon as his possession is disturbed in a definite form. Independent of this disturbance, bare possession gives no rights,, neither a Jus Obli-gationis, as is self-evident, nor yet a right to the thing, for no dealing with a thing is to be consi­dered as a legal act simply because the person so dealing has the possession of the thing." (Savigny, p. 34.)

The terra Possessio occurs in the Roman jurists in various senses. There is Possessio generally, and Possessio Civilis, and Possessio Naturalis.

.Possessio denoted originally bare Detention. But this Detention under certain conditions be­comes a legal state, inasmuch as it leads to owner­ship through Usucapion. Accordingly the word Possessio, which required no qualification so long ,as there was no other notion attached to Possessio, requires such qualification when Detention becomes a legal state. This Detention then, when it has the conditions necessary to Usucapion, is called Possessio Civilis ; and all other Possessio as op­posed to Civilis is Naturalis. But Detention may also be the foundation of Interdicts, which notion of possession is always expressed by Possessio

POSSESSIO.

simply; and this is the meaning of Possessio, when it is used alone, and yet in a technical sense. As opposed to this sense of Possessio all other kinds of Detention are also called Naturalis Possessio, the opposition between the Natural and the Juris­tical Possession (possessio) being here expressed just in the same way as this opposition is denoted in the £ase of the Civilis Possessio. There is there­fore a twofold Juristical Possessio: Possessio Cwilis or Possession for the purpose of Usucapion ; and Possessio or Possession for the purpose of the Interdicts. It follows that Possessio is included in Possessio Civilis, which only requires more con­ditions than Possessio. If then a man has Pos­sessio Civilis, he has also Possessio, that is the right to the Interdicts ; but the converse is not true. Possessio Naturalis, as above observed, has two significations, but they are both negative, and merely express in each case a logical opposition, that is, they are respectively not Possessio Civilis, or Possess-i© (ad Jnterdicta). The various expres­sions .used to denote bare Detention are " tenere," " corporaliter possidere," *' esse in possessione." (Savigny, p. 109.)

In the case of a thing being pignorated, the per­son who pledges it -has still the possessio ad usu-capionem, but the pledgee alone has the possessio ad interdicta. It is not a Possessio Civilis which is the foundation of the pledger's title by usu-capi©i!i ; but by a special fiction he is considered to have such Possession, and so the case is a special exception to the general rule, " sine possessione usucapio contingere non potest.11

Possessio Justa is every Possessio that is not illegal in its origin, whether such Possessio be mere Detention or Juristical Possessio. The word Justa is here used, not in that acceptation in. which it has reference to Jus Civile and is equiva­lent to Civilis or Legitima; but in another sense, which is more indefinite and means " rightful " generally, that is, not wrongful. The creditor who is in possession of a pledge, has a Justa Possessio, but not a Civilis Possessio: he has, however, a Juristical Possessio, that is, Possessio^ and con­sequently a right to the Interdicts. The Missio in Possessionem is the foundation of a Justa Pos­sessio, but, as a general rule, not of a Juristical Possessio. Possessio Injusta is the logical opposite of Justa, and in the case of Possessio Injusta there are three special Vitia possessionis, that is when the Possession has originated Vi, Clam, or Precario. (Terentius, Eunuch, ii. 3. Hanc tu miki vel v/, vel dam, vel precario fac tradas: Dig. 43, tit, 17. s. 1, 2.)

With respect to the causa Possessionis, there was a legal maxim: Nemo sibi ipse causam pos­sessionis mutare potest, which applies both to Civilis and Naturalis Possessio. This rule is ex­plained by Savigny by means of Gains (ii. 52, &c.) as having reference to the old usucapio pro herede, and the meaning of it was that if a person had once begun to possess with any particular causa, he could not at his pleasure change such Possessio into a Possessio pro herede. (Savigny, p. 56.)

A Possessor bonae fidei is he who believes that no person has a better right to possess than him­self. A Possessor malae fidei is he who knows that he has no right to possess the thing. (Savigny, p. 84.)

Besides these various meanings of Possessio, Pos­sessor, Possidere, at the bottom of ail which lies

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