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948

POSSESSIO.

which are sometimes. The First class compre­hends such cases as those when the detention of a thing is transferred to an agent (procurator}, and the case of a Commodatum. [commodatum.] The Second class comprehends the case of the Emphyteuta, which is a Possessio, but only a de­rivative one, as the Emphyteuta has not the animus domini.; it also comprehends the case of the cre­ditor who receives the detention of a pignus by a contractus pignoris, and with the detention, the Jus Possessions ; but it does not comprehend the case of a Pignus praetorium, Pignus in causa judicati captum, iior a Pactum hypothecae. In the case of a contractus Pignoris, when the thing was deli­vered to the creditor, he had Possessio^ that is, a right to the Interdicts, but not Possessio Civilis, that is, the Right of Usucapion. The debtor had no Possessio at all, but by virtue of an. exception to a general rule, the usucapion that had been com­menced, still continued. The Third class compre­hends Depositum and Pi-ecarium.

The Right of Possession consists in the right to the protection of the Interdict [!nteudigtum], and this protection is also extended to Jura in re. The relation of the Juris quasi possessio to Pos­sessio has been already explained. The objects of this Juris quasi possessio are Personal servitutes, Real servitutes, and Jura in re which do not belong to the class of Servitutes, of which Super­ficies is the only proper instance. (Savigny, p. 525.) In all the cases of Juris quasi possessio, the ac­quisition and the continuance of the right of pos­session depend on the corpus and animus ; and the animus is to be viewed exactly in the same way as in the case of possession of a corporeal thing. The exercise of Personal servitutes (particularly usus and ususfructus) is in-separable from the natural, possession of the thing ; and the posses­sion of them is consequently acquired in the same way as the possession of a corporeal thing. As to the Juris quasi possessio of Real Servitutes, there are two cases: either he who has a right to the Servitus, must do. some act, which if he had not the right, he might be forbidden to do (servitus quae in patiendo consisit); or the owner of property has no right to do some particular, thing, which, if the right did not exist, he might do (servitus quae in non faciendo consistif). as to the first class, which may be called Positive Servitutes, the acquisition of the Juris quasi possessio consists merely in doing some act, which is the object of the right, and the doing of this act must be for the purpose of .exercising the right. (Dig- 8. tit. 6. s. 25.) This rule applies to the Jus Itineris, Actus, Viae, and others, which are independent of the possession of any other property by the person who claims the Jus. Such an act as the Jus tigni immittendi, or the driving a beam into the wall of one's neighbour's house, is a right connected with the possession of another piece of property, and the possession of this right consists in the exercise of it. As to the second class which maybe called Negative Servitutes, the Juris quasi possessio is acquired in consequence of the person whose right is thereby limited, attempting to do some act con­trary to the right of the person who claims the .servitus, and meeting with opposition to such act and acquiescing in the opposition. (Dig. 8. tit. 5. -s. 6.) This Juris quasi possegsio may also be ^founded on a legal title, that is, on any juristical .transaction which can give such right.

POSSESSIO.:

Every possession continues so long as the corpus: and the animus continue. (Savigny, p. 339.) If both cease or either of them ceases, the possession is gone. (Dig. 41. tit. 2. s. 3. 46.) As to the corpus, the possession is lost, when in consequence of any event the possessor cannot operate on the thing at his pleasure, as before. In the case of moveable things, the possession is lost, when an­other person has got hold of them, either by force, or secretly : in the case of immoveable things, it is lost when a man haa turned another out of the pos­session ; but if in the absence of the possessor, an­other occupies his land without his knowledge, he does not lose the possession till he attempts to ex­ercise ownership over the land and is prevented by the person then in possession of it, or through fear does not attempt to recover his possession. The possession thus acquired by the new possessor is a violenta possessio. If the former possessor knows the fact and acquiesces by doing nothing, he loses the possession by the animus alone. In the case of possession being lost by animus alone, it may be effected either expressly or tacitly ; the only thing necessary is that there must be an intention to give up the possession. The possession is lost oorpore et aninio, when the possessor gives up a thing to another to possess as his own. In tho case of a Juris quasi possessio, as well as in that of Possessio proper, the continuance of the possessio depends on the corpus and animus together. There can be no Juris quasi possessio without the animus possidendi ; and if there be merely the animus possidendi, the Juris quasi possessio must cease,

Possessio can be lost by means of a person who represents the Possessor, Such person may him­ self acquire the possession by exercising the animus possidendi, when it is accompanied with a sufficient corporeal act: in the case of moveable things, this is furtum ; in the case of immoveable things, it is violent dispossession. The possession can be lost through the representative, in all cases in which it would have been lost by the possessor, if there had been no representation. - -..-..-.

In many of the systematic expositions of Roman Law, the theory of Possessio is treated as intro­ductory to the theory of Ownership (Domwiitni). The view which ,has been here given of it, is also not universally acquiesced in, but it is the. correct view. For instance, Gans in his chapter on Pos­session (System des Rom. Civiireclits im Grundrisse^ cfco.) begins with the two following sections: —

§ 103. Darstellung der verschiedenen hersch-enden Meinungen liber den Besitz. — Der Besitz ist kein blosses Factum, und ensteht nicht als Recht, durch den umweg des Unrechts.

§ 104. Der Besitz als das Eigenthum nach der Seite des bloss besonderen willens. — Anfangendes, prasumtives Eigenthum.

Savigny's view on the contrary is briefly this: " Possession is a Fact (Factuiri), so far as a mere factish (unjuristical) relation (detention} is the foundation of it. But Possession is also, a Right, so far as. rights are connected with the bare exist­ence of the relation of Fact. Consequently Posses­sion is both Fact and Right."

Also—"The only Right arising from bare Pos­session is a Pvight to the Interdicts"—and " the .Right to ^the Interdicts is fouuded on the fact of the Exercise of Ownership being obstructed wrong­fully, as for instance, by force."

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