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POSSESSION

the notion of Possession in the sense of Detention, there are some other meanings, " To have owner­ship " is sometimes expressed by Possidere, the thing, which is the object of ownership, is some­times Possessio, and the owner is Possessor. This use of the word occurs frequently in the Code and Pandect, and also in Cicero, Quihtilian,. Horace, and other writers. But it is remarked by Savigny that these meanings of Possidere,, Possessio, &c., alwaj^s refer to land as their object. The phrase " Possessio populi Romani," is applied by Cicero to public land, and it is translated by Plutarch {Pomp. 39), KTyfjLa rov fiffj/j.ov 'PwfjLaiow^

Possessio also denotes the relation of a defend­ant with respect to a plaintiff. For instance.,, when ownership is claimed,, the demand must be against a person in possession ; but. this does not mean that such person must have-a juristical possession. Jn a Vindicatio accordingly the plaintiff is called Petitor, and the defendant is named Possessor, be­cause in fact he has the possession of that which the plaintiff claims. The procedure by the Vindi­catio was also adaptedi to the case of an hereditas ; and here also the term possessor was- applied to the defendant. In many cases the' possessor was really such, and- one object of the hereditatis pe-titio was to recover single things which the de­fendant possessed pro herede or pro possessore. But the term possessor was not limited to such cases, for the defendant is called possessor when the petitio is not about a matter of possession. Pie is called Juris possessor, because he refuses to do something which the heres claims of him. to do, or because he asserts his right, to- a; portion; of the hereditas. (Savigny,. p. 87.)

The juristical notion of Pbssession implies a thing which can be- the object of ownership: it also implies that the Possessor can be no other than a person who has a capacity for ownership.

The notion of possession is such that only one person at a time can possess the whole of a thing (plures e&nd&m vein- in solidum possidere non pos-sunt). When sevesal persons possess a thing in common, so that their possession is mutually limited, each in fact possesses only a fractional part of the thing, but does not possess the other parts, and though the division into parts is only ideal, this does not affect the legal consideration of the matter. Persons may also possess the same thing in dif­ferent senses, as in the case of the debtor and his creditor who has recei'ved from him a pignus.

Though things incorporeal aue not strictly ob­jects of possession, yet there is a Juris quasi pos-sessio of them, as for instance in the case of ser-vitutes. The exercise of a right of this kind is analogous to the possession of a corporeal thing:. in other words, as real possession consists in the exer­cise of ownership, so this kind of possession, which is fashioned from analogy to the other.,, consists in the exercise of a jus in re or a right which is not ownership. In the case of Possession, it is the thing (corpus} which is possessed, and not the .property: by analogy then we should not say that the servitus or the jus in re is possessed. But as in the case of a jus in re there is nothing to which the notion of possession can be attached, while.in the case of ownership there is the thing to which we apply the notion of possession, we are com­pelled to resort to the expression Juris Quasi Pos--sessio, by which nothing more is meant than the exercise of a jus in re, which exercise has the. same

POSSESSIO.

relation to the jus in re, that proper possession has to ownership. (Savigny, p. 166.)

In order to the acquisition of juristical Possessio, apprehension and animus are necessary. The ap­prehension of a corporeal thing is such a dealing with it as empowers the person who intends to acquire the possession to operate on the thing to the exclusion o£ all other persons. Actual cor­poreal contact with the thing is not necessary to apprehension.: it is enough if there is some act on the part of the person wha intends to acquire pos­session,, which gives him the physical capacity to operate on the thing at his pleasure. Thus in the case of a piece of ground, he who enters upon part is considered to have entered upon the whole. A man may acquire possession of what is contained in a thing by delivery of the key which gives him access to the contents, in the presence of (apud} the thing. The case- mentioned in the Digest (Dig. 13. tit. 1. s. 74) is that of the key of a granary being delivered hi sight of the granary (apud liorrca}. The delivery of the key is not a symbolical delivery, as some have supposed, but it is- the delivery of the means of getting at the thing. (Compare Lord Hard wickers remarks on this matter, Ward v. Turner, 2 Vez.)

The animus consists in the will to treat as one's own the thing that is the object of our apprehen­sion. All persons therefore who are legally in­competent to will, are incompetent to acquire a juristical possession. Infantes and furiosi are examples of such persons. If a man has the de­tention, of-fa thing, he can acquire the Possessio by ;the animus- alone ; for the other condition has been already complied with.

hi order: that, juristical possession may be ac­quired, there mus&alway's be the animus on the part of him who intends, to acquire the possession ; but the act of apprehension (so?/>&$) may be effected by another as his representative,, if that other does the necessary acts, and with t^e intention of ac­quiring the possession for the other, and not for himself. (Paulus^. S,. R. y. tit. "2. s. 1.) There must be a certain gelation between the person for whom possession is thus acquired and 'the person who acquires it for him, either, of legal power (po~ testas), or of agency: the former is the case of a slave or films familias who obeys a command, and the latter is the case of an agent who follows in­structions (mcmdatuni). A person, who is already the representative of another, and has the Possessio of a thing, may by the animus alone cease to have the Possessio for himself and have it for that other, retaining only the bare detention, .

Possessio,,, that is the Jlight of Possession, can be transferred, without the transfer of ownership. In this case of derivative Possessio the apprehen­sion is the same as in the case of acquiring a juristical possessio ; but the animus with which the thing is apprehended, cannot be the " animus clomini," but merely the " animus possidendi," that is, the will to acquire the Jus Possessions, which the Possessor transfers, and nothing more. The Detention of a thing may be transferred with­out the ownership, but the transfer of the deten­tion is not always accompanied by a transfer of the Jus Possessionis. There are three classes into which all acts may be distributed which are ac­companied with a transfer of Detention: 1, those which are never the foundation of a derivative Possessio, '2,-those which always arc, and 3S those

3 r 2

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