Possession: the idea, Roman and English law, and the theories

1. The idea of possession

Possession is the relation of physical control over a thing, together with an intention to exercise that control, which the law protects independently of ownership. Salmond called it the most basic relation between man and things. Its importance:

• Evidence of ownership: a possessor is presumed owner until the contrary is shown (section 110 of the Indian Evidence Act, 1872, now carried into the Bharatiya Sakshya Adhiniyam, 2023).
• Protection of peace: no one may dispossess another by force, even the owner; possessory remedies exist to prevent self-help.
• Root of title: possession for the limitation period ripens into ownership (adverse possession); first possession of an unowned thing gives ownership.
• Transfer: delivery of possession completes sale of goods, gift of movables and pledge.
• Criminal law: theft is taking out of possession; many offences are offences of possession (arms, narcotics, stolen property).

“Possession is nine points of the law” captures the practical advantage: the possessor need prove nothing; the claimant must prove a better title.

2. Corpus and animus

Almost every theory requires two elements:

• Corpus possessionis: the physical element, effective control. It does not require physical contact: a person possesses the contents of his house while abroad. Salmond describes it as the relation of the possessor to the thing (control) and to other persons (the general expectation that others will not interfere).
• Animus possidendi: the mental element, the intention to exclude others. Theories differ on its content.

3. Possession in Roman law

• Possessio was distinguished from dominium (ownership) and detentio (mere holding). A tenant, borrower or depositary had only detentio; the person for whom they held had possessio.
• Possessio civilis (possession capable of ripening into ownership by usucapio, with good faith and just cause) and possessio naturalis (protected by interdicts but not leading to ownership).
• Possessory interdicts (uti possidetis for land, utrubi for movables, unde vi for recovery after forcible ejection) protected the possessor without inquiry into title, so long as his possession was not acquired by force, stealth or permission (nec vi, nec clam, nec precario) from the other party.
• Anomalous cases: the pledge creditor, the precarist and the sequester had possession though they did not hold as owners, which is the puzzle Savigny and Ihering tried to explain.

H. Bond’s essay on possession in Roman law (1890), in the syllabus bibliography, stresses that Roman possession was a practical, remedy-based concept rather than a theoretical one.

4. Possession in English law

English law developed possession through remedies: trespass protected possession, not title, and the real actions gave way to ejectment, in which a plaintiff succeeded by showing a better right to possess than the defendant. Key features:

• Relativity of title: there is no absolute ownership in land; title is the better right to possession. A prior possessor can recover against a later wrongdoer even if neither is owner (Asher v. Whitlock, 1865).
• Possession in fact and in law: a servant has custody, the master possession; a bailee has possession, with the bailor’s right to possession.
• Pollock and Wright, An Essay on Possession in the Common Law (1888), emphasised physical control and rejected the need for a specific intention. They distinguished possession in fact, possession in law and the right to possess.
• D.R. Harris, “The Concept of Possession in English Law” (Oxford Essays in Jurisprudence, 1961), argued that possession is a functional concept: courts decide who possesses by reference to the policy of the rule in issue, using factors such as control, intention, knowledge and the nature of the thing. This is the best explanation of the inconsistent finders’ cases.

5. The theories

6. Kinds of possession

• Corporeal and incorporeal: possession of a thing; “possession” of a right such as an easement, i.e. its continuous exercise.
• Immediate and mediate: the bailee possesses immediately, the bailor mediately through him; a master through his servant.
• Concurrent: co-owners; a bailor and bailee may each have possessory remedies.
• Constructive: possession attributed by law, as when the key to a warehouse is delivered (symbolic delivery), or the documents of title to goods.
• Adverse: possession hostile to the true owner’s title (next note).
• Conscious possession: the knowledge requirement in offences of possession.
• Possession in fact and possession in law: they usually coincide but may diverge (servant and master; a thing lost on one’s land).

How this is examined

For the short note on the idea of possession: definition, its importance, corpus and animus, and one line each on Savigny and Ihering. For an essay on possession in Roman, English and Indian law, use sections 3 and 4, then the Indian material in the next note.