§ 1. Notions

255. What possession is and how manifold it is. 1. DEFINITION. Possession properly is: The detention of a thing by oneself or by another with the intention of an owner, that is, with the intention of having it as one's own. The detention itself is called the body of possession, natural possession; the will to vindicate the thing as one's own is its intention. Both are required for civil possession.

2. DIVISION. Possession is distinguished as:

Natural and civil. We have just given a sufficiently customary signification of these words. It is not pertinent to recall several others here. Cf., for example, Lessius, chap. 3, doubt 10.

Just and unjust. The latter, unlike the former, is opposed to the right of another, whether known or unknown.

Of good and bad faith. The former has joined to it the persuasion of ownership or right; a possessor in bad faith knows that the thing belongs to another or, while doubting this, omits the moral diligence required so that, at least by the aid of a reflex principle, he can lay aside the doubt or meanwhile preserve the thing until the owner has been established.

Vicious and nonvicious. The former is that of one who possesses by force or secretly. For by those vices all efficacy of possession is taken away. You should observe, however, that these vices are considered in relation to him upon whom force has been inflicted or from whom the possession is concealed. Hence, with respect to others, the possession is not judged vicious.

3. OBJECT. Properly, only a corporeal thing is possessed. That notion, however, can also be transferred to rights. For just as the possessor of the thing itself exercises the right of ownership in fact, so he who exercises any right in a thing can be said to quasi-possess that right. Therefore, this quasi-possession of a right—which in present-day law is now called possession without an addition—consists in the exercise of the right as the body of possession, and in the will to exercise that right as the intention.

4. REQUISITES. To acquire possession of a thing there is required, besides the intention of having the thing for oneself, a certain apprehension of the thing, whether real or fictive, which is sufficient by disposition of law: for example, the symbolic delivery of the keys of a house. In a few cases someone is judged to possess by the statute of law alone, without any apprehension of the thing or even without intention. This is called most civil possession, because it is wholly from positive law. Thus, in French law, possession of an inheritance passes to the legitimate heirs (ab intestato [in intestacy]) without any act of theirs (saisine héréditaire [hereditary seisin]).

Possession of a thing is retained, however, by the intention alone, or a habitual will, so long as the thing remains in our power. Again, by the positive disposition of our law, possession of a field is not civilly lost unless the field has been occupied by another for a year.

256. The privileges of possession. The laws of all nations openly favor the possessor, both because a certain presumption of a just title is inherent in peaceful possession, and because these privileges conduce to public peace and tranquility and arouse the diligence of citizens in guarding their own things. Hence Alexander III: “By divine and human law, the condition of the possessor is better.”¹ It belongs to the jurists of each law to pursue the individual privileges. Yet they generally fall under two genera. For they either exempt the possessor from the burden of proof and, in doubt, adjudge the thing to him; or they attribute to him the fruits of the thing possessed, indeed even the thing itself, provided that certain conditions are present.

¹ Canon Ad aures [To the Ears], 6, “On Prescriptions” (II, 26). Divine and human law must be understood, as the Gloss itself appears to declare, as canon and civil law. Moreover, the words divine and human are set in italics because they are an excised portion, that is, they were not received into the body of the law.

257. What we ask in this place. The former privilege is treated here, and indeed that advantage of possession which is described thus in the law:² “The advantage of possessing, however, consists in this: that even if the thing does not belong to the one who possesses it, provided that the plaintiff has not been able to prove that it is his own, possession remains in its place.”

² § 4, Retinendae [For Retaining], Institutes, “On Interdicts” (IV, 15).

But in truth, both its extent is disputed in contrary directions, and a question can be raised concerning its origin.

1. And as regards its extent, it is sufficiently agreed that “in equal fault or case, the condition of the possessor is the more favorable,” which is rule 65 in the Liber Sextus [Sixth Book]. But what is to be said when stronger reasons are opposed to the possessor? Some³ then oblige the possessor to concede the thing possessed to the adversary, at least for a proportional part which they wish to be estimated from the greater probability; while most⁴ judge that he can safely retain the whole thing and that the case is equal so long as the matter is doubtful on both sides. Sanchez, however, and C. de Lugo require the possessor to have in his favor a probable reason distinct from possession, while others, such as Lacroix,⁵ ascribe to the possessor, from the sole fact that he possesses, a certain right of retaining the thing until the adversary has clearly proved that it is his own. This is pleasing to St. Alphonsus, Moral Theology, bk. 1, no. 36.

³ Thus Coninck, Valencia, and Sanchez in the work On Marriage, bk. 2, disp. 41, no. 12.

⁴ Thus Molina, disp. 103, nos. 8, 9 (at the end); Sanchez, retracting his former opinion in On the Decalogue, bk. 1, chap. 10, no. 9; C. de Lugo, disp. 17, nos. 86, 94.

⁵ Moral Theology, bk. 3, no. 563.

2. As regards the origin of the privilege, it is asked whether it was introduced by the law of nature itself or only by positive law. Many are silent concerning that matter; almost all the rest speak scarcely without ambiguity. Nevertheless, from the absolute manner in which they employ the principle of possession, Molina, C. de Lugo, and Sanchez, in the places cited above, seem to acknowledge that it is sanctioned by nature, as do all who think the principle of possession universal, if they speak consistently with themselves. St. Alphonsus, bk. 1, no. 36, and C. d'Annibale, vol. 1, no. 260, assert the same more openly; and Lacroix does so in set words: “This axiom is founded upon the law of nature, as Cardena rightly says in the first Crisis, disp. 56, no. 1241. For thus, even apart from human laws, it would be against the law of nature to despoil the possessor of his thing on account of a supervening doubt” (bk. 1, no. 496).

Therefore, concerning both doubts, let there be: