Article II: On Possession

Possession. A power existing in fact over a thing can accede to right, or right and fact are separated. Joined with right, possession gives to the one having the right all the advantages and privileges of a possessor. And even separated, according to itself, it binds a certain bond between the thing or right and the possessor, by force of which the possessor, as such, by the very law of nature is preferred to all who do not prove their right, and is sometimes also protected by several privileges of positive law.

Lest a more accurate exposition of a laborious question become too involved for the end of the present treatise, we shall use the customary definition, which nevertheless we shall temper or correct by a declaration of the words, reserving a somewhat fuller explanation for the smaller text. Therefore:

1. What possession is. Possession, which, as we all confusedly feel, is the connatural consequence of right, or a fact which regularly coheres with right, is still more commonly defined: detention of a thing with the mind of an owner.

In this definition, detention, which of itself would signify only the effect of corporeal apprehension, impossible in immovable things, must be taken much more broadly and even improperly; for it designates the relation of a thing to a person existing in fact, such as is required for freely taking the utility of the thing; or more briefly, a true apprehension or one equated in moral estimation. - Under the name of thing, they are also accustomed in some way to understand rights, yet in various ways. For some, considering that things alone can properly be possessed, in order to excuse the metaphorical use, add quasi-usufruct and quasi-possession of rights to the usufruct and possession of things; the Codes of France (art. 2228) and Italy (art. 685) equally admit possession of things and of rights, in these words: "Il possesso e la detenzione di una cosa o il godimento di un diritto che uno ha o per se stesso, o per mezzo di un altro, il quale detenga la cosa o eserciti il diritto in nome di lui"; better, in our opinion, and more consequently to the received division of dominion into direct and indirect, the Code of Germany (cf. arts. 854 and 868) acknowledges direct possession of the thing to the owner (true or supposed), but indirect possession to him who, on account of a right in another's thing or on account of a contract, e.g. of lease, readily dominates or is judged to dominate the thing. Finally, by the words "with the mind of an owner" there is excluded the possession of him who detains the thing for another. For someone can detain a thing through himself or through another. Detention itself is sometimes called the body of possession.

This is natural possession, which is born, remains, and ceases with the fact.

But, since possession is protected by positive law and is fortified by various privileges, possession to which positive law gives favor, i.e. civil possession, must also be considered. Moreover, positive law can deny its protection to certain natural possessions: thus certain sacred things cannot be possessed by a private person (c. 1510, §2), and c. 1695, §1, concedes an action of retaining possession only after a year. Of itself indeed it sanctions natural possession itself, so that for the most part natural possession is also civil; but sometimes it treats as possessor one who has lost natural possession: thus, by the laws of France and Italy, possession of land is not lost unless it has naturally ceased for a year; or it even judges him a possessor who never was a possessor. This possession is merely civil; or even most civil when it rests on civil law alone and was never natural. In the U.S.A., merely civil possession is called constructive possession or also possession in law or legal possession.

Fuller Explanation. Only the strange and not very scientific etymologies which once were admitted must be recalled. Thus Paulus, L. 1, Princ. D. De acquirenda possessione, wrote: "Possession is said from the feet, as if a placing of the feet"; others derived the name from the ancient pos, i.e. powerful, and sedeo, as if signifying: I sit with power.

2. But what possession is, jurists, according to Molina, tr. II, d. 12, n. 2, 3, always judged very difficult to define. Wherefore the Gloss on L. Stipulati, § Haec quoque, De verborum obligatione, pronounced: "the most expert have not dared to define possession." Then the definition of Hostiensis in the Summa was received rather commonly: "the detention of a corporeal thing by body and mind and with the support of right." Molina nevertheless judges that definition to be more causal than formal; he, in d. 17 of the same tr. 2, n. 3, proposes this formal one: "actual or habitual insistence in some thing, proceeding from apprehension by body and mind with the support of right." In this description, the word apprehension must be taken broadly and even improperly, and natural possession is not distinguished from civil. - Lugo, d. 2, n. 59, narrates the difficulty of the jurists, but neglects the question. In the nineteenth century, von Savigny (1779-1861), the illustrious interpreter of Roman law, propagated a definition similar to that of Hostiensis; after him, even the prudent men of our civil law began to speak expressly of the body and mind of possession. Recently, the celebrated Ihering, at the end of the nineteenth century, denied the necessity of the mind, since otherwise the demented would be incapable of possession; and he contended that the body of possession consists essentially not at all in physical power over the thing or in detention, or at least by no means formally flows from physical apprehension, since every possession is nothing other than a relation between person and thing existing in fact, such as relation the economic utility of the thing, which varies with the thing, requires. He proposed these things while the civil Code of Germany was being made; and he obtained that silence be kept concerning the mind, but not that possession be described otherwise than by physical power over the thing. (Cf. the text written by Savigny concerning the body of possession in the work of the magistrate de Meulenaere, Code civil allemand, Appendix and p. 230.) Concerning the body of possession we sufficiently agree with Ihering; we think that the difficulty made concerning the mind is none, since the same would return where there is question of the acquisition of dominion by the demented; namely, the persons who represent those incapable persons can have the mind for them.

For us, from the very notion of right handed down above, the description of natural possession is sufficiently convenient. For it is a relation of prevalence and subjection, existing in fact, between a thing and a person, which, if it is inviolable, constitutes the right itself.

What a Juridical Fact Is. A juridical fact is whatever, voluntary or non-voluntary, influences the various rights of persons. Nor can all voluntary things be recalled to contracts. Wherefore, under the name of juridical acts come testaments. Juridical facts are designations of offices, whether these have been sought or imposed on account of the common good. Juridical facts are delicts themselves and quasi-delicts.

I. To every right there is attributed some dominion, either toward the public common good, and it is jurisdiction; or toward the private good of the one having it and of his own, and it is the dominion of property.

II. To the dominion of jurisdiction pertains the so-called high dominion, by which, with regard to the common good, perfect society can order and moderate the exercise of the right of property, indeed, with the equality of justice preserved, which here easily becomes commutative and therefore exacts compensation of damage, can deprive a subject of his things. Now we must treat of private dominion alone.

III. In things there can be full dominion of property, which, with at least justice preserved, permits the owner use or enjoyment at will, exclusion of others even when use ceases, and disposition of the thing. By division it becomes imperfect: either, with utility excluded, there is preserved the right in the substance, which is called naked, direct, or also radical dominion; or it is of utility alone without disposition concerning the substance, which is called indirect or useful. This latter dominion can be dismembered, so that separately, in several subjects, there exist various partial rights which together would constitute full dominion. Concerning the individual ones briefly:

IV. 1. Usufruct is the right of using and enjoying the things of another, with their substance preserved.

A fruit is "whatever is accustomed to be born and reborn from a thing." Those which a thing produces are called natural, at least in a broad sense; in the strict sense, if they are begotten by the nature of the thing alone; those which are owed to the industry of men are called industrial; while mixed are those which, as most are, are produced by the joined forces of nature and man. Finally, civil fruits are understood as monies which, from a contract concerning a thing, must be paid constantly after stated intervals: e.g. the annual price of a leased house.

Thus civil laws are accustomed to distinguish fruits according to their very nature; while the Code of Germany, attending also to the origin from which they come, distinguishes fruits of a thing, fruits of a right, and fruits which are owed to a juridical relation concerning a thing or right (art. 99 Cod. Germaniae).

In things which are consumed by first use, quasi-usufruct is constituted; what then, at the end of the usufruct, must be returned, the civil laws define.

2. Use and habitation, in certain laws, signify a circumscribed right merely of using a thing or habitation.

3. Servitude, passively, is a real burden by which an immovable thing is burdened in favor either of another fund (real servitude), or of a definite person (personal servitude).

For the acquisition, exercise, and extinction of servitudes, continuous and non-continuous, apparent and non-apparent, positive and negative servitudes must be distinguished.

5. Superficies designates dominion over all, or at least certain, things which are built or planted on another's fund.

6. Emphyteusis is a right in a thing, by which someone can enjoy another's thing fully for a long time or in perpetuity, under this law, that he pay something (a canon) to the owner, at least in acknowledgment of dominion. Liberation from that obligation is called redemption of the canon.

7. Thus far concerning rights which consist according to themselves. Besides, as accessory rights, existing merely for strengthening the execution of a principal obligation, there are: a) pledge, or a movable thing which, from a contract, is handed over by the debtor to the creditor, so that from it he may obtain payment of the debt before other creditors. Commercial pledge is distinguished from common pledge by facility of constitution and efficacy.

In certain laws antichresis is also acknowledged, as pledge of an immovable thing. And several other forms of security are acknowledged by laws today.

b) Privilege, or a disposition of law by force of which, for extinguishing certain debts (privileged debts), the goods of the debtor, either all (general privilege), or certain ones (special privilege), must serve before other debts (even hypothecary debts).

c) Hypothec, or, in another's immovable thing, the right by which the creditor can satisfy himself before others from the price of the thing. It is distinguished as legal, judicial, conventional.

Dominion can be singular or pertain to several. Undivided condominium is customarily little pleasing to modern laws, so that it cannot be established in perpetuity.

V. On possession. Possession properly is detention of a thing with the mind of an owner: in which definition detention must be taken very broadly; the thing can also be a right; the mind of an owner is opposed to the mind of possessing for another.

It is acquired by some apprehension of the thing - whether true or symbolic, which legally suffices - with the intention of an owner. But as long as the thing remains in our power, possession is preserved by the mind alone; indeed longer, if the law has so established. Possession itself in fact binds the thing to the possessor, so that deservedly he is preferred to others who do not prove a contrary right.

Besides this natural possession, there is also merely civil possession, which, by positive law alone, is judged to remain or to be constituted. There is also possession of right, which profits him who exercises that right as its owner.

Possession of good faith is distinguished, which, strictly taken, is joined with the persuasion of dominion or right, and possession of bad faith, or of him who knows the thing to be another's, or, in doubt, neglects due inquiry.

Simple detention of good faith is that of him who, without the mind of an owner, at least absolute, detains a thing, judging this to be lawful for himself.

Most broadly, every good faith signifies concord between intention and conscience.

Possession is called vicious with respect to him to whom force has been inflicted or possession concealed. Otherwise it is not vicious.

VI. What a juridical fact is. By this name is called every fact, voluntary or involuntary, which gives, takes away, or changes rights.