Article Second. On Possession

369. Notion. Possession is the holding of a thing not prohibited to be possessed, with the mind of having it as one's own.

a. Holding supposes apprehension of the thing: for possession is begun by apprehension, by which someone occupies the thing, and by holding possession is continued. As to rights, their apprehension ordinarily consists in acceptance and holding consists in their exercise.

b. By the name thing is signified the object of possession, which can be not only a corporeal thing, such as money, a field, a house, but also an incorporeal thing, such as a right. In the former case there is possession properly so called; in the latter there is possession improperly so called, or quasi-possession.

c. For possession it does not suffice that someone physically apprehend and hold some thing, but it is required that he hold it with the mind of having it as his own. Therefore it is required that he apprehend the thing not only by body but also by mind or will; therefore a depositary does not properly possess the deposit.

d. For true possession a right in the thing possessed is indeed not required; for even a thief possesses, although unjustly. But it is required that the law not declare a certain thing incapable of being possessed, or a certain person incapable of possessing. Thus public things cannot be possessed by a private man, and some sacred things cannot be possessed by a layman.

e. Therefore three things are required for having possession: alpha. holding of the thing, or if the matter concerns a right, use of the right; beta. the mind of having it for oneself; gamma. permission of the law, which indeed does not approve the possession, but does not prohibit it.

370. Division. Possession is divided: a. into legitimate possession or possession of right, which is begun with a title which of itself can transfer ownership, such as donation, purchase; and into illegitimate possession or possession of fact, which lacks a title which can transfer ownership, such as possession from theft.

He who doubts whether a thing which he assumes for possession is his own or another's begins to possess it legitimately, if it is in the possession of no one and he himself has the mind of inquiring and restoring the thing to the certain owner.

b. Possession of fact is either possession of good faith, doubtful faith, or bad faith: possession of good faith is had if the possessor invincibly thinks that the thing is his own; possession of doubtful faith is had if the possessor, either at the beginning or in the course of possession, doubts whether the thing is his own; possession of bad faith is had if the possessor knows that the thing which he possesses is another's.

He who doubts whether a thing which another possesses is his own or another's possesses illegitimately if he assumes it for possession against the will of the other. The same must be said concerning him who doubts whether a thing which another possesses is this one's or a third person's.

371. Effects of possession. 1. All rights attribute certain privileges to possession, both because the very fact of possession, if it is of good faith, founds a presumption of law, namely that with possession there is also joined a right in the thing possessed, and because these privileges conduce to public tranquility and arouse the diligence of citizens in guarding their own things. These privileges, which belong to possession both from the law of nature and from civil law, are reckoned as two:

a. In an equal cause or doubt the condition of the possessor is better, that is, possession gives the right of retaining the thing possessed until it is certain, or at least established by a stronger motive, that it is another's.

Therefore no one can be despoiled without injustice of a thing which he possesses unless it is sufficiently established that another has the right of possessing it.

b. Possession of good faith begets prescription, but nevertheless it does not transfer ownership of the thing except by the help of prescription.

2. Possession does not confer these privileges unless it is certain and legitimate; doubtful possession or possession of bad faith has no value.