The Consequences of Possession 9780748693658

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The Consequences of Possession

EDINBURGH STUDIES IN LAW Series Editor Elspeth Reid (University of Edinburgh) Editorial Board David L Carey Miller (University of Aberdeen) George L Gretton (University of Edinburgh) Hector L MacQueen (University of Edinburgh) Kenneth G C Reid (University of Edinburgh) Reinhard Zimmermann (Max-Planck Institute of Comparative and ­International Private Law, Hamburg) Volumes in the series: Elspeth Reid and David L Carey Miller (eds), A Mixed Legal System in Transition: T B Smith and the Progress of Scots Law (2005) Hector MacQueen and Reinhard Zimmermann (eds), European Contract Law: Scots and South African Perspectives (2006) John W Cairns and Paul du Plessis (eds), Beyond Dogmatics: Law and Society in the Roman World (2007) William M Gordon, Roman Law, Scots Law and Legal History (2007) Kenneth G C Reid, Marius J de Wall and Reinhard Zimmerman, Exploring the Law of Succession: Studies National, Historical and Comparative (2007) Vernon Valentine Palmer and Elspeth Christie Reid (eds), Mixed ­Jurisdictions Compared: Private Law in Louisiana and Scotland (2009) J W Cairns and Paul du Plessis (eds), The Creation of the Ius Commune: From Casus to Regula (2010) James Chalmers, Fiona Leverick and Lindsay Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (2010) Elaine E Sutherland, Kay E Goodall, Gavin F M Little and Fraser P Davidson (eds), Law Making and the Scottish Parliament (2011) Neil Walker (ed), MacCormick’s Scotland (2012) www.euppublishing.com/series/esil

EDINBURGH STUDIES IN LAW VOLUME 11

The Consequences of Possession

Edited by Eric Descheemaeker

© The Edinburgh Law Review Trust and the Contributors, 2014 Edinburgh University Press Ltd The Tun – Holyrood Road 12 (2f) Jackson’s Entry Edinburgh EH8 8PJ www.euppublishing.com Typeset in New Caledonia by Koinonia, Manchester, and printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon CR0 4YY A CIP record for this book is available from the British Library ISBN 978 0 7486 9364 1 (hardback) ISBN 978 0 7486 9365 8 (webready PDF) The right of the contributors to be identified as authors of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988 and the Copyright and Related Rights Regulations 2003 (SI No. 2498).

Contents

Foreword List of Contributors Table of Cases Table of Statutory Materials   1 The Consequences of Possession Eric Descheemaeker

vii viii ix xvii 1

  2 Why Protect Possession? Yaëll Emerich

30

  3 Is Possession Factual or Legal? Simon Douglas

56

  4 Possession as a Source of Property at Common Law Robin Hickey

77

  5 The Evolution of Possessory Actions in France and Italy Raffaele Caterina

95

  6 The Protection of Possession in Scots Law Craig Anderson  7 Possessio civilissima in Spanish and German Law: Protecting Possession between Fact and Fiction Lena Kunz

111

141

  8 Possession of Incorporeals Thomas Rüfner

171

  9 The Protection of Quasi-Possession in South African Law Duard Kleyn

185



Index 211

Foreword

The present book contains the revised papers that were presented at a ­conference on ‘The Consequences of Possession’, which took place in the University of Edinburgh’s Old College on 12-13 October 2012. Thanks are owed, first and foremost, to the speakers who made for a fascinating two days of presentations and discussion in the beautiful Raeburn Room; also to Karen Baston, Sarah Burnett, Daniel Carr, Paul du Plessis, Lorna Gallacher, George Gretton, Alasdair Peterson, Elspeth Reid, Kenneth Reid and John Watson for their help with the organisation of the conference and then the production of the book; and last but not least to the University of Edinburgh, the Edinburgh Law Review Trust and the Edinburgh Legal Education Trust for making the whole project – workshop and book – financially possible.

Eric Descheemaeker Edinburgh 31 October 2013

List of Contributors

craig anderson is Lecturer in Law at Robert Gordon University (Aberdeen). raffaele caterina is Professor of Law at the University of Turin. eric descheemaeker is Lecturer in European Private Law at the ­University of Edinburgh. simon douglas is CUF Lecturer in the University of Oxford and Fellow and Tutor in Law at Jesus College, Oxford. yaëll emerich is Associate Professor at the Faculty of Law, McGill ­University (Montréal). robin hickey is Senior Lecturer in Law at Queen’s University Belfast. duard kleyn is Professor of Law at the University of Pretoria. lena kunz is Post-doctoral Researcher at the Institute of Legal History, University of Heidelberg. thomas rüfner is Professor of Law at the University of Trier and Judge on the Court of Appeal in Koblenz.

Table of Cases

Australia Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 (HCA)………… 52, 73 Wik Peoples, The v State of Queensland (1996) 187 CLR 1……………… 48 Austria Landesgericht Klagenfurt, 15 February 2002, (2003) Österreichisches Anwaltsblatt 222……………………………………………………… 183 Oberster Gerichtshof, 12 February 1991, 64 Sammlung Zivilrecht 10 ..… 181 Canada Bilodeau v Dufour 1952 (2) SCR 264……………………………………… 37 Bird v Fort Frances [1949] 2 DLR 791 (Ont HC)………………………… 47 Ciment du Saint-Laurent v Barrette [2008] 3 RCS 392…………………… 40 Desjardins v Ville de Montréal 30 QAC 76……………………………… 35–6 Domaine de l’Anse de Val-Jalbert Inc v Morin 2003 REJB 2003-48290 (CA)………………………………………………………… 36 Frank v Kloppsteck 2011 JQ n 2902………………………………………… 36 Guaranty Trust Co of New York v Canada 1948 SCR 183………………… 37 Marcel Bourgeois v Douglas Eaton REJB 2001-23796…………………… 38 Mayer Hill v Sylviculture et exploitation forestière JMJ Inc 2009 JQ n 12796………………………………………………………………… 38 Porterlane Investments Ltd v Chambre des Notaires du Québec 2010 JQ n 3649………………………………………………………………… 36 Québec (Sous-Ministre du Revenu) v Propriété Métro Industriel Inc 1999 JQ n 920 (CS)……………………………………………………… 49 Shaink v Dussault 1966 CS 165……………………………………………… 36 Sivret v Giroux 1997 RDI 163 (CA)………………………………………… 47 Taylor and Willigar, Re (1980) 99 DLR (3d) 118…………………………… 48

x

the consequences of possession

England and Wales Alamo Housing Co-operative Ltd v Meredith [2003] EWCA 495………… 34 Armory v Delamirie (1722) 1 Strange 505; 93 ER 664 …… 53, 61–2, 63, 77, …………………………………… 78, 80, 81, 83, 84, 85, 86, 87, 90, 92, 93 Asher v Whitlock (1865-66) LR 1 QB 1…………… 62, 77, 84, 85–6, 87, 92 Atlantic Computer Systems, Re [1992] Ch 505……………………… 70, 72 Balfour v Balfour [1919] 2 KB 571………………………………………… 67 Barker v Furlong [1891] 2 Ch 172…………………………………………… 74 Bertie v Beaumont (1812) 16 East 33; 104 ER 1001……………………… 70 Beverley Acceptances Ltd v Oakley [1982] RTS 417…………………… 65–6 Bridges v Hawkesworth (1851) Jur 1079……………………………… 81, 90 Buckinghamshire CC v Moran [1990] Ch 644D…………………………… 41 Carter v Barnard (1849) 13 QB 945; 116 ER 1524………………………… 62 Cayle’s Case (1583) 8 Co Rep 32a (KB)…………………………………… 81 Cochrane v Moore (1890) 24 QBD 57…………………………………… 63–4 Cole, Re [1964] Ch 175…………………………………………………… 64–5 Costello v Chief Constable of Derbyshire [2001] 1 WLR 1437……… 62, 93 Doe d Carter (Mary) v Barnard (1849) 13 QB 945………………………… 86 Doe d Harding v Cooke (1831) 7 Bing 346…………………………… 85, 86 Doe d Hughes v Dyeball (1829) 1 M & M 346 (KB)……………………… 85 Dunwich (Bailiffs) v Sterry (1831) 1 B & Ald; 109 ER 995………… 71, 72, 73 Fenn v Bittleston (1851) 7 Exch 152; 155 ER 895………………………… 69 Fowley Marine (Ermsworth) Ltd v Gafford [1968] 2 QB 618 CA…… 47, 48 Goudge v Broughton [1929] 1 KB 103……………………………………… 70 Isaack v Clark (1614) 2 Bulst 306…………………………………………… 80 JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419……………………… 41, 85 Jeffries v Great Western Railway Co (1856) E & B 802……… 79, 82, 83, 87, …………………………………………………………………… 92, 93, 94 Lambeth LBC v Blackburn (2001) 82 P & CR 494………………………… 41 Lancashire and Yorkshire Railway Co v MacNicoll (1918) 88 LJKB 601… 52 Littledale v Liverpool College [1900] 1 Ch 19……………………………… 90 Lotan v Cross (1810) 2 Camp 464; 170 ER 1219…………………………… 74 Manchester Airport plc v Dutton 2000 QB 133…………………………… 34 Mayhew v Suttle (1854) 4 E & B 347; 119 ER 133………………………… 70 Mayor of London v Hall [2011] 1 WLR 504…………………………… 62, 63 Moore v Robinson (1831) 2 B & Ald 817; 109 ER 1346…………………… 70 Nicolls v Bastard (1835) 2 CM & R 659; 150 ER 279……………………… 75 Parker v British Airways Board [1982] QB 1004 (CA)……………… 62, 81, 82 Peaceable d Uncle v Watson (1811) 4 Taunt 16…………………………… 86

table of cases

xi

Perry v Clissord [1907] AC 73………………………………………… 30, 44 R v Bass (1782) 1 Leach 251; 168 ER 228…………………………… 70, 71 R v Chisser (1678) T Ray 275; 83 ER 142…………………………………… 70 R v Deakin & Smith (1800) 2 Leach 862; 168 ER 530…………………… 70–1 R v Lambert [2002] 2 AC 545……………………………………………… 61 R v Pears (1779) 1 Leach 212; 168 ER 208………………………………… 70 R v Thurborn (1849) 1 Den 387; 169 ER 293………………………… 68, 72 R v Walsh (1812) 2 Leach 1072; 168 ER 624……………………………… 69 Rogers v Spence (1844) 13 M & W 571; 153 ER 239……………………… 73 Rosenburg v Cook (1881) 8 QBD 162……………………………………… 86 Sinclair v Brougham [1914] AC 398………………………………………… 67 Smith v Waterman [2003] All ER (D) 72…………………………………… 48 South Staffs Water Co v Sharman [1896]2 QB 44………………………… 90 Star Energy Weald Basin Ltd v Bocardo SA [2010] UKSC 35…………… 74 Sutton v Buck (1810) 2 Taunt 302…………………………………………… 79 Thomas v Times Books Co Ltd [1966] 1 WLR 911………………………… 64 Tubantia, The [1924] All ER 615 (Pr & Ad Div)…………………………… 48 USA v Dollfuss Mieg [1952] AC 582………………………………………… 72 Webb v Fox (1797) 7 TR 391………………………………………………… 80 White v Morris (1852) 11 CB 1015; 138 ER 778………………………… 74–5 White v Withers [2009] EWCA Civ 1122…………………………………… 75 Wilbraham v Snow (1670) 1 Mod 30; (1845) 2 Wms Saund 47……… 79, 80 Williams v Linnitt [1951] 1 KB 565 (CA)…………………………………… 81 Young v Hichens (1844) 6 QB 606; 115 ER 228…………………………… 63 France Cass Req, 10 November 1819, Répertoire Dalloz………………… 101, 102 Cass Req, 16 May 1820, Répertoire Dalloz……………………………… 101 Cass Req, 28 December 1826, Répertoire Dalloz……………………… 101 Germany Bundesgerichtshof, 6 May 2009, 180 Entscheidungen des Bundesgerichsthofs in Zivilsachen 300…………………………… 178, 179 Bundesgerichtshof, 2 December 2011, Multimedia und Recht (2012) 417……………………………………………………………… 165 Kammergericht, 22 June 1967, [1967] Neue Juristische Wochen schrift 1915……………………………………………………………… 177 Oberlandesgericht Köln, 26 April 2004, [2005] Neue Juristische

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the consequences of possession

Wochenschrift – Rechtsprechungsreport 99…………………………… 178 Reichsgericht, 17 September 1913, 83 Entscheidungen des Reichsgerichts in Zivilsachen 93……………………………………… 182 Italy Cassazione civile, 24 March 1979 n 1737………………………………… 108 Cassazione civile, 23 February 1981 n 1101……………………………… 109 Cassazione civile, 6 November 1991 n 11853……………………… 108, 109 Cassazione civile, 13 February 1999 n 1204……………………………… 109 Pretura Milano, 9 December 1991, Foro italiano (1992) I, 2463……… 108 Scotland Adamsons v Lord Balmerino (1662) Mor 10645…………………… 130, 133 Anderson v Forbes (1696) Mor 10630……………………………… 122, 131 Bain v Bain [2006] CSOH 198…………………………………………… 139 Baird v Law (1695) Mor 10623…………………………………………… 121 Binning v Brotherstones (1676) Mor 13401……………………………… 114 Boyd v Kirkcudbright County Council 1937 SLT (Sh Ct) 17 … 123, 131, 132 Bridges v Elder (1822) 1 S 373…………………………………………… 120 Calder v Adam (1870) 8 M 645…………………………… 122, 123, 125, 128 Cant v Aickman (1683) Mor 10633………………………………… 120, 122 Carson, Warren & Co v Miller (1863) 1 M 604…………………… 122, 125 Chisholm v Chisholm (1898) 14 Sh Ct Rep 146………………………… 138 Colquhoun v Paton (1859) 21 D 996………………………………… 116, 135 Cruickshank v Irving (1854) 17 D 286…………………………………… 122 Dalmahoy v Horsburgh (1628) Mor Supp 55……………………… 126, 127 Dickson v Dickie (1863) 1 M 1157……………………………………… 137 Drummond v Milligan (1890) 17 R 316……………………… 122, 126, 133 Dunfermline (Countess of) v Lord Pitmedden (1698) Mor 10630……… 129 Fearnan Partnership v Grindlay 1990 SLT 704………………………… 118 Fuird v Stevenson (1637) Mor 10618…………………………………… 126 Galloway v Cowden (1885) 12 R 578……………………………… 121, 126 Glendinning v Gordon (1716) Mor 10610……………………………… 121 Graham v Sharpe (1823) 2 S 540………………………………………… 136 Grant v Heriot’s Trust (1906) 8 F 647…………………………………… 118 Grant v Law (1695) Mor 10644…………………………………………… 121 Hadden v Moir (1673) Mor 10648………………………………… 130, 133 Hamilton v Tenants of Oversheils (1661) Mor 10618…………………… 126

table of cases

xiii

Hay v Leonard (1677) Mor 10286………………………………………… 112 Hepburn v Robertson (1706) Mor 10644………………………………… 121 Hume v Scott (1676) Mor 10641…………………………………… 116, 120 Hunter v Maule (1827) 5 S 238…………………………………………… 122 Innes v Allardyce (1822) 2 S 93………………………………… 121, 123, 131 Irvine v Robertson (1873) 11 M 298……………………………………… 135 Johnstone v Erskine (1668) Mor 10621………………………………… 121 Ker v Pringle (1662) Mor 10619………………………………………… 118 Knox v Brand and Berry (1827) 5 S 666…………………………… 121, 122 Leitch & Co Ltd v Leydon 1930 SC 41; 1931 SC (HL)………………… 115 Liston v Galloway (1835) 14 S 97…………………………………… 122, 125 Little v Irving (unreported) 25 January 2000, Dumfries Sh Ct…… 121, 133 Loch v Lockie (1628) Mor 10637…………………………………… 122, 130 Lock v Taylor 1976 SLT 238……………………………………………… 139 Lockhart v Meikle (1724) Mor 10625…………………………………… 122 London, Midland and Scottish Railway Co v M’Donald 1924 SC 835 . .… 135 M’Donald v Dempster (1871) 10 M 94…………………………………… 121 M’Kerron v Gordon (1876) 3 R 429……………… 118–20, 122, 123, 125, 128 Macdonald v Watson (1830) 8 S 584……………………… 118, 122, 123, 136 Mather v Alexander 1926 SC 139………………………………………… 138 Matheson v Stewart (1872) 10 M 704………………………… 126, 134, 136 Maxwell v Ferguson (1673) Mor 10628………………………………… 128 Maxwell v Glasgow and South-Western Railway Co (1866) 4 M 447………………………………………… 116, 123, 127, 139 Montgomery v Home (1664) Mor 10627…………………………… 122, 131 Neilson v Vallance (1828) 7 S 182………………………………………… 122 Nelson’s Trs v M’Caig (1899) 7 SLT 244………………………………… 132 Phestos Shipping Co Ltd v Kurmiawan 1983 SC 165…………………… 115 Pollock v Anderson (1663) Mor 10634…………………………………… 132 Porterfield v M’Millan (1847) 9 D 1424……………………… 118, 122, 133 Provinciall of the Blackfriars v Bervick (1503) Mor 10597……………… 126 Renton (Lady) v Her Son (1629) Mor 14739…………………………… 112 Richmond v Inglis (1842) 4 D 769…………………………… 123, 132, 136 Ross v Fisher (1833) 11 S 467…………………………………… 130–1, 132 Salter v Knox & Company’s Factor (1786) Mor 14202…………………… 140 Selkirk (Men of) v Tenants of Kelso (1541) Mor 14378………………… 112 Shell UK Ltd v McGillivray 1991 SLT 667……………………………… 115 Somerville v Hamilton (1541) Mor 14737……………………………… 112 St Andrews Ladies’ Golf Club v Denham (1887) 14 R 686……………… 121

xiv

the consequences of possession

Stewart v Grant (1698) Mor 10644……………………………………… 122 Stuart v Lundie (1632) Mor 10617……………………………………… 126 Watson v Shields 1996 SCLR 81……………………………… 120, 134, 135 Watt v Maitland Macgill (1823) 2 S 289………………………………… 126 Wilson v Henderson (1855) 17 D 534…………………………………… 127 Wilson v Shepherd 1913 SC 300………………………………………… 115 Winton v Gordon (1668) Mor 10627……………………………………… 116 WVS Office Premises Ltd v Currie 1969 SC 170………………………… 118 Yeoman v Oliphant (1669) Mor 14740…………………………………… 112 South Africa Adamson v Boshoff 1975 (3) SA 221 (C)………………………………… 194 ATM Solutions (Pty) Ltd v Olkra Handelaars CC 2009 (4) SA 337 (SCA)……………………………………………………… 195, 207 Bank van die Oranje-Vrystaat v Rossouw 1984 (2) SA 644 (C)………… 194 Bennett Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230 (E)… 194 Bester v Grundling 1917 TPD 492……………………………………… 192 Beukes v Crous 1975 (4) SA 215 (NC)……………………………… 194, 196 Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 508 (A)…………………… 194, 196, 199–200, 201, 204, 205, 206, 209 Buffelsfontein Gold Mining Co Ltd v Bekker 1961 (3) SA 381 (T)……… 199 Cape Town (City of) v Strumpher 2012 (4) SA 207 (SCA)…………………………………………………… 203, 204, 207, 209 Curatoren van Pioneer Lodge NO 1 v Champion en Anderen 1897 OFS 51………………………………………………………………… 192 De Beer v Zimbali Estate Management Association (Pty) Ltd 2007 (3) SA 254 (N)………………………………………………………… 197 De Villiers v Holloway (1902) 12 CTR 566……………………………… 192 Deljon v Bloemkop Properties (Pty) Ltd (1972) 2 PH A58 (C)………… 194 Donges NO v Dadoo 1950 (2) SA 321 (A)……………………………… 192 Du Randt v Du Randt 1995 (1) SA 401 (O)……………………………… 205 First National Bank of SA Ltd t/a Wesbank v Commissioner for the South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (7) BCLR 702 (C); 2002 (4) SA 768 (C)………………………………………………………… 194 Firstrand Ltd t/a Rand Merchant Bank v Scholtz NO 2008 (2) SA 503…… 187, 195, 201, 202, 203, 204, 207, 209 Froman v Herbmore Timber & Hardware 1984 (3) SA 609 (W)… 204–5, 206

table of cases

xv

Impala Water Users Association v Lourens NO 2008 (2) SA 495 (SCA)……………………………………………… 200–4, 207, 209 Jansen v Madden 1968 (1) SA 81 (GW)…………………………… 196, 199 Kramer v Trustees Coloured Vigilance Council Grassy Park 1948 (1) SA 748 (C)…………………………………………………… 196 Mans v Marais 1932 CPD 355…………………………………………… 198 Meyer v Glendinning 1939 CPD 84……………………………………… 186 Microsure (Pty) Ltd v Net 1 Applied Technologies South Africa Ltd 2010 (2) SA 59 (NPD)………………………… 196, 198, 207–8 Muller v Muller 1915 TPD 28…………………………………………… 192 Naidoo v Moodley 1982 (4) SA 82 (T)…………… 193, 204–5, 206, 207, 209 Nienaber v Stuckey 1946 AD 1049…………… 186, 194, 195, 199, 200, 209 Ntai v Vereeniging Town Council 1953 (4) SA 579 (A)………………… 192 Ntshwaqela v Chairman, Western Cape Regional Services Council 1988 (3) SA 218 (C)…………………………………………… 194 Painter v Strauss 1951 (3) SA 307 (O)……………………………… 194, 199 Petersen v Petersen (1974) 1 PH B5 (R)………………………………… 198 Pinzon Traders 8 (Pty) Ltd v Clublink (Pty) Ltd 2010 (1) SA 506 (ECG)…………………………………………… 195, 207, 208–9 Plaatjie v Olivier NO 1993 (2) SA 156 (OPD)……………………… 195, 196 Pretorius v Pretorius 1927 TPD 178………………………………… 194, 196 Rooibokoord Sitrus (Edms) Bpk v Louw’s Creek Sitrus Koöperatiewe Maatskappy Bpk 1964 (3) SA 601 (T)………………… 194 Sebastian v Malelane Irrigation Board 1950 (2) SA 690 (T)……… 194, 199 Shapiro v South African Savings and Credit Bank 1949 (4) SA 985 (W)……………………………………………………………… 194 Shoprite Checkers Ltd v Pangbourne Properties Ltd 1994 (1) SA 616 (WLD)………………………………………………… 195–6, 209 Slabbert v Theodoulou 1952 (2) SA 667 (T)……………………………… 195 Stanhope Motors & Machinery Sales v Pretoria Light Aircraft Co (Pty) Ltd (1951) 2 PH F79 (T)…………………………………… 194, 195 Telkom SA Ltd v Xsinet (Pty) Ltd; Xsinet (Pty) Ltd v Telkom SA Ltd 2003 (5) SA 314; 2002 (3) SA 629 (C)…… 187, 194, 196, 201, 203, ……………………………………………………… 204, 205–7, 208, 209 Tjollo Ateljees (Eins) Bpk v Small 1949 (1) SA 856 (A)………………… 186 Van Wyk v Kleynhans 1969 (1) SA 221 (GW)…………………………… 199 Xsinet (Pty) Ltd v Telkom SA Ltd 2002 (3) SA 629 (C)……… 187, 194, 196, …………………………………………… 201, 203, 204, 205–7, 208, 209 Yeko v Qana 1973 (4) SA 735 (A)………………………………………… 196

xvi

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Zondi v MEC for Traditional and Local Government Affairs 2004 (5) BCLR 547 (N)……………………………………………………… 194 Zulu v Minister of Works, KwaZulu 1992 (1) SA 181……………… 197, 200 Spain Audiencia Provincial Avila, 9 October 1981 (La Ley 1980-1, 931 (595-R) 645 n 96)……………………………………………………… Audiencia Provincial Palma de Mallorca (Sección 3a) 584/1993, 29 October 1994; La Llei 1994, 1298-R 627…………………………… Tribunal Supremo, 7 January 1942 (Aran. n 4)…………………………… Tribunal Supremo, 13 March 1962 (Aran. n 808)………………………… Tribunal Supremo, 14 March 1978 (Aran. n 957)…………………………

152 152 164 164 164

United States Hanson v Summers, 22 September 2000 (Mich Ct App)…………………… 48 Howard v Kunto 477 P 2d 213……………………………………………… 48

Table of Statutory Materials

Austria Allgemeines Bürgerliches Gesetzbuch (Civil Code, ABGB) 1811 § 285…………………………………………………………………… 172 § 303…………………………………………………………………… 172 § 309………………………………………………………………… 12, 174 § 311…………………………………………………………………… 173 § 312…………………………………………………………………… 173 § 339…………………………………………………………………… 175 § 345…………………………………………………………………… 175 § 346…………………………………………………………………… 175 § 372…………………………………………………………………… 175 § 1052…………………………………………………………………… 179 Zivilprozessordnung (Code of Civil Procedure, ZPO) § 458…………………………………………………………………… 176 Canada Code civil du Bas-Canada (Civil Code of Lower Canada, C.c.B.C) art 2192…………………………………………………………………… 35 art 2193…………………………………………………………………… 45 Code civil du Québec (Civil Code of Quebec, C.c.Q.)………………… 44, 50 art 904…………………………………………………………………… 51 art 912…………………………………………………………………… 54 art 921……………………………………………………………… 35, 36 art 922…………………………………………………………………… 45 art 923…………………………………………………………………… 35 art 929……………………………………………… 36, 45, 47, 48, 49, 54 art 953…………………………………………………………………… 54 art 1181…………………………………………………………………… 36 art 1454…………………………………………………………………… 51

xviii

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art 2919…………………………………………………………………… 51 Code de procédure civile (Code of Civil Procedure, C.p.c.) art 770…………………………………………………………… 36, 53, 54 art 771……………………………………………………………… 53, 54 art 772……………………………………………………………… 53, 54 France Code civil (Civil Code) art 1441…………………………………………………………………… 51 art 2255 (formerly 2228)………………………………………………… 7 art 2276 (formerly 2279)……………………………………… 50, 51, 103 art 2278 (formerly 2282)……………………………………… 23, 41, 102 art 2279 (formerly 2283)…………………………………………… 23, 102 Code de procédure civile (Code of Civil Procedure) art 23……………………………………………………………………… 99 art 1264……………………………………………… 23, 47, 102, 113, 114 Loi 75-596 du 9 juillet 1975 (Law 75-596 of 9 July 1975)……… 23, 41, 102 Ordonnance civile 1667……………………………………………………… 22 Germany Allgemeines Landrecht 1794 (Prussia),……………………………………… 12 Part I, Title 7, § 141……………………………………………………… 97 Bürgerliches Gesetzbuch (Civil Code, BGB) § 227…………………………………………………………………… 150 § 229…………………………………………………………………… 150 § 320…………………………………………………………………… 179 § 823…………………………………………………………………… 144 § 854……………………………………………………… 12, 105, 145, 173 § 855…………………………………………………………………… 105 § 857…………………………………………………… 142, 148, 154, 169 § 858…………………………………………………………………… 144 § 859…………………………………………………………………… 150 §§ 861-867………………………………………………………………… 23 § 861………………………………………… 105, 144, 148, 169, 175, 176 § 862………………………………………………………… 105, 144, 175 § 863………………………………………………………… 149, 151, 176 § 868…………………………………………………… 105, 114, 148, 174 § 869…………………………………………………………………… 174

table of statutory materials

xix

§ 927…………………………………………………………………… 117 § 943…………………………………………………………………… 162 § 985…………………………………………………………… 23, 159, 162 § 1006……………………………………………………………………… 24 § 1007………………………………………………………… 23, 144, 175 § 1029……………………………………………………………… 145, 173 § 1922……………………………………………………………… 148, 163 §§ 1943-1945…………………………………………………………… 163 § 2018…………………………………………………………………… 162 §§ 2197-2228…………………………………………………………… 158 § 2205 …………………………………………………………… 159, 170 § 2212 ……………………………………………………… 159, 161, 170 Zivilprozessordnung (Code of Civil Procedure, ZPO) §§ 916-945……………………………………………………………… 151 § 935…………………………………………………………………… 176 § 940…………………………………………………………………… 176 Italy Codice civile (Civil Code) 1865 art 686………………………………………………………………… 106 art 694……………………………………………………………… 105–6 art 695…………………………………………………………… 106, 107 art 2115………………………………………………………………… 106 Codice civile (Civil Code) 1942 art 1153………………………………………………………………… 108 art 1168………………………………………………………………… 107 art 1170……………………………………………………………… 107–8 art 1585………………………………………………………………… 109 Scotland Acts of the Parliament of Scotland Act 1579 c 81……………………………………………………………… 136 Registration Act 1617……………………………………………………… 130 Acts of the Scottish Parliament, see under United Kingdom

xx

the consequences of possession

South Africa Constitution of the Republic of South Africa 1996 s 8,……………………………………………………………………… 185 s 27……………………………………………………………………… 203 s 39……………………………………………………………………… 185 National Water Act 36 of 1998……………………………………… 201, 202 Prescription Act 68 of 1969 s 1…………………………………………… 117 Water Act 54 of 1956……………………………………………………… 201 Water Services Act 108 of 1997…………………………………………… 203 Spain Código Civil (Civil Code) art 192………………………………………………………………… 162 art 333………………………………………………………………… 146 arts 334-337…………………………………………………………… 146 art 348…………………………………………………………… 147, 162 art 430………………………………………………………………… 145 art 437………………………………………………………………… 145 art 440…………………………………………… 142, 151, 163, 168, 169 art 442………………………………………………………………… 163 art 446………………………………………………………………… 147 arts 892-911…………………………………………………………… 158 art 902……………………………………………………… 160, 161, 170 art 999………………………………………………………………… 163 art 1960………………………………………………………………… 163 Ley de Enjuiciamiento Civil (Code of Civil Procedure) 1881……… 151, 153 Ley de Enjuiciamiento Civil 2000……………………………… 147, 150, 151 art 250………………………………… 142, 144, 150, 151, 160, 169, 170 art 439………………………………………………………………… 144 art 440………………………………………………………………… 154 art 441…………………………………………………………… 144, 152 art 447………………………………………………………………… 144 art 721………………………………………………………………… 151 art 727………………………………………………………………… 151 Ley Hipotecaria (Mortgage Law) 1946 art 38…………………………………………………………………… 142 Leyes de Toro (Laws of Toro) 1505 ley 45…………………………………………………………………… 168 Spanish Civil Proceedings Code see Ley de Enjuiciamiento Civil

table of statutory materials

xxi

United Kingdom Acts of the United Kingdom Parliament Common Law Procedure Act 1852 s 49………………………………………………………………………… 87 ss 168-221………………………………………………………………… 25 Conveyancing (Scotland) Act 1874 s 4……………………………………………………………………… 121 Factors Act 1889 s 2…………………………………………………………………… 65, 66 Greater London Authority Act 1999 s 384……………………………………………………………………… 63 Land Registration Act 2002 s 27………………………………………………………………………… 65 s 29………………………………………………………………………… 65 Land Registration (Scotland) Act 1979…………………………………… 130 s 3……………………………………………………………………… 138 Misuse of Drugs Act 1971 s 5……………………………………………… 61 Prescription and Limitation (Scotland) Act 1973 s 1………………………………………………………………… 117, 127 s 2……………………………………………………………………… 127 s 3…………………………………………………………… 123, 124, 127 s 7……………………………………………………………………… 136 s 8……………………………………………………………………… 136 Real Property Act 1845……………………………………………………… 64 Requirements of Writing (Scotland) Act 1995 s 1……………………………………………………………………… 124 Sale of Goods Act 1979 s 24………………………………………………………………………… 65 s 25………………………………………………………………………… 65 Sheriff Courts (Scotland) Act 1907 s 5……………………………………………………………………… 120 Torts (Interference with Goods) Act 1977 s 2………………………………………………………………………… 53 Acts of the Scottish Parliament Abolition of Feudal Tenure etc (Scotland) Act 2000 s 1………………… Land Registration etc (Scotland) Act 2012……………………………… s 50……………………………………………………………………… s 86………………………………………………………………………

117 130 138 138

1  The Consequences of Possession Eric Descheemaeker* Labeo, at the turn of the Christian era, tells us that he who “sits” over a thing (res) possesses it.1 Subject to a difficulty about what sort of entities can be possessed,2 the metaphor could hardly be clearer: possession speaks of factual control, with its unavoidable corollary, the power to exclude others. In that sense, possession does not have to be invented by lawyers: it pre-exists any form of apprehension of reality by the interpretative and creative power of the law. This is probably the reason, or at least part of the reason, why it is routinely described as a raw “fact”:3 while this assertion needs to be severely nuanced, precisely because the intervention of the law is bound to bring in a degree of artificiality, it has to be our starting point both historically and conceptually: possession describes a relationship of factual control of a person over a thing. From a civilian perspective at least (but this is language that can also be understood by common lawyers, and might in fact belong to the shared, pre-legal intuitions of mankind),4 possession will invariably be contrasted with ownership: whether there is any underlying analytical necessity or not, any reader will know from experience that no analysis of either concept is allowed to continue for long without the other being brought in as part of an exercise in contrast and differentiation.5 The dichotomy seems indeed simple   * Thanks to George Gretton and Robin Hickey for their helpful comments on an earlier draft of this chapter.  1 D 41.2.1 pr. (Paul, 54 ad Edictum): “Possession is so styled, as Labeo says, from ‘seat’ (a sedibus), as it were ‘position’, because there is a natural holding, which the Greeks call κατοχή, by the person who stands (insistit) on a thing” (tr Watson Digest); cf F Schulz, Classical Roman Law (1951) 428. The same metaphor can be found in German Besitz (from sitzen = to sit). Contra: J-L Halpérin, Histoire du droit des biens (2008) 37.   2 The problem of the protection of incorporeals will be returned to in part D of this chapter. For the sake of simplicity, it will be ignored until that point; and the “thing” will be assumed to be corporeal, i.e. tangible.   3 See below, part C.   4 The suggestion is made in A M Honoré, “Ownership”, in A G Guest (ed), Oxford Essays in Jurisprudence (1961) 107 at 107.   5 See also below (n 48).

1

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and intuitively graspable by any layman: on the one hand, the possessor says, “I have it!”; on the other, the owner claims, “it is mine!”6 The neatness of the distinction provides us with an anchor that the artificiality of the law can never completely undo. Yet difficulties are bound to crop up almost immediately. Sooner or later, “it is mine” will want to translate into either “I have it” or “I want to have it”: by asserting ownership, the rei vindicatio seeks possession.7 An abstract assertion of ownership is no good to anyone; and no one would dream of telling the victim of theft that he has no cause to complain because the thing stolen is still his, wherever it might happen to be on the face of the earth. As to the claim that “I sit upon Daisy”,8 my cow, it is also bound to cause difficulties to the lawyer who seeks to analyse it: if I have Daisy and no one challenges my power to exclude them from her, it seems that private law, being concerned with disputes between individuals, does not have anything to say about what is, again, the mere description of a fact. Where it might want to intervene, on the other hand, is if I am challenged in my possession. But here, two different difficulties arise. The first one is that, as likely as not, Daisy has already been taken away from me: I come back to the field at night to find that a thief has led her astray. Unless the law artificially restricts or alters the layman’s understanding of possession, I am no longer the possessor; the thief is. He sits on her, not me. If I no longer have possession, my now extinct possession cannot by construction be protected: if I want to claim, prima facie it would have to be on the basis that I once was in possession. The alternative would be for the law to declare that I still am in possession and that either the thief is not, or his newly-acquired possession is for some reason of lesser quality than mine: in both cases, artificiality creeps   6 Non-technical terms, “have” and “be”, are used deliberately. The corresponding legal concepts, “possession” and “ownership”, are the product of the gradual refinement by the legal community of basic, pre-legal intuitions of the human mind. This is reflected in the words of the rei vindicatio, which did not ask whether the claimant “owned” the thing but whether it was “his”. (See P Birks, “The Roman law concept of dominium and the idea of absolute ownership” (1985) Acta Juridica 1 at 5; compare the wording of the interdictum de vi armata, below, text to n 67).   7 It is true that English law, in particular, does not think along such lines and, subject to some nuancing, cannot be said to have for movables any mechanism like the rei vindicatio: failing a voluntary return of the thing disputed between two parties, the successful claimant will receive money damages. But it should not be controversial to say that the monetary award is, to use Robert Stevens’ terminology, “substitutive” for the value of the underlying protected legal relationship. In fact, for entirely different reasons, the Roman plaintiff would be left in exactly the same situation. Whether the successful plaintiff actually gets the res back is immaterial; the important point is that the law sees as detrimental the fact that the owner cannot be rejoined with it and is willing to award a remedy on that basis.   8 The cow Daisy (occasionally renamed Buttercup) will evoke memories for readers familiar with the works of the late Peter Birks, who was Professor of Civil Law in Edinburgh from 1981-1987.

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in and drives a wedge between the layman’s and the lawyer’s understanding of the term.9 With artificiality will come complications and, often, muddle. The second difficulty is, why should the law care to intervene if Daisy has been taken away from me? One answer would be to say “because she is mine”: this provides at first sight a sound reason; but in that case the basis for the law’s protection would really be ownership, not possession past or present. Again, our seminal distinction between the two notions collapses. If the law wants to protect possession quite apart from ownership, as its rhetoric has always claimed to in systems rooted in Roman law, it will have to intervene whether or not Daisy is mine. This is not unthinkable but it does raise difficult questions. For instance, what if I am myself a thief; Daisy was never mine in the first place and I know it? Should I be able to appeal to the law – whether against the entire world, including the rightful owner, or at least against third parties? It seems implausible for the law to want to protect the status quo whenever someone sits over a thing and sees their position challenged. If possession is not protected on the basis that it is indirectly ownership that is contemplated, it seems likely that other distinctions will need to be drawn, for example between good and bad faith,10 or between peaceful and violent possession. These are difficulties that will need to be returned to. What they highlight is the fact that the exercise in distinction between possession and ownership is not as simple as we might have thought at first. If we move, in our attempt to define (at least provisionally) our subjectmatter, from contradistinction to the identification of a core, more difficulties will be encountered, which will make it difficult to say anything about possession that would be uncontroversial. One particular difficulty is that the discrepancy between the layman’s understanding of possession (“sitting over”) and the law’s refinement of it is a complex one. Not only does the law not protect all instances of sitting, as one would expect; it frequently provides a remedy to a non-sitter under the label of possession. Besides, sometimes the term “possession” (possessio, possession, Besitz) is used to describe only such instances where the law is willing to intervene if the holding is challenged, and sometimes it is not. To put the same point differently, possession may or may not mean legally protected possession; thus, depending on the context, the qualification might but need not be redundant. This makes it particularly   9 Roman law chose the first branch of the alternative: D 41.2.3.7 (Paul, 54 ad Edictum). Ulpian’s rationalisation of the solution is puzzling: “If a person be evicted forcibly from possession, he is treated as still possessing, since he has the ability to recover possession by the interdict de vi” (D 41.2.17 = Ulpian, 76 ad Edictum; on the interdict de vi, see below, text to nn 66-68). 10 The distinction between the two types of possession was made explicitly by Paul: D 41.2.3.22 (Paul, 54 ad Edictum).

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difficult to find a stable terminology, in the absence of which clear thinking will be threatened. Of course, the difficulty of identifying a sufficiently stable basis on which to build increases rapidly the moment one seeks to add a comparative (or historical) dimension to the study. Every comparatist will know this, and will also know that the extra difficulties can be more or less great, depending both on the jurisdictions under consideration and the proposed field of study. In this respect, few would probably want to deny that studying possession across the divide between the civilian tradition and the common law would be close to the more difficult end of the spectrum.11 Some might go as far as denying the feasibility of such a transsystemic study. The above starting point, approaching possession by contradistinguishing it from ownership, does indeed look distinctively civilian; and the very existence of the dichotomy is often denied in the context of English law. While the word “possession” and the underlying concept clearly do exist in the common-law tradition, whether they paint an even broadly similar picture to that of the Romanist tradition will be doubted by many. Although the distance might not in fact be as great as is sometimes believed, as indeed this book seeks to show in a number of respects, still the starting point has to be that the two legal traditions proceed (at least on the face of it) from significantly different perspectives. We shall come back to the issue; suffice it to say at this point that it is apparent from even a cursory look at modern English scholarship that the twin Romanist concepts of possession and ownership have sufficiently permeated the modern law for it to be entirely legitimate, and meaningful, to analyse the common law through that prism (which naturally is not to deny that the way they relate to the home-grown materials is a difficult and controversial issue). To a large extent, 125 years after Pollock and Wright’s seminal Possession in the Common Law,12 the self-understanding of modern English law has been largely recast in Roman forms of thinking: this might conceivably be lamented, but it cannot be denied. So, while we must be careful not to underestimate the distance that exists between systems of law with clearly diverging histories, we must be equally careful not to overstate it in the modern law, and in particular not to be overimpressed by what might be purely formal differences. 11 One does not want to understate differences within the civilian tradition either; a common danger of focusing on the divide between the two great Western legal traditions is to imply, by contrast, that both sides form a block. Clearly they do not, as this chapter will make plain. 12 Frederick Pollock and Robert Samuel Wright, An Essay on Possession in the Common Law (1888).

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At any rate, within the law of property (another Romanist concept appropriated by English law), it would be fair to say that possession is least open to the criticism of conceptual imperialism: partly because the word has belonged to the actional substance of the law for centuries;13 partly because, as mentioned at the outset, possession is primarily the description of a factual situation between person and thing which, under one name or another, is bound to exist anywhere where persons and things coexist. (Naturally, this is not to say that the legal refinement of the notion is system-neutral, which clearly it is not; but the unrefined, common-sense notion underpinning it is bound to have a high degree of validity across jurisdictional boundaries.) While this book is dominated by civilian contributors, it naturally has the ambition not to misrepresent the common-law tradition: neither misunderstanding its distinctive character nor – an equally common trap for comparatists – assuming that it is fundamentally different because this is how some have wished to represent it. To return to the subject-matter of the book, the topic of the conference was “the consequences of possession” but, in order to limits the scope of a very wide topic, the specification was immediately made that what we were interested in was the consequences of possession in and by itself: leaving aside the definitional problem for now, what this meant was to exclude any consequences which are triggered by more than the “sitting over” – such doctrines as prescriptive acquisition, based on the passing of time and often some sort of justificatory original transaction, or the acquisition of fruits, which supposes the coming into existence of such fruits and thus, again, time. Rather, the emphasis was to be on the protection of possession: given the mere fact of possession as the sitting over a thing (as possibly tweaked by the law’s later refinement of the concept), what are the legal remedies that can be sought if such possession is being interfered with? This is what this book primarily – albeit not exclusively – concerns itself with, and what the present introduction will focus on. While possession is one of the legal topics which have caused the most ink to flow within private law, especially over the last 200 years, it is hoped that this volume can in fact bring new light to the debate, because it is one of the first attempts – certainly, the first on this scale – to study the topic comparatively. It has been rightly observed that the comparative study of the law of property lags behind that of, for example, the law of obligations.14 It is not 13 Below (n 39). 14 S van Erp and B Akkermans (eds), Cases, Materials and Text on National, Supranational and International Property Law (2012) viii.

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difficult to see why, but neither should we be content with this situation: the benefits of the comparative exercise are, whatever its outcome, too obvious to state. Naturally, bringing together the common law and the civilian tradition adds a further challenge, and this book has no other ambition than to bring some new bricks to the edification of our knowledge and understanding of the field. It will have achieved its goal if it spurs further comparative investigation in a way that does justice to the complexity of the law. The conference was to focus on the main civilian jurisdictions (France, Germany, Italy, Spain) – unavoidably bringing out, behind them, Roman and canon law; also on English law; and, as befits a Scottish enterprise, on mixed legal systems. Contributions were made by lawyers educated or working in England, France, Germany, Italy, Quebec, Scotland and South Africa: their papers make up the rest of this book. The aim of this introductory chapter is to help contextualise them by providing some background information against which their significance can be better appreciated. Four questions will be addressed more specifically: the first two concern possession and its protection, while the third and fourth address, more briefly, two recurrent puzzles concerning the law of possession, which the book also deals with from a comparative perspective. These four questions are: (1) Why protect possession?; (2) How is possession protected?; (3) How does the fact of possession relate to any rights to or of possession?; and (4) What is so-called “quasi-possession”? A. What is possession and why protect it? The first question we might want to ask, when it comes to protecting possession, is: why? It has already been mentioned that there is nothing self-evident with the preservation of the status quo (or status quo ante): without more, the claim that “I am (or was) sitting over Daisy” does not, according to common morality, disclose a good reason for the law to intervene. A further complication is brought by the fact that the law does not protect every sort of holding: whether it restricts the use of the word “possession” to such instances as are protected by the law, or holds that only some types of possession give rise to redress when they are interfered with, one needs to look at the situations where the law does indeed seek to provide a remedy to understand why it might want to do so. The question “Why protect possession?” is thus inextricably intertwined with that other question, “What is (legally protected) possession?” As even the non-specialist will know, thousands of pages have been written on this topic, in Germany alone, in the sole context of Roman law. Providing

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a nuanced answer in a historical and comparative perspective would be a colossal task, far beyond the ambitions of this introductory chapter. Nor can the answer be, tempting though it may be, to take as a starting point the “official” definition that some legal systems have cared to provide, for instance that of the French Civil Code:15 this would unwarrantedly tilt the debate towards a particular jurisdiction. Indeed, assuming that words have, across jurisdictional and temporal divides, the meaning that one was first exposed to is one of the most redoubtable mistakes that comparatists can make, more often than not in perfectly good faith. What we should attempt to do, instead, is stand back and try to identify, in the great mass of historical data centring on the (pre-legal) idea of controlling a thing, the common core or cores of the legal doctrines which seek to address this factual situation. Perhaps paradoxically, asking the question at such a high level of generality, across the divide between the civilian and common-law traditions, and without reference to any particular jurisdiction or point in time, makes it in fact much easier to identify some key ideas that will serve, at least provisionally, as a guide through the thicket. This is what this section endeavours to do. (1) Three levels of possession Despite the obvious danger of oversimplication, it seems fair to say that, historically, we can identify three different types of possession in the eyes of the law.16 This picture can be reconciled with all the legal systems in contemplation, even though they might not all distinguish between the three or, if 15 Art 2255 (formerly 2228) French Civil Code: “La possession est la détention ou la jouissance d’une chose ou d’un droit que nous tenons ou que nous exerçons par nous-mêmes, ou par un autre qui la tient ou qui l’exerce en notre nom” [Possession is the holding or enjoyment of a thing or a right which we hold or exercise by ourselves, or through another who holds or exercises it in our name] (my translation). 16 This survey is limited to cases of what is generally referred to as direct possession (in German scholarship, where the distinction was first articulated, unmittelbarer Besitz, “immediate possession”), contrasted with indirect (mittelbarer, “mediate”). The omission is deliberate: possession properly speaking is immediate – i.e. personal – possession. The doctrine of mediate possession is a construct which allows the law to explain how a person can be deemed to have possession even though he is not sitting over a thing, by considering that others are sitting over it on his behalf. It really is concerned with issues of representation and attribution although, to complicate the matter further, these issues are often not distinguished analytically from the separate issue of retention of (direct) possession after control has been lost: while the result might be the same in practice (e.g. a landlord will be regarded as having possession of the house he has let out), the legal issues are quite distinct depending on the chosen approach. For the same reason, possession by juristic persons will be ignored. While this is a vastly important topic in practice, the way the law gets around the obvious difficulty that a legal person has no limbs to “sit over” a thing involves doctrine of representation and attribution which, again, are part of the law of persons, not property and thus need not be pursued here.

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they do, attach different legal consequences to them. (Because the received terminology is unstable, it is proposed to adopt a different one for the purpose of this brief survey.) At the top lies possession in the manner of an owner – “owner” being understood in the above sense of he who can claim “the thing is mine!” By this is meant that the “sitter” over the thing behaves in relation to it as if it were his and he enjoyed the ordinary prerogatives of the owner. To put it differently, he does not acknowledge any rival claim from someone else who might turn up and assert that Daisy is actually his. This might be because he really is the owner; because he mistakenly believes himself so to be (for example he bought the thing from someone who represented himself as the owner but was not); or because he has decided to disregard the claims of any rightful owner (the typical example of this being the thief). Next is possession in the manner of a holder who knows himself not to be the owner and does not seek to challenge the prerogatives of the latter. Obvious examples will be the tenant of land or the borrower of a movable thing: both obviously control the thing, but they also recognise their possession to be somehow derivative – whatever exactly this might mean – and, in some sense at least, of inferior quality compared to the first scenario. Typically, although complications are possible, they will be in control of the thing as a result of an agreement with the owner and possess in good faith. Whilst it is not obvious that the law should treat this scenario differently from the first, it is easy to see why it might want to, and thus why we need to keep both categories analytically distinct. Finally, there is the possession-sitting of the person who holds the thing for a brief period of time and typically exercises his momentary control in a way that makes it plain to the world that he does not stand in a special relationship with the thing, apart from his transient holding. Though the line is evidently difficult to draw between this category and the previous one, core and intuitive cases include the examples, often given, of a guest holding a knife at a dinner party or a valet carrying a suitcase. Terminology. This lowest degree of holding will not normally be called “possession” at all, but rather “custody” or “detention”.17 Although, etymologically, the content of these three notions is essentially identical, the latter two tend to be pressed into service to designate a form of control that is regarded as less strong than that first one. For the present purpose, we might want to refer to this lowest tier as level-three possession. 17 From, respectively, Lat. custodia = guarding, keeping and tenere = to hold (cf Inhabung in German). No label existed in classical Roman law (see Schulz, Classical Roman Law (n 1) 431).

the consequences of possession

9

The top degree will be called either “possession” simpliciter, if it is the only type that is protected at law, or something else, like “civil possession”. However, the label “civil” applied to possession is plagued with instability and is probably best avoided, especially in a comparative perspective;18 at the very least it should not be used without specifying what is meant by it. We can call this type of holding “owner-like possession” or level-one possession. Perhaps unsurprisingly, the middle tier turns out to be the most troublesome. It is sometimes called “natural (or corporeal) possession”19 – again, both labels should be avoided unless clearly defined – sometimes also “detention” like the lowest level: we shall refer to it as “holder-like”, or level-two, possession. The difficulty with this category lies in the twofold tension that underpins it. First, it is easy to find good intuitive reasons both to protect and not to protect level-two possession. In fact, the way legal systems choose to deal with the holder-like possessor is the best indicator of what underlying theory of possession they adhere to, and thus why they may or may not want to protect it. Secondly, if they choose not to protect it at law, they might either declare that level-two possession is no possession at all or that, even though it is, it is possession in such circumstances that the law will not intervene if it is interfered with. Much of the terminological confusion in the field of possession is caused by the fact that both strategies, despite being incompatible, are often pursued concurrently by the law. Against this background, brief (and by necessity insufficiently fine-tuned) summaries can be offered, de lege lata, of possession and its protection in Roman law, the later civilian tradition and finally English law. (2) Possession in Roman law Terminologically, classical Roman law chose to reserve the term “possession” (possessio) to those factual situations that gave rise to possessory remedies, as described in the next section. The alternative was simple: either holding amounted to possessio and it was protected, or it did not and the “sitter” would have no remedy if his control came to be challenged. In post-classical law, however, this neat dichotomy became marred, in particular through the introduction of the unstable labels of “civil possession” (possessio civilis) and “natural possession” (possessio naturalis).20 18 Again, the term is not classical (Schulz, Classical Roman Law (n 1) 432). 19 E.g. Ulpian describing the possession of the usufructuary: “naturaliter videtur possidere”, translated by Watson as “regarded as possessing in fact” (D 41.2.12. pr. = Ulpian, 70 ad Edictum). 20 W W Buckland, A Text-Book of Roman Law from Augustus to Justinian, 3rd edn, by P Stein (1963) 197.

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In terms of the substance of the law, subject to two main caveats, classical Roman law only protected level-one possession: he who controlled as owner was protected, but he who controlled as a holder (or as a transitory detentor) was not. In particular, to emphasise the most striking difference with both English law and some strands of the modern civilian tradition, all those who possessed pursuant to a contract – for example lessees, depositees, borrowers – were not deemed to have possession, and thus did not have access to possessory remedies should they lose control of the thing.21 The two caveats are as follows: first, although the level-one possessor would be protected even if he held in bad faith (e.g. a thief), he would not be protected if his possession was vitiated as against the party challenging his control – the vitiated character of the possession being established by the fact that it had been acquired vi (by force), clam (secretly), or precario (by grant at will). Contrary to bad faith, vitiation is a relative concept: the thief who had taken Daisy away from me at night could claim protection against someone else attempting to do the same to him; but if I managed to get Daisy back from him, he would not be able to challenge my regaining control by bringing a possessory remedy: not because she was mine in the first place,22 but because the way he had acquired her was tainted as against me.23 The second caveat is that, in rare circumstances, a level-two possessor would be deemed to have possessio and thus would be able to avail himself of possessory remedies. The main example of this was the pledgee of a thing.24 Trying to reconstruct the underlying theory of possession which would make sense of these solutions kept German legal academia busy for the best part of a century. While there is no need to go into this debate at any length, it is useful at least to sketch it out, because so much contemporary scholarship continues to approach issues of possession through its lens.25 To cut a long story very short, Savigny first offered an interpretation along the following lines: had possession, in Roman law, the “sitter” who held the thing as if it were his own, in other words our level-one possessor. The anomalous cases, like the pledgees, he explained away as exceptions based on what we would call today “policy”: while they held in pursuance of a contract, the purpose of their holding would easily have been frustrated had they not been deemed to possess. This theory, relying heavily on the holder’s state of mind, was 21 Buckland, Text-Book (n 20) 196; Schulz, Classical Roman Law (n 1) 431. 22 Below, text to n 63. 23 Schulz, Classical Roman Law (n 1) 429. 24 Schulz, Classical Roman Law (n 1) 429. 25 A good introduction is J Gordley and U Mattei, “Protecting possession” 44 American Journal of Comparative Law (1996) 293 at 294 ff.

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described as the “subjective” theory.26 The theory was attacked by Jhering, who considered that possession lay in the fact of holding the thing coupled with an intention so to hold (on a more than transient basis): so, for Jhering, both levels one and two qualified as possession (though level three did not). In defence of his “objective” theory, he appealed in his turn to various considerations of policy so as to explain why possessory protection was denied to most level-two holders, despite their having prima facie possession according to his understanding of the term.27 We shall return to the dispute when considering the grounds for protecting possession; for now, suffice it to say that D 41.2.35 is a strong indicator that the gist of Savigny’s thesis was correct.28 (3) Possession in the civilian tradition Moving on from the first to the second life of Roman law, the great difficulty with understanding the modern civilian tradition is that it is almost impossible to do so at a more than superficial level without knowing a significant amount of the history that lies behind it. That history is, in part, Roman; but the modern law was built on two other pillars: canon law and feudalism. Both, but particularly feudalism, brought with them new rules and also new concepts. Today, this threefold basis of the modern law is largely disguised by the fact that the language of the law was very largely (albeit not completely) Romanised in the run-up to modern codifications:29 the student of Roman law diving into French or German law will not feel a sense of alienation. Yet the substance of the law is markedly different, even though the recasting of the law in Roman terms had a knock-on effect on its substance, which tended to be reinterpreted as if it were Roman law. In spite of this, differences are still clear, albeit not uniformly across jurisdictions. The details of the story belong elsewhere. Gordley and Mattei have provided a good introductory overview in the case of the two main Continental systems, France and Germany.30 More will be said about these systems when considering the mechanisms protecting possession in the next section; the main point to highlight here is that the modern civilian tradition is split between two broad understandings of the notion of possession. The great 26 F K von Savigny, Das Recht des Besitzes: Eine civilistische Abhandlung (1803). 27 R von Jhering, Der Besitzwille: Zugleich eine Kritik der herrschenden juristischen Methode (1889). 28 Below (n 63). 29 Van Erp & Akkermans, Cases (n 14) 54. 30 Gordley & Mattei (n 25) at 305 ff.

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divide is between those systems which restrict possession to level-one holders and those for which level-two holders also have possession. Germany is the main example of the latter class, probably due to the widespread impact of the canon-law actio spolii which, as will be seen, did not require the claimant to hold like an owner. This position was encapsulated in the Prussian Allgemeines Landrecht of 1794 and has remained the position of the law to the present day.31 Thus, in German law, possession is defined in a very broad sense as the effective control of a thing.32 The other leading civilian jurisdiction, France, underwent an interesting movement of to-ing and fro-ing between the two approaches. While the Civil Code defines possession in such a way as to exclude only “precarious holders” (level-three possessors), thereby including (if implicitly) both levels one and two, its interpretation was firmly subjectivised in the first half of the nineteenth century, under the influence of Savigny.33 As a result, courts restricted the availability of possessory remedies to level-one possessors. However, the pendulum has been swinging back ever since, and remedies were gradually expanded to cover level-two holders as well.34 Whether this means that the definition of possession has changed, or simply that remedies are now open to non-possessors as if they were possessors, has no settled answer, being irrelevant in practice. France’s daughter jurisdiction, Quebec, was first codified at a time when the French understanding of possession was heavily Savignian: not having followed France in its more recent developments, it has remained a good illustration of the first paradigm.35 Austria is another example of the same.36 Thus, the civilian tradition is profoundly divided between these two incompatible interpretations of the concept of possession, one rooted through Savigny in the Roman law library; the other through Jhering in canon law. Indeed, in a jurisdiction like Scotland, the debate has yet to be settled, both views enjoying a level of support in the institutional writers and modern academia.37 31 Caterina, Chapter 5 of this volume, following text to n 5. 32 § 854 (1) BGB: “Der Besitz einer Sache wird durch die Erlangung der tatsächlichen Gewalt über die Sache erworben” [Possession of a thing is acquired by obtaining effective control over it]; cf J Baur & R Stürner, Sachenrecht, 18th edn (2009) s 7.1. 33 F Zenati-Castaing and T Revet, Les biens, 3rd edn (2008) s 448. 34 Below, part B(2); Emerich, Chapter 2 of this volume, text to nn 48 ff. 35 Emerich, Chapter 2 of this volume, esp text following n 9, who is critical of this position. 36 § 309 ABGB; cf Van Erp & Akkermans (n 14) 106. 37 D L Carey Miller, Corporeal Movables in Scots Law, 2nd edn (2005) 18 ff; K G C Reid, The Law of Property in Scotland (1996) ss 114 ff; cf R Caterina, “Concepts and remedies in the law of possession” (2004) 8 Edinburgh Law Review 267 at 267.

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(4) Possession in English law English law too emerged at the crossroads of medieval sources and Roman law. In that sense it is very much part of the wider European tradition and care must be taken not to drive too sharp a wedge between it and the civilian tradition that prevails over Continental Europe (and in Scotland). Having said this, however, it must be immediately emphasised that the mix is a very different one. The influence of Roman law was, in England, mostly formal: despite some similarities between the two traditions, which might be entirely coincidental, the substance of what we might broadly describe as the English “law of property” (a label that many common lawyers would hardly want to appropriate for themselves) is distinctively un-Roman. Though this is a complex question, what can safely be said is that the language of English property has been significantly Romanised; fascinatingly, however, the extent to which it has is not stable. To put it differently, there are a number of plausible ways of packaging the outcomes of English law, and these will rely more or less heavily on Romanist language: the form of the law is, to some extent, up for grabs. One interesting illustration of this indetermination is the use of the civilian concept of “ownership”, where approaches will range from asserting that it is the only proprietary right (right in rem) that exists to denying its existence altogether.38 By and large, the more the jurist expounding the law is drawn towards systematisation, the heavier reliance on Roman learning will be. Although the use of the word of possession in English law is older,39 the process of Romanisation of the concept was largely carried out – as part of a wider effort to rationalise the common law in the course of the nineteenth century – by Pollock and Wright’s 1888 book, Possession in the Common Law.40 In particular, for better or for worse, the book introduced the language of corpus and animus – to which we shall return shortly – into the common law. Despite the very significant differences in the way possession is protected by the law, English lawyers today largely share the same linguistic toolbox as their civilian counterparts. Crucially, just as had happened on the Continent, the modern notion of possession came to dislodge the medieval doctrine of seisin. Seisin is a feudal 38 Compare B McFarlane, The Structure of Property Law (2008) 140 with W J Swadling, “Rescission, property and the common law” (2005) 12 LQR 123 at 133. 39 The count in the action of trover or conversion, which as will be seen was one of the main vehicles to protect possession in English law, required the claimant to allege that he had been “possessed” of the disputed res (Hickey, Chapter 4 of this volume, text to n 11). 40 R Hickey, Property and the Law of Finders (2010) 97.

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concept which is not peculiarly English,41 although the earlier Romanisation of property law on the Continent might easily give that impression to the modern lawyer. As a legal construct, seisin is difficult to grasp: while Pollock and Maitland tell us that “[s]eisin is possession”,42 the reality is that it was a multifaceted concept that lawyers left undefined, and which produced different effects depending on the various actions in the context of which it could be called upon (e.g. novel disseisin, mort d’ancestor, writs of entry).43 If it was possession, at any rate, it would have been possession in a sense closer to Roman law than modern English law.44 In the modern law, possession – in the sense of possession which the law takes cognisance of by protecting it – is essentially physical control. Like civilian systems, English law shrinks, albeit reluctantly, from ascribing possession to mere transient detentors like servants45 (in our terminology, levelthree possessors); but it treats as possessors both level-one and level-two possessors, i.e. those who “sit upon” the thing as owners and also as mere holders.46 Not only will the protection be the same; English law would not want to draw a distinction between the two classes in the first place. Thus, contrary to Roman law (but similarly, as was seen, to modern German law), English law treats the lessee, the borrower and the depositee as possessors protected through the ordinary remedies of the law. But, as in Roman law, a degree of artificiality is brought about by the recognition that one can be deemed a possessor at law while not, or no longer, having actual control of the thing he is supposed to “sit” upon.47 As Buckland and McNair have pointed out, this wider protection of holders gives away the fact that English law adheres to a very different understanding of possession when compared to Roman law. (However, for the reasons mentioned above, this is not what sets out the common law from the modern civilian tradition.) Behind what appears to be technical and partly arbitrary decisions as to which classes of holders are or are not regarded as having possession, two completely different pictures emerge. English posses41 The same doctrine was known as Gewere in Germanic territories and saisine in France. 42 F Pollock and F W Maitland, The History of English Law Before the Time of Edward I, 2nd edn, vol 2 (1968) 29. 43 W W Buckland and A McNair, Roman Law and Common Law, 2nd edn, ed by F H Lawson (1965) 66-67; F W Maitland, “The mystery of seisin”, in H A L Fisher (ed), The Collected Papers of Frederic William Maitland, vol 1 (1911) 358. 44 Buckland & McNair, Roman Law (n 43) 73. 45 Buckland & McNair, Roman Law (n 43) 70-71; D Sheehan, The Principles of Personal Property Law (2011) 9. The ancient rule was different: Pollock & Wright, Essay (n 12) 9. 46 Buckland & McNair, Roman Law (n 43) 71; Sheehan, Principles (n 45) 9. 47 Buckland & McNair, Roman Law (n 43) 75.

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sion, despite some discrepancies, is essentially control: it has remained very close to the layman’s understanding, as borne out by etymology, of sitting over the thing. Roman law, on the other hand, despite Ulpian’s statement – as famous as it is misleading – that “ownership has nothing in common with possession”,48 mostly conceived of possession in relation with ownership. Though, there too, there were discrepancies, the Roman possessor was typically the person who could be the owner and would likely become owner if he was not already.49 (5) The grounds of protection In turn, this dual perspective has consequences on the underlying reasons for protecting possession. If protected possession is owner-like control, inevitably the protection of possession will be an indirect way of protecting ownership, which on that reading is what truly matters. The claimant’s possession will be protected by the law because the possessor is either the owner (at least the likely owner) or, if he is not, a possessor probably on his way to becoming the owner. Possession in bad faith naturally muddles the picture, for it is difficult to see why someone who clearly is not, and most likely will never become, the owner should nonetheless be protected; but in practice the problem will be bypassed by insisting that the claimant should come to the law with clean hands: if his possession is, to use the term typically employed, “vitiated” (e.g. by the use of force or stealth), he will not be able to avail himself of the law’s protection. The few remaining cases where the bad-faith possessor is nonetheless protected (for instance, the thief against another thief) will be explained away as instances of overshooting. This position – namely that possession is protected as the “outwork of ownership” – was the position of Jhering,50 and is still dominant today in particular in French legal scholarship.51 Why then, it might be asked, protect ownership indirectly, through possession, rather than directly as ownership? The short answer is, because it is much easier to prove possession than ownership (so much so that even systems which claim to draw a clear line between the two concepts are unlikely to require more to succeed in an action for the protection of ownership than proof of a better possession, whether present or past, than the defendant’s).52 48 “Nihil commune habet proprietas cum possessione”: D 41.2.12.1 (Ulpian, 70 ad Edictum). 49 Buckland & McNair, Roman Law (n 43) 73-74; cf D 41.2.35, below (n 63). 50 Buckland, Text-Book (n 20) 199 and references cited. 51 Emerich, Chapter 2 of this volume, text to nn 83 ff. 52 Buckland & McNair, Roman Law (n 43) 76 ff.

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On the other hand, if the protection of the law is extended to all those who hold the thing, only excluding those who are said to detain it in a transient way, then it becomes clear that possession has to be valued for its own sake. Why would it be? This is not obvious. It is clear, according to common morality, that the claim “Daisy is mine” carries with it, at least failing some very strong countervailing factors, the accessory claim “and therefore I should have her back” when someone stands between me and her. On the other hand, in itself, the claim “I sit upon Daisy” (but John is trying to wrestle her away from me) or “I sat upon Daisy” (but John has succeeded in wrestling her away) does not display any such remedial force. After all, I might be a thief and John might be the owner. Or it might be that we both spotted a wild cow in the hills; I took her first but John thinks he is equally entitled to appropriate her for himself. If we want to identify a reason for the law to intervene, we need either to add particular attributes to my possession, explaining why it should be protected (at least in relation to John), or to accept as a basic principle that it is wrong to disturb settled instances of factual control without due legal process. By doing this, we move to something close to the restraint of self-help and the preservation of public peace as the ground for protecting possession: this, as is well known, was Savigny’s position.53 (6) Corpus and animus We return to the definition of possession. The reader might be surprised not to have encountered so far, but for one allusion, the two Latin terms that are most commonly associated with the notion – not only in the civilian world but also in the common-law tradition – namely, corpus and animus. The omission was deliberate, these terms posing more problems than they solve. It is however impossible not to mention them at all or try to relate them to the above developments. Both Romanist systems and English law agree that possession consists in (or, more precisely, is acquired through) these two elements, although neither tradition has defined them.54 Corpus (literally, “body”) is uncontroversially a form of physical control. What counts as physical control can be tricky to determine in practice, but the basic idea is clear enough. Animus (“mind”, “soul”) is more troublesome. Clearly it is a form of intention towards the 53 Buckland, Text-Book (n 20) 199 and references cited; Halpérin, Histoire (n 1) 39; J Gordley, Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment (2006) 53 ff; Zenati-Castaing & Revet, Biens (n 33) s 443; Emerich, Chapter 2 of this volume, text to nn 86 ff. An interesting question is why the protection of possession would not, on that assumption, be left to the criminal law. 54 Buckland & McNair, Roman Law (n 43) 70.

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thing on the part of the person who holds it; but the basic ambiguity that has marred the development of the law is whether it is an intention to control the thing as the owner (level-one possession: animus domini55 or animus rem sibi habendi),56 or an intention to control the thing as a holder (level-two possession: animus tenendi or possidendi).57 Each time the term is used without its being made clear which one is meant – which has been and remains extremely common – the ambiguity is perpetuated: for this reason, it would do no harm if lawyers stopped using the language of corpus and animus altogether. Indeed, it is not difficult to see how this basic twofold understanding of possession as comprising an element of factual control and an element of intention, whatever the latter may consist in, is going to run into difficulties very quickly. A favourite example of law teachers is a situation such as my car being parked back home. Do I have possession of it, even though I am miles away? Most people would want to say that, failing some special circumstances (like a thief breaking in and driving it away), I do. But if so, is it because I still have corpus (after all, the car is locked and I have the key in my pocket) or because, even though I no longer have control, I have somehow retained my possession solely by the power of the will (“animo solo”, to use the received terminology)? The second option has generally been favoured,58 even though it leads to puzzling results: for, if possession requires an element of control and an element of intention (corpore et animo),59 then elementary logic dictates that it ought to cease to exist when either of the elements disappears (aut corpore aut animo).60 At any rate, the fact that both interpretations are often allowed to coexist is a principal cause of conceptual instability. B. The Mechanisms of Protection Focusing, from now on, on such possession as is protected by law (in the sense that the legal system is willing to intervene should it be interfered with by another), we turn to the hows of its protection. The purpose of this section is to provide a brief overview of the mechanisms whereby p ­ ossession is or was 55 From dominus = master. 56 Literally, the “mind [of] having the thing to oneself”. Neither expression is Roman: both were coined by Savigny. 57 The “mind to hold” or “to possess”. Animus possidendi appears e.g. in D 41.3.4.2 (Paul, 54 ad Edictum) and affectio tenendi in D 41.2.1.3 (idem). 58 E.g. Schulz, Classical Roman Law (n 1) 442. 59 D 41.2.3.1 (Paul, 54 ad Edictum): ‘Now we take possession physically and mentally, not mentally alone or physically alone’ (tr Watson Digest). 60 Yet the principle laid down by Paul is the exact opposite: D 41.2.8 (Paul, 65 ad Edictum): “Just as no possession can be acquired except physically and with intent, so none is lost unless both elements are departed from” (tr Watson Digest).

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protected in Roman law, the later civilian tradition and English law. Again, the details do not belong in what is meant to be an introductory overview. (1) Roman law In classical Roman law, the mechanisms that were used to protect possession considered in and by itself were the possessory interdicts.61 The praetor intervened to protect possession in clusters of situations covered by three different interdicts (or four, depending on how they are counted).62 One remarkable point they had in common is that, in all cases, the dispute was entirely independent from any question of ownership (or right to possess). Not only were, to use the traditional terminology, “possessory” remedies entirely distinct from “petitory” ones; contrary to English law, it never was a defence to a possessory interdict to offer to prove that one was the rightful owner of the thing over which control was disputed: if he wanted to regain factual control of the thing, the owner had to bring an entirely different action, the rei vindicatio (which carried with it the – much higher – burden of proving ownership).63 On the other hand, as mentioned, the person who was seeking to have his possession recognised and protected was not to have obtained it in such a way (vi clam precario) that it would be vitiated as against the other party.64 Two interdicts, unde vi and uti possidetis, concerned immovables (≈ land) and one, utrubi, movables (≈ chattels). Edicts could have a prohibitory or recuperative function, or both, depending on whether they were intended to preserve the status quo when possession was being threatened, or return to the status quo ante when the former holder had had the thing taken away from him.65 (a) Interdictum unde vi The interdict “from which, by violence” (unde vi) came in two forms: one when the violence used was armed and the other when it was not.66 61 The term interdicta possessoria was however unknown to classical jurists (Schulz, Classical Roman Law (n 1) 444). For the exclusion of protection granted to possession plus an extra element (like time), see above, text following n 9. On the notion of an interdict, see e.g. Schulz (n 1) 59 ff. 62 H F Jolowicz, Historical Introduction to the Study of Roman Law (1965) 275 ff. 63 D 41.2.35 (Ulpian, 5 All Seats of Judgment): “The outcome of a dispute over possession is simply this: that the judge makes an interim finding that one of the parties possesses; the result will be that the party defeated on the issue of possession will take on the role of plaintiff when the question of ownership is contested” (tr Watson Digest). This gives away the fact that possession was, for the Romans, essentially regarded as a claim to being the owner (level-one possession, above, part A(1), cf n 49). 64 Schulz, Classical Roman Law (n 1) 448. 65 J 4.15.1. 66 J 4.15.6.

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(i) Interdictum de vi armata The “interdict concerning [the use of] armed force” was available to the possessor of land against the person who had dispossessed him with the help of armed men. The formula of the interdict ran as follows: Unde tu illum vi hominibus coactis armatisve deiecisti aut familia tua deiecit, eo illum quaeque ille tunc ibi habuit restituas.

Bring the plaintiff back to the place from which you have expelled him by armed force and restore also the things which the plaintiff had in that place.*

* Schulz, Classical Roman Law (n 1) 446 (his translation); cf O Lenel, Das Edictum Perpetuum, 3rd edn (1927) s 245.2. One will note that no technical term such as “possession” appears; only a layman notion of “having” the thing.

The Romans resolved pragmatically what could have otherwise become analytically insoluble questions about possession and former possession: in the basic scenario, a former possessor who no longer holds is allowed to claim a possessory remedy against the new holder who is possessor in the strongest sense of the term (level one), because the latter’s possession is regarded as vitiated by the use of force. As was noted, assertion of ownership was no defence to the defendant; what did constitute a defence (exceptio), however, was if the claimant had himself dispossessed the defendant by use of armed force at an earlier stage. (ii) Interdictum de vi non armata Like the previous one, the “interdict concerning non-armed force” was available to the (former) possessor of land against the person who had d ­ ispossessed him through the use of force, this time unarmed. Its formula ran as follows: Unde in hoc anno tu illum vi deiecisti aut familia tua deiecit, cum ille possideret, quod nec vi nec clam nec precario a te possideret, eo illum quaeque ille tunc ibi habuit restituas.

Bring the plaintiff back to the place from which in the course of this year you have expelled him, and restore also the things which the plaintiff had in this place, provided that the plaintiff had not obtained possession from you vi, clam, or precario.**

** Schulz, Classical Roman Law (n 1) 447-448 (idem); cf Lenel, Das Edictum Perpetuum (n 67) s 245.1.

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One will notice here the standard defence of vitiated possession (exceptio vitiosae possessionis), already mentioned. (b) Interdictum uti possidetis This interdict, “as you possess”, was probably the most ancient: like the previous ones it concerned immovables only, but its function was prohibitive rather than recuperative. Its formula ran as follows: Uti nunc eas aedes, quibus de agitur, nec vi nec clam nec precario alter ab altero possidetis, quo minus ita possideatis, vim fieri veto.

I forbid force to be used to prevent him of you two who is at present in a faultless possession of the disputed building from possessing it as he at present does.*

* Schulz, Classical Roman Law (n 1) 447-448 (idem); cf Lenel, Das Edictum Perpetuum (n 67) s 245.1.

What it did was thus to forbid the use of force (vim fieri veto) pending any determination of the better right to possess. As a result, the current possessor would be defendant in any ensuing petitory suit (the rei vindicatio), which of course was a considerable advantage. (c) Interdictum utrubi The interdict utrubi (from utrubi … utrubi = “on the one hand … on the other”) concerned movables and had both a prohibitive and a recuperatory function. An example of the formula, in the case of a slave, would run as follows: Utrubi hic homo, quo de agitur, maiore parte huiusce anni nec vi nec clam nec precario ab altero fuit, quo minus is eum ducat, vim fieri veto.

He of you who for the greater part of the preceding year possessed the slave faultlessly may take him and I forbid force to prevent him from doing so.**

** Schulz, Classical Roman Law (n 1) 451 (idem); cf J 4.15.4.

The dispute between the current and the former holder of the thing would be adjudicated on the basis of who had held it longest over the year prior to the intervention of the praetor. It is he who would retain or regain possession of the thing and thus be defendant in the petitory action that would likely ensue. Post-classical law. By the time of Justinian, the above picture had been simplified. The two interdicta unde vi had been merged into one and the inter-

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dictum utrubi was done away with, protection of movables being provided in its stead through the extension to chattels of the interdictum uti possidetis. Thus, only two interdicts – technically they had became actions – remained: the interdicta unde vi and uti possidetis.67 However, the latter was emptied of its recuperative function, leaving a gap in the law for the restoration of movables. In time, this came to be filled by the actio spolii of the canon law.68 (2) The civilian tradition As has been mentioned, the modern civilian notion of possession emerged at the crossroads of three sources: Roman law, canon law and feudal law. It is not surprising therefore that the mechanisms developed by the law to protect possession, being essentially the reverse side of the understanding it has of the doctrine, should also be rooted in them. The following brief developments focus, as before, on France and Germany.69 The main canon-law development was, as alluded to, the emergence of the actio spolii (“action for stripping”), which proved extremely influential in the later history of possession, especially in Germanic territories. The actio emerged from an earlier defence, the exceptio spolii mentioned in the canon Redintegranda of the Pseudo-Isidore, according to which a bishop whom secular authorities had deprived of his property or his bishopric was protected from any criminal prosecution until these had been returned to him. Under the general exceptio spolii, as transplanted into the civil law, any possessor in the level-one or level-two sense who was ousted from his land or chattels without his consent could reject any action brought by the dispossessor until he had been restored to his former position. The exceptio was later turned into an action, the actio spolii, which allowed possession to be regained as against not only the spoliator but also third parties who had acquired possession in the knowledge of the earlier spoliation.70 When it comes to immovables, dispossessed plaintiffs in what would become Germany could use this actio spolii, which came to dislodge the more restrictive Roman action unde vi.71 In France, they had at their disposal both the action en réintégrande (“action for reintegration”), derived from the 67 Schulz, Classical Roman Law (n 1) 453. 68 Schulz, Classical Roman Law (n 1) 453. On the actio spolii, see immediately below. 69 For Italy, see Caterina, Chapter 5 of this volume, parts G-H; for the action of spuilzie and the possessory judgment in Scots law, see Anderson, Chapter 6 of this volume; for the mandament van spolie in South African law, see Kleyn, Chapter 9 of this volume, part B. 70 M Kaser, Roman Private Law, tr Rolf Dannenbring, 2nd edn (1968) 92; Caterina, Chapter 5 of this volume, text to n 3; Gordley & Mattei (n 25) at 307. 71 Gordley & Mattei (n 25) at 307.

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actio spolii, and the complainte en cas de saisine et nouvelleté (“complaint in case of seisin and novelty”), an action rooted in feudal law.72 As to movables, customary actions (rather than Roman interdicts) were used in both countries.73 These actions had all been developed around the concept of Gewere or saisine (seisin), which later learned law came to reinterpret as possession: though boundaries can be difficult to identify with precision because the same word, “possession”, can have different (and often unspecified) shades of meaning, it is certainly true to say that, by and large, these remedies reached beyond those who would have been able to avail themselves of possessory interdicts in Roman law (i.e. essentially level-one possessors) to include at least some level-two possessors. For threatened possession of movables, early modern German law had retained the Roman action uti possidetis but, when possession had already been lost, recourse had to be made to a customary action.74 In France, through an interesting twist of history, the possession of movables came to be protected mainly through the use of the rei vindicatio (the purpose of which was to assert ownership),75 most likely because the possessor who had acquired control of the thing in good faith was assumed to be the owner – a principle which crystallised in the modern presumption that “possession counts as title”.76 The extent to which possessory actions can be used alongside the action en revendication in the case of movables was and still is disputed.77 Of particular interest in a French context is the relationship between the two land-focused actions of réintégrande and complainte, which were codified under Louis XIV in the Ordonnance civile of 1667.78 Réintégrande could be brought by anyone who had been dispossessed by violence, irrespective of how long he had been in possession. Complainte, on the other hand, could only be relied upon by a plaintiff who had been in uninterrupted possession for a year and a day (but without a requirement of violent dispossession). It had both a prohibitory and a recuperative function: it could be brought either by someone who had already lost control, or one whose holding was being threatened by the defendant. Complainte was more restricted than the actio spolii and, in particular, could not be brought by a 72 For the modern law, see Zenati-Castaing & Revet, Biens (n 33) s 488. There is a third, less important action: the action en dénonciation de nouvelle œuvre. 73 Gordley & Mattei (n 25) at 306. 74 Gordley & Mattei (n 25) at 306-307. 75 Gordley & Mattei (n 25) at 312. 76 Art 2276 (formerly 2279) French Civil Code: “en fait de meubles, la possession vaut titre”. 77 Zenati-Castaing & Revet, Biens (n 33) ss 500, 503; F Zenati-Castaing, note in [1996] Revue trimestrielle de droit civil 934 ff. 78 Gordley & Mattei (n 25) at 313; Caterina, Chapter 5 of this volume, part B.

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lessee.79 The lessee was however allowed by courts to bring the réintégrande in the nineteenth century,80 and the law was changed in 1975 to allow him to bring the complainte against third-party dispossessors.81 As can be seen, while their conditions were distinct, the two actions overlapped to a significant extent and also left some gaps. This is not surprising given that they had originated in two distinct bodies of law to fulfil much the same role; yet it called for rationalisation. This was mainly carried out in the nineteenth century through a process of Romanisation of what were two un-Roman actions. Taking advantage of the lack of clear boundaries, postcodification commentators, who knew their Roman law but were increasingly out of touch with pre-Civil Code customs, reinterpreted complainte as an action to maintain possession (like uti possidetis) and réintégrande as an action to recover it (like unde vi).82 In this, they were following, but only in part, the lead of Pothier, who had already tried to rationalise the actions, but along different lines (merging both actions in one, the single complainte, which he divided into complainte en cas de saisine ou nouvelleté, for violent dispossession, and action de réintégrande, for simple disturbance).83 In codified German law, possessory remedies are now regulated by §§ 861-867 and 1007 BGB. The dispossessed plaintiff can sue for the recovery of the thing he previously possessed; and the claimant whose possession is being threatened can obtain an injunction. As in Roman law, no exceptio domini is allowed (rather, the owner must bring a rei vindicatio pursuant to § 985 BGB); but the dominus can raise a defence based on the vitiated character of the claimant’s (earlier) possession as against him.84 (3) English law It is often said that the notion of possession in English law is fundamentally different from what it was and is in the Romanist tradition. It is hoped that the above will have shown how incorrect this is. English law, like the civilian tradition, Romanised to a large extent the medieval (and pan-European) notion of seisin; and made the broad choice to protect level-two as well as level-one possession – a choice that was also made in many but (as was seen) not all Continental jurisdictions. When it comes to the modern understanding 79 Gordley & Mattei (n 25) at 313. 80 Cass. 25 March 1857, Dalloz 1858.1.315; Gordley & Mattei (n 25) at 313. 81 Law of 9 July 1975; Gordley & Mattei (n 25) at 313. The current law pertaining to possessory remedies can be found in arts 2278-9 Code civil and art 1264-7 Nouveau code de procédure civile. 82 Gordley & Mattei (n 25) at 317. 83 Caterina, Chapter 5 of this volume, text to nn 9-11 and references cited. 84 Van Erp & Akkermans, Cases (n 14) 120; Baur & Stürner (n 31) ss 9.16 ff.

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of possession, English law is closer to German law than, for example, French law would be. The real divide lies, if anywhere, in the consequences attached to possession (though here too the statement will have to be nuanced). First, according to English orthodoxy, possession immediately creates ownership. This proposition, entirely baffling for the civilian lawyer,85 can only be understood against the background of the doctrine of relative ownership (or, to use a more common word, “title”), according to which anyone who holds a thing in such a way as to qualify as its possessor becomes ipso facto its owner: not the owner, but an owner of the thing.86 Title, in turn, is understood as a right to possess,87 which can vest in a variety of persons. As a result, in a dispute over possession-ownership-title, will prevail the party who can show the better title, i.e. the better right to possess (which typically will derive from evidence of earlier possession). Consonant with the principle of relative title, A might prevail over B as having a better entitlement to possess a given thing, only to be defeated later by C who can prove an ever better title.88 This is fundamentally at odds with the rhetoric of Roman law and systems rooted in it, even though it has been rightly remarked that the distance might be much smaller when it comes to the actual operation of the law.89 In terms of the protection of possession (qua title), English law draws a clear distinction between movables and immovables – in English terminology, though the approximation is imperfect, chattels and land. As far as the former are concerned, a fundamental difference with the civilian tradition is that English law always protects possession-title (as indeed all property rights) indirectly, i.e. through personal rather than real actions.90 The basis of the action is not the assertion of the possession-title but the wrong committed when the defendant interfered with it unlawfully. Overwhelmingly, the cause of action used will be the tort (civil wrong) of conversion.91 The successful 85 However, the English collapse of the two notions has a number of echoes in the Romanist tradition, e.g. the principle of occupatio (acquisition of the ownership of an ownerless thing by grabbing it) or the presumption that the possessor of a movable is its owner which avails under French law (above, n 80) or German law (§ 1006 BGB). 86 Pollock & Wright, Essay (n 12) 22; Hickey, Property (n 40) 162 ff; S Douglas, Liability for Wrongful Interferences with Chattels (2011) 24 ff, McFarlane (n 38) 144 ff. 87 Sheehan, Principles (n 45) 13. 88 D Fox, “Relativity of title in law and at equity” (2006) CLJ 330; cf Buckland & McNair, Roman Law (n 43) 67. 89 Birks (n 6) at 27 ff. 90 Douglas, Liability (n 86) 1 ff. 91 Hickey, Property (n 40) 98. For the argument that conversion performs in English law what was the function of the rei vindicatio in Roman law, see R Hickey, “Wrongs and the protection of personal property” [2011] Conv 48, 49-50.

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plaintiff will recover money damages, although since 1977 courts have had the power to make an order for the return of the thing itself.92 When it comes to land, however, English law did develop an action in rem, the action of ejectment. The history of the action is a complex one; and it is likely that what was passed off in the nineteenth century as a rationalisation, moving beyond (to use Pollock’s phrase) “the details of the old law”,93 made in reality not insignificant changes to the law. Hickey has argued for this point persuasively.94 Be that as it may, it is clear that, in the modern law, an action for the recovery of land is open to the possessor of realty and constitutes the common law’s principal mechanism for the protection of such possession.95 C. Possession as a Fact and Possession as a Right One of the old chestnuts in the law of property is to ask whether possession is a “fact” or a “right”. While, as Buckland remarked in the context of Roman law, “the question whether possessio was or was not a right is somewhat empty”,96 a few remarks can profitably be made in the present introduction. First, of course, the two terms of the dichotomy are not mutually exclusive and the answer need not be either/or. Second, whether possession is a fact depends on what is meant by “fact”. In one sense, anything that exists in reality (even the reality of the mind) is a fact. On that basis, possession will of course be a fact (as will ownership, with which it is typically contrasted when it suggested that one is a “right” while the other is a mere “fact”);97 but this tells us nothing of substance about it. If what is meant, on the other hand, is that whether an individual has possession of a thing or not is a sheer question of fact – as opposed to law – then this is demonstrably untrue. The moment a legal system recognises that someone can be deemed to be the possessor of a thing which he does not actually control (for example because it has been taken from him), possession can no longer be said to be simply a matter of observable reality:98 by refining it away from the layman’s notion of 92 Torts (Interference with Goods) Act 1977, s 3(2)(a). 93 Pollock & Wright, Essay (n 12) 94. 94 Hickey, Property (n 40) 102 ff. 95 Technically the action of ejectment was abolished in 1852 (Common Law Procedure Act 1852, ss 168-221) but the Act did not alter the substance of the law. English law will now speak of an action to recover land, in untechnical terms, where the old law would have spoken of ejectment. 96 Buckland, Text-Book (n 20) 203. 97 This was indeed the language used by Roman lawyers: B Nicholas, An Introduction to Roman Law (1962) 114. 98 Nicholas, Introduction (n 101) 115.

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“sitting upon”, the law has also turned the existence of a possessory relationship between person A and thing x into an – at least partly – legal question. As to whether possession is a “right”, this question is complicated by there being two very different things that this might refer to. If by right, in respect of possession, is meant a right to possession (i.e. a right to be granted control of a thing one does not currently hold), then it is hard to deny that such a right can exist. Indeed, “right to possession” (or to “immediate possession”) is a common definition of ownership-title in English law;99 and German scholars started to speak the same language (ius possidendi) in the nineteenth century.100 Distinct is the question whether the relationship of factual control, coupled with intention, is itself a right (besides being a fact). It makes no doubt that possession is, in Schulz’s words, “a fact … endowed with legal consequences”.101 It is a relationship between a person and a thing which is, within certain parameters, protected by the law. Is this – a legally protected relationship – not a perfectly good definition of what a right is? In that sense, possession does indeed seem to be a right: the right of possession (ius possessionis). The difficulty that crops up immediately is how it can be transferred. Thus, my heir can inherit my ownership of Daisy; but can I bequeath to him possession of the res I controlled before death? Presumably he would need to grab it for himself, in which case, provided he has the right intention, he would become possessor anyway, whether or not I had instituted him heir to all my patrimony (for the same reason, it is not clear whether I could sell my possession of Daisy: if possession is a right, it does not appear to have any assignable value). Not only this, but it would seem that, the moment I die, my right of possession vanishes for want of the requisite elements of corpus and animus – in which case there is nothing left for my heir to inherit. The Romans were confronted with this difficulty and maintained that possession could pass from the deceased to his heir, albeit not immediately: “When we are instituted heirs”, Javolenus writes, “once we accept the inheritance, all the rights pertaining thereto belong to us; but possession does not become ours unless we physically take it”.102 By what legal mechanism this was  99 See e.g. Honoré (n 4) at 113: “The right to possess, viz. to have exclusive physical control of a thing, or to have such control as the nature of the thing admits, is the foundation on which the whole superstructure of ownership rests”; Sheehan, Principles (n 45) 5: “the right to possession is the root of all title to chattels at common law”. This right to possess does not have to be absolute, simply better than that of the party against whom it is asserted. 100 Gordley, Foundations (n 53) 53. The expression is naturally older, although instances are scarce before the nineteenth century. 101 Schulz, Classical Roman Law (n 1) 428. 102 D 41.2.23 pr. (Javolenus, 1 Letters); cf Buckland, Text-Book (n 20) 201.

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possible, we are not told. The later civilian tradition developed the doctrine that le mort saisit le vif (“the dead seizes the living”), according to which – surprising as this might seem in the light of general principles – possession can pass instantly to the heir at the point of death. This makes possession similar to any patrimonial right. An alternative would be to consider possession not as a patrimonial right but as a personality right: fully a right, but not one that can be detached from the person who holds it. This was Aubry and Rau’s position,103 but it has not met with much success. D. “Quasi-possession”: The Possession of Incorporeals To finish this introduction, we return to the question which was put on hold at the very beginning: namely, What can be the object of possession? It was said that we would proceed on the assumption that these were corporeal (i.e. tangible) things: as Paul writes, “those things can be possessed which are corporeal”.104 For reasons that will be explained presently, this is indeed the only correct view. However, this has been doubted and, accordingly, the dissenting strand needs to be considered. To cut a long story short, Roman law came to recognise that some incorporeal things, in particular the right of usufruct, could be possessed. Thus, in the Digest, Ulpian states that the interdict unde vi will be available to the usufructuary if he is prevented from using and enjoying the thing object of his usufruct.105 The reason, we are told, is that “preventing someone from using and enjoying is held to be ejecting him forcibly from the usufruct”:106 the right to usus and fructus is being interfered with, and a remedy is granted in the form of a possessory interdict. Such possession of an incorporeal is referred to in some sources as quasi possessio.107 Building on these fragments, the later civilian tradition broadened the doctrine of (quasi-) possession of incorporeals. While Germany ultimately rejected it on the back of the Pandectists,108 it was and remains recognised, at least in principle, in such jurisdictions as France,109 South Africa,110 and 103 104 105 106 107 108 109

Zenati-Castaing & Revet, Biens (n 33) s 655. D 41.2.3 pr. (Paul, 54 ad Edictum) (tr Watson Digest). D 43.16.3.13 (Ulpian, 69 ad Edictum). D 43.16.3.14 (Ulpian, 69 ad Edictum) (tr Watson Digest). E.g. D 43.16.3.17 (Ulpian, 69 ad Edictum) (tr Watson Digest). Van Erp & Akkermans, Cases (n 14) 104. Van Erp & Akkermans, Cases (n 14) 100; Zenati-Castaing & Revet, Biens (n 33) ss 441, 448; B Bourinet-Parance, La possession des biens incorporels (2008). 110 Kleyn, Chapter 9 of this volume, part B(2).

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– perhaps most of all, under the influence of writers like Karl Ferdinand Hommel in the eighteenth century – Austria.111 A common example where the doctrine is applied would be the case of the tenant whose landlord has cut off the provision of gas or electricity: instead of, or as an alternative to, treating the tenant’s action as a contractual claim (which it undoubtedly is), the law will regard the possession of the right to be provided with these utilities as the basis for an action in rem.112 This is extremely puzzling, and on this logic it is not clear – to mention but this one issue – how the entirety of the law of contract is not going to be swallowed up by the law of property. More fundamentally, such a proposition is predicated on a misunderstanding of the relationship between a thing and a right. This point is important and deserves being paused on. As is well known, Gaius in his Institutes took the bold step of aligning corporeal things with rights. Among our assets, he wrote, there are on the one hand things that “can be touched – land, a slave, clothes, gold, silver”:113 corporeal things (res corporales). Then, on the other hand, there are things that “cannot be touched. They consist of legal rights”: incorporeal things (res incorporales).114 Thus, for Gaius, rights coordinated with tangible things as two types of res, in the sense of assets. Tony Thomas hailed this extension of the concept of things to encompass rights as a “feat of abstraction and rationalisation”.115 It was; but the feat was incomplete. Starting with “clothes, gold and silver” – objects of wealth because they can be appropriated and traded – Gaius noted that other entities are objects of wealth too. Such are a usufruct or an obligation (seen from the perspective of the creditor): we are better off with them than without them. Rights, both in rem and in personam, are assets. What Gaius failed to perceive, however, is that the reasoning can and should be carried further. For, if we look at Gaius’ list of intangible res, or rights, there is one that is conspicuously missing: ownership itself. It is easy to see why: had Gaius said that his assets consisted of the cow Daisy, a usufruct over Blackacre, a right that Primus should pay him thirty and the ownership of Daisy, he would have counted his cow twice. A tangible thing and the right 111 ABGB, § 311 (Rechtsbesitz); Van Erp & Akkermans, Cases (n 14) 106; Rüfner, Chapter 8 of this volume. 112 Rüfner, Chapter 8 of this volume, text to nn 33 ff; compare Kleyn, Chapter 9 of this volume, text to n 69. 113 Gai 2.13 (tr Gordon & Robinson); cf J 2.2.1. 114 Gai 2.14 (tr Gordon & Robinson); cf J 2.2.2. 115 J A C Thomas, Textbook of Roman Law (1976) 126, cited in Kleyn, Chapter 9 of this volume, text to n 37.

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of ownership therein are practically undistinguishable. But, analytically, it is the right of ownership which should be aligned with the other rights: the usufruct over Blackacre stands level with the ownership of Daisy, not with Daisy herself (who is incommensurable). We need to carry through to its logical conclusion Gaius’ magisterial intuition, that rights too are valuable: in reality, only rights are valuable. Daisy has no value in herself; it is because the law protects the relationship I have over her when I claim that she is mine, and allows me to trade it, that this relationship (in law, a right of ownership) is valuable. All my assets, therefore, consist of rights. But rights themselves are not owned. Nor are they possessed. Ownership is a right, and so is possession if we accept the above analysis: ownership, possession, usufruct, obligation, and so on, are legally protected relationships, whether with a thing or a person. The metaphor is that of a leash in my hand, which at the other end is tied around a res or around someone else’s neck. But to describe my holding them in my hand, another word is needed. It cannot be ownership, which is already used to describe a type of leash; a fortiori can it not be possession. George Gretton has suggested “titularity”:116 I am the titular of the rights. The drawback of this phrase is that there is no active verb to indicate the corresponding act. “Holding” is a possibility: I hold rights in my hand. The fundamental point is that, whereas rights can be varied, there is only one type of relationship I can have with “my” rights: I hold them. I can no more possess them than I can own them or have a usufruct over them. The possession of rights is an analytical impossibility, and prefacing the alleged possession with the word “quasi” can do nothing to rescue it. Despite Ulpian and his misguided heirs, there is no such thing as the possession of incorporeals.117

116 G Gretton, “Ownership and its objects”(2007) 71 Rabels Zeitschrift 802 at 834. 117 Part of the difficulty with Gaius’ analysis is that, from a modern perspective, we are happy to recognise the existence of incorporeal things other than rights: in other words, intangible things in which rights reside. For example, a product of the intellect can be the object of rights, independently of any physical manifestation it might have. In that sense, which is not Gaius’, things (items of wealth) can indeed be incorporeal. These can certainly be owned, but it is difficult to see how they could meaningfully be said to be possessed: how can one be “sitting over” something that cannot be physically located? Unless perhaps we accept that we can possess things which exist in our mind: should this difficulty be overcome, the final sentence would simply need to be rewritten as “there is no such thing as the possession of rights”.

2  Why Protect Possession? Yaëll Emerich* The civil and common laws’ respective approaches to possession are often contrasted. While the civil law draws a neat distinction between the right of ownership and the fact of possession,1 the common law tends to relate possession to ownership by considering that possession confers a title that is valid against anyone who cannot demonstrate a better claim to it.2 Despite some differences between the approaches to possession in the two legal traditions, I have proposed a notion of possession that is reconcilable with both traditions, conceiving possession as a mode of communication to third parties.3 This paper pursues that line of enquiry by studying the consequences of possession. It aims to contribute to the discussion on the vocation and scope of the application of possessory protection through studying the example of Quebec, complemented by comparative insights drawn from French civil law as well as English and Canadian common law.4 The main objective of this paper is to examine the legitimate parameters of possessory protection by adopting a theoretical and comparative approach. Following the examination of the notion of possession and the justifications for its protection, I submit that the person with detention of the property should benefit from possessory protection. When it comes to the qualities of   * The author would like to thank Etienne Cossette-Lefebvre and Cecilia Nasarre for their contributions as research assistants. She also wishes to thank her colleagues Professor Lionel Smith and Professor Robert Leckey for their comments on a previous version of the text. This research was supported by the Social Sciences and Humanities Research Council of Canada.   1 For French civil law, see notably P Malaurie and L Aynès, Les biens (2007) 137; F Terré and P Simler, Droit civil: Les biens (2002) n 139. For Québec civil law see P-C Lafond, Précis de droit des biens, 2nd edn (2007) 200; S Normand, Introduction au droit des biens (2000) 299; D Vincelette, En possession du Code civil du Québec (2004) 5.   2 J Gordley and U Mattei, “Protecting possession” (1996) American Journal of Comparative Law 293; B Burke, Personal Property (2003) 115; Perry v Clissord 1907 AC 73.   3 I have shown in a previous article that transsystemic possession could be defined as the power in fact on a thing or the exercise of a right that communicates to third parties the will to be the holder and the intention to exclude. To be more concise, transsystemic possession can be defined as the communication to third parties of the intention of exercising a power of control over property. This conception of possession as a communication to third parties is actually perfectly compatible with the idea of interpersonal ownership, which is not simply the expression of a will or of an absolute subjectivity, but also a relationship with the other. See Y Emerich, “De quelques invariables de la possession: la possession transsystémique” (2011) 113 Revue du Notariat 32.   4 I will mainly be using French law as a representative of the civil law tradition and English law as a representative of the common law systems.

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possession required for a possessory action, I argue that such action should not be subject to the conditions developed for “useful” possession. Applying these conditions to a possessory action confuses the concepts of possession and acquisitive prescription and undermines the justifications for possessory protection. Taking into account the increasing economic significance of movables, I finally submit that the domain of possessory protection should be extended in order to include movable property. While possession may primarily be a mode of communication to third parties, its role should not be limited to that of an accessory to ownership. This paper studies the effects of possession in relation to its functions and justifications. In civil law, the consequences of possession are often treated as unitary, although they do not all carry out the same functions. Some effects of possession, such as acquisitive prescription, are linked to ownership; others, however, are not. Indeed, the possessory action, traditionally distinguished from the petitory action, has a larger function than the protection of ownership insofar as it also aims to protect against violence.5 In addition to its ready distinction from ownership, possession is also often distinguished from detention in civil law. But are these two notions totally foreign to one another? Would it be possible to let detention, which was identified as natural possession in Roman law, produce at least some effects? The well-known debate between two nineteenth-century German jurisconsults, Savigny and Jhering, still influences current debates about possession. Their debate, which contrasts subjective and objective conceptions of possession, has crystallised around the practical implications of whether or not the benefit of possessory protections should be granted to the person who merely detains property.6 While Savigny denied such an extension on the basis that the person with mere detention was not a true possessor,7 Jhering viewed the person with detention of the property as a true possessor, mainly for reasons of social justice.8 Several civil law jurisdictions have recognised that the person with detention of the property has a right to possessory protection. France is one such   5 Possessory actions aim at “preventing violent modifications of possession”. F Zenati-Castaing and T Revet, Les Biens (2008) para 489.   6 To avoid ambiguity, I chose the terminology “person with detention of the property” or “holder” to designate the civilian “détenteur” and the term “titulary” (instead of “holder”) to designate the civilian “titulaire”.   7 F K von Savigny, Von Savigny’s Treatise on Possession: Or, the Jus possessionis of the Civil Law, tr E Perry (1979).   8 R von Jhering, Etudes complémentaires de l’esprit du droit romain, II: Fondement des interdits possessoires: Critique de la théorie de Savigny, 2nd edn (1882).

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jurisdiction.9 As for Quebec, the legislative drafters in 1994 sought to distinguish possession from detention, thus a more subjective position than that of the French Civil Code (FCC) was adopted. In doing so, Quebec legislators reserved the effects of possession to the possessor with animus domini and deprived the person with detention of the property from all the effects of possession, including possessory protection. Whether this restriction complies with possession’s objective of protecting the civil peace, in addition to its indirect protection of ownership, remains an open question. Possessory protection can be obtained through various actions. In civil law, the possessory action traditionally enables the protection of the dispossessed possessor of an immovable or the possessor whose possession is disrupted.10 While the action en complainte puts an end to the disruption of possession,11 the action en réintégrande aims to recover possession after a violent dispossession or a serious wrongful act or voie de fait.12 In common law, several actions can be used to protect possession. This is due to the ambiguity of the notion of possession13 and the frequent overlap between possession and ownership in the common law, where ownership is often described as the best right to possession.14 As Mattei underlined, while the civil law tradition   9 M Cuillieron, “Revendication des meubles perdus ou volés et protection possessoire” (1986) Revue trimestrielle de droit civil 518. 10 Normand, Introduction au droit des biens (n 1) 306. 11 Lafond, Précis de droit des biens (n 1) 238. See for example: Bélanger v Morin 1922 32 BR 208. See in French law: J Carbonnier, Droit civil, 3: Les biens (monnaie, immeubles, meubles) (2000) para 863. See also: G Cornu, Vocabulaire juridique (2005) complainte: “Nom traditionnel, encore donné par la coutume et la pratique à la demande en justice (rangée au nombre des actions dites possessoires) qui tend à faire cesser un trouble actuel apporté à la possession”. H Reid, Dictionnaire de droit québécois et canadien (2004) action en complainte: “a possessory action which aims at putting an end to an existing disturbance in the possession of an immovable” (my translation). 12 Carbonnier, Droit civil (n 11) para 863: “La réintégrande (action en réintégration, dit l’a. 1265) sanctionne une dépossession, une spoliation commise sinon par violence (abus de force au combat), du moins par voie de fait, acte illicite grave”. See also J-L Bergel, M Bruschi and S Cimamonti, Traité de droit civil: Les biens (2000) para 435: “The action in reintegration is available against all violent dispossessions. Violent dispossession designates all voluntary acts involving a contradiction to possession that take an aggressive form or the form of an assault exercised on the person or on the possessor’s goods. The dispossessed can legitimately defend himself against such violence” (my translation). See also: G Cornu, Vocabulaire juridique (n 11) Réintégrande: “Nom coutumier encore donné à l’action en réintégration (traditionnellement classée parmi les actions dites possessoires) qui tend à permettre au possesseur …, dépouillé à la suite d’une voie de fait [exaction; comportement s’écartant ouvertement des règles légales; violence], de recouvrer la jouissance perdue perdue”. 13 F Pollock and R S Wright, Possession in the Common Law (1888) 3. See also on those actions: D Sheehan, The Principles of Personal Property Law (2011) 203-232; C Harpum, S Bridge and M Dixon, The Law of Real Property (2009) 98; M Bridge, Personal Property Law (1996) 39-67; R Bernhardt, Property (2006) 46. 14 See for example U Mattei, Basic Principles of Property Law: A Comparative Legal and Economic Introduction (2000) 172. See also A Clarke and P Kohler, Property Law (2005) 282.

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has developed a dual scheme of possessory and proprietary remedies, the common law has not developed proprietary remedies because, first, “possession is to be considered a property right” and second, “possessory remedies are perfectly functional substitutes for proprietary remedies”.15 There are, however, some equivalents in the common law to the civilian actions in complainte and in réintégrande. In common law, trespass is the functional equivalent to the civilian com­­­ plainte, as it is the most general action that protects against a disturbance in possession. The action for trespass protects possession against any act that prejudices it and allows the possessor to receive damages or even an injunction16 when a third party enters land without the right to do so.17 The Oxford Dictionary of Law defines trespass as a “wrongful direct interference with another person or with his possession of land or goods” (emphasis added).18 Because trespass does not usually imply dispossession, trespass to land appears to be an equivalent to the civilian action en complainte. As for personal property, the common law also recognises the action trespass to goods.19 In addition, the common law has the action in nuisance to protect against disturbance of possession. The action in nuisance protects against 15 Mattei, Basic Principles (n 14) 172-173. 16 See K J Gray and S F Gray, Elements of Land Law (2009) 171: “Trespass to land is essentially a wrong against possession”; P Walter and J Harris, Claims to the Possession of Land: The Law and Practice (1987) 2, according to whom trespass is an offence against possession and not ownership. Mattei, Basic Principles (n 14) 173-174: “All legal systems share the principle of protecting with great generosity the individual who physically controls a piece of property against dispossession, disregarding the legal title that justifies such physical control”. In civil law one finds an action called réintégrande (réintegrazione in Italy), whereas in the common law, “one can chose between actions of trespass or ejectment, which are both part of the law of tort and actionable per se without the need to show actual damage”. “Interestingly, in less urgent or dramatic events than dispossession, legal systems also show remarkably common principles at play. They all agree that the possessor should be protected, not only against dispossession but also against behaviors of the defendant that merely disturb his or her quiet enjoyment of property. They all agree in being less liberal in granting protection to possession in this case … In France this action is called complainte … In common law, in the absence of a distinction between ownership and possession, it is again the law of tort that contains the action of nuisance”: Sheehan, Principles of Personal Property Law (n 13) 232; Harpum, Bridge & Dixon (n 13) 39. 17 Walter & Harris, Claims to the Possession of Land (n 16) 2; M Papandréou-Deterville, Le droit anglais des biens (2004) 72. This action is to be added to self-help, which aims at evicting the trespasser and introduces the recourse ofs reasonable force: Clarke & Kohler, Property Law (n 14) 286. See also on self-help: Gray & Gray, Elements of Land Law (n 16) 170: “Until ‘possession’ of land has, in strict terms, been assumed by an intruder, a prior possessor is entitled to exercise the remedy of self-help against the intruder through eviction by reasonable force”. 18 See also Mattei, Basic Principles (n 14) 173; Bridge, Personal Property Law (n 13) 39. 19 N Palmer, Palmer on Bailment, 3rd edn (2009) 317: “At common law, a bailee’s possession entitles him to exercice any of the remedies to which possession is a prerequisite [as with trespass], or to which it is one of several grounds of potential qualification [For example, detinue and conversion]”; Sheehan, Principles of Personal Property Law (n 13) 230.

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an ­interference with the use and/or enjoyment of real property, without any implication of trespass (thus without any physical interference on the content). In the case of dispossession, common law ejectment is the functional equivalent to the civilian réintégrande. Blacks’s Law Dictionary defines ejectment as a “legal action by which a person wrongfully ejected from property seeks to recover possession, damages, and costs”.20 Because the right to recover possession is a remedy in specie,21 this remedy seems to be akin to the réintégrande, as both are used to remedy the most serious infringements to possession involving dispossession. Having addressed these two important preliminary matters (i.e. the distinction between possession and detention, and the functional similarities between the common law and civil law systems), I will now concentrate on the three main questions tackled by this paper: (1) Should the holder be recognised as having possessory protection?; (2) Should the requirements for possession in the context of possessory protection be less exacting?; and (3) Should possessory protection be extended to movables? A. Should the holder be recognised as having possessory protection? In this section I argue that the person with detention of the property should be able to benefit from possessory protection. This possibility is recognised in French civil law as well as in English and Canadian common law. Moreover, this is more consistent with possessory protection’s justifications and aims than the restrictive alternative. 20 B A Garner & H Campbell, Black’s Law Dictionary (1999) ejectment. See also: Mattei, Basic Principles (n 14) 173; Walter & Harris, Claims to the Possession of Land (n 16) 15; A Dorfman, “Private ownership” (2010) 16 Legal Theory 6, who describes ejectment as the action to recover land. In modern English law, the summary possession proceedings is the remedy given to the possessor in order to protect himself against a dispossession committed by an intruder or a squatter and that allows him to be replaced in possession: R Megarry et al, The Law of Real Property (2008) 98: Gray & Gray, Elements of Land Law (n 16) 174; Harpum, Bridge & Dixon, Law of Real Property (n 13) 98. In common law, the holder of a contractual license has the right to possessory protection (action for recovery of land): Manchester Airport plc v Dutton 2000 QB 133; Alamo Housing Co-operative Ltd v Meredith (2003) EWCA 495. See also Clarke & Kohler, Property Law (n 14) 282. The person who suffers from dispossession can also claim damages. R Bernhardt, Property (2006) 46 ff; Sheehan, Principles of Personal Property Law (n 13) 230-232. 21 Gray & Gray, Elements of Land Law (n 16) 170; R Caterina, “Concepts and remedies in the law of possession” (2004) 8 Edinburgh Law Review 267 at 270; D Fox, “Relativity of title at law and in equity” (2006) 65 Cambridge Law Journal 303-365; L Smith, “Relief against forfeiture: a restatement” (2001) 60 Cambridge Law Journal 176-199.

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(1) Which possession merits protection? The debate on civil ­possession and natural possession Under Quebec civil law, the holder is usually denied the benefits of the consequences of possession. The explanation is that possession and detention are in opposition. Article 921 of the Civil Code of Québec (CCQ) defines possession in the following terms: “Possession is the exercise in fact, by a person himself or by another person having detention of the property, of a real right, with the intention of acting as the holder22 of that right”. Paragraph two of this article adds that: “The intention is presumed. Where it is lacking, there is merely detention”.23 It is also recognised in Quebec civil law, as in French law, that the existence of possession requires the presence of two elements: a material element, the corpus, and an intentional element, the animus.24 The corpus designates physical control over the property25 or, more generally speaking, the exercise in fact of a real right.26 The animus refers to the intention or the will of the possessor to behave as the titulary of a real right in the property.27 The drafters of the CCQ wished to distinguish possession from detention, reserving the terminology of possession for the person who has both the corpus and the animus. As the report of the Civil Code Revision Office specifies, “the word ‘possession’ indicates only legal possession and is never used to indicate precarious or natural de facto possession; the term detention will be used exclusively in the latter case”.28 The effects of the notion of possession, as distinguished from detention, apply to the possessor and not to the person with mere detention. For example, the lessee29 or the depositary,30 being deprived of the animus, are not possessors and do not benefit, in principle, from the effects of possession.31 In Desjardins v Ville de 22 “Holder” is here used as an equivalent to “titulary” or “titulaire”, as it is used in the French version of the CCQ. 23 Compare the old formulation of article 2192 CCLC, which defined possession in the same way as French law, as the detention of a thing or the enjoyment of a right. 24 Art 921 CCQ. See also Normand, Introduction au droit des biens (n 1) 300; J -L. Baudouin, Le droit civil de la province de Québec (1953) 422. See in French law: Carbonnier, Droit civil (n 11) 204. 25 A Benadiba, “Rapports de fait avec les biens: possession et détention” (2011) 8 Jurisclasseur Québec: Biens para 7. 26 Art 921 CCQ; Normand, Introduction au droit des biens (n 1) 300. 27 Lafond, Précis de droit des biens (n 1) 208; Vincelette, En possession du Code civil du Québec (n 1) 47; Benadiba (n 25) para 11. 28 Civil Code Revision Office, Committee on the Law of Property, Report on Property (1975) 44. 29 The lessee is the civilian equivalent of the common law tenant. 30 The depositary is the civilian equivalent of the common law bailee. 31 Lafond, Précis de droit des biens (n 1) 248. The holder could however become possessor following an inversion of title (“interversion de titre”) (923 CCQ).

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Montréal, the Court of Appeal agreed with the trial judge who held that “the Code does not attribute any effects of possession to detention”, and therefore rejected the request for legal recognition of a right.32 More specifically, it is often recognised that the person who detains the property cannot, in principle, bring a possessory action in Quebec civil law. Before the reform of the CCQ, article 770 of the Code of Civil Procedure (CCP), now abrogated, explicitly refused possessory action to the holder.33 Today, this same conclusion flows from an interpretation of articles 921 and 929 of the CCQ.34 While the first article integrates one’s will as an element of possession,35 the second confers the possessory action to the “possessor”.36 Thus today, Quebec scholars consider that only a possessor can bring a possessory action.37 It should be emphasised, however, that Quebec law allows possessory actions to be brought by a titulary of a real right (other than the right of ownership) who intends to act as the titulary of that real right.38 Admittedly, “the possessory actions are reserved … to the good faith or bad faith possessor”39 and as a consequence, the mere holder has no right to it. However, certain scholars recognise that some holders, “as possessors of real rights that they hold, can also bring actions for the protection of the possession of their right”.40 These individuals, even if they can be considered as detaining the property in a manner that is consistent with the owner’s superior right, also 32 Desjardins v Ville de Montréal 30 QAC 76. See also on this point: Domaine de l’Anse de Val-Jalbert inc. v Morin 2003 REJB 2003-48290 (CA). See also Porterlane Investments Ltd v Chambre des notaires du Québec 2010 JQ n 3649 and Frank v Kloppsteck 2011 JQ n 2902. 33 Art 770 al 1 CCP (abrogated): “Anyone in possession, for more than a year, by other than precarious title, of an immoveable or immoveable real right, may bring an action on disturbance against the person who disturbs his possession in order to put an end to the disturbance, or an action for re-possession against any person who has forcibly dispossessed him, in order to be put back into possession”. See also Shaink v Dussault 1966 CS 165. 34 This interpretation relies upon the report of the CCRO, which clearly distinguished possession from detention: Civil Code Revision Office, Report on Property (n 28) 45. 35 Art 921 CCQ: “Possession is the exercise in fact, by a person himself or by another person having detention of the property, of a real right, with the intention of acting as the holder of that right. The intention is presumed. Where it is lacking, there is merely detention”. 36 Art 929 CCQ: “A possessor in continuous possession for more than a year has a right of action against any person who disturbs his possession or dispossesses him in order to put an end to the disturbance or be put back into possession”. 37 D-C Lamontagne, Biens et propriété (2005) 678. See also Lafond, Précis de droit des biens (n 1) 445.  38 Art 921 CCQ: All real rights can however be the objects of possessory protection, with the exception of a servitude (art 1181 CCQ): Normand, Introduction au droit des biens (n 1) 307. See on quasi-possession: G Cornu, Vocabulaire juridique (n 11) possessio juris; M Ourliac and M J Malafosse, Histoire de droit privé, 2: Les biens (1957) 216. 39 Lafond, Précis de droit des biens (n 1) 237. 40 Lafond, Précis de droit des biens (n 1) 238.

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37

possess a real right and regard themselves as the titulary of that right. It is this intentional element that is fundamental when it comes to the recognition of possessory protection.41 This, in effect, nuances the principle by which a holder cannot bring possessory actions. Furthermore, some scholars have underlined that “the precariousness of detention is not necessarily absolute in character. Indeed, while this precarious state exists with regard to the person to whom the holder recognises a superior domain, it is different towards third parties”.42 In other words, the holder cannot bring a possessory action against the owner, but that does not exclude the possibility of bringing one against third parties. This possibility confirms the fundamental idea that possession is a mode of communication to third parties. Indeed, some Quebec cases have distinguished the true owner from third parties when it comes to the relative robustness or precariousness of the holder’s status. In Bilodeau v Dufour,43 Judge Taschereau of the Supreme Court of Canada admitted that, in Quebec, the precariousness of detention is not necessarily absolute, as third parties may perceive the holder to be a possessor. The Supreme Court of Canada refers to “the doctrine and French jurisprudence that softened the rigidity of the rule laid down by certain authors who view the precariousness of possession to be absolute with regard to all”.44 If precariousness exists vis-à-vis the owner, it does not exist toward third parties as “possessors have, with respect to all other individuals, true possession upon which they can, for example, bring an action en complaint”.45 Yet, in this case, Judge Taschereau limited this theory about the relative character of the precarious detention to only some holders.46 Following Bilodeau, a few cases took up the idea by which the precariousness of detention is not absolute, to the extent that the holder may benefit 41 See Guaranty Trust Co of New York v Canada 1948 SCR183. 42 Normand, Introduction au droit des biens (n 1) 307 (my translation). 43 Bilodeau v Dufour 1952 2 SCR 264. 44 Bilodeau (n 43) 268-269. 45 Bilodeau (n 43) 269.The court notably referred to Planiol and Ripert, who already noted that “next to these holders for whom precariousness is absolute, there are others for whom precariousness is only relative in character according to case law” (my translation) (M Planiol and G Ripert, Droit civil: Les biens, vol 3 (1954) 203, quoted in Bilodeau (n 43) 269). We can question the foundations of such a solution: is the possessory action recognised to the holder in certain cases, or do we consider that some holders are true possessors who are therefore worthy of the possessory action? In this case, Judge Taschereau really adopts the conception according to which holders are assimilated to possessors. See Bilodeau (n 43) 269. 46 I.e., those who exercise a right on a public domain property by virtue of a revocable concession and those who have possession that results from acts of pure faculty or of simple tolerance; not those who are qualified as precarious holders, such as the lessee, the farmer or the mortgagee in possession.

38

the consequences of possession

from a possessory action with respect to third parties, though not against the owner.47 I submit that the theory according to which detention produces no effects is questionable. Such a conception relies on a determined and too-sharp distinction between possession and detention, with the consequence of overlooking their similarities. It also neglects that the Romans, as well as Savigny, discussed natural possession or detention, in addition to legal possession, as being capable of leading to acquisitive possession.48 That is how Savigny, in his Treatise on Possession, specified that “[o]riginally, possessio denotes mere detention, that is, a non-juridical physical relation” but that “such detention under certain conditions acquires a legal character, as, through Usucaption, it gives rise to property: it is then called possessio civilis”.49 Without considering in detail the debate between Savigny and Jhering, it is appropriate to recall that in his Treatise on Possession, Savigny argued that the intention animating the possessor should be the animus domini: the intention to behave as the owner.50 Consequently, he refused to give the holder the quality of possessor51 and thus the benefit of possession’s effects “for theoretical reasons taken from the nature of possession”.52 In contrast, Jhering put forward a different theory in his book Le fondement des interdits possessoires.53 According to Jhering, possessors and holders have the same 47 See Marcel Bourgeois v Douglas Eaton REJB 2001-23796; Mayer Hill v Sylviculture et exploitation forestière JMJ inc 2009 JQ n 12796. However, there are only a small number of cases putting forward this distinction, which prevents us from concluding in a categorical way that Québec law clearly recognises such a distinction. 48 Savigny (n 7) 64: “If now in the law sources the question turns on possessio simply, what sort of possession is thereby to be understood? Wherever no ground presents itself for restricting the notion, it must be taken as generally as possible, and consequently as the physical relation of detention”. 49 Savigny (n 7) 39. 50 Savigny (n 7) 71-77. See also H Mazeaud et al, Leçons de droit civil, bk II, vol 2: Biens: Droit de propriété et ses démembrements (1994) n 142. The animus domini is not good faith; the thief while being a bad-faith possessor has the intention of acting as the master and therefore holds the animus domini. 51 Roman law saw as mere holders the “sons of families and the slaves”, “people sent by the lender, with a protective objective”, and “the people who only have the use or the guard of the thing (farmer, lessee, bailee, usufructuary, depositary)”: R Monier, Manuel élémentaire de droit romain, vol 1 (1977) 387. See also R von Jhering, Œuvres choisies, ed by O De Meulenaere, vol II (1893) (extract from Handwörterbuch der Staatswissenschaften by Conrad, Elster, Lexis & Loening, vol II (1890) 227: “… the Roman law grants possession to certain temporary holders (for ex. to the pledgee, the leaseholder or the hereditary farmer), and refuses it to others (for ex. to the farmer, the ordinary lessee).”) (my translation). 52 Savigny (n 7) 72-73. 53 R von Jhering, Etudes complémentaires de l’esprit du droit romain, II: Fondement des interdits possessoires: Critique de la théorie de Savigny, 2nd edn (1882), quoted in Mazeaud et al, Leçons de droit civil (n 50) para 1425.

why protect possession?

39

intention: to hold and keep the thing, i.e. animus tenendi. Therefore, regardless of an occupier’s real intention, the law must protect any occupier by giving effects to possession. According to Jhering’s theory, Roman law allowed the holder to have a possessory action for theoretical reasons: “practical considerations tip the balance”.54 Indeed, in Rome, where holders such as the lessee or the farmer were in an inferior social situation, it was considered necessary to “give to the lessor, who was better armed to legally defend himself … a right to act against any person who disrupted [a lessee’s] possession”.55 Today, however, from both a practical and social perspective, nothing justifies denying holders direct protection.56 By incorporating into the definition of possession the requirement that it must be “as an owner” (animo domini), we often forget that possession can be considered without any reference to ownership. Possession should not be reduced to an accessory of ownership, however.57 As early as Roman law, possession was a technique at the service of ownership as much as it was a larger instrument of civil peace.58 As rightly highlighted by Zenati and Revet in France, “the possessor must possess with the soul of an owner, animo domini, in order for his possession to produce effects at the level of ownership … Yet, such requirements are not necessary when it comes to simply giving effect to the mere act of possession, detached from all title”.59 Similarly, in Quebec, Dean François Frenette has underscored that the legislative drafters were substantially influenced by the tradition according to which possession is “almost uniquely considered in light of acquisitive possession” whereas the members of the Committee should have established a distinction between de facto possession, including detention, and legal possession, including acquisitive possession.60

54 Jhering, Œuvres choisies (n 51) 226-229 (my translation). 55 Mazeaud et al, Leçons de droit civil (n 50) para 1424 (my translation). 56 Mazeaud et al, Leçons de droit civil (n 50) para 1424 (my translation). See also Ourliac and Malafosse, Histoire du droit privé (n 38) 225-226: “due to its empiricism, the discrimination between possessors and others, protected or not against third parties, is prone to evolution. It varies according to economic and social factors, as well as the evolution of the rights respective of the parties of the contract”. (my translation). 57 Zenati-Castaing and Revet, Les biens (n 4), para 442. 58 Monier, Manuel élémentaire de droit romain (n 51) para 277. 59 Zenati-Castaing & Revet, Les biens (n 5) para 443. See also Bergel, Bruschi & Cimamonti, Traité de droit civil (n 12) 144. See also M Humbert, “Portalis et Justinien, ou les épaules d’Enée”, in Y Lequette and L Leveneur, Le Code civil, 1804-2004: Un passé, un présent, un avenir (2004) 42.  60 F Frenette, “Commentaires sur le rapport de l’O.R.C.C. sur les biens” (1976) 17 Les Cahiers de Droit 1001-1002 (my translation). See also Lafond, Précis de droit des biens (n 1) 201; Emerich (n 3) 7.

40

the consequences of possession

The recognition by the Quebec legislature of quasi-possession as fullfledged possession recognises, at least in part, that the holder is a possessor.61 This possessory protection could be extended still further, notably to the lessee,62 and even to the depositary,63 who both detain property without being titulary of a real right. Some scholars have suggested that granting such a possessory action to the lessee would be appropriate.64 From a historical perspective, it has been argued that the roots of the actions for the recovery of possession are not from Roman law but rather from canon law (redintegranda or actio spolii in Germany or Italy), medieval law (complainte en cas de saisine et nouvelleté in France) or customary law (for the possessory protection of movables).65 As Professor Caterina underlines, historically, the actio spolii (at the origin of the action en réintégrande) had been recognised for mere holders.66 Furthermore, recognising possessory protection to holders would be beneficial from a practical point of view, both for the holder, who is generally in the best position to act, and for the owner, who would not need to intervene in the holder’s defence in case of a dispute.67 A recent decision of the Supreme Court of Canada concerning a neighbourhood disturbance reinforces this argument. Ciment Saint-Laurent held that the lessee can defend himself directly without having to turn to the owner.68 Why should the fate of the tenant in the context of nuisance be treated more directly than his recourses in the context of a disruption of possession? In addition to this practical argument, there is also a policy argument, as the sole beneficiary of restricting the holder’s recourses is the individual disturbing possession.69 From a comparative point of view, several civilian jurisdictions recognise that a mere holder enjoys possessory protection.70 Unlike Quebec law, 61 See supra in the text. 62 See Lamontagne, Biens et propriété (n 37) 676. See also Lafond, Précis de droit des biens (n 1) 248. 63 See: R Naz (ed), Dictionnaire de droit canonique contenant tous les termes du droit canonique avec un sommaire de l’histoire et des institutions et de l’état actuel de la discipline, vol VII (1935) 51. 64 The lessee is the civilian equivalent to the common law tenant. See Caterina (n 21) at 271. For Quebec law, see Lamontagne, Biens et propriété (n 37) 676; Lafond Précis de droit des biens (n 1) 248. 65 Gordley & Mattei (n 2) 306. 66 Caterina (n 21) at 270. According to Caterina, the roots of the actions for the recovery of possession are not from Roman law but rather canon law; the actio spolii being an action from canon law. See also Naz, Dictionnaire de droit canonique (n 63) 51; Gordley & Mattei (n 2) 307. 67 Caterina (n 21) at 270-271. 68 Ciment du Saint-Laurent v Barrette [2008] 3 RCS 392 para 83. 69 See Caterina (n 21) at 270-271. 70 Such is the case for France as well as Italy and Germany: Caterina (n 21) 269. France and Italy

why protect possession?

41

French civil law acknowledges that holders have a right to possessory protection. This is the result of article 2278 FCC, which states that “[i]n accordance with the conditions set by the Code of Civil Procedure, possessory actions are open to anyone who possesses or detains peacefully”.71 This provision comes from an evolution that led to an amendment of the FCC by the Law of 9 July 1975 which extends the availability of possessory protection to the holder of an immovable.72 A similar evolution would be possible in Quebec civil law, where the definition of possession comprises the corpus and the animus. As in French law, it would suffice to add a provision conferring a possessory action to the holder. Similarly, the common law gives the holder recourses that can be viewed as analogous to possessory actions.73 In the common law, a large class of people are identified as possessors and possessory protection is therefore recognised broadly.74 Furthermore, it is the animus possidendi, more than the animus domini, that is required in order to exercise such an action.75 In other words, the possessor must merely have the subjective intention to possess the property, without necessarily intending to act as its owner.76 Using this understanding, both tenants and bailees are considered to be possessors.77 They are, as such, protected by all “remedies to which possession is a prerequisite”.78 As Lawson states, “a bailment for a term also confers possession on the bailee, to the exclusion of the bailor. Thus the bailee, and not the bailor, can bring an action of trespass against an intruder, and follow a restrictive definition of possession and require it to be animo domini. Germany follows a wide definition of possession, so as to take in the simple holders, who will then benefit from possessory action like true possessors. There will then be a specific requirement to possess as an owner in a context of usucaption. 71 My translation. 72 Cuillieron (n 9) 518. 73 On the possessory protection of personal property, see also Sheehan, Principles of Personal Property Law (n 13). On the possessory protection of real property, see notably Harpum, Bridge & Dixon, Law of Real Property (n 13) 98. See also: Papandréou-Deterville, Droit anglais des biens (n 17) 72-80 and 97-102; M Wonnacott, Possession of Land (2006) 19. 74 This includes the lessee, the depositary, the borrower, the thief, the squatter or the inventor: Papandréou-Deterville, Droit anglais des biens  (n 12) 114; Sheehan, Principles of Personal Property Law (n 13) 203 ff; R Smith, Property Law (2009) 73  75 Buckinghamshire CC v Moran 1990 Ch 644D; JA Pye (Oxford) Ltd v Graham 2003 1 AC 419; Lambeth LBC v Blackburn 2001 82 P & CR 494, 53. 76 Gray & Gray, Elements of Land Law (n 16) 153; Burn & Cartwright, Modern Law of Real Property (2011) 135; Smith, Property Law (n 74) 73; Pollock & Wright, Possession in the Common Law (1888) 20. Some English judgments went as far as saying that the animus possidendi was no longer required in order to show possession: Lambeth (n 75) 18. 77 On the tenant case, see F H Lawson, Introduction to the Law of Property (1958) 119. On the bailee case, see Palmer, Palmer on Bailment (n 19) 10: “… the bailment is founded exclusively on one person’s voluntary possession of goods that belong to another”. 78 Palmer, Palmer on Bailment (n 19) 317.

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the consequences of possession

can alone recover possession from a dispossessor”.79 Comparative law thus suggests that there is nothing inevitable about denying possessory protections to a mere holder. History also alludes to the safeguarding of possession as being available to simple holders. Furthermore, granting possessory protection to the person detaining property seems more consistent with the justifications for safeguarding possession. (2) The justifications for possessory protection When it comes to the justifications for possessory protection, the question that is usually broached is whether possession is a right or a fact. It is often assumed that common law tends to treat possession as a right whereas the civil law tradition considers possession to be a fact. This conflict is not as obvious as it has sometimes been presented. From a common-law point of view, possession tends to have more autonomy from ownership, whereas, from a civilian perspective, it remains linked to ownership. Given that in the civil-law tradition possession is typically argued as being a fact, scholars will often attempt to explain why possession is protected and recognised as producing effects in law. The simplest way is to view the protection of possession as being related to a substantive right, which is ownership itself. If possession is protected, it is because it indirectly protects ownership. This was the explanation given by Jhering. However, the question concerning the justifications for possessory protections seems too focused on the famous debate between Savigny and Jhering, the latter arguing that possession is safeguarded to provide more complete protection for the true owner,80 the former considering possession to be protected in order to secure public order.81 It remains possible to argue that possession may be worth protecting for the reasons given by both Jhering and Savigny. Such an argument would elucidate some of the limits each theory has standing on its own. It has been contended that Jhering’s theory does not explain why a possessor is protected when he is clearly not the owner. However, possession does not only preserve ownership, it might also support 79 Lawson, Introduction to the Law of Property (n 77) 63. See also Palmer, Palmer on Bailment (n 19) 317: “At common law, a bailee’s possession entitles him to exercise any of the remedies to which possession is a prerequisite [as with trespass], or to which it is one of several grounds of potential qualification [for example, detinue and conversion].” 80 Jhering, Œuvres choisies (n 51) 230. 81 Savigny (n 7) 6: “It is in this respect that all possessory interdicts correspond; they all presuppose an act illegal in point of form. This is clear in all proceedings accompanied with force, especially in those of a graver nature, but it is equally true of all such cases in the Roman law as admitted of possessory Interdicts”.

why protect possession?

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public order. It has further been argued that the explanation given by Savigny according to which possession preserves public peace is not tenable because public order should be protected by administrative or police measures, and because relief might be given without violence or a breach of civil peace.82 However, public peace can be fostered by civil action as much as by administrative measures, and possession does not only support public peace, it also protects ownership. Those theoretical difficulties tend to disappear when one admits that possession might be worth protecting for different reasons depending on the consequences of possession. This is why one can add to the protection of ownership the other major rationale for possessory protection: the fostering of public peace. While some consequences of possession, such as usucaption, seem better legitimised by an explanation referring to ownership, others, like possessory actions, seem more justified by the idea of the preservation of public order. Scholars in France and in Quebec typically contend that possessory protection is a way of indirectly safeguarding ownership.83 The reason is that, in the majority of cases, possession lies in the “shadow of ownership” (as Carbonnier aptly put it).84 Easier to establish than ownership, proof of possession permits avoiding the probatio diabolica, which would consist of climbing up the chain of title to its origin. Since the owner and the possessor are often one and the same, by protecting the possessor the law indirectly protects the owner.85 That is not, however, possession’s sole function, as its preservation helps in maintaining public order and social peace. In so doing, it can be expected that violence will be avoided.86 The absence of possessory 82 Malaurie & Aynès, Les biens (n 1) 143. 83 See for example: “Fascicule 6: Rapports de fait avec les biens: Possession et détention” Jurisclasseur Québec: Biens et publicité des droits s 3. 84 Carbonnier, Les biens (n 11) 212. See Cuillieron (n 9) 513-518. In French law, see also Bergel, Bruschi & Cimamonti, Traité de droit civil (n 12) 427. 85 On Québec law, see notably Lafond, Précis de droit des biens (n 1) 238-240. On French law: C Atias, Droit civil: Les biens (2001) 254: “Generally, possession and ownership coincide and this last one is hard to prove: the protection of possession is often a favor for ownership”. On the justifications of usucaption, see also D Lametti, “Prescription à la recherche du temps: In search of past time (or recognition of things past)” (forthcoming). 86 Lamontagne, Biens et propriété (n 37) para 654. On French law, see: Bergel, Bruschi & Cimamonti, Traité de droit civil (n 12) 144, where the authors state that, regarding possessory actions, the aim is to “preserve civil peace from violent attacks to the possession of another” (my translation); Atias, Droit civil (n 85) 412: “The réintégrande has always had a particularly wide domain; it was less destined at protecting a characterised possession than fighting against violence used to dispossessed the plaintiff”. (my translation). See also Monier, Manuel élémentaire de droit romain (n 51) 384. Paradoxically, it is Savigny who defends the idea that any disruption of a possession is an infringement to public peace and to the individual. See on this paradox: Malaurie & Aynès, Les biens (n 1) 143.

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the consequences of possession

protection might encourage third parties to disrupt the possessor’s possession; protection, then, might discourage such disturbance of possession. The same approximate justifications are found in the common law. In that tradition, ownership and possession are so close that it has been argued that they form one single concept.87 Here, too, the law tends to protect title by protecting possession,88 as ownership is often seen as the best right to possession.89 In English law, title is usually described as relative.90 The person with possession has title against anyone who does not have a better right – which would be based on an earlier possession. Therefore, in common law as well, protecting possession is a way to secure title.91 That being said, even though this protection generally benefits the owner who is in possession,92 it is also sometimes recognised as ensuring public peace, designated as “the protecting effect of good or bad faith possession”.93 Justified more as defending against violence and maintaining public peace than as a means of protecting ownership, the possessory action should be as relevant to the simple holder as it is to the possessor animo domini. By incorporating in its definition of possession the requirement that possession should be as an owner (or as a holder of a real right), and by not providing that detention can produce some effects, the CCQ does not sufficiently take into account the foundations of possessory protection. The common law and the evolution of the French law, however, show that a more nuanced approach is possible.

87 Gray & Gray, Elements of Land Law (n 16) 72 ff: “Yet, in recent years, the philosophical base of title in English law has shifted significantly from the reality of possession towards a new ideology of ownership”. See also Pollock & Wright, Possession in the Common Law (n 13) 119: “[the word ‘possession’] is used, especially in the Year-books and ancient writers, to signify right to possession, which may be either of that general kind which is synonymous with ownership, or of a temporary or otherwise special character”. 88 Bridge, Personal Property Law (n 13): “Conversion, a tort concerned with the protection of ownership, lay therefore at the behest of those in possession of the chattel at the time of the wrongful act was later extended, because of the limitations of possession, to those with a right to immediate possession”.  89 Burke, Personal Property (n 2) 115:  “A fourth, and perhaps the most general advantage of protecting the prior possessor is that, in so doing, ownership and title will be in the best position, often to locate or be located by the true owner – protecting the one protects the other”. 90 Clarke & Kohler, Property Law (n 14) 282. L Merrett, “The importance of delivery and possession in the passing of title” (2008) 67 Cambridge Law Journal 376-377. For a critical view of the idea that ownership is relative in common law: Gordley & Mattei (n 2) 300. 91 Gordley & Mattei (n 2) 293-334. 92 Perry v Clissord 1907 AC 73 at 79. 93 Papandréou-Deterville, Droit anglais des biens (n 17) 65. Pollock & Wright, Possession in the Common Law (n 13) 118 ff.

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B. Should the requirements for possession  in  the context of possessory protection be  less  exacting? Quebec law, in the manner of French law, incorporated in its definition of possession the requirement that possession should be as an owner (animo domini). Moreover, Quebec law made all the effects possession can produce (and not only the presumption of prescription) subject to the condition that it must be useful; in other words, peaceful, public, continuous and non-equivocal. I submit here that possessory protection should not be founded upon conditions that are strictly identical to the conditions for acquisitive prescription, but rather upon less strict qualities, which would take into account the distinction between civil possession and natural possession. Article 922 of the CCQ provides that in order to produce effects, possession needs to be peaceful, continuous, public and unequivocal.94 The possessory action is itself an effect of possession (art 929 CCQ); a possessor will be able to benefit from the possessory action only when his possession is useful.95 However, one can question the legitimacy of this requirement of useful possession in order to exercise a possessory action. It results from a dubious duplication of the requirements for acquisitive prescription.96 Under the former law in Quebec, article 2193 of the Civil Code of Lower Canada (CCLC) required useful possession only with regards to acquisitive prescription. Scholars then relied upon this article in order to require the same ­conditions for the possessory action.97 Yet the effects of possession are not 94 Art 922 CCQ: Peaceful possession is possession obtained without physical constraint or moral violence; continuous possession is possession without any abnormal interruptions; public possession is possession that is not clandestine, as it needs to manifest through a third party’s eyes; unequivocal possession implies unambiguous acts of possession on the same property, which precludes more than one individual acting as possessor of the same property at the same time. See Normand, Introduction au droit des biens (n 1) 302; P Martineau, Les biens, 5th edn (1979) 56.  95 Lamontagne, Biens et propriété (n 37) para 678. 96 As early as Roman law the classical jurisconsults distinguished between possession protected by possessory bans and possession leading to adverse possession. See Savigny (n 7) 59: “The right to Interdicts requires the existence of possession, and nothing further; whoever has obtained possession, even by force, may bring Interdicts; and thus no other juridical quality is required than the existence of possession simply, to found the right to Interdicts. On the other hand, Usucaption also requires the existence of possession, but that alone is not sufficient; for the Possession must have commenced with bona fides and justa causa, and the thing possessed, moreover, must not be one of those which were specially excepted from Usucaption, such as res furtiva, vi possessa, etc. The relation, therefore, between these two notions is this, Usucaption-possession merely contains more conditions than Interdict-possession, and the latter is always included in the first.” See also: Monier, Manuel élémentaire de droit romain (n 51) 387-388, which refers to the possessio, according to which the bans should not hold the supplemental qualities that are required of it in order to become civilis and form adverse possession. 97 P Pratte, “L’action possessoire est-elle moins protégée sous le Code civil du Québec?” (1995) 55 Revue du Barreau 415-417.

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the consequences of possession

limited to acquisitive prescription, a point taken into account by the drafters of the CCQ who moved the provisions on possession from the chapter on prescription to the section on possession within the new code.98 It is possible, however, to confer greater autonomy to actions in relation to possession. Some French scholars have already noted that possession meriting protection through possessory action would not need to have the characteristics of civil possession because such possession does not aim to acquire ownership.99 French and Quebec scholars limit the impact of the principle that requires useful possession by admitting that violence and secrecy are relative defects in possession. Only the person dispossessed as a result of such defects can invoke them when challenging the dispossession.100 Moreover, it is generally accepted that the possessor “has the right to reject exterior attacks, even by using violence”, to maintain his peaceful possession from the moment of his entry into possession.101 Protecting possession in such a case is not regarded as violence. As for the defects of ambiguity and discontinuity, most civilian scholars believe that they have an absolute character because they relate to the existence of possession,102 so they can be invoked by any interested person.103  98 Civil Code Revision Office, Report on property (n 28) 5: “Title two is new in that it removes the general provisions concerning possession from the chapter on prescription. It seemed logical to include possession in the book on property, without, however, neglecting references to the law on prescription”.  99 Zenati-Castaing & Revet, Les Biens (n 5) para 489. Contra: Malaurie & Aynès, Les biens (n 1) para 497. 100 Lafond, Précis de droit des biens (n 1) para 545. See also Normand, Introduction au droit des biens (n 1) 302-304. On the relativity of the vice of violence in French law see: Malaurie & Aynès, Les biens (n 1) para 498: “Like the other vices of possession, violence can only be invoked against the possessor by the victim; towards all the others, the possession is useful” (my translation). See also Mazeaud et al, Leçons de droit civil (n 50) para 1437. On the relativity of the vice of clandestineness, see: Malaurie & Aynès, Les biens (n 1) para 499; Bergel, Bruschi & Cimamonti, Traité de droit civil (n 12) 156: “Only those who were ignorant of possession can claim it. Secrecy is a relative vice” (my translation). 101 Normand, Introduction au droit des biens (n 1) 303. See on French law: Malaurie & Aynès (n 1) para 498: “… does possession, peaceful at its origin, become possession with a vice as a result of the possessor having to violently defend his right thereafter? After having decided the contrary, the Cour de cassation, going back to the Roman tradition, does not seem to admit it, at least with regards to possessory protection: only the initial possession should be considered, maybe when the subsequent violence of the possessor is legitimate; it defends an existent right that the law protects, while the initial violence is aimed at seizing it” (my translation). 102 The vice of ambiguity introduces a doubt as to the existence of the animus and the vice of discontinuity refers to the interruption of the corpus. See: Lafond, Précis de droit des biens (n 1) para 553-557; Normand, Introduction au droit des biens (n 1) 302-303. See also Malaurie & Aynès, Les biens (n 1) para 497 ff. 103 Mazeaud, Droit civil (n 51) 1439. In Quebec, scholars seems to implicitly recognise the absolute character of the vices of equivocation and discontinuity, which comes from the fact that the

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This section’s argument is that advancing the objectives of possessory protection calls for relaxing the requirement within Quebec law that possession be unequivocal and continuous in order to benefit from possessory actions, at least in the case of violent dispossession. The admissibility of the action en réintégrande, which “generally assumes a dispossession by violence or by eviction”,104 should not be subordinated by the requirement of a continuous and unequivocal possession.105 For example, in French civil law, it is well-established among scholars and case law that the equivocal nature or discontinuity of the possession never constitutes an obstacle to the action en réintégrande.106 In order to reinforce the objectives of possessory protection, one might also attempt to remove the requirement that possession must have lasted for one year, which is currently provided for by article 929 CCQ. Some Quebec scholars have criticised this requirement in the context of the action en réintégrande, as this action aims to recover possession after a violent dispossession.107 The requirement does not exist in French civil law for the “action en réintégration”.108 In the common law, the focus on possession’s utility does not carry the same importance as in the civil law. Judges have, of course, “in mind an ideal model that assumes a complete and continuous physical, exclusive and non-contestable control”.109 But, in practice, these different characteristics vary according to the circumstances. For example, in Canadian common law, peaceful possession is not required for the possessor to benefit from recourses analogous to the possessory action. In the Ontario case of Bird v Fort Frances,110 Judge McRuer was tasked with deciding whether a thief authors (Lamontagne, Lafond, Normand) mention the relative character of the vices of violence and secrecy, but not of the vices of equivocation and discontinuity. On French law, see for example Mazeaud, Droit civil (n 51) para 1443. 104 Lafond, Précis de droit des biens (n 1) para 618. 105 Today, in Quebec civil law, an action in “réintégrande”, alike the action in “complainte”, is admissible only if the following conditions are present: at the beginning of the legal proceedings, the possessor needs to prove a possession of a year, meaning that he had a useful possession for at least a year and a day (art 929 CCQ; Normand, Introduction au droit des biens (n 1) 307). Quebec case law refuses to grant the benefit of the action in réintégrande to the individual with equivocal possession: Sivret v Giroux 1997 RDI 163 (CA). 106 Zenati and Revet, Les Biens (n 5) para 489. See also Atias, Droit civil (n 85) 412; Mazeaud, Droit civil (n 51) para 1443. 107 Lamontagne, Biens et propriété (n 37) para 678. 108 Art 1264 FCCP. See also Zenati & Revet, Les Biens (n 5) para 489. See also Malaurie & Aynès, Les biens (n 1) para 508.  109 Papandréou-Deterville, Droit anglais des biens (n 17) 115. Clarke & Kohler, Property Law (n 14) 262; Fowley Marine (Ermsworth) Ltd v Gafford 1968 2 QB 618 CA. 110 Bird v Fort France 1949 2 DLR 791 (Ont HC).

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could maintain an action in trover against the person who had deprived him of possession of a stolen thing. The judge considered that it was unnecessary to determine whether the boy was “a mere wrongful taker” or “if he had a felonious intent”. In either case, the result would be the same: the boy should be allowed to recover the money that he found, his claim to title trumping that of the later person. Another case indicates that certain features, which would be required in English common law in the context of adverse possession (equivalent to acquisitive prescription), are not critical to protecting possession per se. In the English case The Tubantia,111 the plaintiffs sought an injunction to protect their submarine activities. Sir Henry Duke allowed the injunction, even though the submarine activities in question were discontinuous. Thus, while possession needs to appear continuous, intermittent possession is not fatal if there is a certain regularity and coherence.112 Possession also needs to be obvious, but this quality is evaluated according to the type of property possessed and unambiguous acts are not always necessary.113 The common law also insists on possession’s exclusive quality.114 However, exclusivity does not prevent two people from possessing the same property simultaneously.115 When there are practical difficulties in excluding others because of the nature of the property, the demands of exclusivity are reduced. For example, in Fowley Marine (Ermsworth) Ltd v Gafford, the court accepted that setting permanent ropes on a boat established possession, despite the opposing argument that the defendant ought to have done more.116 This discussion leads to consideration of a less strict conception of possession sufficient to deserve possessory protection. The conditions enumerated in article 929 CCQ should not all be required for a possessory action. In other words, the conditions for possessory protection should not be identical 111 The Tubantia 1924 All ER 615 (Pr & Ad Div). 112 Re Taylor and Willigar 1980 99 DLR (3d) 118 at 125-266; Smith v Waterman 2003 All ER (D) 72 (Jun), 61); Howard v Kunto 477 P 2d 213. See also: Gray & Gray, Elements of Land Law (n 16) 153. See however Hanson v Summers (22 Sept 2000) Mich Ct App. 113 Papandréou-Deterville, Droit anglais des biens (n 17) 115. Pollock & Wright, Possession in the Common Law (n 13) 37: “The de facto possession of personal chattels is up to a certain point obvious. No doubt is possible concerning the pen one is writing with, or the paper one is writing on. But … complications arise as soon as we have to consider the case of a chattel which is not in any one’s present manual control … The possible combinations of facts offer infinite gradation from manifest power and will to hold the thing for oneself to cases where one of these elements, if not both, is so weak and obscure that it can only just be said to exist”. 114 Pollock & Wright, Possession in the Common Law (n 13) 21. Walter & Harris, Claims to the Possession of Land (n 16) 15. 115 Harpum, Bridge & Dixon, Law of Real Property (n 13) 89. Clarke & Kohler, Property Law (n 14) 262. 116 Fowley Marine (Ermsworth) Ltd (n 109). See Clarke & Kohler, Property Law (n 14) 262-264. See also The Wik Peoples v State of Queensland 1996 187 CLR 1.

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to those required for acquisitive prescription or usucaption. This suggestion emerges from French law as well as from English and Canadian common law. Moreover, allowing possessory actions in a broader context would reinforce the protection against violence that underpins such actions. This analysis of the conditions of possession leads next to the question of possessory protection’s scope of application. C. Should possessory protection extend to  movables? What is possessory protection’s legitimate scope of application? In Quebec civil law, the drafters did not limit protection to immovables. Instead, article 929 CCQ simply provides that a “possessor in continuous possession for more than a year has a right of action against any person who disturbs his possession or dispossesses him in order to put an end to the disturbance or be put back into possession”.117 Yet, likely because the attitude underlying the adage res mobilis res vilis retains traction, Quebec case law tends to limit possessory protection to immovable property.118 However, it would be beneficial to not exclude movables from possessory protection, as that exclusion ­unhelpfully perpetuates the myth of immovable property’s superiority relative to movables.119 The argument in this section of the paper concerns the appropriateness of extending the possessory action to movables. The exclusion of movables from possessory protection stems from a longstanding disregard of movable property which can no longer be legitimately maintained. Moreover, the argument is reinforced by the potential abrogation in Quebec law of the traditional civil law rule of non-accumulation of the possessory action and petitory action. (1) The utility of the possessory action for movables It has already been argued in French law that some “conservative spirits strive to technically justify the exclusion of movables from the possessory protection on the basis of the rule of article 2279 [now 2276] paragraph 1 of 117 Art 929 CCQ says that: “A possessor in continuous possession for more than a year has a right of action against any person who disturbs his possession or dispossesses him in order to put an end to the disturbance or be put back into possession”. 118 Québec (Sous- Ministre du revenu) v Propriété Métro Industriel Inc 1999 JQ n 920 (CS). 119 For a criticism of the French case law on this issue: F Zenati, “Propriété et droits réels” (1996) Revue trimestrielle de droit civil 943-946. See also: Cuilleron (n 9) 504-523. See also on Quebec law: Lafond, Précis de droit des biens (n 1) 237.

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the Civil Code”.120 The absence of a similar provision within the Civil Code of Québec renders this traditional exclusion of movables from the possessory action still more dubious. Moreover, nothing in the common law contradicts the possibility of possessory protection of personal property. In French law, some scholars have argued that the possessory protection of movables would be useless121 due to the presence of article 2276 FCC. The latter consecrates the traditional rule according to which “en fait de meubles la possession vaut titre/possession counts as title”. To support this they mainly invoke the fact that this action would be useless, as according to this article, the defendant instantaneously acquires ownership. However, the counterargument is obvious, as the privilege of article 2276 FCC is subordinated to conditions that are not always fulfilled.122 Even though the FCC does not expressly state that only immovables benefit from possessory protection,123 the French Cour de Cassation has recently sanctioned the doctrinal theory by which only immovable property may benefit from such protection.124 However, this judgment fails to respond to the need to safeguard movables, the economic value of which is unquestionably significant in contemporary society. If, from a historical viewpoint, the law did not generally acknowledge possessory protection for movables, that limit would have been related to their perceived low value in an era when wealth inhered in land.125 Moreover, the adage “possession counts as title/en fait de meubles possession vaut titre” does not apply to movables that are traditionally considered to be more valuable.126 This demonstrates that the exclusion of movables from the sphere of possessory protection is based on the idea that movables are worth less than immovables. That assumption is outdated. Unlike French law, in Quebec law, there is no clear principle according to which possession of movables equates to having title. Quebec law has no direct equivalent to article 2276 of the FCC, which establishes a conclusive presumption of ownership in the case of an animo domini, and useful and 120 Zenati (n 119) 946. Art 2279 has become art 2276 following the reform of the FCC by the law n 20008-561 of 17 June 2008. 121 R Desgorces, Droit civil: Les biens (2011). 122 Indeed, the one who invokes it is not necessarily of good faith, does not always have a characterised possession and is not in all cases a purchaser animo domini. Zenati (n 119) 946. 123 Zenati (n 119) 943. 124 Civ. 1re, 6 February 1996, Bulletin des arrêts de la Cour de Cassation rendus en matière civile I, n 57; Civ. 3ème (15 June 2011) n 10-12.167. 125 Ourliac & De Malafosse, Histoire du droit privé (n 38) n 133. Zenati (n 119) 945. 126 See Carbonnier, Les biens (n 11) para 227. This maxim is only applicable to corporeal goods and does not apply to larger and more valuable corporal movables like ships or aircraft whose transmission are submitted to publicity rules.

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good faith possession.127 In Quebec, the purchaser of movable property is not instantaneously invested with ownership. A delay of three years is set in order for the good faith possessor to acquire the ownership of the movable by acquisitive prescription. If this delay is not exhausted, the owner can usually claim the movable.128 However, it must be noted that according to article 1454 CCQ, “If a party transfers the same real right in the same movable property to different acquirers successively, the acquirer in good faith who is first given possession of the property is vested with the real right in that property, even though his title may be later in time”. Therefore, while the saying “possession counts as title/en fait de meuble, possession vaut titre” is not totally absent from Quebec law, its role is marginal.129 Today, nothing in Quebec’s Civil Code restricts possessory protection to immovable property130 and movables are taking on greater importance in the composition of wealth and patrimonies. As the category of movables is residual, it comprises a vast group of property.131 Furthermore, the recognition and creation of new property has greatly enlarged the category of movables.132 Indeed, most of these “new movables” belong “to a vast group of incorporeal property”133 that, as they do not belong to the category of immovables,134 are movables.135 From an economic standpoint, it is therefore a very important category of property.136 Given the fact that movables are numerous and have a recognised patrimonial value,137 it can be argued that they deserve protection in the same way as immovables. In the common law, nothing appears to prevent possessory protection of personal property. For example, the action in trespass to goods protects one from the physical disturbance of the possession of a chattel, when the author 127 See Cuillieron (n 9) 513. 128 See art 2919 CCQ: “The possessor in good faith of movable property acquires the ownership of it by three years running from the dispossession of the owner. Until the expiration of that period, the owner may revendicate the movable property, unless it has been acquired under judicial authority”. 129 We actually find in article 1441 FCC a closer equivalent to art 1454 QCC than that found in art 2276 FCC. 130 Lafond, Précis de droit des biens (n 1) 613. See infra the discussion on the abrogation of the distinction between possessory and petitory actions in Quebec civil law. 131 Normand, Introduction au droit des biens (n 1) 60. 132 Regarding the creation of new property, see S Normand, “Les nouveaux biens” (2004) 166 Revue de Notariat 186. 133 Normand, Introduction au droit des biens (n 1) 60. 134 These incorporeal properties are real properties. Art 904 QCC: “Real rights in immovables, as well as actions to assert such rights or to obtain possession of immovables, are immovable”. 135 Normand, “Les nouveaux biens” (n 132)179. 136 See A-M Patault, Introduction historique au droit des biens (1989) 288; Zenati (n 119) 945. See also Y Emerich, La propriété des créances: Approche comparative (2007) 90. 137 Zenati, “Propriété et droits réels” (n 105), 945.

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of the offence took the property, moved it or damaged it.138 The action in trespass to goods is generally aimed at obtaining an injunction, damages, or both, but it can also lead, in exceptional cases, to recovery of the property.139 Moreover, the action in conversion,140 which is similar to the action in revendication in the civil law,141 protects one from voluntary acts committed on personal property that contradict the plaintiff’s title by depriving him of the use and possession of his property. This action aims at recovering the property through an injunction and can sometimes lead to the recovery of damages.142 Further, in the common law, the possessor of personal property which has been illegally dispossessed by a third party may effectively claim the property or the value of the property against that third party.143 This possibility is embodied in the traditional actions in trover144 and in detinue,145 138 This action is recognised even though no loss follows from it; yet, the defendant needs to have acted intentionally or negligently: Papandréou-Deterville, Droit anglais des biens (n 17) 97-98; Penfolds Wines v Elliott 1946 76 CLR 204 (HCA). Sheehan, Principles of Personal Property Law (n 13) 203-232. 139 Sheehan, Principles of Personal Property Law (n 13) 226. A Beever, “The form of liability in torts of trespass” (2011) 40 Common Law World Review 4 (378). 140 According to the Black’s Law Dictionary (1999) 333: “The wrongful possession or disposition of another’s property as if it were one’s own; an act or series of acts of willful interference, without lawful justification, with an item of property in a manner inconsistent with another’s right, whereby that other person is deprived of the use and possession of the property”. See also S Douglas, “Nature of conversion” (2009) 68 Cambridge Law Journal 198 at 199: “conversion exists whenever a defendant intentionally exercises exclusive control over the claimant’s chattel without his consent”. See also the definition of conversion by Judge Atkin in Lancashire and Yorkshire Railway Co v MacNicoll 1918 88 LJKB 601: “It appears to me plain that dealing with goods in a manner inconsistent with the right of the true owner amounts to a conversion, provided that it is also established that there is also an intention on the part of the defendant in so doing to deny the owner’s right or to assert a right which is inconsistent with the owner’s right”. Bridge, Personal Property Law (n 13) 39. 141 This action has become a possessory-petitory action, where the plaintiff needs to show a proprietary interest on the property. Bridge, Personal Property Law (n 13) 67: “… conversion, a tort concerned with the protection of ownership”. See however Papandréou-Deterville, Droit anglais des biens (n 17) 102, according to whom the action is not used to decide on the question of ownership – it does not protect the rights of the owner per se. The property is protected through possession, but we should not conclude that the action in conversion is a petitory action. See also: Sheehan, Principles of Personal Property Law (n 13) 204: “This tort importantly does not protect property”. Clarke & Kohler, Property Law (n 14) 282; R Bernhardt, Property (2006) 46 ff. 142 Sheehan, Principles of Personal Property Law (n 13) 217. Clarke & Kohler, Property Law (n 14) 282. 143 Bridge, Personal Property Law (n 13) 38; Bernhardt, Property (n 141) 46 ff. 144 Black’s Law Dictionary (n 140), Trover: “A common-law action for the recovery of damages for the conversion of personal property, the damages generally being measured by the value of the property”. M J Mossman and W Flanagan, Property Law: Cases and Commentary (2004) 106-110; Bernhardt, Property (n 13) 46 ff. 145 Black’s Law Dictionary (n 140) Detinue. “A common-law action to recover personal property wrongfully taken by another …” R F V Heuston, Salmond on the Law of Torts, 17th edn (1977) 111: “A claim in detinue lies at the suite of a person who has an immediate right to the possession of the goods against a person who is in actual possession of them, and who, upon proper

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which would today be qualified as an action in conversion.146 In the classic case Armory v Delamirie,147 a young chimney-sweep who found jewellery was able to successfully bring an action in trover (that would today be qualified as an action in conversion) against the jeweller whom he had asked to determine the value of the object and who refused to give it back to him. This case demonstrates both that a simple holder can benefit from a certain possessory protection with regards to third parties with the action in trover and that personal property is not excluded from possessory protection. In comparison with common law, the civil-law restriction of possessory protection to immovables therefore seems outdated. Taking into account that the traditional civilian rule of non-accumulation of the petitory action and possessory action may be defunct, there is no need to restrain possessory protection with a limitation that can today no longer be justified. (2) The impact of the (potential) removal of the traditional rule of non-accumulation of the possessory and petitory actions In Quebec, the CCP formerly provided for the traditional division of real actions between possessory actions (art 770 CCP)148 and petitory actions (art 771 CCP).149 It also set the traditional rule of non-accumulation of the possessory and petitory actions (art 772 CCP),150 according to which actions in relation to possession (through a possessory action) and ownership (through demand, fails or refuses to deliver them up without lawful excuse”. 146 The action in trover is the ancestor of the action in conversion: A Hill & H Lawrence “New found Haliday: The conversion of intangible property – Re-examination of the action of trover and tort of conversion” (1972) Utah Law Review 511. The action in detinue is also an old action, which was abolished on 1 January 1978 with the Torts (Interference with Goods) Act 1977. According to art 2 of this Act: “(1) Detinue is abolished. (2) An action lies in conversion for loss or destruction of goods which a bailee has allowed to happen in breach of his duty to his bailor (that is to say it lies in a case which is not otherwise conversion, but would have been detinue before detinue was abolished)”. Today, the actual action in conversion covers the old actions in trover and in detinue. 147 1772-93 ER 664 (England). 148 Art 770 CCP: “Anyone in possession, for more than a year, by other than precarious title, of an immoveable or immoveable real right, may bring an action on disturbance against the person who disturbs his possession in order to put an end to the disturbance, or an action for re-possession against any person who has forcibly dispossessed him, in order to be put back into possession. These actions must be instituted within a year from the disturbance or dispossession”. 149 Art 771 CCP: “The owner of an immoveable or immoveable real right may, by petitory action, have his right of ownership recognized”. 150 Art 772 CCP: “The possessory and petitory actions cannot be joined, nor can a petitory action be continued until the possessory action has been decided and the condemnation satisfied”. Regarding the rule of non-accumulation of the possessory and petitory actions, see notably: Pratte (n 97) 404. See also D-C Lamontagne, “L’imbrication du possessoire et du pétitoire” (1995) 55 La Revue du Barreau 661-662.

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a petitory action) could not be brought in the same case.151 Furthermore, the CCP limited the possessory action as well as the petitory action to immovables. Article 770 CCP restricted the aim of the action en complainte (to “end the disruption” of the possession) as well as the action en réintégrande (“to be put back into possession”) to “the one who is in possession of an inheritance or an immovable real right” (emphasis added). While the rule distinguishing the possessory action from the petitory action is still fundamental in French civil law,152 in Quebec articles 770 to 772 CCP were abrogated during the reform of the CCQ. This modification to the enacted law explains why some scholars have argued that the traditional non-accumulation rule between petitory actions and possessory actions has disappeared from Quebec law, which would lead to Quebec civil law being more congruous to common law on this point.153 That being said, another element of the reform received less attention: no legislative disposition was enacted limiting possessory protection to immovables. Today, the CCQ itself provides for petitory actions and possessory actions, respectively in articles 912154 and 929155 of the CCQ. However, nothing in the current law of Quebec explicitly restricts the possessory action to immovables.156 A majority of Quebec scholars admit that the rule of non-accumulation of the possessory (article 929 CCQ) and petitory (articles 912 and 953 CCQ) actions could limit the domain of the possessory action, as it would move the debate to a question of title.157 However, it is not fully established that this fundamental principle of non-accumulation has been abrogated in Quebec civil law.158 Furthermore, even if it were the case, it would not put an end to the possessory litigation, as it is more advantageous to prove possession than 151 Lamontagne (n 150) 661-662. 152 Cuillieron (n 9) 516. See however contra: J-L Bergel, Réformer la distinction du pétitoire et du possessoire: Mélanges G Goubeaux (2009) 17.  153 See Mattei, Basic Principles (n 14) 174. There is no distinction between possessory actions and petitory actions in common law. See also Harpum, Bridge & Dixon, Law of Real Property (n 13) 88; Clarke & Kohler, Property Law (n 14) 282. 154 Art 912 CCQ: “The holder of a right of ownership or other real right may take legal action to have his right acknowledged”. This article is completed by article 953 of the CCQ: “The owner of property has a right to revendicate it against the possessor or the person detaining it without right, and may object to any encroachment or to any use not authorized by him or by law”. 155 Art 929 CCQ: “A possessor in continuous possession for more than a year has a right of action against any person who disturbs his possession or dispossesses him in order to put an end to the disturbance or be put back into possession”. 156 For a discussion on the will of the legislator to deprive the possessor of movables from possessory protection before the abrogation of article 770 CCP, see Frenette (n 60) at 1002. 157 Lamontagne (n 150) 661-666; Lafond, Précis de droit des biens (n 1) 236. See also J Anctil, “Le possessoire et le pétitoire” (1974) 5 Revue de Droit de l’Universite de Sherbrooke. 158 For a defence of a tacit recapture of the rule of non-accumulation, see Pratte (n 97).

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ownership. Additionally, the utility of the possessory action remains fundamental in situations where the possessor wishes to end a possessory disruption caused by a third party.159 D. Conclusion In this paper, I have attempted to demonstrate that the foundations of possessory protection are sometimes neglected, as the conditions for possessory protection are often viewed in a manner that is too restrictive. In the civil law, while possession is frequently distinguished from detention, both institutions are so similar that the holder could be recognised as enjoying a right to a possessory action. Furthermore, the nature of possession required for a possessory action is often studied in parallel with the nature of possession required for acquisitive prescription, even though the effects of these two devices mean they do not share the same foundation. Given these different foundations, that these two consequences of possession obey the exact same legal rules is illogical. In contrast to usucaption, which seems to have monopolised the majority of recent scholarly work in the area of possession,160 possessory protection appears to be the poor relation in the scholarship on possession, at least in the civil law. Yet fundamental principles with far-reaching historical ramifications are at stake in this field. Important social and economic issues are at the heart of the problem and deserve to be considered. As Mattei has rightly underlined, a “legal right needs to be accompanied by a concrete set of remedies to be effective, regardless of the rhetoric surrounding it” and this explains why property law in Western legal traditions has developed its own enforcement mechanisms.161 The same could be said about possession. Protection against violence and maintaining of civil peace are at the heart of possessory actions. A legal system that forgets this could end up encouraging recourse to private justice.

159 Lamontagne (n 150) 666. 160 See notably: J-P Marguénaud, “L’usucapion sauvée des eaux” (2007) Revue trimestrielle de droit civil; N Reboul, “Effet de l’usucapion: acquisition rétroactive du droit de propriété” (1998) Recueil Dalloz; F Zenati, “Usucapion” (1997) Revue trimestrielle de droit civil. 161 Mattei, Basic Principles (n 14) 172.

3  Is Possession Factual or  Legal? Simon Douglas* In An Introduction to Roman Law, Nicholas explains that the question of whether a person can be considered to be in possession of a thing is both a question of fact and a question of law: [P]ossession was not a fact if by that one means that it was unregulated by law. In the case, for example, of my taking possession of a farm, whether I have entered on the land is indeed a question of fact, but whether such an entry, assuming it to have occurred, amounts to a taking of possession is a matter governed by legal rules.1

The notion that “possession” is somehow both a matter of fact and a matter law is often repeated in respect of the common law as well. It can be seen in the common practice of qualifying the word by using terms such as “legal possession”, “constructive possession”, “deemed possession” and “possession in the eyes of the law”.2 Writing in this vein, for instance, Clarke and Kohler state, “A person who takes physical control of land or goods, with the intention of excluding all others from it or them, acquires possession of it or them as a matter of law”.3 It can also be seen in the other common practice of distinguishing between using the word to denote a fact and using it to describe a legal concept. Pollock and Wright adopt this approach, drawing a distinction between using “possession” to denote “an actual relation between a person and a thing”, and using it to describe “the state of being possessor in the eyes of the law”.4 Whilst “possession” may describe a factual state of affairs, these various approaches to possession each suggest that its meaning,   * I am extremely grateful to Jeffrey Hackney and Peter Mirfield for their comments on an earlier draft of this chapter.  1 B Nicholas, An Introduction to Roman Law (1962) 115.   2 Examples of these statements are legion. To give a few examples, see: S Green & J Randall, The Tort of Conversion (2009) 86; M Wonnacott, Possession of Land (2006) 13; A Bell, The Modern Law of Personal Property in England and Ireland (1989) 34. For an excellent account of the different formulations of possession, see J Harris, “The concept of possession in English law”, in A Guest (ed), Oxford Essays in Jurisprudence (1961).   3 A Clarke and P Kohler, Property Law: Commentary and Materials (2009) 259 (emphasis added). See also M Bridge, Personal Property Law (2002) 51.   4 F Pollock and R Wright, An Essay on Possession in the Common Law (1888) 26. See also Green & Randall, Tort of Conversion (n 2) and Wonnacott, Possession of Land (n 2).

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at least in part, is defined by law. This chapter aims to explore and ultimately defend this characterisation of possession. In the first section we will see that lawyers normally use the word “possession” to denote a factual state of affairs. The proof of this is that any litigant wishing to rely on a legal rule which makes reference to “possession” will usually have to introduce evidence of possession. This requirement for evidence, it will be argued, means that “possession” is being used to describe real-world facts. Notwithstanding this conclusion, the second section of this chapter aims to show that “possession” is also a technical term. The reason for this is that the legal usage of the word often diverges from its ordinary meaning. Consequently, one must be familiar with the relevant rules of the legal system in order to accurately state that the fact of possession exists. In this way, “possession” can be understood to be both factual and legal. A. Possession as a Fact The first argument made by this chapter is that the statement “X has possession of a thing”, when made by a lawyer, is normally a statement of fact. In order to make this argument it is important to begin by considering the differences between statements of fact and statements of law. (1) Statements of fact and statements of law In Definition and Theory in Jurisprudence,5 H L A Hart sought to draw a distinction between legal words and statements and non-legal words and statements. Hart argued that ordinary, non-legal, words are those that have a “straight forward connection with counterparts in the world of fact …”.6 Words such as “dog”, “cat”, “house”, “happy”, “sad”, and so on, all have “persons, things, qualities, events, and processes, material or psychological”7 that directly correspond with such words. One can see and observe a dog in the real world and, pointing to it, can accurately state “That’s what a ‘dog’ is”. There is much to suggest that “possession”, like the word “dog”, is used to denote a counterpart in the world of fact. For one, the word is current in ordinary usage. When “possession” is used by a non-lawyer, it is clear that the word is used to denote a fact rather than to describe a legal concept. A non-lawyer, after all, cannot use “possession” to describe a legal concept if he is unfamiliar with that concept. What then is the real-world fact that   5 H Hart, ‘Definition and theory in jurisprudence’ (1954) 70 LQR 37.   6 Hart (n 5) at 38.   7 Hart (n 5) at 38.

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a non-lawyer denotes when he uses the word “possession”? Generally it is used to describe a person’s relationship with a thing, particularly where that relationship is characterised by a high degree of physical and mental control over the thing.8 A non-lawyer can point to such a relationship and accurately state “That’s what ‘possession’ is”. The important question is whether lawyers also use it in this way. When counsel or a judge use the word “possession”, do they use it, as non-lawyers do, to denote its factual counterpart? There may, on the one hand, be no reason for lawyers to use the word in a different way. As Simpson says, “One must not forget that lawyers are people, and legal English English”.9 On the other hand, possession has attracted a substantial amount of academic attention, with a number of full-length treatises10 and many chapters in property law textbooks that appear to set out rules governing the acquisition, loss and protection of possession. If “possession” simply describes a fact, which has nothing to do with law, then it would make much legal writing on “possession” largely redundant. This in itself suggests that lawyers may be using the word to do more than merely describe a fact. According to Hart, ordinary non-legal words, which correspond to factual counterparts, must be contrasted with legal words, which do not have factual counterparts. Take, for instance, the word “right”, which may be found in a statement by a judge such as, “X holds a right against Y”. As Hart explains: There is nothing which simply “corresponds” to these legal words and when we try to define them we find the expressions we tender … are never precisely the equivalent of these legal words … Though one who has a right usually has some “expectation” or “power”, the expression “a right” is not synonymous with words like “expectation” or “power”.11

Unlike an ordinary word like “dog”, there is nothing one can see and observe in the real world, and say, “That’s what X’s ‘right’ is”. Rather than denoting a fact, Hart argued that the statement “X holds a right against Y” states a legal conclusion. The essence of this is that the judge, in making this statement,   8 The Oxford English Dictionary defines “possession” as “the state of possessing something … visible power or control”. J Simpson and E Weiner (eds), The Oxford English Dictionary, 2nd edn (1989). This is similar in terms to the definition put forward by Holmes: “To gain possession, then, a man must stand in a certain physical relation to the object and to the rest of the world and must have a certain intent. These relations and this intent are the facts of which we are in search”. See O W Holmes, The Common Law (1881) 216.   9 A W B Simpson, “The analysis of legal concepts” (1964) 80 LQR 535 at 547. 10 The two historical examples of such treatises are F von Savingy, Treatise on Possession: Or, the Jus Possessionis of the Civil Law, tr P Erskine, 6th edn (2003) and Pollock & Wright, Essay on Possession (n 4). For more recent examples, see R Hickey, Property and the Law of Finders (2010) and Wonnacott, Possession of Land (n 2). 11 Hart (n 5) at 38.

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will be applying some legal rule to the facts in the case. Let us say that it has been proved that Y had promised to pay X a sum of money in return for a service performed by X. When the judge states that “X holds a right against Y”, rather than simply describing a fact, he is applying an unstated rule (in this example, a rule governing the formation of a contract) to the facts. Understood in this way, the statement “X holds a right against Y” is the “tail-end” of this reasoning: it states the conclusion that the contractual rule applies to the facts in the case. Legal words, such as “right” and “duty”, do not have factual counterparts, but are shorthand ways of stating these legal conclusions. Returning to the word “possession”, we are essentially asking whether lawyers use “possession” in the same way that they use the word “right”, i.e. as a shorthand way of stating a legal conclusion. The plethora of legal writing on “possession”, much of which purports to set out the rules governing the acquisition and loss of “possession”, suggests that this may be the case. When a judge states that “X has possession of a thing” he may be applying these legal rules of acquisition and loss of possession to the facts in the case. If so, the statement “X has possession of a thing’”, when uttered by a lawyer, does not describe a fact, but states the conclusion that certain legal rules apply to the facts in the case. This brief discussion of legal language shows that it is conceivable for lawyers to use “possession” as an ordinary non-legal word, to denote its factual counterpart, or as a legal word, to state a legal conclusion. This means that we need a way of testing what the statement “X has possession of a thing”, when made in a legal context, actually means. To this end the following test is suggested: if a judge12 reaches the conclusion that “X has possession of a thing” by drawing inferences from evidence presented to him, then the statement is a statement of fact. Central to this proposed test for whether “possession” is used by lawyers to denote a fact is the relevance (or irrelevance) of evidence. “Evidence”, as Dennis states, “is information. It is information that provides grounds for belief that a particular fact or set of facts is true”.13 The process of collecting evidence is a process of finding out something about the world. If a crime is suspected of being committed, for example, evidence is collected when “investigators go out into the field, ask questions, poke around, interview 12 Because this chapter focuses on the usage of the word “possession” in judgments, the focus will be on judicial usage of the word. However, the test proposed here could, in principle, be applied to any lawyer (counsel, solicitor, academic, and so on) using the word. 13 I Dennis, The Law of Evidence, 4th edn (2010) 3.

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witnesses, examine physical evidence”.14 There are other common ways of collecting such information. Forensic scientists conduct experiments in the laboratory, social scientists collect and analyse empirical data, journalists and historians investigate records, transcripts, physical artefacts and any number of other materials. The purpose of collecting information in these ways is that it allows the existence or non-existence of facts to be “established by drawing conclusions (inferences) from information that the inquirer has collected for that purpose”.15 Evidence, therefore, is any material that makes the existence or non-existence of a fact more or less likely. It is because evidence has this function that it is central to the test proposed here. If a party involved in a dispute is required by the court to introduce evidence of possession, then the court must be asking that party to introduce material that makes the existence or non-existence of a particular fact (namely a person’s relationship with a thing) more or less likely. If the court then reaches the conclusion that “possession” exists by drawing an inference from this evidence, the court must be concluding that the fact of possession exists. Conversely, if a court, in reaching the conclusion that “possession” exists, does not reach this conclusion by drawing inferences from the evidence presented to it, but by some other means (such as by applying a legal rule to the facts of the case), then the court is not using the word “possession” to denote a fact, but to state the conclusion that certain legal rules apply to the facts in the case. The best indicator of whether possession is used by lawyers to denote a fact, therefore, is whether or not a party will be called on to introduce evidence to prove its existence. (2) Examples of factual possession The reason why lawyers are so interested in possession is that there are a number of rules, particularly in the law of property, that make reference to the word “possession”. It is suggested that when the test proposed above is applied to judicial uses of the word in the context of these rules, it is clear that the word is used to denote a factual state of affairs. The reason for this is that when a litigant seeks to rely on one of these legal rules, it will normally be incumbent upon him to introduce evidence of possession. For example, in criminal law if a defendant is charged with being in possession of a banned substance, the prosecution will have to introduce evidence of the defendant’s possession of the banned substance in order to establish 14 F Schauer, Thinking Like a Lawyer (2009) 206. 15 Dennis, Law of Evidence (n 13) 4.

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criminal liability.16 To this end the prosecution may call a police officer to give oral evidence that he found the banned substance in the defendant’s pocket; or they may introduce the findings of a forensic analysis which found traces of the banned substance on the defendant’s clothing. The purpose of introducing such material is that it makes the existence of a certain fact, namely the defendant’s physical and mental control over the banned substance, more likely. Consequently, when the word “possession” is used in this context, i.e. when a judge states, “the defendant had possession of a banned substance”, the word “possession” is being used to denote a fact. To demonstrate this thesis properly, that “possession” is used by lawyers to denote a fact, it is important to consider its usage in the law of property. There are a number of areas of the law of property which make reference to the word “possession”. In particular, possession is crucial to the rules governing the creation, transfer and destruction of property rights. The important role it plays in the law of property explains why much of the legal analysis of the word has been from a property law perspective.17 What this section must examine, therefore, is how the word is used in this context. As we will see, if a party to litigation wishes to rely on one of the property law rules which makes reference to “possession”, it will be incumbent on him to introduce evidence of possession. Consequently, when “possession” is used in the context of these rules, it is used to denote a factual state of affairs. (a) Creation of property rights In the famous case of Armory v Delamirie,18 a ring, which had been lost by an unknown person, was found by the claimant, a chimney-sweep’s boy, who handed it to the defendant jeweller to be valued. The jeweller subsequently refused to hand the ring back to the claimant, arguing that he was not obliged to do so as the ring belonged to a third party. Pratt CJ, finding for the claimant, held that the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and subsequently may maintain trover.19

16 See R v Lambert [2002] 2 AC 545, where the House of Lords considered the meaning of “possession” under s 5 of the Misuse of Drugs Act 1971, which provides: “it shall not be lawful for a person to have a controlled drug in his possession”. 17 The monographs on possession noted above (n 11) all consider possession in the context of property law. 18 (1722) 1 Stra 505, 93 ER 664. 19 Armory (n 18) at 505, 664.

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According to Pratt CJ, the chimney-sweep’s boy, by taking possession of the ring when he found it, had acquired a new property right in it. This was a “relative” right, in that it would not bind those with a pre-existing property right in ring (i.e. the person who had lost it), but it would bind all others, including the defendant. The rule in Armory v Delamirie is sometimes referred to as a “finder’s rule”, suggesting that it only applies to those who have found lost things, as happened in the case.20 However, the rule is wider and applies to anyone who has taken possession of a thing, regardless of the circumstances in which they took possession.21 An example is Costello v Chief Constable22 where the police had seized a car from the claimant on the suspicion that it was stolen. The police were unable to trace the owner of the car but they refused to return it to the claimant. Although it was proved on the balance of probabilities that the car had been stolen, suggesting that the claimant had not “found” the car, his possession was nonetheless sufficient for him to take advantage of the rule in Armory v Delamirie. Consequently the court found for the claimant and ordered the police to return the car. In addition, the rule in Armory v Delamirie applies to land, something which cannot, in the ordinary sense, be lost and found. In Asher v Whitlock,23 the leading case involving land, Cockburn CJ said: I take it as clearly established, that possession is good against all the world except the person who can shew a good title; and it would be mischievous to change this established doctrine.24

This is almost an exact restatement of Pratt CJ’s dictum in Armory v Delamirie. It is a clearly established rule, therefore, that by taking possession of a thing, whether it be a chattel or land, one will acquire a property right in that thing. It is suggested that when the word “possession” is used in the context of this rule, it is being used to denote a fact, namely a person’s physical and mental control over a thing. The reason for this is that a litigant will be required to introduce evidence of his physical and mental control over the thing (or that of someone he has acquired his title from) if he relies on this rule. Take the recent case of Mayor of London v Hall25 where the claimant brought an action in trespass against anti-war protesters who had occupied a square outside the houses of parliament. Because freehold title to the land 20 E.g. Parker v British Airways Board [1982] QB 1004, 1008. 21 Cf R Hickey, Chapter 4 in this collection. 22 Costello v Chief Constable of Derbyshire [2001] 1 WLR 1437. 23 (1865) LR 1 QB 1. 24 Asher (n 23) at 5. Cf Carter v Barnard (1849) 13 QB 945, 116 ER 1524. 25 [2011] 1 WLR 504.

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is vested in the Crown by statute,26 the claimant argued that he had relative title to the land (entitling him to sue the protesters in trespass) under the rule in Armory v Delamirie. To establish this it was incumbent on the claimant to introduce evidence of his possession of the land. He did this by showing that his agents, such as gardeners who kept the square and policemen who patrolled it, exercised a high degree of physical and mental control over the land. The Court of Appeal’s conclusion that the claimant, prior to the defendant’s protest, had “possession” of the land, was a clear inference drawn from this evidence.27 Accordingly, “possession” was used by the court to denote a factual state of affairs: the claimant’s physical and mental control over the square. It is useful to contrast Mayor of London v Hall with the much older case of Young v Hichens28 where the claimant fisherman sought to rely on the Armory v Delamirie rule to establish that he had title to a number of pilchards. The court refused to apply the rule because the claimant’s evidence only showed that he had partially enclosed the pilchards with his fishing net when the defendant scared the fish away. The finding that the claimant did not have possession of fish was, again, based on inferences that the court could draw from the evidence presented to it. As explained in the previous section, evidence is any material that makes the existence or non-existence of a fact more or less likely. It follows that the requirement for a claimant to introduce evidence of possession in order to establish a property right under the rule in Armory v Delamirie means that “possession”, when used in this context, is being used to denote a factual state of affairs. In other words, a litigant’s success in relying on the Armory v Delamirie rule depends upon his ability to prove the existence of this factual state of affairs. (b) Transferring property rights The rule in Armory v Delamirie involves the creation of a new and original property right. Once such a right exists, it can then be transferred. Historically the principal method of transferring property rights was a delivery, or traditio. In the leading case of Cochrane v Moore Fry LJ said: The law recognised seisin as the common incident of all property in corporeal things, and tradition or the delivery of that seisin from one man to another as 26 Greater London Authority Act 1999, s 384(1). 27 [2011] 1 WLR 504, 515. Despite establishing possession in the case, the court did not follow Asher v Whitlock because the facts were governed by s 384(3) of the Greater London Authority Act 1999 which, it was held, gave the claimant title to sue in trespass. 28 (1844) 6 QB 606, 115 ER 228.

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essential to the transfer of the property in that thing, whether it were land or a horse, and whether by way of sale or of gift, and whether by word of mouth or by deed under seal.29

Although it is no longer possible to transfer property rights in land by a delivery (known as a “livery of seisin”),30 it remains an important method of transfer for rights in chattels. Although a delivery normally consists of a straightforward handing over of the thing, the essence of this transaction is the transfer of possession from the transferor to the transferee, and this can happen in other ways. For example, in Thomas v Times Books Co Ltd31 the poet Dylan Thomas told his producer, one Cleverdon, that he had lost his manuscript of “Under Milk Wood” and told Cleverdon that if he was able to find the manuscript then it would belong to him. Cleverdon eventually found the manuscript in a pub in Soho and it was held that this was sufficient to transfer title to him. Although there had not been a straightforward handing over of the manuscript, there had been a change in “possession” of it, and this was sufficient to transfer title, as Plowman J said: The fact is that Cleverdon got possession of this manuscript from the Soho publichouse in which it had been left by Dylan Thomas and that he got that possession with the consent of Dylan Thomas. That, in my judgment, is sufficient delivery to perfect a gift in Cleverdon’s favour.32

A transfer of property rights by a delivery, therefore, consists primarily of a transfer of possession. Delivery provides us with another rule in property law that includes a reference to “possession”. It is suggested that when used in this context the word “possession” denotes a fact. Again, the reason for this is that a litigant will be required to introduce evidence that the transferor has relinquished physical and mental control over the thing and that the transferee has in turn taken physical and mental control over the thing if he is to show that there has been a successful delivery. The case of re Cole33 provides an example. A husband had bought and furnished a house and had told his wife, who lived with him in the house, that everything belonged to her. When the husband went bankrupt, his wife claimed that she owned the contents of the house (thus making them unavailable to her husband’s trustee in bankruptcy) 29 (1890) 24 QBD 57 at 65-66. 30 Real Property Act 1845, See generally A W B Simpson, A History of the Land Law, 2nd edn (1986) 278. 31 [1966] 1 WLR 911. 32 Thomas (n 31) at 919. 33 [1964] Ch 175.

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because there had been an effective delivery of them to her. The argument failed. Although the wife was able to introduce evidence which showed that she had used the chattels within the house, it also showed that the husband continued to use them as well. This meant that the evidence did not show that her husband had relinquished physical and mental control over the chattels and that she, in turn, had taken physical and mental control.34 In other words, the claim failed because the claimant was unable to introduce evidence from which the court could infer that there had been a transfer of possession from the husband to the wife. This need for evidence in order to establish a transfer of “possession” demonstrates that the word, when used in the context of this rule, is denoting a factual state of affairs. (c) Destruction of property rights A third context in which we can find rules which make reference to “possession” are those rules which govern the destruction of property rights. If the holder of a property right in a thing has possession of the thing, his possession often prevents the destruction of his property right. Conversely, when possession is in the hands of another, the owner’s property right is sometimes vulnerable to destruction. An example is s 2(1) of the Factors Act 1889 which states: Where a mercantile agent is, with the consent of the owner, in possession of goods or of the documents of title to goods, any sale, pledge, or other disposition of the goods, made by him when acting in the ordinary course of business of a mercantile agent, shall … be as valid as if he were expressly authorised by the owner of the goods to make the same.

The effect of this rule is that if an owner of a thing entrusts possession of it to a mercantile agent, his property right will be destroyed by any disposition to a third party by the mercantile agent.35 Again, if a litigant relies on this rule it will be incumbent on him to introduce evidence of possession. This can be seen in the case of Beverley Acceptances Ltd v Oakley.36 The defendant was a mercantile agent of one Green, who purported to sell Green’s Rolls Royces to the claimant without Green’s consent. The claimant relied on s 2(1) of the Factors Act 1889, saying that the defendant was a mercantile agent in possession of the Rolls Royces and, 34 Cole (n 33) at 190. 35 Similar rules can be found in ss 24 and 25 of the Sale of Goods Act 1979. The closest analogy in land law is that of postponing an interest of someone not in actual occupation of the land under ss 27 and 29 of the Land Registration Act 2002. 36 [1982] RTR 417.

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consequently, his disposition of the cars destroyed Green’s title to them. In order to make this argument they had to prove, as Donaldson LJ said, “(i) That [the defendant] was a mercantile agent; [and] (ii) that he was in possession of the Rolls Royces or of documents of title to those cars”.37 The claimant failed to prove the second limb as the evidence introduced into court showed that the cars were stationed within Green’s compound, rather than being in the defendant’s control. Donaldson LJ concluded that the claimant could “show no such possession”38 as required by the Act. In other words, the claimant could not rely on the rule in s 2(1) of the Factors Act 1889 as it was not able to introduce evidence from which a court could infer that the defendant was in possession at the time of the disposition. This provides another illustration of a legal rule which requires a litigant to provide evidence of possession. Consequently, when the word “possession” is used in the context of this rule, it is used to denote a fact. B. Possession as a Technical Term So far we have seen that when the word “possession” is used by a lawyer, particularly in the context of the rules governing the creation, transfer and destruction of property rights, it is used to denote a fact. The proof of this is that any litigant wishing to rely on these rules will have to introduce evidence into court of possession. Despite this conclusion, the present section aims to show that “possession” is also a “technical” term. We will see that when “possession” is used in a legal context, although it is used to denote a fact, its meaning is defined by rules and, consequently, the legal usage of the word often diverges from its ordinary meaning.39 (1) Technical words In the previous section we applied Hart’s distinction between statements of law and statements of fact. In concluding that “possession” falls into the latter category, meaning that it is used by lawyers to denote a fact, the word would be classed as an “ordinary”, or “non-legal”, word by Hart.40 Such a characterisation of “possession” is problematic as it begs the question of why the word has been the subject of so much legal analysis. 37 Beverley Acceptances Ltd (n 36) at 431. 38 Beverley Acceptances Ltd (n 36) at 431. 39 For a full account of “technical” terms in legal usage, see M Morrison, ‘Excursions into the nature of legal language’ (1989) 37 Clev St L Rev 271. 40 Hart (n 5) at 38.

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There is certainly a temptation to think that words that denote facts should not be made the subject of legal definition or analysis. The factual counterparts of such words, the “persons, things, qualities, events [or] processes”41 that these words correspond with, can be seen and observed by lawyers and non-lawyers alike. One does not need any legal training to see that something is a “dog”, or that someone is a “child”. It may be thought then that the statements “That is a dog”, and “He is a child”, are not technical as they can be made by, and understood by, lawyers and non-lawyers alike. Hart certainly takes this view by labelling such words as “ordinary words”. So on Hart’s thesis, such words do not have any distinctive legal meaning: because the factual counterparts of such words can be seen and observed by lawyers and non-lawyers alike, these words can be used by and understood by both groups of people. Returning to “possession”, the factual counterpart to this word, a person’s physical and mental control over a thing, can be seen and observed by lawyers and non-lawyers alike. There is, therefore, a temptation to think that both lawyers and non-lawyers will use the word in the same way to describe these facts. However, it would be wrong to reach this conclusion. In an important criticism of Hart’s thesis, Simpson explained that lawyers frequently use words to denote facts, yet ascribe meanings to these words which diverge from their ordinary meaning.42 Take the example of the word “agreement”. Although this word clearly has a factual counterpart, it is still the case that when lawyers use the word its meaning is also defined by rules. There are instances in which certain facts are shown to exist which a non-lawyer would call an “agreement”, yet a lawyer, cautious of the legal consequences that may follow from labelling those facts an “agreement”, must withhold that description.43 Conversely there are instances in which facts do not amount to an “agreement” according to the ordinary meaning of the word, yet a lawyer would describe them in this way.44 The consequence of this is that whilst the meaning of the word “agreement”, when used in a legal context, overlaps to a great extent with its ordinary meaning, it also diverges from it in some important ways. This makes “agreement” a technical word. One must be familiar with the rules which restrict and expand its meaning in order to properly use and understand it in a legal context. 41 Hart (n 5) at 38. 42 Simpson (n 10) at 546-548. 43 An example may be an “agreement’ made in a domestic context which does not amount to a contract: Balfour v Balfour [1919] 2 KB 571. 44 An old example of this would be the theory of “implied contracts”, under which the recipient of a mistaken payment was deemed to have agreed to repay the money: Sinclair v Brougham [1914] AC 398.

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The main thrust of Simpson’s criticism is that Hart’s distinction between statements of law and statements of fact is incomplete. It fails to account for the numerous instances in which lawyers use words to describe facts, yet ascribe a meaning to those words that diverges from their ordinary meaning. In short, a word (such as “agreement”) can have a factual counterpart, yet still be a “technical” word that has a distinctive meaning when used in a legal context. The remainder of this article aims to show that “possession” is such a word. Although we have seen that the word refers to a factual counterpart, lawyers still ascribe a meaning to “possession” that often diverges from its ordinary meaning. In some cases “possession” has a much narrower meaning when it is used in a legal context. We will see that there are some cases where there is ample evidence that a person holds a high degree of both physical and mental control over a thing but, due to the context of his control, a lawyer would withhold the description of “possession” from those facts. Conversely, there are cases where there is no evidence that a person holds any physical or mental control over a thing, yet a lawyer would still describe the facts as “possession”. These divergences make “possession” a technical term. They explain why “possession” has often been made the subject of legal definition. Lawyers cannot simply look in a normal dictionary for the meaning of the word, but must consult legal sources to learn about its meaning. In the next two sections we will consider the instances in which the legal meaning of the word “possession” diverges from its ordinary meaning, beginning with cases where it takes on a much narrower meaning. (2) Narrowing possession There are a number of instances in which a certain set of facts can be shown to exist (namely a person’s physical and mental control over a thing), yet a lawyer would withhold the label “possession” from those facts. The reason why this sometimes happens is that a finding that the fact of possession exists can have legal consequences that are seen as undesirable.45 A particular instance of this can be seen in relation to criminal theft. There was formerly a rule that in order for a defendant to be criminally liable, the prosecution had to prove that he had taken a thing from the possession of its owner.46 In this way theft was seen as protecting an owner’s possession of his thing, rather than his ownership of it. As Pollock and Wright state: “[T]he proper conception of 45 Simpson (n 10) at 548. 46 R v Thurborn (1849) 1 Den 387, 392; 169 ER 293, 296. The rule does not appear to be a feature of the modern crime of theft, probably due to the development of the doctrine of “larceny on a finding”. See Hickey (n 11) 18 for a full account.

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[theft] is that it is a violation of a person’s possession of the thing accompanied with an intention to misappropriate it”.47 If, for example, an owner of a watch dropped the watch whilst walking in a field, and it was subsequently found and kept by the defendant, this would not amount to a theft as the defendant did not take the watch from the owner’s possession.48 Fletcher has sought to justify this early restriction of theft on the basis that interferences with an owner’s possession were more serious than misappropriations that did not disturb the owner’s possession.49 Whatever the justification for this restriction of theft, it caused real problems in cases where a defendant had been entrusted with possession of a thing by its owner but then subsequently misappropriated it. An example is the case of R v Walsh50 where a stockbroker, after receiving money from his principal, invested some of it and absconded with the rest. Although the defendant had clearly been dishonest, it was difficult to find him criminally liable in theft because he already had possession of the money when he misappropriated it, meaning it could not be proved that he had interfered with his principal’s possession of the money. Although no verdict is recorded in the case, Parliament passed a law shortly after making embezzlement a crime, thus covering such facts.51 Another context in which this problem arose was that of servants who had stolen from their masters. If a master entrusted his servant with the possession of goods and the servant subsequently misappropriated those goods, it could not be said that the servant had interfered with the master’s possession when he misappropriated it. This would lead to the undesirable outcome that the servant, despite his dishonesty, would not be liable in theft.52 To avoid this outcome a rule was developed whereby servants were said to be incapable of possessing their master’s goods. Coke states this rule in the following passage: there is a diversity between a possession and a charge, for when I deliver goods to a man he hath the possession of the goods, and may have an action of trespass or an appeal, if they be taken or stolen out of his possession. But my butler or cook that in my house hath charge of my vessel or plate hath no possession of them … and therefore if they steal the plate or vessel, it is larceny.53

47 Pollock & Wright, Essay on Possession (n 4) 118. 48 The example is used by Pollock & Wright, Essay on Possession (n 4) 121. See also J Edwards, “Possession and larceny” (1950) 3 CLP 127. 49 G Fletcher, “The metamorphosis of larceny” (1976) 89 Harv LR 469 at 475. 50 (1812) 2 Leach 1072, 168 ER 624. 51 52 Geo III c 63 (1812). See also Fenn v Bittleston (1851) 7 Exch 152, 155 ER 895. 52 Harris (n 2) at 99. 53 Coke, 3 Inst 108. See also Pollock & Wright, Essay on Possession (n 4) 26.

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We can see this rule being applied in a number of cases. A good example is the case of R v Bass54 where the defendant was entrusted with a package by his employer and was instructed to deliver it to a particular customer. It appears that before the defendant could deliver the package he was persuaded to visit a pub by some friends and, once inside, he proceeded to open the package and sell the contents to his friends. In finding the defendant criminally liable for theft, Hotham B said: [T]he [defendant], standing in the relation of a servant, the possession of the goods must be considered as remaining in the master … until and at the time of the unlawful conversion of them by the [defendant].55

It is important to stress that because the defendant had been the only person holding the package in the time leading up to his selling it in the pub, his physical relationship with the package could accurately be described as “possession”. However, to label the facts in this way would have meant that the defendant, despite his blatant dishonesty, would not have been liable for theft as it would have been impossible to say that he had taken the packages from his employer’s possession. To avoid this conclusion Hotham B deliberately withheld the label “possession” from facts which, according to the ordinary meaning of the word, clearly did amount to “possession”. It is interesting to compare Hotham B’s judgment in R v Bass with another case he decided, R v Deakin & Smith.56 In Deakin & Smith a coach driver had also been entrusted with packages by his employer with instructions to deliver them to customers. In this case, however, the servant was the victim of theft rather than the thief himself. This meant that the problematic issue in R v Bass, the danger of a servant escaping criminal liability by showing that he had not interfered with his master’s possession, did not arise in Deakin & Smith. Consequently, there was no reason for Hotham B to withhold the label “possession” from facts which clearly amounted to “possession” according to the normal meaning of the word. He said: [A]lthough as against his employers the masters of the coach, he, as mere driver, can only have the bare charge of the property committed to him, and not the legal 54 (1782) 1 Leach 251, 168 ER 228. The rule is not limited to master-servant relationships, but can be seen in many instances where a defendant has been given a licence to possess an owner’s goods or land before his wrongful interference. See, for example, R v Chisser (1678) T Ray 275, 83 ER 142, R v Pears (1779) 1 Leach 212, 168 ER 208, Bertie v Beaumont 1812 16 East 33, 104 ER 1001, Goudge v Broughton [1929] 1 KB 103 and Re Atlantic Computer Systems [1992] Ch 505. 55 (1782) 1 Leach 251, 168 ER 228. 56 (1800) 2 Leach 862, 168 ER 530. See also Moore v Robinson (1831) 2 B & Ald 817, 109 ER 1346, cf Mayhew v Suttle (1854) 4 E & B 347, 119 ER 133.

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possession of it, which remains in the coachmasters, yet as against all the rest of the world … he has in fact the possession of and control over them.57

The servant’s physical and mental control over the packages meant that his relationship with them could accurately be described as “possession”. This is a good illustration of how the legal usage of the word coincides with its ordinary usage unless, as in the case of R v Bass, undesirable consequences would follow.58 When this happens the court will adopt a much narrower meaning of “possession”. (3) Expanding possession So far we have seen how in some cases the legal meaning of possession can be much narrower than its ordinary meaning. The second way in which the legal meaning of possession diverges from its ordinary meaning is that it can, in some cases, be much wider. This particular form of divergence is called a legal fiction. It will be helpful to begin with an example. In the case of Dunwich (Bailiffs) v Sterry59 the claimant sued the defendant in trespass for taking away a barrel of whisky that had washed up on the shore. The claimant had a property right in the barrel as he had been granted a franchise of wreck over the shore where the barrel washed up. However there was no evidence that the claimant had either physical control over the barrel or any intention to control it because he had no physical proximity to the shore nor any knowledge of the barrel’s existence. Despite this Parke J came to the conclusion that the claimant did have “possession”, saying that “the right to the possession draws after it a constructive possession”.60 The absence of any physical or mental control on the claimant’s part meant that the word “possession” was patently an inaccurate description of the factual state of affairs. However, this inaccurate description is not the result of a misinterpretation of the evidence. Parke J cannot be accused of reaching an erroneous conclusion; rather, he reached this conclusion in full knowledge of its falsity. This is indicated by his use of the word “constructive” which tells us that the court is deliberately constructing facts that do not exist. What Parke J has done is use the word “possession” as a legal fiction. This means that he has deliberately adopted a description that is “inaccurate as an expression of a reality”.61 It was stated 57 R v Deakin & Smith at 875-876, 537. 58 A similar process can be seen in relation to the doctrine of seisin. See F Maitland, “The mystery of seisin” (1886) 2 LQR 481. 59 (1831) 1 B & Ad 831, 109 ER 995. 60 Dunwich (Bailiffs) (n 59) at 842, 1000. 61 L Fuller, “Legal fictions” (1930) 25 Illinois LR 363 at 371.

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above that we know that the word “possession” is being used to denote a fact when a litigant has to introduce evidence in order to establish its existence. The opposite prevails here. The claimant in Dunwich (Bailiffs) v Sterry was positively unable to introduce evidence which would have established the fact of possession. Yet this did not harm his case because the required “possession” was not factual possession, but the fiction of possession. Fictions are typically invoked in order to expand or circumvent some legal rule. As Maitland said: When we hear that A is B in law we can generally draw an inference about past history: it has been found convenient to extend to A a rule which was once applied only to thing which were B in deed and truth …62

It is suggested that the courts have used “possession” as a fiction in order to circumvent the rule, which can be found in different areas of law (including the law of theft, which we considered above), that an owner of a thing is only protected against interferences with the thing if he has possession of it at the moment of interference.63 There has been constant pressure, as will be seen below, to expand the law’s protection to cases where the owner was not in possession at the time of the interference. Instead of removing the possession requirement in such cases, the courts have found it more convenient to circumvent the requirement by reaching the false conclusion that the claimant was in “possession” of the thing. The main example of this can be found in the tort of trespass. It is commonly said that, like criminal theft, the torts of trespass to goods and trespass to land (collectively referred to as “trespass” hereafter) do not protect property rights in things, but one’s factual possession of a thing.64 Pollock and Wright give the example of someone who holds a property right in a watch but is not in possession of it at the time it is taken: where the watch is taken from the possession of a person other than its owner, the owner prima facie ought not to be able to maintain this action in his own name or to prosecute the trespass as for a theft from him, inasmuch as it was not his possession which was violated.65 62 Maitland (n 58) at 486. 63 Although, as noted above (n 46) this no longer seems to be a feature of criminal theft. Other areas of law where we can see rule include state immunity in possession proceedings (USA v Dollfuss Mieg [1952] AC 582 at 611) and insolvency proceedings (Re Atlantic Computer Systems [1992] Ch 505). 64 The similarity to criminal theft on this issue is not coincidental. There was formerly a rule that one could not be liable in theft unless they would also be liable in trespass: R v Thurborn (n 46). This explains why both the crime and the tort had (at least historically) the same requirement for an interference with possession. 65 Pollock & Wright, Essay on Possession (n 4) 121.

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The possession requirement in trespass means that the claimant, despite having a property right in the watch, is unable to sue in trespass because he cannot introduce evidence which shows that he was in possession at the time of the interference. The fact of possession is sometimes seen as an interest in itself, quite distinct from one’s property right in a thing.66 Lord Denman CJ once said that interfering with a claimant’s possession of a thing is more akin to an assault on their person than an infringement of their property right.67 The possession requirement in trespass, therefore, may be justified on the basis that the purpose of the tort is to protect a claimant’s factual possession, rather than his property right in a thing. Whatever the justification for the possession requirement in trespass, the fact is that it creates gaps in the law’s protection of property rights. If a defendant interferes with a claimant’s chattel or land, and if the claimant cannot establish the fact of possession at the moment of the interference, there is the prospect that the claimant is left without a cause of action. This is remedied to an extent by the availability of other causes of action, such as conversion, negligence, ejectment and nuisance. However, these actions have their own stringent requirements and do not always furnish the claimant with a cause of action, particularly in cases of minor interferences. The possession requirement in trespass, therefore, can result in substantive injustice68 and this has led to pressure to abolish the requirement. However, the approach of the courts has not been to abolish the requirement, but to circumvent it by developing the fiction of possession. This process can be seen in the case, considered above, of Dunwich (Bailiffs) v Sterry. The claimant sued the defendant in trespass for taking a barrel, belonging to the claimant, from a beach after it had washed up. As explained above, the absence of any physical control over the barrel or knowledge of it meant that the claimant’s relationship with the barrel, prior to the defendant’s taking of it, could not accurately be described as “possession” according to the ordinary meaning of the word. Such a conclusion, however, would have led to the undesirable result of the defendant escaping liability in trespass. In order to avoid this and to ensure that the claimant’s cause of action did not fail, Parke J circumvented the possession requirement in trespass by invoking a legal fiction. It will be recalled that he said: “the right to the possession draws after it a constructive possession”.69 To 66 Green & Randall, Tort of Conversion (n 2) 50-51. 67 Rogers v Spence (1844) 13 M & W 571, 581; 153 ER 239. See also Fletcher (n 49). 68 E. g. Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204. 69 Dunwich (Bailiffs) (n 59) at 842, 1000.

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say that the claimant had “possession” of the barrel is obviously an inaccurate description of the facts, which Parke J acknowledges through his use of the word “constructive”. But he adopts this inaccurate description so as to furnish the claimant with a cause of action in trespass. There are numerous cases which have adopted a similar approach. For example, in Lotan v Cross70 the claimant sued the defendant in trespass for interfering with his chaise, despite the fact that at the time of the interference the claimant had lent the chaise to a friend. Lord Ellenborough said: the property is proved to be in the plaintiff and, prima facie the thing is to be considered in his legal possession, whoever may be the actual occupier … [A] mere gratuitous possession to a third person to use a chattel does not, in contemplation of the law, take it out of the possession of the owner, and he may maintain trespass for any injury done to it whilst it is so used.71

A non-lawyer, observing the facts of this case, would not label the claimant’s relationship with the chaise as “possession”. However, Lord Ellenborough adopts this description (he acknowledges its inaccuracy through his use of terms such as “legal possession” and possession “in contemplation of the law”) in order to afford the claimant’s property rights the protection of trespass. This is a clear example of the legal usage of “possession” diverging from its ordinary usage: Lord Ellenborough adopts a much wider meaning of the word, applying it to facts that would not normally be described as “possession”, in order to furnish the claimant with a cause of action. An interesting question is whether this fiction of possession has been abolished. The normal way this happens is by reforming the rule that the fiction is designed to circumvent, which in the case of trespass is the possession requirement. Whilst it is certainly true that a number of modern commentators have reiterated the possession requirement in trespass,72 there is also much to suggest that the courts have abolished this requirement. If it has been abolished, this would remove the need for lawyers to adopt a wider meaning of the word in this context and thus realign the legal meaning of “possession” with its ordinary meaning to a certain extent. One case that suggests the possession requirement in trespass was removed some time ago is White v Morris73 where it was held that a trustee of certain goods could sue in trespass even though it was the beneficiary who was in possession at 70 (1810) 2 Camp 464, 170 ER 1219. 71 Lotan (n 70), at 465, 1219. 72 Clerk and Lindsell, for instance, states that “Trespass is actionable at the suit of the person in possession of land”. M Jones et al (eds), Clerk & Lindsell on Torts, 20th edn (2010) para 19-10. See also Star Energy Weald Basin Ltd v Bocardo SA [2010] UKSC 35, [6]. 73 (1852) 11 CB 1015, 138 ER 778. See also Barker v Furlong [1891] 2 Ch 172.

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the time of the interference. In holding that the trustee could sue, Jervis CJ simply said that that he had “a right to the possession”74 of the goods and that this gave him standing to sue in the tort. Similarly, in Nicolls v Bastard75 Parke B held that a bailor of a chattel could sue in trespass notwithstanding the fact that the bailee is in possession at the time of the interference. In neither case did the judge resort to invoking the fiction that the claimant had “possession”; rather, they simply held that a right to possession was sufficient to sue in the tort. The Court of Appeal recently followed these decisions in the case of White v Withers.76 The claimant discovered that his wife, who he was in the process of divorcing, had been intercepting his mail and passing it to her solicitors, the defendants, whom the claimant sued in trespass. Because the defendants did not interfere with the claimant’s possession of his letters (if the claimant ever had possession of his letters, he had lost it to his wife before the letters were handed to the defendants), the defendants argued that they could not be liable in trespass and asked for the claim to be struck out. The Court of Appeal refused to do so, stating it is arguable that the defendant still committed trespass. Ward LJ said: If it is established that the defendants took possession from Mrs White [the claimant’s wife] knowing that she was a trespasser, then their taking possession and handling the documents may be as trespassory as hers.77

Although the case law is fairly slender, it is suggested that there is authority for the view that possession at the moment of the interference is not a requirement for liability in trespass. If we have removed the possession requirement in trespass, as it is suggested we have, then there is no longer a need to circumvent this rule by using possession as a legal fiction. This would remove one of the pressures on the courts to adopt a meaning of “possession” that diverges from its ordinary meaning. C. Conclusion This chapter has reached two conclusions. First, we have seen that when the word “possession” is used in a legal context, it is used to denote a fact. The proof of this is that a litigant wishing to rely on some rule that makes reference to the word “possession” will have to introduce evidence of possession. The statement that “X has possession of a thing”, when found in a legal context, therefore, is a statement of fact. 74 White (n 73) at 1028, 784. 75 (1835) 2 CM & R 659, 150 ER 279. 76 [2009] EWCA Civ 1122. 77 White (n 73) at [49].

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It was noted that this first conclusion may lead to the temptation to see “possession” as an ordinary, non-legal, term. The second part of this chapter has shown that this is not the case. The legal usage of the word often diverges from its ordinary meaning. We saw that there are pressures on the courts to adopt a narrow meaning of “possession”, so as to prevent certain classes of defendants from escaping criminal liability in theft. Conversely, we also saw that in certain cases there are pressures on the courts to adopt an extremely wide, or fictional, meaning of “possession” in order to furnish particular types of claimants with the protection of the tort of trespass. The second conclusion reached by this chapter is that, as a result of these divergences in meaning, possession has become a technical term. Although its legal meaning overlaps to a great extent with its normal meaning, it is also defined by rules which, as we have said, both narrow and expand the meaning of the word. What makes the term “technical” is that one must be familiar with these rules in order to properly use or understand “possession” when it is used in a legal context. This explains why “possession”, despite being a common fact, observable by lawyers and non-lawyers alike, continues to be the subject of legal analysis and debate.

4  Possession as a Source of Property at Common Law Robin Hickey* In the common law, possession is said to create entitlement. Modern authorities treat the facts of possession (generally understood as some function of physical control and intention) as a causative event,1 sufficient to generate for the possessor a general property right in the thing possessed. This general property right has the content of ownership, and exists alongside and notwithstanding the continuing general property right(s) of any person(s) better entitled (a loser of goods, an ousted proprietor of land).2 In this way, the common-law doctrine of “relativity of title” becomes a doctrine about the permissible existence of multiple, competing property claims to land and goods, and law functions to resolve binary disputes between rival claimants as and when they manifest.3 Possession stands in the front line as a sufficient foundation for any claim, since the person who proves the earlier possession necessarily proves the earlier (and therefore better) property right. This paper traces the provenance and development of the rule that possession generates a general property right at common law, and presents a view that is slightly sceptical of the orthodoxy. It begins by examining leading (possibly iconic) cases often cited in support of the rule, including the seminal decisions in Armory v Delamirie,4 a case about goods; and Asher v Whitlock,5 a case about land. While in each of these cases a claimant possessor was permitted to maintain a standard property action against a defendant, neither discusses with great clarity the nature or content of the right acquired by   * Early aspects of the argument in this paper appeared in R Hickey, Property and the Law of Finders (2010). I am grateful to Simon Douglas for useful discussions on the content of the right resulting from possession at common law.   1 On causative events generally, and the taxonomical distinction between events and responses, see P B H Birks, “Introduction”, in P B H Birks (ed), English Private Law (2000) xli.   2 F Pollock and R S Wright, An Essay on Possession in the Common Law (1888) 22; O W Holmes, The Common Law (1881; repr 1991) 236. For recent opinions to the same effect see: B McFarlane, The Structure of Property Law (2008) 144-146; R Hickey, Property and the Law of Finders (2010) 162-164; S Douglas, Liability for Wrongful Interferences with Chattels (2011) 24-26, 29-30.   3 See generally: D Fox, ‘Relativity of title in law and at equity’ (2006) CLJ 330.   4 (1722) Stra 505.   5 (1865–66) LR 1 QB 1.

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possession. Moreover, when understood in a broader context of common-law development, a surprising level of doubt is introduced to the common law of possession. This paper sets the leading cases in this context, and makes two main claims as a result. First, no a priori rationale for the rule that possession causes entitlement can be found within the primary sources of the common law. Rather the rule depends for its existence and validity on ex post rationalisations of historical procedure. Second, rationalisations of these procedures may sometimes have been insensitive to their function, and have thereby obscured the common law’s aims in protecting possession. On a closer analysis these aims appear to be plural, concerning at least: restraint of violence and the preservation of public order; the facilitation of transactions and exchange; and recognition of obligations voluntarily assumed by the possessor. The paper argues in the light of these diverse functions that common law is not inevitably committed to the view that possession always generates a property right. Indeed, there might be room within the existing authorities for common lawyers to construct a broader range of possible consequences of possession, with the result that the common law of possession might not be so far away from civilian systems as sometimes appears. A. LEADING CASES (1) Possession of goods In Armory v Delamirie a chimney-sweep’s boy found a jewel ring and took it to a jeweller “to know what it was”.6 The jeweller removed the stone, returned the empty socket to the boy, and refused to give back the stone. The boy brought proceedings at the King’s Bench, and successfully recovered damages to “the value of the best jewels” that might have been set in the socket.7 Pratt CJ held: That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover.8

This ruling on the right of the claimant is very well-known, and is still taught as a foundational principle of property in law schools in common-law jurisdictions.9 It vividly expresses the core idea of relative titles (the view that   6 (1722) Stra 505.   7 The report notes that: “as to the value of the jewel several of the trade were examined to prove what a jewel of the finest water that would fit the socket would be worth”. Armory (n 6).  8 Armory (n 6).   9 For example, on the accepted authority of Armory in the United States, see B Burke, Property, 2nd edn (2004) 31; B Burke et al (eds), Fundamentals of Property, 2nd edn (2004) 24.

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disputes about specific things are to be settled in bipartite proceedings without wider enquiry as to who in the world is most entitled to that thing); and it gives substantive flavour to the claimant’s right by speaking in terms of the acquisition of “property”. Yet beyond this rehearsal of principle, Armory contains no analysis or exegesis of the substance of this right, and before we rest too heavily on its principle, we should make some further observations, which taken together cast some doubt. First, there is neither mention nor discussion of “possession” in the judgment, and the boy’s right does not result from proof of corpus and animus in the way that process has latterly been understood. While it is clear that the boy had physical custody of the jewel and an intention to have it, and in that sense clearly possessed it, his acquisition of “property” is not squarely put on this basis, and the court engages in no substantive analysis of whether the corpus and animus elements are established on the facts. The actual decision in the case is about the ability of the boy to “maintain trover”. Trover was an action in respect of a wrong, the forerunner of the modern tort of conversion, where the claimant alleges wrongful interference with certain goods to which he is entitled.10 Now, in one sense it is very correct to say that “possession” was relevant to this claim, because the standard count in trover required the claimant to allege that he was “possessed” of the goods in question “as his own proper chattels” (ut de bonis propriis);11 but this enquiry was qualitatively different from the kind of enquiry we make when we ask whether P can prove facts of possession based on elements of control and intention. It was in substance a two-part allegation, of possession consequent on property. There was required to be some right, some title, which “coloured” or explained the plaintiff’s possession,12 and two categories of property were recognised: first the general property of an owner; but secondly something called “special property”, which referred broadly to the interest of a bailee.13 A list of such people could sue for trover on this basis (carriers, pledgees, factors, 10 See generally: S Green and J Randall, The Tort of Conversion (2009); and S Douglas, Liability for Wrongful Interferences with Chattels (2011). On the requirement of a wrong to generate liability for conversion at common law, see R Hickey, “Wrongs and the protection of personal property” (2011) 75 Conveyancer and Property Lawyer 48. 11 Or in pleaded form: “ut de bonis propriis”. See generally J W Salmond, “Observations on trover and conversion” (1905) LQR 42 at 46. 12 Sutton v Buck (1810) 2 Taunt 302 at 309, discussed further below. 13 See generally (1845) 2 Wms Saund 47, note 1, being Serjeant Williams’s notes on the earlier decision in Wilbraham v Snow (1670) 1 Mod 30. These notes provided a summary of the general law on trover, which was accepted and highly influential in the decisions of this period: see especially Jeffries v Great Western Railway Co (1856) E&B 802; also Pollock & Wright, Essay on Possession (n 2) 92.

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innkeepers),14 and the effect of the decision in Armory is to add “finders” to this list of potential claimants.15 In this kind of case, the acquisition of special property (or perhaps more accurately we might say, the ability to maintain trover on the basis of special property) was premised on the holder’s responsibility to some other in respect of the goods.16 The bailee must account to his bailor, and answer her for the value of the goods, so the bailee must have his action. If Armory allows trover to a finder this implies, in the context of the development of trover by the English courts, that the chimney-sweep’s boy had made (or was treated by the court as having made) himself responsible to some other in respect of the goods. It is not difficult to infer such a conclusion on the authorities. Early English law recognised a principle known as “the law of charity” according to which it was no trespass to take goods for the sake of saving them.17 This included the view that it was lawful to take goods to keep them safe for their owner.18 Significantly, while the point is not specifically addressed in the report, contemporary accounts of Armory treat the boy as a “lawful” possessor.19 This implies that the boy had undertaken an obligation to keep the goods safe for their loser, or at least that he was treated that way by Pratt CJ. To the extent that Armory allows a finder to recover on the strength of a voluntarily-undertaken obligation to keep the ring safe for its owner, that obligation should be a fundamental element in justifying the finder’s acquisition of “property”. The property so-acquired necessarily defers to the superior and continuing property of the loser, not only in the generally understood relativity-of-title sense according to which the loser retains property and remains able to sue the finder, subject only to the law on limitation; but also in the more fundamental sense that the finder’s claim is premised upon and exists to serve and protect the loser’s continuing property. The finder is protected because he has made himself responsible to keep the item safely for its loser, and this in turn provides a strong measure of protection for the loser, albeit indirectly. In this sense, the loser’s continuing property must form part of our rationale for the finder’s acquisition. This means that we risk 14 See the authorities collected in Serjeant Williams’s notes to Wilbraham v Snow (1845) 2 Wms Saund 47 and Sutton (n 12) at 309. 15 Hickey, Property (n 2) 26-27. 16 See Holmes, Common Law (n2) 166-167. 17 (1467) YB 7 Ed IV, f 3, pl 9; Isaack v Clark (1614) 2 Bulst 306. 18 (1467) YB 7 Ed IV, f 3, pl 9 19 Webb v Fox (1797) 7 TR 391, 398 (Lawrence J); Wilbraham v Snow (1845) 2 Wms Saund 47, n 1, text to n (n).

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radically misrepresenting Armory if we frame the acquisition rule in terms of a corpus/animus formula of possession. An assumption-of-duty-based account of Armory is consistent with the later decision in Bridges v Hawkesworth,20 where the Divisional Court allowed the claimant finder to recover the value of a packet of banknotes found on the retail premises of the defendant. Again, the court did not engage a corpus/ animus possession formula, and specifically it did not consider whether the defendant had manifested an intention to exclude others from things which might be found lying unattached on the premises (a question which more recent authority has considered essential to resolution of disputes between occupiers and finders).21 Instead, the Court conceived its response by analogy to the common-law duties of innkeepers.22 If the defendant was to be regarded as having a right in the banknotes sufficient to sustain recovery against a stranger, there must exist first in the defendant a duty to the “real owner” of the banknotes on which that right could be consequent. The court considered that this duty was not owed because the defendant was not responsible for the value of the banknotes, and could not have been vulnerable to a suit at the hands of their loser.23 Inasmuch as it accounts for the absence of a right in the defendant, this also accounts for the court’s decision in favour of the claimant, who had taken steps to advertise the loss, and had in that sense adopted a course of action consistent with the continuing property of the loser. There is no question that Armory remains a “jural icon” of the common law of relative titles,24 but it is far from sufficient foundation for the proposition that possession without more generates an ownership interest in goods. Indeed, it is not until the latter stages of the nineteenth century that we begin to find cases that look compatible with the supposedly orthodox proposition. 20 (1851) Jur 1079. 21 See Parker v British Airways Board [1982] QB 1004 (CA). 22 At common law, an innkeeper was strictly liable for the loss or damage of goods infra hospitium (“within the protection of his house”), and was not allowed to limit the extent of his liability: Cayle’s Case (1583) 8 Co Rep 32a (KB); Williams v Linnitt [1951] 1 KB 565 (CA). He was recognised as holding a special property in goods infra hospitium, and could restrain wrongful interferences with those goods, but the right was consequent on the duty: because he was liable to his guest for their safety, an innkeeper was given the right to protect goods against strangers. In argument in Bridges, Patteson J had noted the existence of the innkeeper’s right, and while he also acknowledged that the defendant neither owed an innkeeper’s duty nor held an innkeeper’s right, the reference reveals the nature of the court’s enquiry, establishing whether the defendant had any right superior to the claimant by asking whether the defendant owed any duty to the loser of the banknotes. Bridges (n 20) at 1080-1081. 23 Bridges (n 20) at 1082. 24 S Roberts, “More lost than found” (1982) 45 MLR 683.

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Jeffries v Great Western Railway Co25 can be understood as the first of these cases; or at least, it seems to have been the first conversion decision where a claimant-possessor was successful notwithstanding the absence of any voluntarily undertaken obligation to account for the value of the goods to some other. The defendants had seized from the plaintiff certain trucks held by the latter under an assignment from a bankrupt. While the matter is not entirely clear, at least one of the judges expressly treated the claimant as a wrongdoer in possession.26 The court found for the claimants, and expressed its decision in language which gives the form to our modern rule. So Lord Campbell CJ confirmed that “against a wrongdoer possession is title”;27 Wightman J spoke of “the prima facie right arising from possession”;28 and all denied to the defendants the ability to plead a ius tertii defence in denial of the plaintiff’s title.29 Three things are worth noting about Jeffries. First, the idea that possession without more generated title was hotly disputed in argument, and in expressing the claimant’s entitlement to sue in the terms of possession, the court considered itself to be making a novel decision.30 This gives lie to the view sometimes canvassed that common-law rules about the sufficiency of possession are of “ancient” provenance.31 Secondly, again there was no substantive discussion or analysis of the legal meaning of “possession”, and no mention of the corpus/animus formula in the judgment. Thirdly, in finding for the claimant, the court seems primarily to have been motivated by a decision to restrain violence. There are few justificatory or evaluative comments in the report, but Lord Campbell CJ offered this reflection, which seems to capture the mood of the court: “I think it most reasonable law, and essential for the interests of society, that peaceable possession should not be disturbed by wrongdoers”.32 This rationale for the protection of (even wrongfully-acquired) possession has been endorsed more recently by the Court of Appeal.33 It is surely a reasonable proposition, but it is not clear that it is sufficient to support the modern law of possession that has been built upon Jeffries. Specifically, the proposition that it is worthwhile to restrain wrongful disturbance of possession 25 Jeffries (n 13) at 802. 26 Jeffries (n 13) at 807 (Crompton J). 27 Jeffries (n 13) at 805. 28 Jeffries (n 13) at 806. 29 Jeffries (n 13) at 805, 807-808. 30 Jeffries (n 13) at 807. 31 See Parker v British Airways Board [1982] QB 1004, 1008. 32 Jeffries (n 13) at 805. 33 Parker v British Airways Board [1982] QB 1004, 1010.

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does not inevitably entail that such protection should be effected by allowing a possessor access to the standard procedure for the protection of property rights (in our case, conversion); and thus neither does it entail the correlative substantive proposition that the possessor acquires a property right. It would be perfectly possible to construct a legal regime that protects possession without proprietary consequences, as the Roman interdictal procedures readily demonstrate.34 Summarising generally the Roman position, Savigny would much later explain that the possessory interdicts were premised on the restraint of violence, rather than the recognition of property: a Roman citizen in possession of a thing did “not thereby obtain any right to detention, but … [had] the right of demanding that no-one shall else use force against him”.35 The chief practical manifestation of this distinction was that, while he had access to the possessory interdicts, a Roman possessor was not entitled to bring a vindicatio, the standard Roman remedy for the protection of ownership.36 Accordingly we must regard the right which resulted from possession at Roman law as something qualitatively different from ownership.37 Possession there resulted in obligations, not property. To the extent that restraint of violence is the primary objective of the common law on protection of possession, as it seems to be on Lord Campbell’s dictum in Jeffries, it seems possible that the goals of the common law could be achieved by recourse to something more like Roman interdictal procedure. In sum then, so far as the leading cases on goods are concerned, Jeffries is surer ground than Armory for the view that possession generates a relativelygood property right, but (a) this proposition is not inevitably entailed by the decision in Jeffries, nor the social policy concerns at stake; (b) neither case makes use of a corpus/animus formulation of the possessory facts; and (c) in any event, Armory was not just about proof of possessory facts, but took its place in a series of cases where the claimant was required to prove possession consequent on property, which property was premised on some assumed obligation to deal with the goods in question for the benefit of another.

34 B Nicholas, An Introduction to Roman Law (1962, repr 1990) 108-109. 35 F C von Savigny, Treatise on Possession; or the Jus Possessionis of the Civil Law, tr E Perry (1848) 6-7. 36 If in the course of acquisition by usucapio, he would be entitled to a modified vindicatio, the modifications going to the form of the pleadings rather than the substantive gist of the action. But again, the availability of such proprietary protection must be attributed to the full range of pre-requisites for usucapio, and in this sense it is not accurate to regard the remedy as depending on possession. 37 Hence the well-known observation of Ulpian, “ownership has nothing in common with possession”: D 41.2.12.1.

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(2) Possession of land According to the modern law, the proposition that possession generates property is thought to be as true in the case of land as goods. The leading case is Asher v Whitlock,38 which appears to hold that possession of land generates an original fee simple estate, the most extensive right in respect of land recognised by English law, and one that for most purposes approximates to ownership.39 In Asher, one Thomas Williamson enclosed land from wasteland and built a cottage. By his will he devised the land and cottage to his wife for life or until she remarried, remainder to his only daughter “in fee”. At the date of Thomas’s death, the limitation period had not expired. The claimant was heir at law of the daughter. The defendant was the second husband of the wife, who continued to reside in the cottage after the wife’s death. The Queen’s Bench held that the claimant was entitled to recover the land. Cockburn CJ said that: “On the simple ground that possession is good title against all but the true owner, I think the plaintiffs entitled to succeed”.40 As with Pratt CJ’s ruling in Armory, when read in isolation Cockburn CJ’s proposition seems to provide clear support for the orthodox doctrine of relative titles. Moreover, insofar as it relates to the ability of the claimant to rely on a possession commenced by Thomas and descended to her through the laws of succession, it implies that in enclosing the land Thomas has acquired a descendible legal right, which is entirely consistent with the idea that he acquires of ownership. As with Armory, however, there are more things to note before we accept this first blush conclusion. First, the dominant concern in argument and the judgment is a broad impression of inequity, reflecting a considerable lack of sympathy for the defendant, and specifically a concern to ensure that he did not at once benefit from and dispute Thomas’s will. Cockburn CJ was careful to emphasise that the defendant’s entry to the premises was lawfully related to the wife’s, and in that sense dependant on the will which gave the wife her interest for life. The court would not now tolerate the defendant’s attempt to resist the intention of the will by disputing the plaintiff’s entitlement under the will.41 The extent of the reference to this problem in the report suggests that it must have loomed large in the ultimate decision. 38 Asher (n 5). 39 Famously the English law of property contains no concept of absolute ownership: “English law has never had any theory of ownership … It is possible, and, perhaps, even desirable to write a treatise on English law without defining ownership or mentioning it as a juridical conception”. E L G Tyler and N E Palmer (eds), Crossley Vaines’ Personal Property, 5th edn (1973) 39. 40 Asher (n 5) at 5. 41 Asher (n 5) at 2, 3, 5.

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Secondly, while possession is said to count as “good title”, there is no further analysis or exegesis of what this means. To the extent that it envisages a transferable, and particularly a descendible right, it implies the generation of property; but again the rationale for such generation is plural. On the one hand, like Armory, the decision is primarily geared to ensure that the claimant can bring a particular action, and there is the same concern to resist the force and violence that may come with disturbances of peaceable possession. Cockburn CJ in this respect notes that “all trespass implies force in the eyes of the law”.42 On the other hand, there is a broader redistributive justification at work, focusing on the practice (and need) of regenerating wasteland.43 The latter looks to provide a clearer proprietary base for the generation of a relatively good ownership interest, but to the extent that it does so, again such generation could not rest on possession-of-land without more. It would be a rule applicable to certain kinds of land, but not the general proposition habitually canvassed in English law. Finally, and again, there is no reference to any corpus/animus formula. This jars rather sharply with the much more recent decision of the House of Lords in Pye v Graham, where Lord Browne-Wilkinson observed that: “there has always, both in Roman law and in common law, been a requirement to show an intention to possess in addition to objective acts of physical possession”.44 In Asher, this construction of possession is simply not present. Rather, and so far as it goes, the aim in Asher was to assimilate the old common-law notion of “seisin”,45 which bore a highly technical meaning,46 with looser references to “possession”,47 so as to make the availability of the action for ejectment depend on proof of possession. This development was far from uncontroversial, and ongoing debate about the proper relation of seisin to possession gives necessary context to the decision in Asher in much the same way as the old learning on special property must inform our understanding of Armory. Cases in the early part of the nineteenth century allowed a claimant to recover land proof of possession alone,48 but technically they treated possession as 42 Asher (n 5) at 5. 43 Asher (n 5) at 5. 44 J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419, 435. 45 On seisin generally, see J Williams, The Seisin of the Freehold (1878); H W Challis, The Law of Real Property (1885) 76; F W Maitland, “Seisin of chattels” (1885) 1 LQR 324; F W Maitland, “The mystery of seisin” (1886) 2 LQR 481; F W Maitland, “The beatitude of seisin” (1888) 4 LQR 24 at 286; and W Holdsworth, A History of English Law , vol 3, 5th edn (1942) 88. 46 See generally: F Pollock and F W Maitland, History of English Law, 2nd edn (1923) vol II 34-40. 47 A D Hargreaves, “Terminology and title in ejectment” (1940) 56 LQR 376 at 381. 48 Doe d Hughes v Dyeball (1829) 1 M & M 346 (KB); Doe d Harding v Cooke (1831) 7 Bing 346.

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evidence of seisin,49 which evidence would be conclusive unless the defendant could prove title “of a higher description”.50 Cockburn CJ’s judgment in Asher is significant precisely because it departs from the notion that possession is merely a mechanism for proving seisin, but it is equally clear that this was an unorthodox opinion. In the same case Mellor J took Thomas’s possession as “prima facie evidence of seisin in fee”, and Patteson J did likewise in Doe v Barnard,51 specifically resisting counsel’s attempt to ground recovery on proof of the facts of possession alone.52 In Rosenburg v Cook,53 the Court of Appeal held that a possessor acquired an original property right, but the language of the judgments oscillated between possession and seisin as the causative event,54 and only Cotton LJ was unequivocally clear that property could arise on the basis of “actual possession” without more.55 The commentators were equally divided. Hargreaves was determined that the sweeping procedural reforms of the nineteenth century had not altered the substance of the common law, and held closely to the seisin orthodoxy.56 Others were prepared to depart from that position, possibly sensing the opportunity to modernise the law by articulating more deliberately substantive concepts of property. Relevant to this volume of proceedings, Holdsworth’s argument connected developments in the protection of possession to an emergent recognition in English law of an absolute conception of ownership like the Roman dominium.57 Pollock seemed to agree with substance of this position, at least insofar as he took possession to generate a property right,58 but it is important to note that he dodged the seisin problem deliberately by conflating it with possession, arguing in reliance on Maitland that seisin was “the legal result of de facto possession”.59 The existence of these controversies and debates casts a large measure of doubt over the orthodox view that possession of land generates a property right. At the very least, and in keeping with our evaluation of Armory and other leading cases of goods, it seems clear that the orthodoxy is a comparatively recent innovation. Not before the end of the nineteenth century will 49 Peaceable d Uncle v Watson (1811) 4 Taunt 16, 17 (Lord Mansfield); J H Williams and W B Yates, The Law of Ejectment (1894) 227. 50 Doe d Harding v Cooke (1831) 7 Bing 346 (CP, Alderson J). 51 Doe d Mary Carter v Barnard (1849) 13 QB 945, 951. 52 Doe d Mary Carter v Barnard at 653. 53 (1881) 8 QBD 162. 54 Rosenburg (n 53) at 165-166. 55 Rosenburg (n 53) at 166. 56 Hargreaves (n 47) at 381-391. 57 W S Holdsworth, “Terminology and title in ejectment: a reply” (1940) 56 LQR 479. 58 Pollock & Wright, Essay on Possession (n 2) 53. 59 Pollock & Wright, Essay on Possession (n 2) 53, citing F W Maitland, “Beatitude” (n 45) at 286.

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we find uncontroversial opinion that possession without more generates property. Not before the end of the nineteenth century will we find sustained analysis of the nature of the generated right, nor exegesis of the kinds of facts sufficient to establish it. And specifically on this last point, not before the end of the nineteenth century will we find possession understood as comprising proof of the twin elements of control and intention. To the extent that these constructions represent accurate propositions of common law, they were developed later. Before we consider how and why this happened, it will be helpful to reflect a little further on the processes of procedural rationalisation evident in cases like Asher, because they are inextricably linked to the wider questions of justification that will be our second major concern in this paper. B. Rationalisation of procedure and elucidations of substance The reports of Armory, Jeffries and Asher may be unclear on the nature and content of the right arising from possession, but they do make plain the dependency of common law reasoning on procedural learning. Each case can be regarded principally as a decision about whether the claimant in question was permitted to claim in respect of interferences with the asset in question, whether he could plead his case in trover (for goods) or ejectment (for land). The availability of these actions to possessors was developed incrementally through the cases, by the sorts of analogical extensions that led to trover, for example, becoming available first to carrier, then innkeepers, sheriffs, finders, and so on. Towards the end of the nineteenth century, in a legal climate freed from the rigours of mediaeval common-law procedure,60 commentators could consider the totality of these developments, and draw inferences about the nature of the substantive rights of the parties.61 The rationaliser in chief of the common law of possession was Sir Frederick Pollock (though he owed a heavy debt to his friend Oliver Wendell Holmes Jnr, and each of them was similarly indebted to Savigny, as we shall see).62 Pollock treated possession as a set of facts which generate a proprietary entitlement in a very full sense. The right resulting from possession was a “definite legal relation” which attracted the standard advantages of owner60 So far as conversion is concerned, see: Common Law Procedure Act 1852 s 49. 61 For a general view on the legal technique of reasoning from remedy to right, see Pollock & Maitland, History (n 46) II, 31 62 A whole lecture was devoted to possession in Holmes, Common Law (n 2) which was published seven years earlier than Pollock & Wright, Essay on Possession (n 2). Sir Erskine Perry’s translation of Savigny appeared in 1848. See Savigny, Treatise on Possession (n 35).

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ship.63 In arguing for the existence of this ”definite legal relation”, Pollock’s major premise was that possession made available legal protection. His treatment of “title by possession” began with this proposition: Existing possession, however acquired, is protected against any interference by a mere wrongdoer; and the wrongdoer cannot defend himself by showing a better title than the plaintiff’s in some third person through or under whom he does not himself claim or justify.64

Pollock thought that this proposition was true equally of goods and land, in the actions of trover and ejectment respectively, and his conflation of possession and seisin allowed him to treat trover and ejectment coterminously in his consideration of the right resulting from possession.65 Moreover, since the cases made clear that the possessor’s right was exigible against any defendant, and not vulnerable to a defence of ius tertii, it followed that: [P]ossession confers more than a personal right to be protected against wrongdoers; it confers a qualified right to possess, a right in the nature of property which is valid against every one who cannot show a prior and better right.66

Once the law had gone so far as to recognise this right accruing to the possessor, Pollock thought that necessarily it must go further, offering protection not just to the possessor, but also to her successors and assigns.67 The possessor would deal with her goods. She would sell them, give them, or bequeath them, and her transferees should be afforded the same degree of legal protection, because “the general reasons of policy are at least as strong in their favour ... their case at least as meritorious”.68 Accordingly, Pollock thought that the right arising from possession must also be capable of transfer, and his statement of the right took on a very substantive flavour: As against strangers, the right founded on possession has the incidents of ownership and is transmissible according to the nature of the subject matter: we may say compendiously that Possession is a root of title.69

It is clear that there was some novelty in this formulation. It is true that the potential for transfer had figured prominently in the reasoning in Asher (indeed, the principal conclusion in that case is that, whatever interest has 63 Pollock & Wright, Essay on Possession (n 2) 28. 64 Pollock & Wright, Essay on Possession (n 2) 91; and see Holmes, Common Law (n 2) 211, 241-242, 244. 65 Pollock & Wright, Essay on Possession (n 2) 91. 66 Pollock & Wright, Essay on Possession (n 2) 93. 67 Pollock & Wright, Essay on Possession (n 2) 93. 68 Pollock & Wright, Essay on Possession (n 2) 93. 69 Pollock & Wright, Essay on Possession (n 2) 22, 93.

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been acquired by Thomas in virtue of enclosing the wasteland, it must be descendible to his daughter and her heir), and to that extent we can say that Pollock’s argument fits neatly enough with the authorities; but it is difficult to resist the impression that the ejectment cases were doing most of the work in his treatment. His position does not consider the other rationales that conceivably underlie the decisions on possession of goods (respect for the continuing and superior property of some other; restraint of force); indeed there is little in the way of a priori or policy rationale about the competing pressures in these cases or the ways in which they should effectively be resolved. On the contrary, it is the general structure of the law that lends the greatest support to Pollock’s argument. It was well settled that in its fictional form ejectment put at issue the freehold title of the claimant.70 To the extent that possession generated a right to proceed for ejectment, it must also generate a freehold estate if a successful suit was to have any meaning. In other words, the substantive effect of possession – that it created a freehold estate in land – was drawn from the procedural learning on ejectment. The achievement of Pollock was to rationalise the matter from the other end, considering the nature of the right in isolation from the procedure of the remedy. In this sense no novel proposition of law was involved, but focus was laid squarely on the right, and the rhetoric of freehold estates confirmed rather than denied that it has “the incidents of ownership and was transmissible according to the nature of the subject matter”. If Pollock deserves the credit for elucidating from rationalisations of procedure the substantive view that the right resulting from possession has the content of ownership, he was also instrumental in the widespread adoption of the corpus/animus construction of the facts. Consistently with what we have said above, Oliver Radley-Gardner has argued persuasively that the common law contained no native doctrine of animus possidendi, but rather that this requirement “was ‘imported’ into English law from German Pandectist writers of the nineteenth century”.71 Savingy’s treatise on possession was the best known of these writings, chiefly because an English translation had appeared from the hand of Sir Erskine Perry in 1848.72 It was an avowed influence on the accounts of possession developed by both Holmes and Pollock,73 each of whom, consistently with Savigny, considered proof of 70 See generally: A W B Simpson, A History of the Land Law, 2nd edn (1986) 144-152. 71 O Radley-Gardner, ‘Civilized squatting’ (2005) 25 OJLS 727. 72 Savigny, Treatise on Possession (n 35). 73 Pollock acknowledged the debt in the Introduction to Essay on Possession, and his account of the elements of possession seems particularly contingent on Savigny’s work: see for example Pollock & Wright, Essay on Possession (n 2) 11-16, 41. Holmes located the work of Savigny and

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possession to comprise proof of control and intention.74 Once articulated for a common-law audience, it took very little time for the corpus/animus formula to be applied in common-law decision-making. In South Staffs Water Co v Sharman, Lord Russell of Killowen CJ applied Pollock’s account of possession to a dispute between a finder and an occupier of land, accepting that the latter had acquired a prior possession on the basis of physical control and a manifest intention to possess.75 This seems to have been the first case to account for possession in terms of corpus and animus, and it provides a ready contrast with Armory and Bridges where, as we have seen, this construction was not at all present.76 Radley-Gardner suggests that the land law followed suit a few years later in Littledale v Liverpool College, where Lindley MR considered proof of animus possidendi to be “all important” in establishing adverse possession.77 By way of explanation, Radley-Gardner notes Lord Lindley’s interests in and connections to German scholarship,78 and reminds us of the curiosity that Lindley was Pollock’s pupil master.79 For our purposes, the lesson in these accounts is that they confirm the perceptions of novelty discussed above. Each side of the possession formula at common law – both the construction of the facts in terms of corpus/animus and the conclusion that where present these facts served to generate a property right – were novel rationalisations, albeit the best available rationalisation of the outgoing forms of actions, bolstered by attention to the principled jurisprudence of the German schools. This means that when we seek a justification for the protechis contemporaries in the larger philosophical tradition of Immanuel Kant, which insists on the element of intention as being the mechanism by which the human will is engaged with the object possessed (and thus the reason for which possession is protected). Holmes, Common Law (n 2) 206-213. Such a theory is perhaps capable of providing a general justification for positing an intention requirement as an element of possession, though even this is true, a question remains about the extent to which it relates to or supplies a broader justification for the protection of possession. Holmes resisted the latter enquiry, adamant that anything more than the immediately pragmatic was to be rejected as a ground for the protection of possession. Holmes, Common Law (n 2) 206. 74 “To gain possession ... a man must stand in a certain physical relation to the object and to the rest of world, and must have a certain intent.” Holmes, Common Law (n 2) 206. Also see Pollock & Wright, Essay on Possession (n 2) 28 ff. 75 [1896] 2 QB 44, 47. 76 See generally: Hickey, Property (n 2) 37-39. 77 [1900] 1 Ch 19, 23. Radley-Gardner subjects this conclusion to powerful critique, and in the end he prefers the view that a requirement of animus possidendi does not operate at common law, except in a “weak” sense sufficient to allow a presumption of possessory intention to be rebutted by conflicting evidence from the possessor (e.g. an acknowledgement of the better title of the person dispossessed). Radley-Gardner (n 71) at 743-747. 78 Radley-Gardner (n 71) at 740. Lord Lindley spent time as a student in Bonn, and in an unpublished biography acknowledged a debt to the principle-based analysis found in “German and French law books”. M Dockray, “Lord Lindley’s autobiography” (1986) 7 JLH 102 at 103. 79 Radley-Gardner (n 71) at 727, citing F Pollock, “The lawyer as citizen of the world” (1932) LQR 37 at 37-38.

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tion of possession in English law, we are bound to give a procedural answer: in English law, the facts of possession generate a property right because a possessor is entitled to avail of the ordinary actions that serve to restrain and correct interferences with land and goods. The form dictates the substance of possession. The next question relates to the significance of this conclusion for the theory of possession in the common law. C. Plural Purposes and Singular Responses To the extent that the modern law of possession emerged through rationalisations and expositions of procedure, it is fair to say that the common law can offer no a priori explanation for why possession should be protected. This level of sustained justificatory enquiry is simply not present in our authorities, and may not even be relevant to a system which resolves possession disputes on a bipartite basis, reasoning incrementally and by analogy from previous cases.80 Two matters arise from this conclusion. The first (largely beyond the confines of this paper) is a slight disconnect between the historical development of the law possession and the philosophical enquiries on possessory protection which have emerged latterly, and, so far as the common law is concerned, chiefly in the United States.81 It is certainly important that we seek to justify legal structures that protect possession, but in the common law necessarily this is an ex post enquiry. This means not only that the kinds of theories we might wish to harness to explain the protection of possession (labour-based theories, utility-based theories) will not always be found expressly within the common-law texts, but more deeply that the very enterprise of justification is somehow alien to, or at least out of keeping with, the historical processes of reasoning and adjudication. Secondly, there is an internal, structural problem implicit in the arguments of Holmes and Pollock, which premise the generation of a right by possession entirely on the availability of the standard actions for the protection of property. These arguments result in monistic accounts of the common law of possession, which may not be necessary or desirable. At the very least, we can say that is not inevitable that all possessors should be treated in the same way, and certainly not when differing values, policies and motivations have prompted legal decisions in favour of rights acquisition by a possessor. 80 That justificatory accounts of the protection of possession were irrelevant to common law decision making was effectively Holmes’s view. Holmes, Common Law (n 2) 206. 81 See for example: R A Epstein, “Possession as the root of title” (1978-79) 13 Georgia Law Review 1221; C Rose, “Possession as the origin of property’ (1985) 52 University of Chicago Law Review 73.

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It seems possible that reliance on late nineteenth-century accounts of the right resulting from possession have caused modern courts to become insensitive to the aims of possessory protection, with the result that possessory rights have been over-configured to give a standard of protection going beyond that which the claimant really needs or deserves. For example, if in keeping with Jeffries and Savigny, the point of protecting the possessor is found in society’s general interest in preserving the peace, recognition that possession generates a property right seems like proprietary overkill. The objective of restraining violence could just as easily be achieved by holding that a possessor acquires a personal right, available against all trespassers (that is, against all those who interfere directly with possession), and therefore sufficient to restrain interference with his person. It is doubtful, though, whether such a personal right would suffice for a possessor like the claimant in Armory, where the right consequent on possession is supposed to serve the continuing interests of the loser. Here the recognition of proprietary acquisition by the claimant works in tandem with the law of theft to ensure reasonable efforts to reunite the loser with his lost thing, but also performs an important secondary redistributive function, confirming the entitlement of the finder in the event that the loser cannot be identified.82 Something similar must obtain in a case like Asher, where protection of transfer, an important index of property, seems a primary aim, as does the ambition for wasteland redistribution, with its attendant social consequences. Any justificatory account of possession in the common law needs to face squarely that, taken together, the cases on possession disclose plural reasons as to why possession is protected. For the purposes of this paper, we need to consider the impact of the existence of these plural aims on the orthodox rule that possession always generates a proprietary entitlement. One response would be to argue that there is no impact on the orthodox rule, because the presence of plural aims is not inconsistent with the recognition of property. Generally, the possibility for multiple, apparently competing justifications of a given principle poses no necessary problem for the integrity of property institutions.83 Property implicates a plurality of basic human values, so it is reasonable to suppose (and to discover) a plurality of justifications for invocations of property. Moreover, to the extent that the values implicated by property and its justifications are fundamental necessarily they are 82 Hickey, Property (n 2) 156-157. 83 On the general possibility that property justifications might implicate a plural range of values (such as autonomy, personhood, utility, equality, and community), see H Dagan, Property: Values and Institutions (2010).

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incommensurable,84 such that there can never be rational ground to consider invalid or to prefer any particular choice to realise a value or set of values through a given principle of property allocation. Such choices, in the end, are political choices, and our law of possession simply reflects a decision to respond to a range of situations deemed worthy of protection. If this is possible as a matter of theory, it does not quite shake the view that sometimes the common law goes farther than necessary in its regime of possessory protection. This seems to be so in a case like Jeffries, where the measure of protection clearly exceeds its premise, and it may also be true in those difficult cases where the availability of protection seems counterintuitive from a moral point of view. A pertinent example concerns the protection of possession taken by theft.85 The prevailing understanding of the common law on this point has it that the thief’s wrongdoing is not relevant to the availability of possessory protection, so, for example, a thief can sue for conversion of a car he has stolen.86 It might not be impossible to construct a justification for property acquisition by a thief (we might build an explanation around realisation of his autonomy, or around the extent to which the possessed thing contributes to his personal identify), but on any view such acquisition will appear fundamentally at odds with other instances of possessory protection. For example, in obvious and important ways, the Armory justification for the invocation of (special) property will not be applicable here, since, by definition, the thief’s possession is premised on some high degree of disregard for the property of his victim. Any argument in favour of property acquisition by the thief risks being inappropriately insensitive to the continuing property rights of the victim, and the common law would need at least to offer an express account as to why proprietary protection is justified notwithstanding the claimant’s obvious disregard for the property of another. In keeping with Jeffries, it might be possible to supply this account by reference to the general interest in restraining interference with factual possession. As we have seen though, generally this argument is not sufficient to entail the acquisition of property: the desired protection may just as fully be realised by acquisition of a personal right. If the common law is to avoid incoherence in its rules on possessory protection, it needs to learn the lessons from these cases and match the content of rights resulting from possession more closely to the aims to be achieved by 84 G S Alexander et al, “A statement of progressive property’ 94 (2009-10) Cornell LR 743. 85 See generally: R Hickey, “Possession taken by theft and the original acquisition of personal property”, in Hopkins (ed), Modern Studies in Property Law, vol 7 (2013) ch 18. 86 Costello v Chief Constable of Derbyshire [2001] 1 WLR 1437.

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their recognition. It is one thing to acknowledge the possibility of plural justifications for institutions of property generally, but quite another to allow that a given property institution should respond to incompatible aims. Even if we agree that all possession should in some way be protected, because it is the interests of society to restrain unauthorised disturbance with settled-possession-however-acquired, we might still configure the rights of the possessor differently to reflect differing circumstances and priorities. Sometimes possession might generate a property right, available against all wrongdoers who come later in time to the thing; sometimes it might generate personal right, available against all trespassers, that is, against all those who interfere directly with possession. Crucially, the space for this kind of (re-)evaluative exercise exists within the current confines of common-law authority. Despite the impression that we have leading cases of ancient and indisputable authority, close examination reveals that they have responded with a plural range of concerns that belies the monistic structures protecting possession through access to standard legal remedies for interferences with things. D. Conclusion The common-law orthodoxy has it that possession generates entitlement, but this proposition seems surprisingly novel, and may not in the end be suitable for universal application. At the very least, common lawyers need to articulate more fully the reasons why and circumstances in which the consequence of possession should be the acquisition of an original property right by the possessor. This entails deeper recognition of the history of possession in the common law, including its peremptory connection to procedural learning and rationalisation. When these connections are appreciated and understood, they explain equally the need for and possibility of reappraisal. There is room to reconfigure the common-law responses to possession, such that sometimes possession generates a property right, and sometimes a personal right. In the latter sense, it seems possible that the common law of possession might not be so distant from civilian systems as prima facie it appears, at least insofar as the response in a Jeffries situation should be something very close to a possessory interdict. The boundaries and contours of these positions will need to be worked out with much greater clarity, but as was the case with Holmes and Pollock, civilian solutions may still have a heavy influence on efforts to understand the protection of possession at common law.

5  The Evolution of Possessory Actions in France and Italy Raffaele Caterina* The Continental systems of possessory protection seem to be different mixtures of the same ingredients: namely, the Roman interdicts, the actions developed for protecting the Germanic Gewere, and the canon law’s actio spolii. However, through accidents of history, these same ingredients gave origin to very different systems. The great divide between systems which require animus domini in order to have possession of a thing, and thus distinguish between possession and detention (for instance France and Italy), and systems which do not consider the intent to possess as owner as an indispensable requirement for possession (for instance Germany) is well known and studied. However, there are important, profound differences between systems which are traditionally seen as quite close. France and Italy, for instance, give different answers to the important question about the extension of possessory protection to movables. As I will try to show, the different legal systems have in a way bent the same arsenal of tools in different directions, so that even intelligibility between two different legal systems is difficult. It is easy to see some converging lines which seem to be the result of common practical needs. Possessory actions make thus an interesting case study of legal evolution, showing both how different systems are built starting from the same roots and how they can converge to meet the same practical needs. A. THE ORIGINS OF POSSESSORY ACTIONS The possessory remedies in force all over Europe, as we will see, did not have their origins in Roman law. However, since these remedies were often re-read through Roman lenses during the Middle Ages, a first important historical root to be considered is the Roman interdicts. Roman law gave protection to possessors. One who had been dispossessed could recover land by bringing the interdict unde vi. One who had not been dispossessed could bring the interdict uti possidetis against a person who interfered with his possession of 95

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land. One who wished to recover or protect possession of moveable property could bring the interdict utrubi. The Roman interdicts could only be brought by possessors and not by mere holders. Lessees, borrowers, or depositees were not considered to have possession in Roman law.1 A second, and practically more important, historical root of the modern systems of possessory protection is the Germanic rules regarding Gewere. Germanic law did not distinguish between ownership and possession; it protected Gewere (in English seisin, in French saisine). Originally, Gewere was not possession, but the only form of relationship between an individual and a thing. It was protected by the law, through different actions which were developed in the different countries. According to a rule of uncertain origin, but which was widely applied across Europe, when he was ousted of possession (disseisin), a person had to act within one year and a day: If one forcibly disseised did not within one year and a day proceed, in reliance upon his incorporeal seisin, against the holder of the corporeal seisin, then the corporeal seisin, which was as such defective because of the breach of right, was transformed into a legitimate (“rechtsmässige”) seisin, in favour of the disseisor and every later holder. The defective origin was wholly overcome by the fact of physical control exercised through a year and a day; for the disseisee had forever estopped himself by silence.2

When re-read through Roman glasses in the late Middle Ages, Gewere was equated with possession and opposed to ownership. The third root of the modern systems of possessory actions lies in canon law. The actio spolii, a canon law remedy, was based on a passage in the Decretum Gratiani. The text began with the word “redintegranda” and so gave this name to the remedy (which was also called condictio ex canone reintegranda). According to the text, when a bishop was ejected from his diocese, before a synod was called to consider the merits of his expulsion, everything had to be restored to the bishop. Apparently this remedy originally took the form of a special plea, an exceptio spolii, in terms of which the expelled bishop could claim to be restored before he was subject to criminal prosecution. It was later transformed into an action, at first known as the condictio ex canone redintegranda, later as the actio spolii. From very early times it was made available to ordinary citizens. 1 See W W Buckland, A Textbook of Roman Law from Augustus to Justinian, 3rd edn revised by P Stein (1963) 196-197; W W Buckland and A D McNair, Roman Law and Common Law. A Comparison in Outline, 2nd edn revised by F H Lawson (1952) 70 ff. 2 R Huebner, A History of Germanic Private Law (1968) 201.

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The actio spolii was not originally developed to protect possessors, in the Roman sense, and there is some evidence that it was available also to mere holders (albeit with some hesitation, probably deriving from the temptation to identify the actio spolii with the Roman interdict unde vi). There was also much discussion whether the mere holder could act against the possessor, or only against third parties. For instance, according to the Italian jurist Pontanus, the remedy “ex canone reintegranda” was given also to mere holders, “ut commodatario, depositario, aliisque nomine alieno rem detenentibus”; several authorities said that “tam ex eius verbis, quam ex mente ipsius canonis detentori contineri”; “non tamen procederent predicta in depositatio & commendatario spoliator ab eius authore, sed si spolierentur a tertio”.3 Mixing these different influences meant that a new law of possession was born in the late ius commune period which was very different from Roman law: The doctrine of seisin was unable to hold its own against the intruding alien law. The alien law before which it had to yield was not, however, the pure Roman law of “possession”. It was rather that law which Italian theory and the practice of legists and canonists had developed out of the Roman, following the lead of canon law.4

At least in some parts of Europe, possessory protection was at this point generally extended to mere holders. According to the German jurist Augustin von Leyser, possession “in genere” can be distinguished “in nudam detentionem & possessionem in specie sic dictam”; but “quod ad precipuum possessionis effectum, remedia nempe possessoria, nudus detentor a possessore in specie dicto, qui nempe animum sibi habendi habet, vix differt, quum uterque iis remediis gaudeat”.5 While detentio is conceptually kept distinguished from possession proper, because the possessor, but not the nudus detentor, has the animus sibi habendi, with regard to possessory remedies they hardly differ, because both the possessor and the nudus detentor enjoy them. The extension of possessory protection to mere holders was explicitly stated by the Prussian Allgemeines Landrecht of 1794: “Gegen Gewalt muß jeder Inhaber und Besitzer geschützt warden”.6

3 J B Pontanus, De Spolio (Tractatus Uni Iuris t XIV f 270) bk 1 ch XIII, 126. 4 Huebner, History (n 2) 204 ff. 5 A Leyser, Meditationes ad Pandectas, vol VII (1780) specimen 451. 6 Allgemeines Landrecht, Pt I, Tit 7 § 141.

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B. Possessory actions in France before the  ­codification In France possession was traditionally protected by two actions: réintégrande and complainte en cas de saisine et nouvelleté. (Dénonciation de nouvelle œuvre will not be considered in this paper.) It is important to note that these two actions had different origins. While réintégrande was obviously derived from the condictio ex canone reintegranda of canon law, complainte en cas de saisine et nouvelleté was originally born to protect saisine (Gewere): “unlike the German law, the Anglo-Normans and the French law did develop distinctive possessory actions … particularly the so-called ‘querela novae dissaisinae’”.7 The importation of Roman concepts caused it to be re-read as an action to protect possession. Possession of land was traditionally protected by two actions, réintégrande and complainte en cas de saisine et nouvelleté … A person dispossessed could bring either action without having to prove title. Réintégrande could be brought by anyone who had been dispossessed by violence however long he had been in possession. Complainte could only be brought by one who had once been in continuous possession for a year and a day. It could be brought either to recover possession, however it had been lost, or to stop a disturbance to one’s possession. In many cases, then, complainte and réintégrande overlapped.8

This illogical system was the result of the fact that the two actions derived from two completely different roots: the protection of Germanic saisine simply coexisted with the action derived from canon law. It was the absolutely prevailing view in legal practice that réintégrande and complainte en cas de saisine et nouvelleté were two different actions, with different requisites: “pour intenter la complainte, il faut avoir la possession d’an & jour dans le dernier temps, & y être troublé”; “pour demander la réintégrande, la possession actuelle, au temps où l’on a été dépossédé, suffit”.9 However, there were attempts to “rationalise” the system of possessory actions, while re-reading it through Roman glasses. Pothier, for instance, reduces the two actions to one: Le possesseur, quel qu’il soit, doit avoir aussi une action pour être maintenu dans sa possession, lorsqu’il y est troublé par quelqu’un, et pour y être rétabli, lorsque quelqu’un l’en a dépossédé par violence … Notre droit français donne aussi au possesseur, quel qu’il soit, pour l’un et pour l’autre cas, une action qu’on appelle complainte. Lorsque le possesseur l’intente pour le cas auquel il est troublé dans 7 Huebner, History (n 2) 201. 8 J Gordley and U Mattei, “Protecting possession” (1996) 44 American Journal of Comparative Law 293 at 313. 9 J B Denisart, Collection de décisions nouvelles, 7th edn, vol 1 (1771) Complainte & Réintégrande 567. I

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sa possession, elle s’appelle complainte en cas de saisine et nouvelleté. Lorsqu’il l’intente pour le cas auquel il a été dépossédé par violence, elle s’appelle complainte pour force ou pour dessaisine, autrement action de réintégrande.10

In Pothier’s mind, there is just one action, which takes a different name when it is used in case of violent dispossession or in case of simple disturbances. The general name of the action is complainte; it is however more properly called complainte en cas de saisine et nouvelleté when it is used to react to disturbances; it is called either complainte pour force ou pour dessaisine or action de réintégrande when it is used to react to violent dispossession. While appealingly rational-sounding, it is very doubtful that Pothier’s reconstruction corresponds with the reality of French law. It is not entirely clear whether the réintégrande was available also to mere holders. For reasons that we will see shortly, it seems plausible that in legal practice mere holders could bring réintégrande. However, Pothier expressly excludes this possibility. It has to be noted that, with regard to réintégrande, Pothier writes: “on appelle en droit cette action interdictum unde vi”.11 Pothier expressly identifies the French actions with the Roman interdicts; it is thus quite logical that he gives réintégrande only to possessors in the Roman sense: L’action de réintégrande étant l’action qu’a celui qui a été dépossédé, et n’y ayant que celui qui possédait, qui puisse être censé avoir été dépossédé, il s’ensuit que lorsqu’un fermier a été chassé par violence d’un héritage qu’il tenoit à ferme, il peut bien avoir une action in factum contre celui qui a exercé la violence, pour réparation du tort qu’il lui a causé; mais il ne peut pas intenter contre lui l’action de réintégrande: car ce n’est pas lui qui possédait l’héritage, ni par conséquent lui qui en a été dépossédé.12

According to Pothier, when he is expelled by violence, a lessee can bring an action in tort but he cannot bring against the wrongdoer an action de réintégrande since he has never possessed the land and it is not he who has been dispossessed. C. The survival of réintégrande as an  ­autonomous  action The French Code Civil did not regulate possessory actions in its original version. However, they were later regulated (without being defined or enumerated) by the Code de Procédure Civile, art 23: “Les actions possessoires ne seront recevables qu’autant qu’elles auront été formées dans l’année du 10 R J Pothier, “Traité de la possession”, ch VI, n 84, in Œuvres de Pothier, vol IX (1846) 291-292. 11 R J Pothier, “Traité de la procédure civile”, ch III, n 311, in Œuvres de Pothier, vol X (1848) 138. 12 Pothier (n 10) at ch VI, n 115.

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trouble, par ceux qui, depuis une année au moins, étaient en possession paisible par eux ou les leurs, à titre non précaire”. The “one year and a day rule” was transformed into the requisite of having been in possession for at least a year, and apparently extended to any possessory action. However, the old system, with its distinction between complainte and réintégrande, was able to survive. A pivotal role in the survival of the distinction was played by Henrion de Pansey, an influential judge, President of the Chambres des Requêtes of the Court de Cassation. In his famous treatise De la compétence des juges de paix,13 when dealing with the Code’s reference to the actions possessoires, he makes extensive use of the historical sources, taking for granted the distinction between complainte and réintégrande. Discussing the distinction between complainte and réintégrande, he writes: Une autre différence, c’est que, pour être admis à la complainte, il faut avoir saisine, c’est-à-dire avoir possédé pendant tout le cours de l’année qui a precedé le trouble, et que, pour la réintégrande, il suffit de prouver que l’on possédoit au moment de la spoliation.14

However, the point was far from uncontroversial, and by the first half of nineteenth century the idea that the requisite of ultra-annual possession was applicable to both possessory actions was well represented among the French legal writers. Troplong, for instance, writes that the Code of Civil Procedure “cimente l’alliance définitive de la complainte avec la réintégrande ; il soumet ces deux actions aux mêmes conditions”.15 There was little doubt, however, about which opinion prevailed in legal practice. What is more interesting is that the French courts easily admitted that mere holders (like lessees) could bring réintégrande; and in effect this quickly became the key point of the debate. This seems indicative of the prevailing perception among French legal practitioners of réintégrande as an action which was not restricted to possessors in the strict sense. After describing the debate among French legal scholars, the Répertoire Dalloz concludes that Henrion’s doctrine has “le constant suffrage de la court de cassation”: “ainsi, elle a jugé que l’action en réintégrande est valablement intentée, soit par celui qui ne possède qu’à titre précaire, tel qu’un fermier ou un antichrésiste;– soit par celui qui n’avait pas la possession annale au moment de la violence ou voie de fait”.16 Several cases are thus reported, where the 13 The justice of the peace was given competence in possessory actions. 14 P P N Henrion de Pansey, De la compétence des juges de paix (1831) 464-465. 15 R T Troplong, Commentaire sur la prescription (1843) 181. 16 A Dalloz, Répertoire de législation, de doctrine et de jurisprudence, vol III (1846) 89.

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action en réintégrande was given to a lessee17 and a creditor in antichresis,18 and to someone who had been in possession for less than a year.19 In the first of the cases reported by the Répertoire Dalloz, Mr Dauphinot, the lessee of a piece of land, was granted the action en réintégrande against Dame Dea, who had occupied three meters of land along the border with her own property.20 The case was decided by the Chambres des Requêtes of the Court de Cassation, chaired by Henrion de Pansey. French legal writers were quick to accept the view sponsored by the case law. Still it is plain to see that they accepted it with some uneasiness. We may conventionally consider the adoption of Henrion’s thesis in the influential Treatise by Aubry and Rau (which had adopted the opposite view in earlier editions) as its definitive consecration. It is remarked, however, that “la réintégrande est une action possessoire sensu latissimo”: Elle diffère des actions possessoires proprement dites, et spécialement de la complainte, en ce qu’elle est accordée, bien moins pour la garantie et la conservation de la possession, que pour la réparation du fait illicite et contraire à la paix publique dont s’est rendu coupable l’auteur d’une dépossession consommée par violence.21

Réintégrande is not a true possessory action: it is different from complainte since its aim is less protecting possession than redressing a wrong which is contrary to the public peace, committed by the perpetrator of a violent dispossession. Only in this light can one justify the fact that “la réintégrande n’exige pas, pour son admission, une possession proprement dite”. Since the réintégrande’s function is guaranteeing the public peace, it can be brought only in cases of violent dispossession: réintégrande “suppose en outre, non pas seulement un simple trouble, mais une dépossession”; “encore faut-il que cette dépossession ait été consommée par des voies de fait exercées contre les personnes ou contre les choses, et qui soient d’une nature assez grave pour compromettre la paix publique”.22 This had been the situation in France for more than a century. The complainte could be brought in case of “simple” dispossession or in case of disturbances of possession; the réintégrande only in case of violent dispossession. The complainte could be brought only by ultra-annual possessors, the réintégrande by any possessor and by mere holders. 17 Cass Req 10 November 1819. 18 Cass Req 16 May1820. 19 Cass Req 28 December 1826. 20 Cass Req (n 17); also in Laporte (1820) 189. 21 C Aubry and C Rau, Cours de droit civil français, 5th edn, vol 2 (1897) 249 ff. 22 Aubry & Rau, Cours (n 21) 249 ff.

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D. The reform of 1975 It is not easy to explain why the law changed in France. Certainly, French legal writers often mentioned the fact that in German law both possessors and mere holders are able to bring possessory actions. On the other hand, it could be quite embarrassing to determine when a dispossession was “violent” enough to justify réintégrande. It may be noted that even in the seminal Dauphinot case there is no mention of any particularly blatant act of violence by Dame Dea. Furthermore, it is quite difficult to understand why a mere holder, who was protected by the law, could not bring any action in case of mere disturbance of his enjoyment of the land (as in case of nuisances). In any case, in 1975 a new statute (Loi n 75-596 du 9 Juillet 1975) introduced a new chapter to the Civil Code, “De la protection possessoire”, composed of two articles: 2282 and 2283, which, as a consequence of other reforms of the Code, are now arts 2278 and 2279. According to art 2278, “Possession is protected, regardless of the substance of the right, against disturbance which affects or threatens it. Protection of possession is also granted to a person who holds a thing against all other than the one from whom he holds his rights”. The Code of Civil Procedure, with its original reference to possession for at least one year, created some problems of coordination with the new articles of the Civil Code, and it was later changed. According to art 1264 of the Code of Civil Procedure, subject to compliance with the rules relating to public property, possessory actions are initiated within the year during which the disturbance occurred to those who possess or hold peacefully the property for at least a year. However, the action en réintégration against the perpetrator of a forceful act may be brought even when the victim of the dispossession has possessed or held the property for less than a year.

According to contemporary French law, both possessors and mere holders can bring both complainte and réintégrande. Mere holders, however, cannot bring possessory actions against those from whom they hold their rights (e.g.   the lessor). There is still a difference between complainte and réintégrande: réintégrande does not require that the thing has been possessed or held for at least a year. On a terminological note, it has to be noted that, in opposition to “true” possession, the situation of the mere holder is indifferently called possession précaire or détention précaire.23 23 See e.g., F Terré and P Simler, Droit civil: Les biens, 7th edn (2006) 154-155; F Zenati-Castaing and T Revet, Les biens (2008) 649-650.

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E. The possessory protection of movables It is well settled in France that possessory actions do not apply to movables. With regard to réintégrande, the point was quite uncertain before the Civil Code.24 However, limiting réintégrande to immovables was coherent with the strategy of assimilation of réintégrande to the Roman interdict unde vi and of resystematisation of réintégrande and complainte as two instances of the same action.25 In any case, there is no doubt today that movables are excluded from possessory protection.26 Apart from some references to the low value of movables,27 which hardly make sense in contemporary society, the most frequent ­explanation of this exclusion is linked to the rule: “En fait de meubles, la possession vaut titre”, “qui a pour effet de rendre le possessoire inséparable du pétitoire”.28 According to art 2276 (formerly art 2279) CC, in matters of movables, possession is equivalent to a title. Nevertheless, the person who has lost or from whom a thing has been stolen, may claim it during three years, from the day of the loss or of the theft, against the one in whose hands he finds it, subject to the remedy of the latter against the one from whom he holds it.

In France, the possessor can thus simply bring the action de revendication: this last action is given to the owner, but, with regard to movables, the proof of “possession antérieure équivaut à prouver la propriété”.29 However, the exclusion of movables from possessory protection is still puzzling. When one considers that the mere holder of a movable (for instance a depositee) is not presumed owner ex art 2276 CC, why should a depositee, or a borrower, of a moveable be excluded from the réintégrande? 24 See e.g., Denisart (n 8) 567: “La complainte ne peut avoir lieu que pour un immeuble ou droit réels, ou une universalité de meuble; au lieu que la réintégrande peut s’intenter pour un meuble, lorsqu’il a été enlevé par violence ou voie de fait”. 25 See e.g., Pothier (n 10) ch VI, n 107: “L’interdictum unde vi du droit romain, auquel répond notre action de réintégrande, a lieu à l’égard de toutes espèces de biens fonds dont quelqu’un a été dépossédé, soit fonds de terre, soit maisons … Pareillement, dans notre droit, notre action de réintégrande étant une branche de l’action de complainte, n’a lieu que pour les immeubles, et non pour des simples meubles”; C J Ferriere, Dictionnaire de droit et de pratique, 3rd edn (1749) vol II, Réintégrande 720 : “Réintégrande est l’interdit unde vi, ou l’action possessoire, par laquelle celui qui a été déjetté & spolié de la possession d’un immeuble, se peut pourvoir dans l’an & jour de la spoliation, afin d’être remis & réintegré es sa possession … ”. 26 See Emerich, Chapter 2 of this volume, text to nn 120 ff. 27 See, e.g., Terré & Simler, Droit civil (n 23) 172: “le meubles ayant souvent peu de valeur, il serait excessif d’engager deux débats, l’un au possessoire, l’autre au pétitoire”. 28 See Terré & Simler, Droit civil (n 23) 172. 29 See J Djoudi, “Revendication”, in Encyclopédie Dalloz (2008) at 20.

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The answer lies in the rules concerning revendication. Not only is anterior possession considered as equivalent to proving ownership for a movable, but mere holders, like the depositee, can also bring an action en revendication.30 For instance, a decision gave the action en revendication to the simple depositee of some bicycles which were stolen.31 Some legal writers admit that “l’action de revendication exercée par le dépositaire semble jouer le rôle d’une action possessoire comparable à l’action en réintégrande en matière immobilière”:32 it plays the role of a possessory action comparable to the action en réintégrande for immovables. While other legal systems (for instance, Italy) take the Roman idea that in rei vindicatio the plaintiff has to prove his ownership quite seriously, in France revendication of movables is in effect given to possessors and even to mere holders. The system of possessory protection in France (and not in other civil law systems) includes revendication of movables. F. A glimpse at the evolution of German law We have already mentioned how the German-speaking world adopted a system of possessory actions which was influenced by both the Germanic and the canonistic traditions, and very distant from Roman law. It has to be noted that, in the context of his return to the original Roman law, Savigny was strongly critical of the extension of possessory remedies to mere holders. According to Savigny, the actio spolii had been usefully applied to some new legal institutes, which were unknown to the Romans: The middle ages have bequeathed to us several important new legal institutes, to which a protection of Possession would have been afforded by the Roman law, if they had been known to the latter. To this class belong especially, besides the numerous jurisdictionary and ecclesiastical rights, the widely extended servitudes on land of the German Empire. In this latter case the application of the above remedy introduced in practice raises no question.

But further than this: I do not conceive that spoliatory suits can be carried. Not for instance to those legal institutes, that in their nature do not contain any necessity, or even a capability, for any logical or sound application of the protection of Possession; I mean family rights and obligations. But I consider the application of spoliatory suits to the province, already fully occupied by the possessory interdicts of the Roman law, to be equally unfounded … If this view is correct, then the hirer and the borrower, to whom interdicts are refused, must also be denied the use of spoliatory suits.33 30 See Djoudi (n 29) at 20. 31 Tribunal civil de Hazebrouck, 15 mars 1901, in D. 1902, 2, 11. 32 Djoudi (n 29) at 20. 33 F K von Savigny, Treatise on Possession (1848; repr 2003) 402 ff.

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Savigny’s view, however influential, was not widely followed in legal practice. Windscheid explicitly says that Savigny’s view had triumphed in legal theory, but was not consistently followed in practice.34As is well known, the German Civil Code rejected the Savignian subjective theory of possession, which considered the intent to own the thing as an essential element of possession in the proper sense of the word. In German law, possession is the exercise of factual authority over a corporeal thing (Sachbesitz). The intent to possess as owner is thus not an indispensable requirement for possession. Any person who exercises factual authority over a thing is a possessor, even if he exercises that authority on behalf of another person. The BGB states that “possession of a thing is acquired by obtaining actual power or control over the thing” (s 854), and explicitly qualifies the lessee and the depositee as possessors (s 868). However, “if a person exercises actual power of control over a thing on behalf of another person in the latter’s household or place of business, or in a similar relationship by virtue of which he has to comply with the instructions of the other concerning the thing, it is only that other person who is the possessor” (s 855); the detainer in this case is known as the possession-helper (Besitzdiener). According to s 861 of the BGB: If the possessor is deprived of possession by unlawful interference, he may demand the restitution of possession from the person whose possession is defective relative to him. The claim is excluded, if the possession taken away was defective relative to the present possessor or his legal predecessor and was obtained within the year preceding the deprivation.

According to s 862 of the BGB: If the possessor is disturbed in possession by unlawful interference, he may demand from the disturber the cessation of the disturbance. If further disturbances are apprehended, the possessor may seek an injunction. The claim is excluded, if the possession of the possessor is defective relative to disturber or his legal predecessor and the possession was obtained within the year preceding the deprivation.

On the whole, the practical coincidence with French law is evident: in German law the lessee is a possessor and so he enjoys possessory protection; in French law the lessee is not a possessor but he enjoys possessory protection. G. The Italian civil code of 1865 The Italian Civil Code of 1865 expressly regulated possessory actions. According to art 694, “chi trovandosi da oltre un anno nel possesso legittimo 34 B Windscheid, Lehrbuch des Pandektenrechts, vol I (1891) 476-477.

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di un immobile, o di un diritto reale, o di una universalità di mobili, viene in tale possesso molestato, può entro l’anno dalla molestia chiedere la manutenzione del possesso medesimo” [“one who has been for more than a year in the lawful possession of an immovable, of a real right in an immovable, or of a universality of movables and is disturbed in such possession, can, within a year of the disturbance, sue for protection of possession”]. According to art 686, Possession was considered “legittimo” (lawful) when it was “continuo, non interrotto, pacifico, pubblico, non equivoco e con animo di tenere la cosa come propria” [“continuous, uninterrupted, peaceful, public, unequivocal, and with the intention of holding the thing as the owner”]. It was thus obvious that the action regulated by art 694, commonly called “azione di manutenzione”, was the equivalent of the French complainte, and that it was open only to ultra-annual possessors in the proper sense. However, according to art 695, “chi è stato violentemente od occultamente spogliato del possesso, qualunque esso sia, di una cosa mobile ed immobile, può entro l’anno dal sofferto spoglio chiedere contro l’autore di esso di venir reintegrato nel possesso medesimo” [“one who has been violently or by stealth deprived of possession, whatever it is, of a movable or an immovable thing, can, within a year of the loss, sue the taker for recovery of possession”]. The action regulated by art 695 was commonly called the “azione di reintegrazione”. The words “possesso, qualunque esso sia” were read as including the situation of the mere holder (which in Italian is called “detenzione”; but at the time was also frequently called “possesso precario” [precarious possession]).35 The more common theoretical reconstruction strongly denied that the situation of mere holders could be qualified as possession, and justified the extension to them of the azione di reintegrazione with reasons of public order: 35 See e.g., P Baratono, Delle azioni possessorie e delle azioni di denuncia di nuova opera e di danno temuto, 2nd edn (1876) 386 (“Ma, nel caso di spoglio violento od occulto, anche l’affittuario e ogni altro qualsiasi possessore precario possono agire in reintegrazione”); F Ricci, Corso teorico-pratico di diritto civile, 2nd edn, vol V (1886) 178: “la reintegrazione è diretta ad ottenere la restituzione della cosa toltaci violentemente od occultamente, quand’anche ne fossimo detentori senza alcun titolo e senza la pretesa di esercitare un diritto di proprietà”; G C Consolo, Trattato teorico-pratico del possesso e delle azioni possessorie (1901) 674 (“Si può allegare quindi un possesso legittimo o illegittimo, anche la semplice detenzione; in maniera che i fittaiuoli, i coloni possono sperimentare la reintegra, come possono sperimentarla le persone nel cui nome detengono”). It has to be noted that the Code itself, speaking of the lessee, the depositary and all those “che ritengono precariamente la cosa” (which detain precariously the thing), said that they “possedono in nome altrui” [possess in the name of another] (art 2115, excluding that they could acquire by adverse possession). This reference, while hardly incompatible with maintaining a strong distinction between possesso and detenzione, showed that in the language of the Code they still could be considered as possessors in some sense of the word.

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Nobody, who detains the thing or exercises a right in the name of another person, can have in himself possession, which belongs to the person in the name of whom he detains the thing or exercises the right … if, for reasons of public order, the lessee can, in spite of the precariousness of his detention, bring the azione di reintegrazione in case of dispossession, this right derives from an exceptional provision, which does not have any fundament in the lawfulness of his possession.36

It is interesting to note, however (and not too difficult to understand, given the wording of the Civil Code), that some Italian writers preferred to say that the situation of mere holders could still be included into possession, in a wide sense of the word: “possession, even though secondary and derivative, belongs also to those who detain the thing in the name of another person”.37 There was little doubt, in Italy, that the mere holder could bring azione di reintegrazione even against the owner of the thing.38 With regards to movables, art 695 CC (in line with the Italian tradition) made it clear that the azione di reintegrazione was applicable. H. Contemporary Italian law The Civil Code of 1942 makes the rules which had been developed in France and Italy explicit (and reflects quite well the Italian tradition which had been developed since the late ius commune period). Art 1168 regulates “azione di reintegrazione”. According to the Italian Civil Code: One who has been violently or by stealth deprived of possession can, within a year of the loss, sue the taker for recovery of possession. The action is also available to him who has the detenzione of the thing, except in case in which he has it for reasons of service or of hospitality.

Art 1170 regulates “azione di manutenzione”: One who has been disturbed in possession of an immovable, of a real right in an immovable, or of a universality of movables can, within a year of the disturbance, sue for protection of possession. The action is available if the possession has lasted more than one year, continuous and uninterrupted, and was not acquired 36 Baratono, Delle azioni possessorie (n 34) 110 (“nessuno, il quale detenga la cosa od eserciti un diritto a nome di un altro, può avere un possesso proprio, risiedendo questo in colui, a nome del quale esso detiene la cosa od esercita un diritto … se per ragioni di ordine pubblico può l’affittuario, malgrado la precarietà di sua detenzione, esercitare l’azione di reintegrazione nel caso di spoglio, questa specie di diritto deriva da una disposizione eccezionale, che non ha alcun fondamento nella legittimità del possesso”). 37 L Borsari, Commentario del Codice Civile italiano, vol II (1872) 1110 (“un possesso, quantunque secondario e derivato, appartiene anche a quelli che detengono la cosa in nome altrui”). 38 See e.g., Baratono, Delle azioni possessorie (n 35) 399: “La materiale detenzione della cosa è sufficiente per far luogo a quest’azione, anche contro il proprietario della medesima, che abbia violentemente od occultamente spogliato del possesso questo detentore”.

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violently or clandestinely. When possession was acquired in a violent or clandestine manner, the action can nonetheless be brought after a year from the day on which the violence or clandestinity ceased. He who has suffered a non-violent or non-clandestine taking can sue to be put back into possession, if the conditions indicated in the preceding paragraph exist.

In Italian law, it is thus clear that any possessor or mere holder can bring an azione di reintegrazione, if he is deprived of possession violently or by stealth (the only exception is the holder who detains the thing for reasons of service or of hospitality, more or less corresponding with the Besitzdiener of German law; this holder is called “detentore non qualificato”, or, much to the confusion of those familiar with the French terminology, “detentore precario”). Only the ultra-annual possessors of immovables or universalities of movables can bring the azione di manutenzione in case of disturbances or of non-violent and non-clandestine dispossession. Italian law is thus very similar to French law before 1975. However, in Italy there has never been any doubt about the availability of azione di reintegrazione to possessors or mere holders of movables. It has to be noted that what in Italy goes under the name of the “possesso vale titolo” principle is quite different from the French rule: the Italian Civil Code simply states that “he to whom movable property is conveyed by one who is not the owner acquires ownership of it through possession, provided that he is in good faith at the moment of consignment and there is an instrument or transaction capable of transferring ownership” (art 1153). Possession of movables is thus a means of acquisition of ownership. However, in principle the azione di rivendicazione cannot be brought by anyone except the owner. The possessor of a movable thing may very well not be the owner, for instance, because he was not in good faith or the transaction was invalid for reasons independent from the lack of ownership of the transferor. In such a case, he cannot bring the azione di rivendicazione, nor can a mere holder. They can, however, bring azione di reintegrazione. It should also be remarked that in Italy there is little doubt that the mere holder can bring the azione di reintegrazione against those from whom he holds his rights (for instance: the lessee can bring the azione di reintegrazione against the lessor).39 Apparently, after the French turnaround in 1975, the two systems parted ways: in contrast to France, Italy continues to discriminate between possessors and mere holders with regard to possessory protection. However, this has to be accepted with some reservations. 39 Among the most recent decisions, see Cassazione civile (24 March 1979) n 1737; Cassazione civile (6 November 1991) n 11853; Pret Milano (9 December 1991) in Foro italiano (1992) I, 2463.

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Italian courts have interpreted “violence” in such a way that every dispossession is necessarily violent. According to the Italian Corte di Cassazione: In case of dispossession any action which deprives someone of possession against his will should be qualified as violent, even if there are no true acts of physical violence, and so the requisite of violence is satisfied if the dispossession is perpetrated through arbitrary acts aimed at depriving someone of his possession or preventing him from exercising it, against his explicit or implicit will.40

The possessor’s contrary will is presumed, and this presumption is rebutted only on condition of an explicit manifestation of consent; mere silence is in itself ambiguous.41 Now, someone taking something with the possessor’s consent is not dispossessing him at all. This means that any dispossession in the proper sense of the word, according to Italian case law, is necessarily violent (and thus gives rise to an azione di reintegrazione, which can be brought also by a mere holder). On the other hand, the Italian courts have shown a distinct tendency to allow an azione di reintegrazione in cases where possession has been disturbed but not lost. For example, in one case ploughing a tract of land, thus precluding its utilisation as pasture, was considered as dispossession and not mere disturbance of possession.42 It is also worth mentioning that several Italian legal writers think that at least the lessee can bring the azione di manutenzione, on the basis of art 1585 CC. According to this article, while “the lessor is bound to warrant the lessee against disturbances which diminish the use or enjoyment of the thing, caused by third persons claiming rights in it”, “the lessor is not bound to warrant the lessee against disturbances which diminish the use or enjoyment of the thing, caused by third persons who do not claim rights, but the lessee has the power to bring action against them in his own name”. Some Italian writers think that the last part of the article implicitly confers to the lessee the power to bring the azione di ­manutenzione43 (while 40 Cassazione civile (23 February 1981) n 1101: “In tema di spoglio deve ritenersi violenta qualsiasi azione che produca la privazione del possesso contro la volontà anche presunta del possessore, ancorché non vi ricorrano veri e propri atti di violenza materiale, e, pertanto, l’estremo della violenza sussiste anche se lo spoglio venga compiuto con atti arbitrari, comunque finalizzati, contro la volontà espressa o tacita del possessore, a togliere a questi il possesso o ad impedirgliene comunque l’esercizio”. 41 Cassazione civile (13 February 1999) n 1204: “Ricorre “spoglio violento” anche nella privazione dell’altrui possesso mediante alterazione dello stato di fatto in cui si trova il possessore eseguita contro la volontà, anche soltanto presunta del possessore, presunzione sussistente sempre che manchi la prova di una manifestazione univoca di consenso e che non è superata dal semplice silenzio, fatto di per sé equivoco che non può essere interpretato senz’altro come manifestazione di consenso o di acquiescenza”. 42 Cassazione civile (6 November 1991) n 11853. 43 R Sacco, Il possesso, la denuncia di nuova opera e di danno temuto (1960) 101; F Galgano, Diritto civile e commerciale, 2nd edn, vol 1 (1993) 400-401.

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the ­traditional opinion is that that he can only sue for damages). While Italian law still distinguishes between possessors and mere holders, this is probably not true for “simple” dispossession, and there are some signals that Italian scholars and practitioners are somewhat uneasy with excluding protection against disturbances for mere holders. I. Final remarks The system of possessory actions in France, Germany and Italy is the result of a stratification of legal institutes, having different origins. They were variously recombined in legal practice; any effort of rationalisation should be handled with caution. In France, for example, the attempt to read complainte and réintégrande as two variants of the same action led to a substantial miscomprehension of the rules applied by the courts. Similarly, the attempts to read the possessory actions through Roman-law lenses were often the source of deformations. Modern possessory actions were not born to protect possession in the Roman sense. In all the legal systems here considered, we can see a definite tendency to extend the legitimisation to bring possessory actions, notwithstanding the hostility of two of the most influential legal scholars in the Western legal tradition in Pothier and Savigny, and notwithstanding a provision in the French Code of Civil Procedure which when enacted did not seem at all favourable. On a practical plane, it is easy to understand why all legal systems give possessory remedies to mere holders. This is advantageous to holders, but also to owners, who are spared the need to intervene in the defence of holders (who are usually in the best position to act, while owners may be absent). Denying any remedy to holders is advantageous only to wrongdoers. On the other hand, once you allow a limited protection to mere holders, there is a strong pressure to enlarge it. It seems evidently quite artificial to distinguish between “simple” and violent dispossessions, and between dispossessions and mere disturbances.

6  The Protection of Possession in Scots Law Craig Anderson* A. POSSESSION IN SCOTS LAW This paper is concerned with how possession is protected in Scots law. Most of the paper is concerned with one possessory remedy in particular, the so-called possessory judgment. To see how this fits into the law of possession more generally, we shall begin with an overview of the Scots law of p ­ ossession. Unlike the majority of civilian systems of property law, Scots law is not codified. Except where the law is governed by statute (and the law of possession is largely free from this), we look to the institutional writers of Scots law,1 especially Stair, and to the decisions of the courts. When we look at the Scots law of possession, we find marked similarities to the Roman law.2 For example, we see in Roman law a distinction drawn between possession and ownership, Ulpian saying that the two have “nothing in common”,3 with the result that possessory questions are not determined by asking who has the right to possess. Possession gives no right to possess beyond a right not to have that possession disturbed without consent or legal process. Certainly, it gives no rights against third-party acquirers: the main possessory interdicts, utrubi for moveables4 and uti possidetis and unde vi for land,5 are not worded to give any right against third parties.6 Furthermore,   * The author has benefited from helpful comments by Professor George Gretton and Mr Scott Wortley, School of Law, University of Edinburgh, on a draft of this paper. Any errors remaining are the author’s responsibility.  1 The institutional writers are a small group of writers, writing between the seventeenth and nineteenth centuries, whose works are considered to be a formal source of law. In private law, the most important such works are Stair’s Institutions, Erskine’s Institute, Bankton’s Institute and Bell’s Principles and Commentaries. Craig’s Jus Feudale is also sometimes included in the list.  2 On the relationship between the Roman and Scots laws of possession, see further K Reid, “Property law: sources and doctrine”, in K Reid and R Zimmermann (eds), A History of Private Law in Scotland, vol 1 (2000) at 210-212.  3 D 41.2.12.1.  4 D 43.31.1 pr.  5 D 43.17.1 pr. (uti possidetis); D 43.16.1 pr. (unde vi).   6 This must be qualified slightly for the interdict utrubi in the classical law, which gave possession to the party who had had possession for longest in the previous year, that possession not being vi clam aut precario. In theory, therefore, it could be used in appropriate circumstances to recover possession from someone other than the immediate dispossessor. In the law of Justinian, however,

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Ulpian makes it clear that, if I acquire possession from one who got it forcibly, my possession is not thereby tainted.7 We find the same approach in Scots law. Possession is “a distinct lesser right than property”,8 giving “the right to continue it against all illegal contrary acts”.9 In Scots law, possession is protected by the remedy of spuilzie,10 more commonly known as ejection11 when it relates to land.12 This gives the right, on being dispossessed without consent or order of the court, to be restored to possession pending consideration of the question of right: spoliatus ante omnia est restituendus.13 However, possession gives no right to possess beyond this, and the remedy is not available against third parties.14 In addition to the right not to have possession disturbed, in Roman law one possessing in good faith was entitled to the fruits of the property.15 We find the same in Scots law, Stair expressly drawing this rule from Roman law.16 In both, possession is said to require that two elements be present, one physical and one mental.17 the interdict utrubi works in the same way as the interdict uti possidetis, awarding interim possession to the current possessor unless that possession was obtained from the other party vi clam aut precario: J Inst 4.15.4.  7 D 43.17.3.10.  8 Stair, Inst 2.1.8. See also Erskine, Inst 2.1.23; Bankton, Inst 2.1.31 and 4.24.50.  9 Stair, Inst 2.1.22. 10 This is pronounced “spoolly”. The z is silent. 11 Or sometimes intrusion. The distinction between ejection and intrusion is that the former involves dispossession brought about by force, the latter being dispossession by stealth: Stair, Inst 4.28.1. The rules governing these appear to be identical. 12 Thus, Stair considers moveables and land separately, at Inst 4.30 and 4.28 respectively. See also Erskine, Inst 4.1.15; Bankton, Inst 2.1.31. The leading modern account of these possessory remedies is K G C Reid, The Law of Property in Scotland (1996) paras 161-166. See also W M Gordon and S Wortley, Scottish Land Law, vol 1, 3rd edn (2009), paras 14-11 to 14-39; D L Carey Miller and D Irvine, Corporeal Moveables in Scots Law, 2nd edn (2005) paras 10.24-10.31; D L Carey Miller, M M Combe, A J M Steven, and S Wortley, “National report on the transfer of movables in Scotland”, in W Faber and B Lurger (eds), National Reports on the Transfer of Movables in Europe, Volume 2: England and Wales, Ireland, Scotland, Cyprus (2009) (henceforth Scottish National Report) para 2.4.2. 13 Erskine, Inst 4.1.15; Somerville v Hamilton (1541) Mor 14737; Men of Selkirk v Tenants of Kelso (1541) Mor 14378; Lady Renton v Her Son (1629) Mor 14739; Yeoman v Oliphant (1669) Mor 14740. 14 Such at least is implied at Stair, Inst 4.30.3. At Inst. 4.28.5, Stair gives a style summons of ejection which is aimed specifically at the dispossessor himself. It is true that at Inst 1.9.16 he says that spuilzied property may be recovered from a third-party acquirer, but he appears to be considering only the case where the property has been taken from its owner’s possession. It is notable that this immediately follows a definition of spuilzie as a dispossession of an owner. This is also the situation in the case he refers to (Hay v Leonard (1677) Mor 10286). For discussion of this point, see Carey Miller & Irvine, Corporeal Moveables (n 12) para 10.28; Reid, Law of Property (n 12) para 165. 15 J Inst 2.1.35; Paul, D 41.1.48. 16 Stair, Inst 2.1.23. See also Erskine, Inst 2.1.25-26; Bankton, Inst 2.1.32. 17 Paul, D 41.2.3.1; Stair, Inst 2.1.17-18; Erskine, Inst 2.1.20; Bankton, Inst 2.1.26, 29.

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In neither, and unlike some modern systems,18 is there any trace of any requirement to possess property for a particular length of time in order to qualify for a possessory remedy. The exception to this is with possessory protection of the exercise of apparent servitudes in Roman law, where typically use is required to extend over a particular period of time. Thus, for example, one seeking an interdict to protect use of a servitude right of way would need to show that it had been used for thirty days in the current year.19 Indeed, it is possible to overstress the similarities between the Roman and Scots laws of possession. Both Stair20 and Erskine21 adopt the Roman division of possessory remedies into those for obtaining, those for retaining and those for recovering possession.22 They are followed in this by a number of other authors,23 though it is notable that neither Stair nor Erskine actually identifies a possessory remedy for the obtaining of possession by one who has never possessed before. As Rankine points out,24 such a remedy is not possessory in the strict sense of being based on an individual’s possession, and there is no trace of any such remedy in Scots law.25 More specifically, we may identify three key points of difference between the ways in which Scots and Roman law protect possession. The first is that Scots law takes a broader view of the mental element of possession. There is no space here to explore the different views expressed in the nineteenth century by the German writers Savigny and Jhering on the mental element of the Roman law of possession,26 but suffice it to say that Roman law took a fairly restrictive view of the types of holder that possessed, and one could not determine those types according to any single, general 18 See e.g. the French Code de procédure civile, art 1264, restricting possessory remedies in certain circumstances to those who have possessed for at least one year. 19 Ulpian, D 43.19.1.2. See also e.g. Ulpian, D 43.20.1.4. 20 Stair, Inst 4.3.47. 21 Erskine, Inst 4.1.47. 22 See Gai 4.143; J Inst 4.15.2. 23 See e.g. A J G Mackay, The Practice of the Court of Session, 2 vols (1877-1879) vol I, 360. 24 J Rankine, A Treatise on the Rights and Burdens Incident to the Ownership of Lands and Other Heritages in Scotland, 4th edn (1909) 8. 25 Though see J Spotiswood (ed), Practical Observations upon Divers Titles of the Law of Scotland, Commonly Called Hope’s Minor Practicks (1734) (henceforth Hope, Minor Practicks), X.2. 26 For Savigny, the mental element of possession “must consist in the intention of exercising ownership”. F K von Savigny, Possession, 6th edn, tr E Perry (1848) 72, with those cases where non-owners are viewed by Roman law as possessors being limited exceptions to this principle. Jhering, by contrast, denies the existence of a separate mental element beyond the consciousness of holding. Instead, In Jhering’s theory, a holder is presumed to be a possessor, unless exceptionally that party’s opponent can show that the holding is based on a causa detentionis, a ground of holding to which the law denies the protection of the possessory interdicts. R von Jhering, Der Besitzwille: zugleich eine Kritik der herrschenden juristischen Methode (1889) 19-20.

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principle. As with German law,27 however, Scots law extends possession to certain holders who hold partly on another’s behalf. Scots law defines the mental element of possession as “the inclination or affection to make use of the thing detained”.28 Thus, any holder of property intending to derive personal benefit from it is a possessor in Scots law. As a result, certain holders not considered to be possessors in Roman law are so considered in Scots law. The obvious example is a tenant or hirer of land or moveables. This is comparable to the definition given in the Draft Common Frame of Reference, which, after defining the category known as “owner-possessors”,29 then extends possession to those who hold: (a) with the intention of doing so in that person’s own interest, and under a specific legal relationship with the owner-possessor which gives the limitedright-possessor the right to possess the goods, or (b) with the intention of doing so to the order of the owner-possessor and under a specific contractual relationship with the owner-possessor which gives the limited-right-possessor a right to retain the goods until any charges or costs have been paid by the owner-possessor.30

If we set aside the unfamiliar terminology of “owner-possessor” and “limitedright-possessor”, and remember that one may hold partly on another’s behalf on a non-contractual basis,31 this is a fair approximation to the Scottish position. Secondly, we have seen that in Roman law one could only use the interdicts utrubi and uti possidetis to protect or recover possession if one had not obtained possession by force, stealth or precarium from the other party. No such rule exists in Scots law, where a possessor, even one in bad faith, is entitled not to be dispossessed, even by the owner of the property: “a violent, clandestine, and unlawful possession may not be troubled though there be an evident right”.32 Thus, even a thief is entitled to retain his possession until 27 BGB § 868. French law achieves the same effect by other means, namely the extension of possessory protection to certain holders falling outside the definition of possessor: Code de procédure civile, art 1264. 28 Stair, Inst 2.1.17. See also Erskine’s formulation at Inst 2.1.20, where he requires “an animus or design in the detainer of holding it as his own property”, which appears to require animus domini. However, at Inst 2.1.22, he refers to pledgees, liferenters (usufructuaries) and tenants as possessing, possession arising “generally in every case where there are inferior rights affecting any subject distinct from the property of that subject”. 29 C von Bar and E Clive (eds), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (2009) (henceforth DCFR) VIII.-I:206 (p 4327). 30 DCFR, VIII.-I.207 (p 4353). 31 An example would be a possessor who has improved another’s property in good faith, holding the property as security for recompense for the improvements. See e.g. Binning v Brotherstones (1676) Mor 13401. 32 Stair, Inst 2.1.22. The same rule is given at Inst 4.28.2.

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his victim vindicates his right in the proper manner.33 The third difference lies in the scope of the possessory remedies. Although they are classified as being for the retention of possession,34 utrubi and uti possidetis could also be used for the recovery of possession. Spuilzie, by contrast, only allows for the recovery of possession.35 The normal Scots remedy “against a wrong in course of being done or against an apprehended violation of a party’s rights”36 is known as interdict. On the basis of this definition of the scope of interdict, it would seem reasonable to suppose that it would be available to prevent the occurrence of a spuilzie. So indeed it is assumed by the authors of the Scottish national report on the transfer of moveables.37 Unfortunately, the point is lacking authority: all of the cases that they cite are in fact concerned with the protection of a possessor whose right of ownership is not in dispute.38 It does not in fact appear that the rules governing interdict against dispossession are entirely in accord with those governing the restoration of possession following such dispossession. Thus, a party without any kind of written title may pursue for spuilzie of land (ejection) without having any kind of written title to the land;39 yet interdict, as we shall see below, would not have been available to such a possessor before the dispossession. It cannot therefore be safely assumed that an interdict would be available to prevent dispossession of moveable property without the possessor showing at least a prima facie case that he has a right in the property entitling him to possess. The only case where such a preventative remedy is certainly available on a purely possessory basis is that known as the possessory judgment. B. THE POSSESSORY JUDGMENT (1) Introduction We see then that Scots law protects a possessor, even one without a right to possess, against dispossession without consent or an order of the court. Such dispossession is known as spuilzie, and the remedy is for the court to 33 There is an exception to this rule where one retakes possession immediately after the dispossession: Erskine, Inst 2.1.23; Bell, Principles s 1319. Erskine’s authority for this exception is Ulpian, D 43.16.3.9. 34 J Inst 4.15.4. 35 Thus, for example, Stair defines spuilzie as “obliging to restitution of the things taken away”. Inst 1.9.16. 36 S Scott Robinson, The Law of Interdict, 2nd edn (1994) 1. 37 Scottish National Report (n 12) para 2.4.3. 38 Wilson v Shepherd 1913 SC 300; Leitch & Co Ltd v Leydon 1930 SC 41, affirmed 1931 SC (HL) 1; Phestos Shipping Co Ltd v Kurmiawan 1983 SC 165; Shell UK Ltd v McGillivray 1991 SLT 667. 39 Stair, Inst 4.28.2.

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order that possession be restored to the party dispossessed. What I want to focus on here is the other possessory remedy recognised by Scots law, the possessory judgment. While spuilzie does differ in various respects from the Roman possessory remedies, there are clearly common underlying principles, in particular the idea that one who is dispossessed without consent or proper legal process is entitled to be restored to possession pending resolution of the question of right. The possessory judgment does not appear to have such a strong similarity to the Roman possessory remedies. In general terms, the possessory judgment operates to protect possession that has been exercised for seven years on a written title apparently sufficient to support it. While this overlaps with spuilzie and ejection, in that it does allow the recovery of possession that has been lost, it also allows one entitled to it to go to court to obtain an order that existing possession not be interfered with.40 Unlike spuilzie and ejection, there is nothing to indicate that the possessory judgment is available only against the actual dispossessor. Despite the lack of similarity between them, the possessory judgment has sometimes been said to be derived from the Roman possessory interdicts.41 Indeed, in at least two cases, Court of Session judges have taken the Roman interdict uti possidetis to be synonymous with the possessory judgment.42 Alternatively, Bankton makes a comparison between the possessory judgment and the actio Publiciana,43 which allowed possessors in certain circumstances to recover or defend their possession as if they were owners.44 It is true that a number of legal systems have received the actio Publiciana in modified form.45 However, there is no further evidence for its reception in Scots law, and Bankton himself does not claim any historical connection, noting only the existence of “some resemblance” between the possessory judgment and the actio Publiciana. An alternative view is put forward by the institutional writers.46 According to this view, the reason for the existence of the possessory judgment is 40 Rankine, Treatise (n 24) 13. 41 D M Walker, The Law of Civil Remedies in Scotland (1974) 250; H Burn-Murdoch, Interdict in the Law of Scotland with a Chapter on Specific Performance (1933; repr 1986) para 87; Mackay, Practice (n 23) vol I, 360. 42 Colquhoun v Paton (1859) 21 D 996, 1001 per Lord Cowan; Maxwell v Glasgow and South-Western Railway Co (1866) 4 M 447, 456 per Lord Deas. See also Hume v Scot (1676) Mor 10644, in which reference was also made to the interdict uti possidetis. 43 Bankton, Inst 2.1.33. 44 For discussion, see W W Buckland, A Text-book of Roman Law from Augustus to Justinian, 3rd edn, rev P Stein (1975) 191-195. 45 DCFR, pp 5276-8 and 5286-92. 46 Stair, Inst 4.22.14, 4.26.3; Erskine, Inst 4.1.50; Bankton, Inst 2.1.33. See also Winton v Gordon (1668) Mor 10627.

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twofold. The first part of this is the existence, until its abolition just a few years ago, of the feudal system of land tenure.47 Because of this, no one (except the Crown, in the case of Crown lands) owned land outright. Instead, the land was held by the vassal of a superior, who had a continuing interest in the land. The second part is the importance in Scots law of written titles to land. In Scots law, no one may acquire ownership of land without some kind of written deed in his favour. This differs from some other systems, where, for example, one may acquire ownership by positive prescription by simply possessing in the required manner for a given period.48 In Scots law, for positive prescription to operate, the possession must follow the registration of a written title.49 The need for a written title meant that, in a dispute over title to an area of land, the deeds relating to the land would need to be produced. However, some of the deeds needed by the vassal to prove his right would often also be needed by the superior to prove his right, and so would be retained in the superior’s hands. To meet this difficulty, the possessory judgment allowed the current possessor, on meeting certain requirements, to defend that possession in the interim, until he could lay hands on the deeds necessary to prove his right. This does appear to be a plausible explanation of the origin of the remedy, although, if it is correct, it is surprising that Craig does not mention it in his Jus Feudale, even in his discussion of the recovery of possession.50 The possessory judgment, as we shall see, operates to protect possession of land, and also protects the exercise of apparent rights in land, such as servitudes, public rights of way and leases. However, it does not extend to moveable property, possession of which is protected only using the remedies already mentioned above.51

47 Abolished by the Abolition of Feudal Tenure etc (Scotland) Act 2000, s 1, which came into force on 28 November 2004. 48 For example, in South Africa, the relevant legislation (Prescription Act 68 of 1969, s 1) does not require registration to begin prescription. Registration will follow the prescriptive acquisition of ownership. P J Badenhorst, J M Pienaar and H Mostert, Silberberg & Schoeman’s The Law of Property, 5th edn (2006) para 8.6.8. In Germany, acquisition is by registration following thirty years’ possession. BGB, § 927. 49 The current law on this point is to be found in the Prescription and Limitation (Scotland) Act 1973, s 1(1). 50 Craig, Jus Feudale, 2.8.2 and 2.9. At 2.7.27, he says that one who has possessed on an apparent title for a year and a day is entitled to be treated as rightful possessor “until the question of the real state of rights has been brought before the court and determined”. (Taken from the translation the Jus Feudale by J A Clyde (1934).) 51 Reid, Law of Property (n 12) para 116.

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(2) Possessory nature The possessory judgment is genuinely possessory in that it does not determine and is not determined by the question of actual right.52 Instead, its purpose is to preserve the established state of possession until it can be determined where the right lies. Accordingly, the outcome of proceedings for a possessory judgment cannot be taken to determine the question of right. As with the law of Justinian,53 the possessory proceedings merely determine who will have to raise the action to determine the question of right. They are not themselves res judicata on the question of right.54 In numerous cases, the courts have made it clear that the question of right is reserved for later proceedings.55 A possessory judgment will even be available when the invalidity of the possessor’s title is apparent from the known facts. Thus, in Porterfield v M’Millan,56 a possessory judgment was sought to protect the use of an apparent servitude of pasturage over an area of grazing land owned in common by two neighbouring proprietors. One of these parties was the pursuer, who had previously begun proceedings to have the grazing land divided between the co-owners. These proceedings had, however, been allowed to lapse. In the meantime, the other co-owner had sold part of his own land, granting with it a servitude of pasturage over the grazing land, the extent of the servitude right to be determined when the grazing land was divided. This land then came into the hands of the defender in the present case. The court considered itself bound to grant the defender a possessory judgment on the basis of use for the required period, even though, on the facts available to the court, the servitude was void as being partially a non domino.57 This is a rather extreme example, and the court was perhaps influenced by the argument that the pursuer should not benefit from his own failure to insist in the action for division, that being the cause of the servitude’s invalidity, but it illustrates the present point. This being the case, the decision in M’Kerron v Gordon58 seems questionable. That case concerned a claim for a possessory judgment to protect the 52 Burn-Murdoch, Interdict (n 41) para 87; Rankine, Treatise (n 24) 12; Reid, Law of Property (n 12) para 145; Walker, Law of Civil Remedies (n 41) 252. 53 J Inst 4.15.4. 54 Hope, Minor Practicks (n 25) X.1 (Spotiswood’s note). 55 See e.g. Macdonald v Watson (1830) 8 S 584; Ker v Pringle (1662) Mor 10619. 56 (1847) 9 D 1424. 57 A servitude may not be validly granted by a co-owner acting alone. See e.g. Grant v Heriot’s Trust (1906) 8 F 647; WVS Office Premises Ltd v Currie 1969 SC 170; Fearnan Partnership v Grindlay 1990 SLT 704, affirmed on different grounds at 1992 SC (HL) 38. As Reid points out (Law of Property (n 12) para 28), this is an application of the general rule that nemo dat quod non habet. 58 (1876) 3 R 429.

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use of a former road across private land as a public right of way. The majority of the Inner House of the Court of Session rejected the claim, on the basis that the use made was unlawful in origin, the original public road having been shut up some sixty years previously by statutory procedure. It was questioned in that case whether it was permissible to look back beyond the seven years’ possession required for the possessory judgment. The lead opinion was by Lord Ormidale, who expressed his view in this way: it would be quite competent for the party resisting a possessory judgment to shew that the possession relied on in support of it had been the result of violence, intimidation or other illegal acts; in short, that in place of it having been of a character to indicate that it took place in the exercise of a right, it was truly in persistence of a wrong.

He went on to hold that the initial illegality of the possession tainted the whole of the use made, with the result that it was not possible to establish the required standard of possession thereafter. We shall see below that violence in taking possession is a fatal defect in a claim for a possessory judgment, and Lord Ormidale appears to take the view that the reason for this is that it implies an absence of right. However, strictly speaking, the fact that I took possession through violence or intimidation has nothing to do with whether I have a right to possess. I may do this in full belief of my right. In and of itself, the fact that I took possession through force means only that my taking possession was opposed. It does not mean, or even imply, that the person opposing my entry was entitled to do so. Instead, sufficient reason to deny me the protection of the possessory judgment lies in the argument that one who does justice at his own hand should be denied any benefit from doing so.59 There seems indeed to be no justification for Lord Ormidale’s approach in generalising the rule against protecting violently obtained possession into a rule denying the protection of the possessory judgment to any unlawful possession. Given that possessory proceedings are concerned with awarding interim possession until the question of right can be enquired into, it is inevitable that sometimes possession will be protected that turns out to be unlawful in the sense of not being based on any right to possess. Lord Gifford, in his dissenting opinion, observes: It is true that in determining as to the proof of possession it is competent for the parties, and competent for the Court, to go farther back than seven years, – indeed 59 For Stair, it is “the main foundation of the peace, and preservation thereof, that possession may not be recovered by violence, but by order of law”. (Inst 2.1.22). See also Erskine, Inst 2.1.23. The idea that the protection of possession is based on the law’s opposition to violence is also found later in Savigny, Possession (n 26) 6.

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to go back as far as is necessary. But the object of so going back is not to ascertain the question of right, but merely to ascertain the character of the possession, – that is, to ascertain whether the possessors claimed to possess as matter of right, or whether they did so by special permission or sufferance ... The sheriff cannot ask [in possessory proceedings], and cannot decide,60 whether they were right or wrong in making the claim. To go back beyond the seven years, in order to ascertain whether there actually existed a permanent right or not, would be to obliterate the distinction between a possessory question and a question of permanent heritable right.61

Lord Gifford’s view appears to be more consistent with the nature of possessory remedies, and also with the other authorities referred to above. If it is not necessary to prove the validity of one’s own right in order to obtain a possessory judgment, no more is it necessary to prove the validity of the right of the party from whom one obtained title. Thus, in Hume v Scot,62 where a tenant sought the benefit of a possessory judgment, there was no need for proof of the title of the grantor of the lease. (3) The need for title No one, except for the Crown, can own land in Scotland without some form of written title. Accordingly, while a possessory judgment cannot determine the question of right, equally it is reasonable to refuse even an interim remedy to one whom it is plain has no prospect of proving right. Accordingly, the possession sought to be protected by a possessory judgment must be based on a written title.63 This title must be one ostensibly giving a right to possession. Thus, in Cant v Aickman,64 a right of annualrent65 was found not to be sufficient basis for a possessory judgment concerning possession of the land itself. The title must, so far as appears on its face, be valid and apply to the property or right sought to be protected.66 Accordingly, a title which has an invalidity patent on its face will not be sufficient foundation for a possessory judgment.67 However, as we have seen, it is not necessary for the title actually to be valid. 60 Jurisdiction in questions of rights in heritable property (i.e. land and rights relating to land) was subsequently given to the Sheriff Court in terms of the Sheriff Courts (Scotland) Act 1907 s 5(4). 61 M’Kerron (n 58) at 437. 62 (1676) Mor 10641. 63 Bridges v Elder (1822) 1 S 373. 64 (1683) Mor 10633. 65 This is a type of payment obligation contained in the title to land. See Stair, Inst 2.5. 66 Stair, Inst 2.3.73; Bankton, Inst 4.24.55; Burn-Murdoch, Interdict (n 41) para 89; Rankine, Treatise (n 24) 9; Reid, Law of Property (n 12) para 146; Gordon & Wortley, Scottish Land Law (n 12) para 14-18; T B Smith, A Short Commentary on the Law of Scotland (1962) 466. 67 Watson v Shields 1996 SCLR 81.

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It appears that, at an earlier period, this title had to be completed by infeftment.68 Indeed, even after Stair, Spotiswood was still giving as the law a requirement for title to have been completed by infeftment.69 However, this rule had long since been departed from. In Glendinning v Gordon,70 a title was accepted as sufficient foundation for a possessory judgment even without sasine. In Knox v Brand and Berry,71 a possessory judgment was given based on possession from the date of the charter apparently granting the right rather than from the date of infeftment. It is not only apparent owners of land that are protected by the possessory judgment. A lease is sufficient foundation for a possessory judgment,72 including a dispute over right of access, apparently exercised as a pertinent to the lease, over neighbouring ground.73 The same applies to liferenters.74 According to the definition of possession noted earlier, these parties are possessors and so are, reasonably enough, protected as such. We see, then, that the possessory judgment can be used to protect those whose possession is based on apparent rights other than ownership. In fact, despite controversy over whether incorporeal property can properly said to be capable of being possessed,75 the possessory judgment can be used to regulate use of land more generally. Despite early authority to the contrary,76 the exercise of apparent rights in land can be regulated by the possessory 68 Mackay, Practice (n 23) vol I, 200 (b); Stair, Inst 4.26.3; Erskine, Inst 4.1.50; Johnstone v Erskine (1668) Mor 10621; Baird v Law (1695) Mor 10623. Infeftment means entry of the vassal with the superior: Reid, Law of Property (n 12) para 93 (Gretton). From 1874 until the abolition of feudal tenure in 2004, it was deemed to occur on recording of the conveyance in the vassal’s favour in the Register of Sasines or its registration in the Land Register: Conveyancing (Scotland) Act 1874 s 4(2) (now repealed). 69 See his note to Hope, Minor Practicks (n 25) X.1. 70 (1716) Mor 10610. 71 (1827) 5 S 666. 72 Erskine, Inst 2.6.28, 4.1.50; Bankton, Inst 2.1.33; Hume (n 62); Hepburn v Robertson (1706) Mor 10644; St Andrews Ladies’ Golf Club v Denham (1887) 14 R 686; Innes v Allardyce (1822) 2 S 93. Note that a lease can, in certain circumstances, be made a real right in Scots law. 73 M’Donald v Dempster (1871) 10 M 94; Galloway v Cowden (1885) 12 R 578; Little v Irving (unreported, 25 January 2000, Dumfries Sheriff Court). The court’s opinion in the last of these cases is reproduced in R R M Paisley and D J Cusine, Unreported Property Cases from the Sheriff Courts (2000) 120. 74 Stair, Inst 4.22.8. 75 The majority view in Scots law seems to be that incorporeal property is not capable of being possessed. See e.g. Craig, Jus Feudale, 2.7.3; Stair, Inst 2.7.3; Reid, Property, para 120; D J Cusine and R R M Paisley, Servitudes and Rights of Way (1998) para 1.70; Scottish National Report (n 12) para 2.1.3(c). Bankton is prepared to go only as far as recognising “a kind of possession” of incorporeals (Inst 2.1.28). Compare D J Carr, Possession in Scots Law: Selected Themes (unpublished MSc thesis, University of Edinburgh, 2005) 60. The same dispute exists in other systems: see the papers in this volume by Duard Kleyn and Thomas Rüfner. 76 Grant v Law (1695) Mor 10644.

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judgment, for example servitudes77 and public rights of way.78 Hunter v Maule79 was concerned with a right to fish for salmon, which in Scots law may be owned separately from the land itself.80 Loch v Lockie81 was concerned with a right of annualrent. Knox v Brand and Berry82 was concerned with a right of ferry. The need for a written title means that one coming to court without such a title will not be entitled to a possessory judgment.83 An example of this can be found in Neilson v Vallance,84 in which a dispute between two neighbours over an area of garden ground was resolved by a finding that the possession of the neighbour whose occupation was challenged was not supported by the parties’ respective titles. Again, in Hunter v Maule,85 a possessory judgment in relation to salmon fishing rights was denied on the basis that the title relied on had not been produced. By the same token, if the written title is so unclear that it cannot be determined from its face what it includes, the possessory judgment will not be available. Instead, it will be necessary to proceed straight to the question of title.86 May a title form the foundation of a possessory judgment if it has been reduced (i.e. set aside by the court), or the question of right has been considered in earlier proceedings? It appears not. In Montgomery v Home87 a possessory judgment was refused even though there had been seven years’ further possession following a decree of removing, and in Anderson v Forbes88 it was held that there could be no possessory judgment on the basis of a title that had been reduced. Again, this was the outcome even with seven years’ further possession. In Lockhart v Meikle,89 a possessory judgment was denied where it was sought in the face of a decree declaring title. These decisions are consistent with Stair’s view90 that, where there has been a declaratory action, 77 Stair, Inst 2.7.22, 4.17.2; Stewart v Grant (1698) Mor 10644; Carson, Warren & Co v Miller (1863) 1 M 604; Liston v Galloway (1835) 14 S 97; Porterfield (n 56); Drummond v Milligan (1890) 17 R 316. 78 Macdonald (n 55); Calder v Adam (1870) 8 M 645; M’Kerron (n 58) . 79 (1827) 5 S 238. 80 Reid, Law of Property (n 12) para 210. 81 (1628) Mor 10637. Unlike Cant v Aickman, referred to above, this case was concerned with exercise of the right of annualrent rather than possession of the land itself. 82 (1827) 5 S 714. 83 Rankine, Treatise (n 12) 10. 84 (1828) 7 S 182 85 Hunter (n 79). 86 Cruickshank v Irving (1854) 17 D 286. 87 (1664) Mor 10627. 88 (1696) Mor 10630. 89 (1724) Mor 10625. 90 Stair, Inst 4.3.47.

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no defence may then be put forward in a possessory action that could have been put forward in the declaratory action. Where the question of right is res judicata between two parties, the possessory question is superseded. This also explains the different outcome in Innes v Allardyce,91 in which a lease was held sufficient title for an interdict against interference with possession by parties other than the landlord, even though the lease had been reduced: although the question of the right to possess had been settled between landlord and tenant, it was not res judicata against third parties. Even though this case was concerned with a normal interdict, rather than a possessory judgment, there seems to be no good reason for distinguishing the case on this ground. (4) Rights not requiring writing It was noted earlier that the possessory judgment required that some form of written title be produced that was at least ex facie sufficient to give a right to possess the property. The reason for this was said to be that such a title is a sine qua non for the acquisition of ownership and that, accordingly, there was no purpose in allowing interim protection to someone with no chance of proving a right. However, not all rights in land require writing for their constitution. Can someone using land as if by one of those rights obtain a possessory judgment to protect that use? It appears that this is permissible, and that a written title is only required of someone claiming to possess on the basis of a right requiring writing for its acquisition. Public rights of way, for example, may be created in writing92 but invariably are constituted instead by prescriptive possession.93 For this reason, the courts have held that no written title is required when a possessory judgment is sought to protect the exercise of an apparent public right of way.94 Again, possession on the basis of a statutory provision has been held capable of protection by a possessory judgment. Thus, in Richmond v Inglis,95 a party on whom the responsibility for maintenance of a street had been imposed by statute was held entitled to a possessory judgment in defence of the public’s possession, against an owner of land adjoining the street claiming to have title to part of the land occupied as a street. The latter was ordered to remove a fence that he had constructed, until the question of right was settled. 91 Innes (n 72). 92 Reid, Law of Property (n 12) para 498. 93 In terms of the Prescription and Limitation (Scotland) Act 1973, s 3(3). 94 Macdonald (n 55); Calder (n 78); M’Kerron (n 58) at 433 per Lord Ormidale. 95 (1842) 4 D 769. See also Maxwell (n 42) especially per Lord Deas at 454; Boyd v Kirkcudbright CC 1937 SLT (Sh Ct) 17.

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We have seen that possession on the basis of an apparent lease is protected by the possessory judgment. Most leases will be constituted in writing. However, a lease with a term not exceeding one year may be constituted orally96 (although, in practice, writing will still normally be used). As we shall see in a moment, the possessory judgment requires the longer period of seven years’ possession, from which it may be supposed that the issue cannot arise. However, a lease will be automatically renewed by the doctrine of tacit relocation if notice is not given terminating it,97 with the result that a lease initially for a year or less may in fact last for a much longer period. The only writer to consider the relevance of the length of the lease does not give a concluded view on the matter, saying only that a lease is sufficient title for a possessory judgment “at least where the tack [i.e. the lease] has a longer duration than seven years”.98 Unfortunately, though, none of the authorities that he cites bears on the present question. However, if it is accurate to say (as it appears to be) that writing is only required for the possessory judgment where writing is required for the acquisition of the right, there seems to be no reason to distinguish an orally-created lease of a term of no more than a year from other rights created without writing. On this basis, it is suggested here that such a lease, which has in fact endured for the required period of possession, provides sufficient title for a possessory judgment. Given that the law allows the term of a lease to be tacitly extended, without the constitution of a new lease, there seems to be no reason to distinguish between a lease initially granted for a term exceeding seven years and a lease granted for a shorter term but which has been extended by tacit relocation. One claiming a servitude will always have a written title, at least to the benefited property, given that only an owner of land may hold the real right of servitude over neighbouring land.99 A servitude itself, however, need not be constituted in writing.100 Scott Robinson suggests that, in such a case, a written title to the benefited property will be sufficient.101 Unfortunately, both of the cases cited by him as authority are in fact concerned with public  96 Requirements of Writing (Scotland) Act 1995, s 1(7), creating an exception to the requirement in s 1(2)(b) for writing in the creation of a real right in land.  97 For discussion, see J Rankine, A Treatise on the Law of Leases in Scotland, 3rd edn (1916) 598-602; G C H Paton, The Law of Landlord and Tenant in Scotland (1967) 221-227.  98 J R Dickson, “Possessory actions”, in Encyclopaedia of the Laws of Scotland, vol 11 (1931) para 1189. The additional requirement that he states, that the lease “bears to flow from the heritable proprietor”, may be rejected insofar as it appears to raise the question of who the proprietor is runs counter to the possessory nature of the remedy.  99 See e.g. Cusine & Paisley, Servitudes (n 75) para 1.37. 100 Thus, for example, a servitude may be created by positive prescription without any writing: Prescription and Limitation (Scotland) Act 1973, s 3(2). 101 Scott Robinson, Law of Interdict (n 36) 14.

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rights of way,102 although in one of these cases, Calder v Adam,103 the rule for possessory protection of apparent servitudes was implied obiter by Lords Benholme and Neaves104 to be in accordance with Scott Robinson’s view. In fact, though, there is a division in the case law on the point. In Liston v Galloway,105 a possessory judgment was allowed to protect the exercise of an apparent servitude by a party over neighbouring ground, even though her title made no reference to a servitude. On the other hand, in Carson, Warren & Co v Miller,106 the Lord Justice-Clerk stated matters thus: It is quite true that a servitude right may be acquired by possession for forty years without a title. But seven years’ possession will not enable a party to obtain a possessory judgment, unless it be supported by something in the shape of a title.107

In this case, the owner of an area of ground sought a possessory judgment to prevent the blocking of a nearby street. Unfortunately, the Lord JusticeClerk did not refer to Liston v Galloway (or indeed to any authority at all on this point), and it is difficult to reconcile the two cases. Curiously, only seven years before Calder v Adam, Lords Benholme and Neaves both concurred in the decision in this case. In the Outer House, the Lord Ordinary did attempt to distinguish Liston. His grounds for doing so are not clear, but seem to be derived from the fact that, while in Liston the path was an obvious one leading up to a gate in the pursuer’s wall, in Carson, Warren & Co v Miller the land over which the servitude was claimed was a street not even adjacent to the supposed benefited property. The decision would perhaps, therefore, have been better founded on a lack of possession, in other words that the use made of the nearby street was not made in the manner of someone exercising a servitude. In any case, though, the Lord Justice-Clerk’s view seems difficult to justify in principle, given the authority to the effect that a written title is only required for a possessory judgment if such a title is actually required for the constitution of the right. (5) Possession In addition to a written title, one seeking a possessory judgment must also have possessed for a certain length of time. Where the current possessor has not possessed for the required length of time, it is permitted to add together 102 103 104 105 106 107

Calder (n 78); M’Kerron (n 58). Calder (n 78). Calder (n 78) at 648. (1835) 14 S 97. (1863) 1 M 604. (1863) 1 M 604 at 611.

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the possession of consecutive possessors.108 This has been held to be so even where the previous possessor was not a predecessor in title, but the loser in a competition of titles with the party who then took over possession. The latter was then held entitled to add the prior possessor’s possession to her own in order to reach the required period of possession.109 There does, however, appear to be an exception to this where the dispute is between the current and previous possessors. In Matheson v Stewart,110 one party had bought part of a larger estate from the other. It was disputed whether an area of which the purchaser took possession was in fact included in the sale. The purchaser’s argument that he should be entitled to a possessory judgment based on the seller’s possession, added to his own, was given short shrift by the court. At an earlier period, the period of possession required for the possessory judgment was ten years.111 During the seventeenth century, however, there seems to have been some doubt about the appropriate period of possession to qualify for the possessory judgment. In Fuird v Stevenson,112 a period of six years was accepted as sufficient. However, in Hamilton v Tenants of Oversheils,113 the court expressly stated that seven years was the required period. Stair follows this view,114 which is now universally recognised as correct.115 More precisely, the requirement is seven years of possession, followed by no more than seven years of non-possession,116 allowing the possessory judgment to be used not just for the protection of possession, but also for its recovery. This rather seems to overlap with the normal possessory remedies outlined earlier, and we shall return to this point later on. However, it is established in the case law. Thus, for example, in Dalmahoy v Horsburgh,117 the pursuer raised an action for mails and duties118 as heir to her brother, who had been in possession for ten years up to his death in 1623. In proceedings for a posses108 Hope, Minor Practicks (n 25)X.1; Stair, Inst 4.22.8, 4.22.14. Erskine, Inst 4.1.49; Galloway v Cowden (1885) 12 R 578. 109 Drummond v Milligan (1890) 17 R 316. 110 (1872) 10 M 704. 111 Rankine, Treatise (n 12) 11; Hope, Minor Practicks (n 25)10.1; P G B McNeill (ed), The Practicks of Sir James Balfour of Pittendreich, 2 vols (1962-1963) 31.1; Provinciall of the Blackfriars v Bervick (1503) Mor 10597; Stuart v Lundie (1632) Mor 10617. 112 (1637) Mor 10618. 113 (1661) Mor 10618. 114 Stair, Inst 2.3.73, 4.26.4, 4.26.10(7). 115 Erskine, Inst 4.1.49-50; Bankton, Inst 4.24.55; Burn-Murdoch, Interdict (n 41) para 90; Mackay, Practice (n 23) vol I, 200; Rankine, Treatise (n 24) 12; Gordon & Wortley, Scottish Land Law (n 12) para 14-18; Walker, Civil Remedies (n 41) 251; Reid, Law of Property (n 12) para 146; Smith, Short Commentary (n 66) 466; Watt v Maitland Macgill (1823) 2 S 289. 116 Stair, Inst 4.26.4, 4.26.10(7); Erskine, Inst 4.1.49. 117 (1628) Mor Supp 55. 118 An action for mails and duties is an action for the rents of lands.

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sory judgment, this was preferred to the defender’s possession for the subsequent five years. Again, in Maxwell v Glasgow and South-Western Railway Co,119 the pursuer sought the removal of certain works established on his land by the defenders for railway purposes either thirteen or sixteen years previously. It was assumed by the court that, had the railway company not had possession for more than seven years, the pursuer would have been entitled to be restored to possession until the railway company proved its right.120 Wilson v Henderson121 is sometimes cited as authority for the same proposition.122 In that case, attempts made over a period of five years to stop use of a road by challenging users and obstructing and ploughing up the road were held not to bar a possessory judgment to protect that use, where that use had been carried on for many years before that. However, it seems that the attempts to stop use of the road were unsuccessful. Accordingly, this is not a case of the possessory judgment being used to recover possession within seven years of its loss. However, the point is sufficiently made by Dalmahoy v Horsburgh and Maxwell v Glasgow and South-Western Railway Co. (6) Standard of possession required It is not enough simply to possess for the required period. One must possess in a particular manner. This has been said to be the manner required for acquisition of a right in land by positive prescription,123 which, according to the present law, is possession that is held “for a continuous period ... openly, peaceably and without any judicial interruption”.124 Thus the requirement has been said variously to be “peaceable possession”,125 “peaceful and uninterrupted” possession,126 possession that is “continuous, without violence, not clandestine, not precarious and not unlawful”127 and possession that is “open, peaceful and exercised as a matter of right”.128 Bankton, following Roman law,129 requires possession that is not acquired by force, stealth or licence.130 In Calder v 119 Maxwell (n 42). 120 Maxwell (n 42) at 452 per the Lord President, 454 per Lord Deas and 456 per Lord Ardmillan. 121 (1855) 17 D 534. 122 See Rankine, Treatise (n 24) 12; Dickson, Possessory Actions (n 98) at para 1192. 123 Reid, Law of Property (n 12) para 146; Dickson, Possessory Actions (n 98) at para 1192. 124 Prescription and Limitation (Scotland) Act 1973, ss 1(1), 2(1)(a) and 3(1)(a) and (3). The period in question is ten years for the acquisition of ownership (s 1) and twenty years for other real rights in land. 125 Erskine, Inst 2.1.28. 126 Gordon & Wortley, Scottish Land Law (n 12) para 14-21. 127 Cusine & Paisley, Servitudes (n 75) paras 16.19 and 23.09. 128 Walker, Civil Remedies (n 41) 251. 129 Ulpian, D 43.17.1 pr. (interdict uti possidetis); D 43.31.1 (interdict utrubi). 130 Bankton, Inst 2.1.33.

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Adam,131 Lord Benholme observed that there could be no possessory judgment where the possession was “precarious, or violent”, or where there was some other vice. In Maxwell v Ferguson,132 it was held that the possessory judgment could not be founded on possession that was acquired by force or stealth. Burn Murdoch states the requirement as possession that is “peaceful, lawful and uninterrupted”,133 drawing the second of these from the decision in M’Kerron v Gordon,134 which was suggested above to be wrongly decided. None of this is very precise, but the general idea seems to be that the possessor has done so without any occurrence that could be characterised as a challenge to the right to possess, as for example where the possession was only attained through force. The only dissent from this comes from Stair, who holds that the possessory judgment “will not be elided by an allegeance of its being clandestine, or having a vicious entry”.135 However, in light of the foregoing, it may be said that this has not been accepted as the law. (7) Is good faith required? It is inevitable that a possessory remedy, being based on possession rather than right, will on occasion protect someone whose possession is not in fact legally justified. Does it, however, make any difference whether the possessor knows that his possession is not legally justified? In other words, is there a requirement for good faith? Not all writers on the possessory judgment address this issue at all, and sometimes it is done only ambiguously. Thus, Rankine notes that the holder of a possessory judgment has the rights of a bona fide possessor,136 but this could mean either that he was in good faith from the beginning of his possession or that he is only deemed to be in good faith from the granting of the possessory judgment. The same is true of Walker’s statement that a party obtaining a possessory judgment is “entitled to be considered a bona fide possessor”.137 Unfortunately, neither cites any authority on the point. Most writers, however, consider good faith to be a requirement.138 Reid denies that good faith is a requirement, holding that: 131 Calder (n 78) at 648. 132 (1673) Mor 10628. 133 Burn-Murdoch, Interdict (n 41) para 90. 134 M’Kerron (n 58). 135 Stair, Inst 4.26.10(7). 136 Rankine, Treatise (n 24) 12. 137 Walker, Civil Remedies (n 41) 252. 138 Burn-Murdoch, Interdict (n 41) para 89; Gordon & Wortley, Scottish Land Law (n 12) para 14-20; Rankine, Treatise (n 24)12; Dickson, Possessory Actions (n 98) at para 1192; Cusine & Paisley, Servitudes (n 75) paras 16.19 and 23.09.

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good faith is a consequence rather than a cause of a possessory judgment, for a party who has obtained a possessory judgment is deemed a bona fide possessor until such time as his title is judicially set aside.139

Unfortunately, he cites no authority in support of the proposition that good faith is not required. He does, however, note the case Countess of Dunferm­ line v Lord Pitmedden,140 in which possessory judgment was held to be excluded on the basis that the possession was originally on a lease derived from the same title that the possessory judgment was sought to exclude. Reid argues that this case, “which appears to be an authority to the contrary [of the proposition that good faith is not required], may be explained on the basis of inversion of possession”.141 No doubt it can. However, it is notable that the report of the case has the decision expressly based on a lack of good faith. The point about inversion of possession therefore appears to be merely a specific example of bad faith as a bar to the possessory judgment. Reid also refers to a passage by Stair in which he says of those obtaining a possessory judgment that: they do not only secure the profits they have made as bona fide possessores, but may continue to enjoy the future profits, till they be put in mala fide, by judicial production of a better right, by way of reduction, declarator or competition.142

As Reid observes, the word “as” here can be construed in one of two ways, being read either as meaning that the holder of the possessory judgment was in fact in good faith or that he is treated as if he was in good faith. Reid, not implausibly, considers the latter more likely. The point is an important one, because Stair does not otherwise anywhere directly address the question of whether good faith is needed for a possessory judgment. However, there is good reason to think that Stair did in fact believe good faith to be required. At one point we find him talking about the use of a possessory judgment to protect use of land as if by servitude.143 He notes that, if use is left off for a time, the apparent owner of the land will be able to resist the use of the apparent servitude. He does not say, unfortunately, what length of time will have this effect, but as we have seen the possessory judgment is still available until seven years’ non-possession. It may be taken therefore that this period is the intended one. The apparent owner will then 139 Reid, Law of Property (n 12) para 146. 140 (1698) Mor 10630. 141 Reid, Law of Property (n 12) para 146 n 4. 142 Stair, Inst 4.26.3, cited in Reid, Law of Property (n 12) para 133 n 5. The account here of the ways in which a person may be put into bad faith is consistent with Stair’s general view that this normally requires litigation: Stair, Inst 2.1.24. 143 Stair, Inst 4.17.2.

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have had seven years’ possession without the servitude being exercised, and so will himself be entitled to a possessory judgment. Stair, though, says that the reason he is entitled to a possessory judgment to resist the exercise of the servitude is that he has possessed “bona fide, without any such burden”. The implication of this is that a possessory judgment is awarded not because one has possessed, but because one has possessed in good faith. It is accepted that the possessory judgment is not available as a defence to claims based on debita fundi, payment obligations attached to the land.144 In the section immediately following the one referred to in the last paragraph,145 Stair says that the reason for this is that such obligations are made “notour” by infeftment. They will appear in the Register of Sasines,146 and so the public has notice of them. Of course, the same is true of claims based on titles of ownership, so it does not appear that Stair is correct here: the better view appears to be that given by Bankton,147 that the reason why the possessory judgment is not a good defence to a claim for a debitum fundi is that such a claim does not challenge the present state of possession. For present purposes, though, the point is that Stair’s view appears to be based on the idea that the possessory judgment is not available as a defence where the possessor ought to have been aware of the contrary claim. In other words, only a possessor who is in good faith will be entitled to the possessory judgment. It is suggested, therefore, that Stair does consider good faith to be a requirement for the possessory judgment. Supportive of this conclusion is the fact that he refers to the possessory judgment in his account of the rights of the possessor in good faith,148 giving as the only distinction the requirement with the possessory judgment for a longer period of possession. Bankton too says that the possession must be “attained bona fide”.149 There is also case law supportive of this view. For example, in Ross v Fisher,150 a party had obtained possession of an area of ground on the basis of a deed which stated that the ground was burdened by a servitude in favour of a third party. He then had the granter of that deed grant it anew without reference to 144 Bankton, Inst 2.1.33; Adamsons v Lord Balmerino (1662) Mor 10645; Hadden v Moir (1673) Mor 10648. As we saw in Loch v Lockie, noted earlier, the possessory judgment can, however, be used for the enforcement of the debitum fundi itself (in that case, an annualrent). 145 Stair, Inst 4.17.3. 146 This is a public register of deeds relating to land, established by the Registration Act 1617. It is now being progressively replaced by a newer register, called the Land Register, created by the Land Registration (Scotland) Act 1979. The 1979 is itself prospectively repealed and replaced by the Land Registration etc (Scotland) Act 2012. 147 Bankton, Inst 2.1.33. 148 Stair, Inst 2.1.24. 149 Bankton, Inst 2.1.33. 150 (1833) 11 S 467.

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the servitude, considering that the servitude had been included improperly. He then destroyed the original deed. He was denied a possessory judgment against the party asserting the existence of the servitude, apparently on the basis of bad faith. Lord Balgray said in that case: “as it is impossible to refer his possession of the ground in dispute to any bona fide title, he cannot claim the benefit of a possessory judgment”.151 We saw earlier that one could not normally obtain a possessory judgment in the face of an earlier decree on the question of right. In two of the cases referred to there,152 the decisions as reported are expressly based on the possessor being put into bad faith by the earlier decree, going in fact beyond Bankton’s view, and implying that good faith must be continued through the whole period of possession. Finally, in Boyd v Kirkcudbright County Council,153 the sheriff expressly stated that good faith was a requirement. Indeed, he went so far as to suggest that the need for good faith was the reason why it was necessary to show an apparent title to the land.154 It seems clear, therefore, that good faith is a requirement. However, this is qualified by Rankine, who holds only that: “in a question between the possessor and him from whom it was obtained or his authors, it must be bonâ fide possession”.155 If correct, it would explain why in Montgomery v Home156 possessory judgment was refused to the occupier of land following a decree of removing, but in Innes v Allardyce157 interdict was allowed against third parties even though the lease on which the possession was based had been reduced. This would also be consistent with the position in Roman law, in which it was only relevant that possession was obtained wrongfully in a dispute with the person from whom the possession was acquired.158 However, there is no warrant in the authorities for holding the requirement for good faith to be restricted in this manner. In all authorities requiring good faith, there is no suggestion that the requirement is anything other than general. Indeed, the position is rather to the contrary. In Ross v Fisher and Boyd v Kirkcudbright County Council, the party seeking the protection of the possessory judgment was in 151 152 153 154

(1833) 11 S 467 at 470. Montgomery v Home (1664) Mor 10627; Anderson v Forbes (1696) Mor 10630. 1937 SLT (Sh Ct) 17. This is because the importance, noted earlier, of written titles means that a possessor without such a title could in the normal case never be in good faith as to the right to possess. 155 Rankine, Treatise (n 23) 11. See also Dickson, Possessory Actions (n 98) at para 1192. 156 (1664) Mor 10627. 157 Innes (n 72). 158 Paul, D 43.17.2.

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opposition, not to his author or a predecessor in title, but to a successor in title to his author. Nor indeed was it even an immediate successor in title. This cannot be a special factor in these cases: in a feudal system of land tenure, if one traces title back far enough, two owners will inevitably have a common author. Added to this, in all authorities requiring good faith, there is no suggestion that the requirement is anything other than general. On the other hand, it is a different question altogether whether good faith ought to be required. Arguably, the law is misguided in requiring good faith, as to enquire into that is to begin to enquire into matters that are not the concern of the court in purely possessory proceedings. It is notable that good faith is not required in proceedings for spuilzie or for acquisition of ownership by positive prescription. (8) Effect of a possessory judgment The general effect of a possessory judgment is that the holder’s title is treated as valid unless and until court proceedings are successfully pursued for the reduction of that title.159 As we have seen, the possessory judgment is a possessory remedy, and so it is not permitted at that time to raise questions of right. Reid’s statement, therefore, that the possessory judgment “gives rise to a presumption of validity of title which it is for a challenger to rebut”160 requires to be qualified if it is taken to suggest that that presumption is capable of being rebutted in the possessory proceedings. As the possessory judgment has the effect of excluding any objections to the validity of the possessor’s title in those proceedings, it may be used by either pursuer or defender. Examples in the sources include the possessory judgment being used as a defence to an action of removing,161 or for the recovery of possession,162 or by either party in an action for mails and duties.163 The possessory judgment also can be used to justify acts ancillary to the right to possession. For example, in Nelson’s Trs v M’Caig,164 it was accepted that the award of a possessory judgment on a claimed servitude or public right of way would justify a neighbour in carrying out repair works on the road. Stair does, however, give one exception to the rule that a possessory judgment may be used for the recovery of possession, in the case of leases. 159 Stair, Inst 4.22.14, 4.26.1.3; Erskine, Inst 2.6.28, 4.1.50; Bankton, Inst 2.1.33; Pollock v Anderson (1663) Mor 10634. Rankine (Treatise (n 24) 12) adds “or he is otherwise put in malâ fide”, but this is not justified by his cited sources. 160 Reid, Law of Property (n 12) para 146. 161 Stair, Inst 4.26.10; Hope, Minor Practicks (n 25) X.1. 162 Richmond v Inglis (1842) 4 D 769. 163 Erskine, Inst 4.1.49; Stair, Inst 4.22.14, 4.22.16, 4.26.4; Bankton, Inst 4.24.49. 164 (1899) 7 SLT 244.

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While seven years’ possession on a lease is sufficient for the defence of possession, one who has possessed on a lease “cannot recover possession activè by a possessory judgment, as an infeftment may”.165 Unfortunately, Stair gives no rationale for this limitation, which is not given by any other institutional writer. It is also contradicted by the decision in Little v Irving,166 in which a tenant was allowed to use the possessory judgment to recover possession, but in which this passage from Stair was unfortunately not cited to the court. In the case of competing claims to ownership and a servitude over the same land, Stair says that the one possessing the land as apparent owner may have a possessory judgment until the servitude is established by declarator.167 Walker is surely correct, though, to say that the matter is different when the party claiming the servitude is himself entitled to a possessory judgment.168 In such a case, seven years’ possession by the possessor of the land itself will be no defence to a claim for a possessory judgment by the party claiming the servitude.169 Indeed, were it not so, it is difficult to see how one exercising an apparent servitude could ever qualify for a possessory judgment unless the burdened property had been left unpossessed through the seven years. As noted earlier, it is established that a possessory judgment is no defence against a claim for a debt attaching to the land.170 As we have seen, although Stair based this limitation on the need for good faith, Bankton’s view seems preferable: for him, the reason that the possessory judgment is no defence in this case is that these rights do not give any right to possession of the land, and so do not involve any challenge to the existing possession of the land. They are therefore not relevant in possessory proceedings regarding that land.171 C. SHOULD THE POSSESSORY JUDGMENT BE ABOLISHED? (1) Introduction The possessory judgment continues to be a competent remedy. In practice, however, it is now rarely if ever used. For the defence of possession, the general remedy of interdict is normally used (whether ad interim or permanent),172 full 165 Stair, Inst 4.22.16. 166 Little (n 73). 167 Stair, Inst 4.17.3. 168 Walker, Civil Remedies (n 41) 251. 169 Porterfield (n 56); Drummond v Milligan (1890) 17 R 316. 170 Adamsons v Lord Balmerino (1662) Mor 10645; Hadden v Moir (1673) Mor 10648. 171 Bankton, Inst 2.1.33. 172 Reid, Law of Property (n 12) para 145 n 10; Gordon & Wortley, Scottish Land Law (n 12) para 14-31; Dickson, Possessory Actions (n 98) at para 1184. For full discussion of the remedy of interdict, see Scott Robinson, Law of Interdict (n 36).

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proof of right not being necessary for such a remedy.173 For recovery of possession of land, the normal remedies of removing and ejection174 are generally used.175 Indeed, so much have the possessory remedies been forgotten – not just the possessory judgment – that one writer was able to write a substantial account of the consequences of possession without mentioning them at all.176 If a remedy provided by the law is rarely used, that raises the question of whether that remedy is needed at all. The view has certainly been taken that the possessory judgment should be abolished.177 Of course, it may be that a rarely used remedy still has value. It may be, for example, the only remedy provided in a situation where it is reasonable that a remedy should exist. For example, although spuilzie is a rarely used remedy, it is the only protection given to certain possessors, such as hirers of goods.178 It may also be found helpful where there is a genuine dispute over the scope of a conveyance from a larger area.179 The principle has been accepted in Scots law that possession of property gives rise to at least some limited protection until the question of right is considered. That principle is reflected in the possessory judgment. There is a problem, however, in that there are other procedures that will often provide the same result. (2) Protection of possession Insofar as the possessory judgment operates to prohibit interference with possession, it overlaps with the general remedy of interdict, which is an order from the court prohibiting some particular form of conduct. When is interdict available to protect possession of land? There are four possible situations, depending on whether the possessor has an apparent 173 Scott Robinson, Law of Interdict (n 36) 13; Burn-Murdoch, Interdict (n 42) para 149. 174 This should not be confused with the possessory remedy of ejection, which is a response to the ejection of a possessor. Ejection in the present sense is an action seeking the removal of the current possessor. 175 The distinction between ejection (in the sense meant here) and removing is broadly that the former is used where the possessor never had any right to possess. The latter is used when the possessor did at one time have such a right. See Reid, Law of Property (n 12) para 153. 176 R Sutherland, “Possession in Scots Law: A Comparative Response”, in E Attwooll (ed), Perspectives in Jurisprudence (1977). 177 See e.g. W M Gordon in two commentaries on Watson v Shields (1994 SCLR 826G-827A; 1996 SCLR 84F-G). 178 C Anderson, “Spuilzie today” 2008 SLT (News) 257 at 260. Cf Scottish National Report (n 12) para 3.1.3(b). 179 Matheson v Stewart (1872) 10 M 704. The court did not base its decision expressly on spuilzie, but clearly proceeds on the view that one recently dispossessed should be restored to possession until the question of right is considered.

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written title and whether the challenger has an apparent written title.180 As the possessory judgment requires such a title, we need not detain ourselves with the cases where the possessor has no title. However, briefly, the rule seems to be that a possessor without title will only be entitled to interdict to protect that possession if the challenger also has no title.181 For cases in which the possessor does have a written title, Colquhoun v Paton182 is the leading case. In that case, Colquhoun had built piers on the shore of his land, and charged a fee to daily steam-boats landing there, except on Sundays, when the piers were closed. He was held entitled to interdict against parties trying to use the piers on Sundays. Lord Cowan, giving the judgment of the court, laid down the test for interdict against interference with possession of land.183 First, he says, an apparent title must be shown. Secondly, either the challenger will have an apparent title or he will not. Where the challenger has no apparent title, interdict will be granted, provided the normal requirements for interdict are met. Where, on the other hand, both possessor and challenger have apparent titles, the party with seven years’ possession will be preferred. In other words, it is only in this specific situation, where both parties have an apparent title, that recourse to the possessory judgment is necessary for the defence of possession. Even then, possession for under seven years by a previous possessor may be enough to found an interdict, if the present possessor does not qualify for a possessory judgment.184 (3) Recovery of possession As we have seen, the possessory judgment may be used to recover possession. There is thus a potential overlap here with spuilzie. As spuilzie is intended for cases of recent dispossession, it seems appropriate to make a distinction on that ground. We shall consider first cases of recovery of possession following a recent dispossession, and then other cases of recovery of possession.

180 This can obviously not apply in the case of real rights not requiring writing for their constitution, such as servitudes. For the requirements for interdict in such cases, see Scott Robinson, Law of Interdict (n 36) 17-18. 181 Irvine v Robertson (1873) 11 M 298 (challenger with no title: interdict granted); Watson v Shields 1996 SCLR 81 (challenger with apparent title: interdict refused). 182 Colquhoun (n 42). See also London, Midland, and Scottish Railway Co v M’Donald 1924 SC 835. 183 Colquhoun (n 42) at 1001. 184 Stair, Inst 4.26.10(7).

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(a) Recovery of possession following recent dispossession We have seen that Scots law provides the remedy of spuilzie for cases of dispossession. One who is in possession is entitled not to be dispossessed and, if dispossession does occur, he is entitled to be restored to possession pending resolution of the question of right. This is intended to be a remedy for recent dispossession: formerly, the action had to be brought within three years of the dispossession.185 Where, then, does the possessory judgment fit in? It may be that the possessory judgment did not at first allow the recovery of possession: Hope, writing in the first half of the seventeenth century, considers spuilzie to be the appropriate remedy for dispossession,186 with the possessory judgment being only for the preservation of possession.187 However, as we have seen, it is accepted that the possessory judgment may also be used to recover possession, with the advantage that it may be used for up to seven years of non-possession. Concerning ourselves for the moment only with the recovery of possession recently lost, we may ask whether the possessory judgment is actually necessary. Thus, for example, we saw that in Macdonald v Watson188 one entitled to a possessory judgment to protect an apparent public right of way was held not to be liable to the landowner for demolishing a wall he had built across the road. This was based on possession for a period exceeding seven years. However, the outcome was the same in Graham v Sharpe,189 in which the facts were in effect identical except that, in the latter case, there had been only three years’ possession. The remedy in this case seems clearly enough based on the general right of a possessor not to be dispossessed. Again, we saw that, in Richmond v Inglis,190 a possessory judgment was granted to the effect of reversing a recent dispossession. In Matheson v Stewart,191 the outcome was the same even though the majority of the court took the view that the possessory judgment was inapplicable on the facts of the case. Instead, the decision was based on the principle that, in cases of disputed right, melior est conditio possidentis. As a result, the possessor was 185 Act 1579 c 81 (APS III, 145 c 19). Johnston appears to be justified in arguing that, in the current law, the right to pursue an action for spuilzie prescribes in twenty years. D Johnston, Prescription and Limitation (1999) para 6.30, a rather surprising result for a remedy of this nature. He further argues (para 7.14) that this occurs under s 7 rather than s 8 of the Prescription and Limitation (Scotland) Act 1973, as the action for spuilzie is concerned with a right against the specific dispossessor rather than enforcement of a real right. 186 Hope, Minor Practicks (n 25) X.3. 187 Hope, Minor Practicks (n 25) X.1. 188 Macdonald (n 55). 189 (1823) 2 S 540. 190 (1842) 4 D 769. 191 (1872) 10 M 704.

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entitled not to be dispossessed pending resolution of the question of right. It appears, therefore, that the possessory judgment is unnecessary in the reversal of recent dispossession, the issue being adequately dealt with already by spuilzie. More than this, though, the existence of remedies that overlap in this way has the potential to cause confusion. This appears in Dickson v Dickie.192 In this case, there was a dispute over an outside toilet adjoining subjects belonging to Dickie. Dickson was the owner of neighbouring land. Dickson dispossessed Dickie by changing the lock on the toilet door. Dickie sought a possessory judgment to compel Dickson to restore possession to him. Dickie had a written title, but was not yet infeft,193 and there was some discussion of whether this was a barrier to the granting of a possessory judgment. However, in the event, the court took the view that a possessory judgment was not the appropriate remedy anyway. The Lord Justice-Clerk, giving the leading opinion, said: “It seems to me very clear that the proper remedy of the petitioner [Dickie] was not an interdict [i.e. a possessory judgment], but an action of ejection, or rather an action of intrusion”.194 The other judges concurred. The Lord Justice-Clerk appears here to proceed on the assumption that a possessory judgment is not available to bring about the restoration of possession, and that instead the possessory remedies are the possessory judgment to prevent dispossession and ejection or intrusion for the restoration of possession. As we have seen, this is not the accepted position.195 (b) Recovery of possession otherwise The same four possibilities exist here as with protection of possession, depen­­ ding on whether the possessor has an apparent title and whether the party seeking possession has such a title. We are concerned here mostly with possession of land rather than of subordinate real rights. In the latter case, matters will normally proceed by way of action for interdict to prohibit exercise of the right.196 In the normal case, if the party seeking to recover possession has no kind of title, that will be an insuperable obstacle to success. The one exception to this 192 (1863) 1 M 1157. 193 I.e. his right had not yet been made real by infeftment. 194 (1863) 1 M 1157 at 1161. 195 The confusion is not limited to the court in this case. Despite what has been said, Mackay (Practice (n 23) vol I, 200(b)) includes this case in his account of the possessory judgment, observing that it “was decided on the special circumstances of that case, and not of possessory judgment being competent without a title”. The only “special circumstances” are that this is not a case of possessory judgment at all, according to the court. 196 See e.g. Cusine & Paisley, Servitudes (n 75) para 23.08 on interdict against interference with a public right of way.

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arises where the possessor’s title is derived from the challenger. As Stair says: “If the possessor have been introduced by the pursuer, he cannot require any title for the removing at the pursuer’s instance”.197 Thus, a squatter has sufficient title to remove a tenant deriving title from him.198 The reason for this, as Reid says, is that in such a case “the validity of the title of the defender [i.e. the party in possession] necessarily supposed the validity of the title of the pursuer”.199 As a result, the defender cannot question the pursuer’s title without questioning his own. Where the party seeking possession has an apparent title and the possessor does not, the position appears to be that the party seeking possession will obtain it without having to prove the validity of his title. The leading case here is Mather v Alexander.200 In this case, the pursuer had an apparent title to an area of foreshore. He sought the ejection of the defender, a squatter, who had erected a temporary shelter there. The Court of Session, by a majority decision, held that the pursuer did not have to prove his title. Lord Hunter put it like this: There are cases where a pursuer, without necessarily having a title good against the world, may say to a defender, “You, at all events, have no interest to dispute the title I produce, and to put me to an expensive proof of its validity”.201

This opinion appears doubtful in principle. A title, meaning an apparent real right in the property, must be (to use Lord Hunter’s words) “good against the world” or else no good at all. A title is not improved by recording in the Register of Sasines if it is invalid to start with.202 If it was the case that the pursuer’s title was invalid, then he had no more right than the defender to possess the land. The Lord Justice-Clerk’s dissenting opinion seems well founded: “the Court is asked to take for granted an essential element of the pursuer’s case”.203 The pursuer could have been awarded possession and then have it turn out that he had no right to possess after all. Nonetheless, the majority’s opinion on the matter carries with it the authority of Stair,204 197 Stair, Inst 4.26.8. 198 Chisholm v Chisholm (1898) 14 Sh Ct Rep 146. 199 Reid, Law of Property (n 12) para 144. 200 1926 SC 139. 201 1926 SC 139 at 148. 202 This is because the principle nemo dat quod non habet applies in the Register of Sasines. This differs from the Land Register, in which the person registered as owner becomes owner by virtue of that registration: Land Registration (Scotland) Act 1979 s 3. The Land Registration etc (Scotland) Act 2012 s 50 prospectively restores the common-law position, subject to protections for good faith acquirers contained in s 86 of the 2012 Act. 203 1926 SC 139 at 152. 204 Stair, Inst 4.26.15.

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although the situation may be different if the defender is able to point to some specific defect in the pursuer’s title,205 or alleges that the property is owned by a named third party.206 However that may be, though, the importance of this point for present purposes is that it is only where both pursuer and defender have apparent titles that the possessory judgment is relevant. In such a case, one seeking to recover possession has the option of either proving title or relying on the possessory judgment, proving seven years’ possession on a title apparently valid and sufficient, not more than seven years in the past. (4) Reasons for abolishing the possessory judgment When considering whether the possessory judgment should be abolished, we must firstly note that it is of limited scope. As the law stands, the possessory judgment is not necessary in a case of recent dispossession, including recent interference with the exercise of a subordinate real right. Nor is it normally necessary in a case where one party has an apparent title and the other does  not. Of course, the limited scope of a remedy is not sufficient argument in itself for the abolition of that remedy. However, the extent of overlap between the possessory judgment and other remedies is likely to lead to confusion. Adequate remedies exist, even without the possessory judgment, to protect possession that is threatened and to allow the recovery of possession once lost. Given the existence of the general remedy of interdict, no great harm seems likely to result from the removal of the possessory judgment as a remedy for threatened acts or acts falling short of dispossession. This impression is reinforced by the apparent fact that this move to the use of the general remedy of interdict has happened anyway. In cases of recovery of possession once lost, the existence of the possessory judgment seems to be a positive mischief. As we have seen, it has been stated that the law allows the benefit of the possessory judgment to survive for seven years of non-possession. Thus, in Maxwell v Glasgow and SouthWestern Railway Co,207 the owner of land sought to have removed certain works that were established by the defenders for railway purposes on his land a number of years previously. It was accepted by the court that, had these works been established within the previous seven years, the landowner would have been able to obtain a possessory judgment to the effect of having these 205 Bain v Bain [2006] CSOH 198 at para [7]. 206 Lock v Taylor 1976 SLT 238. 207 Maxwell (n 42).

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works removed. It seems, however, rather startling that an individual should be allowed to stand by for, say, six years, and then require expensive works to be undone which, it may turn out, the other party was entitled to carry out after all. We have seen that there is a remedy for recent dispossession; where, by contrast, the dispossession happened at some much earlier time, it seems little hardship to require one disputing that possession to prove right. (5) Reasons for retaining the possessory judgment Of all writers, only Gordon and Wortley208 provide any reason for retaining the possessory judgment, namely that it may be the only option to protect the possession of one with no completed title. Arguably, however, one who does not complete his title in the manner required by law does so at his own risk, and should not be protected from the results of his own carelessness. As has been said in a different context: however equity may afford relief, by undoing what has been illegally done, it cannot, in a question with third parties, supply the want of those things which, though required by the law, have been left undone.209

There seems little reason, therefore, to retain the possessory judgment in the interest of those who do not look to their own interest. The only other argument for retaining the possessory judgment appears to be that, in the case of a person exercising an apparent servitude, often use over an extended period of time will be the only way of distinguishing such a person from a casual trespasser. However, to require seven years’ use appears excessive for this purpose. D. CONCLUSIONS It is not intended here to deny the usefulness of possessory remedies. Rather, the problem is that Scots law appears to have a surplus of remedies for possessory situations. In addition to the possessory judgment, there is for recovery of possession the remedy of spuilzie, and for the protection of possession the general remedy of interdict. Some simplification seems possible. Given that it appears alternately to over-protect (in allowing one to recover possession for up to seven years) and under-protect (in requiring possession for seven years before it is available), the possessory judgment seems the obvious candidate for removal. 208 Gordon & Wortley, Scottish Land Law (n 12) para 14-32. 209 Salter v Knox & Company’s Factor (1786) Mor 14202 at 14203.

7  Possessio civilissima in Spanish and German Law: Protecting Possession between Fact and Fiction Lena Kunz* Death is a unique event in life and offers serious challenges for the bereaved. The law therefore dedicates special attention to this unique circumstance since death leads to several legal problems. In the law of possession, a specific challenge is determining what happens to possession once a person has passed away. Is there anything mystical like possession beyond death? Is there a way for an heir or a beneficiary to protect possession once the testator is deceased? At the moment of death, actual control vanishes; likewise any intention of using one’s belongings. Clearly the impact of death on possession law depends on how possession is defined. If we agree to understand possession as material and visible control over an item (corpus) combined with the intention to control (animus), death will lead to a situation where belongings remain without a possessor. Hence, death causes a lack of possession until the heir or beneficiary gains actual control over the items that make up the deceased’s estate. Leaving aside the issue of adverse possession, this can lead to the following problem: before an heir or a beneficiary has intentionally gained actual control, a third party can wrongfully detain personal items or invade land belonging to the estate. Thus, a lack of possession makes the deceased’s estate vulnerable to dispersal leading to a situation which is likely to erode the heir’s economic position and to undermine the defunct’s will. Additionally, having actual control over the estate is crucial to the heir since in Spanish and German law he or she has to administer it, unless the testator has appointed an executor. So a lack of possession not only endangers the proper administration of the estate, but can also seriously jeopardise the defunct’s will.   * I am truly grateful to Antonio Morales Moreno, Catedrático de Derecho Civil at the Universidad Autónoma de Madrid, and to Fernando Gascón Inchausti, Profesor Titular de Derecho Procesal at the Universidad Complutense de Madrid, for discussions and their remarks on Spanish law.

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Spanish and German law master the vacancy of possession by referring to possessio civilissima. They establish that an heir possesses the deceased’s belongings right after the death without further ado. Therefore, neither actual control over the defunct’s items (corpus) nor any intention to control (animus) is required. Furthermore, the heir does not even need to know about his or her heirship. In German law, this kind of non-material possession is called Erbenbesitz (Bürgerliches Gesetzbuch, § 857) while Spanish legal scholars name it posesión civilísima and link it to Código civil, art 440.1 Whenever I use the term possessio civilissima in this chapter, I leave aside its potential historical meaning and refer exclusively to the similar idea shared in current Spanish and German law.2 Indeed, possessio civilissima is a linguistic bridge between both legal systems. It is important to note that all further considerations of the Spanish legal system only embrace the Código civil and the legal scholarship dedicated to it. Since it can serve in many regions of Spain as a supplementary source of law,3 I choose the Código civil as the subject-matter here. The various regional private laws (derechos forales or especiales) which are in force within Spain cannot be explored here in depth. I will proceed thus. In part A, I outline three important premises in Spanish and German law for comparing how both legal systems protect possession in the event of death. In part B, we will see that Spanish and German law protect possessio civilissima as if it was a possession based on corpus and animus. In the   1 In Spanish legal doctrine, posesión civilísima is not limited to succession. For instance, sometimes the protection of registered land rights [Ley Hipotecario, art 38.2, 41, Ley de Enjuiciamiento civil, art  250(1) n 7] is associated with the idea of posesión civilísima. See J F Valls Gombau, “Artículo 250”, in M Ángel Fernández-Ballesteros, J M Rifá Soler and J F Valls Gombau (eds), Comentarios a la nueva Ley de Enjuiciamiento civil, vol 1 (2000) at 1101-1105. For criticism regarding the current flexibility of the legal concept see M J García Garrido, “De la bonorum possessio a la posesión civilísima”, in F Fernández Buján de Fernández and F Reinoso Barbero (eds), Miscelánea Romanística, vol 1 (2006) 147 at 149.   2 In the fourteenth century, Baldus de Ubaldis used the words civilissima possessio possibly at first in order to describe a situation when somebody becomes possessor without having ever gained the actual control over an item (commenting on C 1.2.23.3); cf Baldus de Ubaldis, I.C. clariss. Commentaria in primum, secundum & tertium Codicis lib. Summo studio & labore collatis vetustissimis exemplaribus innumeris prope mendis purgata. - Hac postrema editione omnia sunt suis locis appositissime reposita, addito tractatu de pacis & de constituto. Adnotationibus insuper Doctissimorum Iurisconsultorum illustrata. Communes opiniones ab authore citatae hoc signo praenotantur (1585) 35, left column, nr 14 on Codex tit. Sacrosan.eccle. lex XIX (ut inter divinum) (= C.1.2.23). Cf M J García Garrido, “Contributo di Baldo alla teoria sulla possessio civilíssima”, in F Fernández Buján de Fernández and F Reinoso Barbero (eds), Miscelánea Romanística, vol 1 (2006) 103 at 108; tracing the idea already in Roman law: García Garrido (n 1) 147 at 149.   3 See L Kunz, Postmortale Privatautonomie und Willensvollstreckung – Von der Wirkungskraft der kanonischen voluntas pia zur Gestaltungsmacht des Erblassers im deutsch-spanischen Rechtsvergleich (forthcoming).

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late nineteenth and early twentieth centuries this result was often explained by invoking a fiction. However, nowadays legal scholars often describe it as a mechanism to attribute identical legal consequences to different sets of facts. Part C is dedicated to the nexus between both approaches. First, I connect possessio civilissima with possession protection inter vivos by lingering over fictions and discussing their methodological benefit for the entire law of possession. Secondly, I explore the potential bond between fictions and the attribution of legal consequences (Rechtsfolgenzuweisung). Based on the wide range of possession protection in Spanish and German law, I argue that possession is a legal concept which enshrines naturalistic and normative elements. The topos of Verkehrsauffassung, which German courts and legal scholars mainly use now, is an example of a normative element. I argue that its uncoordinated use can lead to significant legal uncertainty. In order to prevent this, the use of normative elements needs to be connected with the notion of possession. To this effect, fiction can be a useful methodological tool because it can link the abstract meaning of possession, as preserved in definitions, with its concrete use contributed by legal reasoning. A. brief overview: three premises for Spanish and  German law (1) Finding common ground in both legal systems German and Spanish law share two important premises. First, in both legal systems ownership and possession are sharply delineated, which matters technically4 in property law and succession. To this effect, possession is considered as a fact (at least partially), whereas ownership is supposed to be a right.5 In property law, this distinction leads to distinct protection regimes for ownership, on one hand, and for possession, on the other. Correspondingly, both legal systems distinguish between possessory and petitory actions (acciones posesorias y petitorias; possessorische und petitorische Ansprüche).   4 In a functional perspective on possession protection such a distinction can matter less, cf J Gordley and U Mattei, “Protecting possession” (1996) 44 AJCL 293 at 329-334; J Gordley, Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment (2006) 50-52, 61-65.   5 Cf the ongoing discussion in both legal systems whether or not possession can also (or even exclusively) be seen as a right: J Castán Tobeñas and G García Cantero, Derecho civil español, común y foral: Derecho de cosas, 14th edn vol 2 (1992) 631 at 660-667; S Vázquez Barros, Los interdictos en la nueva Ley de Enjuiciamiento Civil (2000) 94 ff; J Wilhelm, Sachenrecht, 4th edn (2010) nn 439-452; briefly W Lüke, Sachenrecht, 2nd edn (2010) n 46 ff; D Joost, “Vorb. §§ 854-872 BGB”, in K Rebmann et al (eds), Münchener Kommentar zum Bürgerlichen Gesetzbuch: Sachenrecht (§§ 854-1296, Wohnungseigentumsgesetz, Erbbaurechtsgesetz), 5th edn, vol 6 (2009) nn 9-11.

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Whereas possessory actions can only6 be based on possession as a mere matter of fact,7 petitory actions also involve a better right to possess. This dichotomy shows that possession embodies two aspects. On the one hand, possession is protected as a factual state regardless of any right to possess. On the other hand, possession is seen as the factual core of a right. In this case, petitory actions are available for defending the better right to possess.8 Therefore, even a thief can claim possession protection against third persons who infringe upon the thief’s possession.9 In contrast, a petitory action would not help a thief because he has no right to possess the stolen good. In succession, the above distinction principally leads to two ways of succeeding. For possessing the testator’s estate the heir principally has to gain actual control over it. On the contrary, in order to become estate owner no such factual activity is required. The heir succeeds in the testator’s rights because the law provides for it. Secondly, possession can be based generally on two elements: corpus and animus.10 Whereas corpus stands for the actual and enduring control over an   6 For efficiency reasons in civil proceedings, the German Federal Court of Justice (Bundesgerichtshof) and a significant proportion of German legal scholars make an important exception to this clear division by allowing a counterclaim based on a better a right to possess (petitorische Widerklage). In contrast, such a counterclaim (reconvención) cannot be launched in the Spanish legal system, see LEC-2000, art 438(1); A de la Oliva Santos and I Díez-Picazo Giménez, Derecho Procesal Civil: El proceso de declaración (2004) 664, s 52, n 33.  7 Bürgerliches Gesetzbuch (BGB), §§ 861, 862; Código civil (Cc), art 446, Ley de Enjuiciamiento civil (LEC-2000) art 250(1) n 4, 439(1), 447, art 250(1) n 3, 441(1).   8 In German law see BGB, §1007(1), (2). Besides petitory actions, it is feasible, but controversial to consider any wrongful interference upon possession as a tort (unerlaubte Handlung) in order to grant the recovery of possession (Naturalrestitution) or an award of damages (Schadensersatz), BGB, §§ 823(1), 249(1), 823(2) and 858. However, the majority of legal scholars argues that recovering possession or granting an award of damages requires a right to possess, see, e.g., G Wagner, “§ 823 BGB”, in K Rebmann et al (eds), Münchener Kommentar zum Bürgerlichen Gesetzbuch: Schuldrecht, Besonderer Teil III, §§ 705-853, Partnerschaftsgesellschaftsgesetz, Produkthaftungsgesetz, 5th edn, vol 5 (2009) 157-159; J Baur & R Stürner, Sachenrecht, 18th edn (2009) s 9 V 1 nn 31-37. It is unsettled whether or not a plaintiff can recover possession based on unjust enrichment if he did not grant possession for performance, see, e.g., F Klinkhammer, Der Besitz als Gegenstand des Bereicherungsanspruchs (1997). In Spanish law, there is a controversy if the acción Publiciana still exists. The majority of Spanish legal scholars puts forward that the acción Publiciana has been absorbed by the acción reivindicatoria, see for further information the summary of X O’Callaghan Muñoz, Compendio de Derecho Civil: Derechos reales e hipotecario, 5th edn, vol III (2007) 236 ff.   9 However, for restrictions in German law see BGB, §§ 861(2), 862(2). 10 In neither legal system is a unified definition of possession available. However, both share, inter alia, a naturalistic approach to it; see, e.g., M Gutzeit, “Vorb. §§ 854-872 BGB”, in J von Staudinger and K-H Gursky, J von Staudingers Kommentar zum Bürgerlichen Gesetzbuch, 3: Einleitung zum Sachenrecht, §§ 854-882 BGB, rev edn (2012) 34-42; Joost (n 5) at 2-6; cf Wilhelm (n 5) 453 ff; L Diéz-Picazo, Fundamentos del Derecho civil patrimonial, vol II (1983) 456-459; A M Morales Moreno, Posesión y usucapión: Estudio de la posesión que conduce a la usucapión en el código civil español (1972) esp 5-12 (elemento material); J Puig Brutau, Fundamentos de Derecho civil,

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object seen through the eyes of all the others in the real world (tatsächliche Sachherrschaft, tenencia material), animus reflects the inner relationship between a person and the object (Besitzwille, ánimo a poseer). Correspondingly, a possessor is somebody who actually and intentionally controls the object during a certain period of time. Thus, neither Spanish nor German law requires possessing as an owner (animus domini). However at the same time, possession (posesión, Besitz) remains an ambiguous term in both Spanish11 and German law. Remarkably, none of the Civil Codes defines possession.12 Additionally, legal doctrines have not developed a uniform meaning of possession.13 “Possession” and its protection therefore cover a variety of situations and the combination of corpus and animus only provides a basic notion of possession, generally understood as a factual state of affairs. (2) Drifting apart on the object of possession The most significant difference between the two legal systems arises from the objects which can be possessed. Here, I can only outline this highly complex matter. Whereas the German Civil Code (Bürgerliches Gesetzbuch) limits possession principally to tangible items (Sachen),14 the Spanish Código civil provides that one can possess rights (derechos) and things (cosas or bienes).15 Moreover, the Spanish legal understanding of things is broader by far than the German concept of Sachen. In Spanish law it matters less whether or not a thing is tangible because things are rather seen as assets (elementos 2nd edn, vol III.1 (1971) 45-51; A Martín Pérez, “Artículo 430”, in M Albaladejo García and S Díaz Alabart, Comentarios al Código civil y compilaciónes forales, 6th edn, vol VI (1993) 1-8, 46-56. 11 X O’Callaghan Muñoz, Compendio de Derecho Civil: Derechos reales e hipotecarias, 6th edn, vol III (2011) 188; I A Navarro Mendizábal, “Artículos 438-445 Cc”, in J Rams Albesa and R M Moreno Flórez (eds), Comentarios al Código civil, vol III (2001) 558 ff. 12 Cf art 430 Cc which however does not provide a unifying definition. 13 See the Spanish legal system, e.g. Castán Tobeñas & García Cantero (n 5) at 640. The distinction drawn by Simon Douglas, in Chapter 3 (introduction) of this volume, is also known in German and Spanish law. 14 Cf above all BGB, § 854, 90. An exception is BGB, § 1029 which is the only example for possession of a right (Rechtsbesitz) in the German Civil code. For examples, C Stresemann, “§ 90 BGB”, in K Rebmann, Kurt et al (eds), Münchener Kommentar zum Bürgerlichen Gesetzbuch: Allgemeiner Teil (§§ 1-240, ProstG, AGG), 6th edn, vol 1 (2012) 5 at 24. See Thomas Rüfner, this volume, chapter 8. 15 The majority of Spanish legal scholars considers bienes and cosas as legal synonyms; see J Gil Rodríguez, “Artículo 333”, in A Cañizares Laso et al (eds), Código civil comentado, vol 1 (2011) 1354 at 1359. Cf Cc, arts 430, 437. For further information on posesión de derechos see Castán Tobeñas & García Cantero (n 5) at 641 n 2, 692-696; Vázquez Barros (n 5)108 ff; J Fajardo Fernández, “Artículo 437”, in A Cañizares Laso et al (eds), Código civil comentado, vol 1 (2011) at 1783-1786.

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patrimoniales).16 This perspective is completely alien to German law. Consequently, in the Spanish legal system one can possess a book, the copyright as its author, and the file (electronic data)17 saved in the author’s laptop. In contrast, German law restricts possession to the book as a tangible item. Nonetheless, the core of possession protection remains for most Spanish legal scholars and judges a material object, i.e. the book or the laptop of the above example, regardless of being granted by contract, copyright, all-embracing ownership, or because of the simple control over the item.18 Even though Spanish law allows the possession of rights and intangible things, the main focus lies on visible control (dominación, tenencia) over the items. Therefore, the differences between the two legal systems concerning the object of possession are rather more conceptual and less practical. B. Fundamentals of possession protection in Spanish and German law in the circumstance of  death (1) Two case studies Let us imagine two situations to illustrate the problem. An unmarried testator lives for years with a housekeeper in his mansion before he passes away. In his will, he names his nephew as his only heir. Since he lives far away and was not regularly in touch with his uncle, the nephew does not at first take notice of the testator’s death. In the meantime, the housekeeper finds out that the testator has not mentioned her in his will. Angry about the testator’s ungratefulness, she decides to take away two highly valuable paintings. For protecting possession, it is crucial to know if the heir can defend possession without having any actual control over the paintings (and not even knowing that he has inherited from his uncle). Modifying the above case, let us imagine that the testator decides to appoint a friend as an executor. Shortly after the testator’s death the executor finds out that the housekeeper has taken away two precious paintings. Since he cannot reach the testator’s nephew and is responsible for proper estate administration, it is vital that the executor can possess the testator’s estate and can claim possession protection (in the court). 16 Cf Cc, arts 333, 334-337; Gil Rodríguez (n 15) at 1354. 17 In contrast, the German Federal Court (Bundesgerichtshof) and the majority of German legal scholars do not consider electronic data as a thing, but as an immaterial good, see Stresemann (n 14) at 25. 18 See Castán Tobeñas & García Cantero (n 5) at 692-696; Vázquez Barros (n 5) 115; a different opinion is Fajardo Fernández (n 15) 1785 ff, suggesting to protect also derechos de crédito, which usually do not go along with material possession of an object in Spanish law.

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(2) Heirship and possession protection To begin with, it is important to remember that in Spanish and German law the heir is the testator’s immediate successor. Beneficiaries, personal representatives, executors, or executors-dative as immediate successors are alien to both legal systems. The heir is the star.19 (a) A remark on the entanglement of claim and action The interface between substantive and procedural law differs notably in the Spanish and German legal systems. Whereas claim (Anspruch, subjektives Recht) and action (Klage) are clearly distinct in Germany, in Spain the two concepts are sometimes blended and merged in the word acción.20 In the German legal system, actions are not limited by their objectives. As long as he can establish a claim granted by the German Civil Code, a plaintiff is principally entitled to file in court. Since actions are only accessory to claims, for a German court it does not matter if, for instance, a plaintiff claims either to recover possession or seeks an award of damages. As long as a claim is available in the German Civil Code, there will be an action. In the Spanish legal system, however, claims and actions are more interwoven, particularly when it comes to possession protection. Special proceedings (interdictos) are available to expedite possession protection in the Spanish Civil proceedings code (Ley de Enjuiciamiento) but not in the Código civil.21 Possessory possession protection currently seems to be in crisis.22 In contrast to Spain, in Germany the accessory approach and judicial practice help to weaken possession protection further because actions are not attuned to the particular objectives of claims. For possessory claims, it is characteristic that the defendant cannot rely upon any better right to possess including potential ownership (possessorium absorbet petitorium). Possessory claims aim to help plaintiffs to recover possession quickly without any timeconsuming evidence on better rights to possess. In German judicial practice, 19 The following remarks do not exhaust all possible claims, but only those actions and claims available under Spanish and German law which are based on possession as a mere matter of fact (possession actions). 20 A mere linguistic example is Cc, art 348(2): “El propietario tiene acción contra el tenedor y el poseedor de la cosa para reivindicarla”. Furthermore, dictionaries like the one provided by Puig Brutau, Méndez Tomás, and Vilalta Nicuesa would not work in the German legal system because actions cannot be categorised in accordance with their specific objects. Cf the introduction in J Puig Brutau, R M Méndez Tomás and A E Vilalta Nicuesa, Diccionario de acciones en derecho civil español, 3rd edn (2005) 23 ff. 21 See also Cc, art 446. For a brief overview see Puig Brutau, Méndez Tomás & Vilalta Nicuesa (n 20) at 306-309. 22 For different approaches in the past, see Raffaele Caterina, Chapter 5 of this volume.

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the preliminary relief procedure (einstweiliger Rechtsschutz) seemingly matches most closely with the objectives of possessory claims. Yet, there is a significant procedural disadvantage. Judgments delivered for preliminary relief are provisional and instrumental. So they do not provide final, but at most provisional recovery of possession. Moreover, the respondent can force the plaintiff to initiate subsequently ordinary civil proceedings, in which counterclaims and defences based on a better right are admissible. So, final recovery is principally only granted if the possessor also has a better right to possess. Hence, judicial practice in Germany tends to favour better rights to possess (including ownership) over mere possession as mere matter of fact. (b) Claiming possession protection and its implementation in a German court If a third person, like the above housekeeper, wrongfully detains items, the heir can claim recovery of possession as provided in Bürgerliches Gesetzbuch (BGB), s 861.23 Yet this claim requires possession based on corpus and animus. Therefore, the heir has to have had possession before the dispossession took place (Verkehrsbesitz). However, right after the event of death it is most likely that the heir has not yet come into possession. Perhaps, for instance, because he is not aware of his heirship. This is when possessio civilissima, called Erbenbesitz in German, comes into play. Possessio civilissima overruns corpus and animus by simply establishing that the heir continues the testator’s possession (BGB, s 857). For this, it is not necessary that the heir gains actual control over an item of the estate. Nor does he need to know about his heirship. If the testator possessed a book which he borrowed from a friend, his heir will possess the book ipso iure. Likewise, if the deceased stole the book from his friend, this wrongful possession will also automatically descend to the heir. As long as the defunct possessed an item, the heir will continue the testator’s possessory position.24 Hence, possessio civilissima fills in the gap between the testator’s death and the moment in which the heir gains actual control over the deceased’s belongings. 23 Indeed, the heir can only claim it against the person who wrongfully detained the items. However, if the housekeeper had sold the two paintings to another person who was not aware of their previous wrongful detainment, the heir would not be entitled to claim recovery of possession from this unsuspecting buyer. 24 The transfer of mediate possession (mittelbarer Besitz, BGB, § 868) has triggered a rather theoretical debate among German legal scholars about whether or not mediate possession descends as a mere matter of fact to an heir in accordance with BGB, § 857. In contrast, if mediate possession were a right, it could only descend to an heir according to BGB, § 1922(1); for further information see, e.g., M Gutzeit, “§ 857 BGB”, in J von Staudinger and K-H Gursky, J von Staudingers Kommentar zum Bürgerlichen Gesetzbuch, 3: Einleitung zum Sachenrecht, §§ 854-882 BGB, rev edn (2012) at 8.

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In court, two types of civil proceedings are available to the heir. He can either seek possession protection in an extensive, ordinary procedure (ordentliches Erkenntnisverfahren) or he can ask for preliminary relief (einstweiliger Rechtsschutz). Principally in none of these procedures can a respondent defend himself by putting forward a better right to possess.25 Nor are such (preliminary) counterclaims allowed. However, German judicial practice softens the principle of possessorium absorbet petitorium significantly by allowing in ordinary proceedings counterclaims based on a better right (petitorische Widerklage). Sometimes even simple defences based on a better right to possess (petitorische Einwendungen) are admissible. Only when seeking preliminary relief are petitory defences and counterclaims generally not feasible. Indeed, even in these expedited proceedings single higher regional courts allow defences based on a better right to possess (Gegenverfügungsantrag,26 petitorische Einwendungen). For instance, if the housekeeper owns the paintings and borrowed them previously from the testator in his lifetime, she could counterclaim ownership of the paintings in order to recover possession. In this case, the heir loses the case and the housekeeper can keep the paintings. Courts would allow a counterclaim even if the housekeeper were a legatee regarding the two paintings. This judicial practice has given rise to a significant controversy in German legal doctrine.27 Under certain circumstances, this legal practice privileges 25 BGB, § 863. See, e.g., D Joost, “§ 863 BGB”, in K Rebmann, Kurt et al (eds), Münchener Kommentar zum Bürgerlichen Gesetzbuch – Sachenrecht (§§ 854-1296, Wohnungseigentumsgesetz, Erbbaurechtsgesetz), 5th edn, vol 6 (2009)  1 at 6 who suggests the rereading of BGB, § 863 because the provision’s wording does not clearly state this principle of possessory possession protection in the German legal system. 26 Oberlandesgericht Rostock [OLG Rostock] [Higher Regional Court in Rostock], 3 May 2001, in OLG-Rechtsprechung neue Länder [OLG-NL] (2001) 279 at 281; Kammergericht [KG] [Higher Regional court in and of Berlin] 3 May 1999, in Zeitschrift für Miet- und Raumrecht [ZMR] (2000) 818 at 819 ff.; cf also Oberlandesgericht Stuttgart [OLG Stuttgart] [Higher Regional Court in Stuttgart], 22 November 2012, in Neue Juristische Wochenschrift [NJW] (2012) 625 at 627 ff; rejecting preliminary counterclaims in a preliminary relief procedure, e.g., Oberlandesgericht Frankfurt a.M. [OLG Frankfurt aM] [Higher Regional Court in Frankfurt a.M.] 22 October 2011, in Gewerblicher Rechtsschutz und Urheberrecht Rechtsprechungs-Report [GRUR-RR] (2012) 88 at 89 (on competition law). Favouring preliminary counterclaims, M Vollkommer, “§ 940 ZPO”, in R Zöller, Zivilprozessordnung, 29th edn (2012) 2227 n 8; see for further references Joost (n 25) at 12. 27 See, e.g., A Lehmann-Richter, “Possessorische Besitzschutzansprüche und petitorische Einwendungen im einstweiligen Rechtsschutz” (2003) 24 Neue Juristische Wochenschrift 1717-1718 at 1718; P Bassenge, “§ 863 BGB”, in O Palandt, Bürgerliches Gesetzbuch, 71th edn (2012) at 3; Joost (n 25) at 9-12; M Gramsch, “vor § 935 ZPO” in F Stein and M Jonas, Kommentar zur Zivilprozessordnung – §§ 916-1068, EG ZPO, 22th edn, vol 9 (2011) 544; W Schur, “Rechtsschutz bei verbotener Eigenmacht im einstweiligen Verfügungsverfahren” (2000) 53 Zeitschrift für Mietund Raumrecht 802-808 at 806 ff; W Voit, “Besitzschutzanspruch bezüglich des nach Kündigung auf der Baustelle verbliebenen Materials” (2012) 9 Neue Juristische Wochenschrift 628 at 629.

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self-defence although the German Civil Code only allows it on strict conditions.28 Moreover, allowing counterclaims or the like can largely attenuate possession protection. In sum, German possession protection has been shifted to preliminary relief procedures.29 In the above case study, the heir should therefore choose a preliminary relief procedure to recover the paintings quickly, particularly if he suspects that the housekeeper can put forward a better right to possess. (c) Possession protection and interdictos in the Spanish legal system The approach in Spanish law does not differ so much with regard to the result, but in the way this outcome is reached. As long as he finally accepts his inheritance, the heir can also claim recovery of possession from the housekeeper. Yet in contrast to German law, Spanish law provides special civil proceedings to reach this goal. Before the new Civil Proceedings Code entered into force in 2000,30 these special proceedings were called interdictos. Even though the legislator decided to abolish the term in the new Code, various Spanish legal scholars still use the denomination.31 To simplify, I will use it here, too. 28 Cf BGB, §§ 859, 227, 229. 29 This shift is favoured by two further exceptions to the general requirements of the preliminary relief procedure in the judicial practice of many German courts. I can only sketch them here. First, if the party making a request can set forth an unlawful detainment (verbotene Eigentmacht), it is not necessary to provide further reasons for an expedited measure (einstweilige Verfügung); cf, e.g. Oberlandesgericht Saarbrücken [OLG Saarbrücken] [Higher Regional Court in Saarbrücken], 9 April 2003, in Neue Juristische Wochenschrift Rechtsprechungs-Report Zivilrecht [NJW-RR] (2003) 1717 at 1717, favouring the court’s decision. Vollkommer (n 26) 2227 n 8. Second, the preliminary recovery of possession is rather a rule and less an exception (as it usually is) even though it means to anticipate the main issue which is actually destined for being dealt with in the principal proceedings (Hauptsacheverfahren); cf W Grunsky, “vor § 935 ZPO” in F Stein and M Jonas, Kommentar zur Zivilprozessordnung – §§ 916-1068, EG ZPO, 22th edn, vol 9 (2002)  36, 44; Schur (n 27) 807 ff; Oberlandesgericht Saarbrücken [OLG Saarbrücken] [Higher Regional Court in Saarbrücken], 18 April 1967, in Neue Juristische Wochenschrift [NJW] (1967) 1813 at 1813. For further references, see D Joost, “§ 861 BGB”, in K Rebmann et al (eds), Münchener Kommentar zum Bürgerlichen Gesetzbuch – Sachenrecht (§§ 854-1296, Wohnungseigentumsgesetz, Erbbaurechtsgesetz), 5th edn, vol 6, (2009) at n 2, 15 ff. 30 Ley 1/2000, de 7 de enero, de Enjuiciamiento Civil (LEC-2000). 31 See, e.g., F García Gómez de Mercado, “Los procesos especiales en la nueva Ley de Enjuiciamiento civil”, in Abogacía General de Estado & Ministerio de Justicia (eds), XXII Jornadas de Estudio, 20, 21 y 22 de septiembre de 2000, La nueva Ley de Enjuiciamiento civil (2002) 805 at 825-827. Since the interdictos are special proceedings, they fall into the category of juicios verbales especiales (special oral proceedings). Sometimes, Spanish legal doctrine calls them procesos posesorios (possessory procedures) or juicios verbales sobre tutela sumaria de la posesión (special proceedings for provisional possession protection), see LEC-2000, art 250(1) n 3 (previously called interdicto de adquirir), n 4 (previously called interdicto de retener o recobrar). Criticising this approach, B Alonso Segovia, “Los interdictos y la vía de hecho ante la nueva legislación”, in Abogacía General de Estado & Ministerio de Justicia (eds), XXII Jornadas de Estudio, 20, 21 y 22 de septiembre de 2000, La nueva Ley de Enjuiciamiento civil (2003) 469 at 490-492.

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The most important feature of the interdictos is their provisional character. However, interdictos are not mere injunctions; neither are they parallel with the preliminary relief (einstweiliger Rechtsschutz)32 of the German legal system.33 Judgments delivered on an interdicto are not just temporary or instrumental. Yet they are provisional regarding the better right to possess. Thus, a judgment delivered in case of an interdicto exclusively concerns possession as a mere matter of fact. Accordingly, a counterclaim based on a better right is not admissible in interdicto proceedings.34 This is a significant difference from judicial practice in Germany.35 For possession protection, the Spanish Civil Proceedings Code (Ley de Enjuiciamiento Civil) provides in art 250(1) three interdictos, traditionally named interdicto de retener (interdict for retaining possession), interdicto de recobrar (interdict for recovering possession), and interdicto de adquirir (interdict for acquiring possession).36 According to LEC-2000, art 250(1) n 4, the interdicts for retaining or recovering possession require that the respondent has previously dispossessed or has at least interfered with the plaintiff’s possession. These interdicts build principally on a possession based on corpus and animus. It is a possession manifested in real life. Correspondingly, an heir who only possesses civilissime cannot draw on a material possession in the outside world. He neither holds the deceased’s estate in his hand nor is he aware of his heirship. Therefore, at first glance it seems to be consistent for an heir to file an interdict for acquiring possession (interdicto de adquirir) in order to obtain material possession. This is where controversy starts in Spanish legal scholarship. The Código civil provides in art 440 that the testator’s possession descends automatically on his heir (posesión civilísima). However, the Spanish Civil 32 Zivilprozessordnung (ZPO), §§ 916-945. 33 Spanish procedural law provides medidas cautelares (LEC-2000, art 721 ff) which are temporary tools to guarantee success in the principal proceedings comparable to injunctions, like, for instance, a sequestration order, LEC-2000, art 727 n 3. 34 M A Fernández López, J M Rifá Soler and J F Valls Gombau (eds), Derecho procesal práctico, vol III: (§§ 123 a 136) (1995) 599, 615, 628 ff. (Note: This book refers to the previous provisions of the Ley de Enjuiciamiento civil of 1881 (LEC-1881) which preceded the LEC-2000. Nonetheless, when comparing the procedural steps to the ones provided in the LEC-2000, the proceedings as such did not change significantly.) 35 Cf the wording of BGB, § 863. Some German legal scholars put forward that counterclaims in possession protection are contra legem. 36 For an extensive overview: J Paule Tomé and R Márquez Carrasco, Procesos especiales y especialidades procesales en la nueva Ley de Enjuiciamiento civil (2001) 767-791; M del C Sánchez Pérez, “Tratamiento procesal de los interdictos”, in I Díez-Picazo Giménez and J Martínez-Simancas y Sánchez (eds), Estudios sobre Derecho Procesal, vol I (1995) 1001-1043. For a shorter overview see V Cortés Domínguez and V Moreno Catena, Derecho procesal civil: Parte especial, 5th edn (2011) 95-107.

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Proceedings Code provides for an interdict to acquire possession as if the heir were not a possessor. Indeed, possessio civilissima does not manifest in real life; it is merely a legal construct. This confusing parallelism has given rise to debates about which interdict to choose in situations like the above case.37 To recover the paintings in the above situation, the majority of Spanish legal scholars favour an interdicto de recobrar. Many scholars put forward that the interdicto de adquirer is primarily a notification procedure38 which can involve better rights to possess.39 The interdict for acquiring possession is a two-stage procedure. In the initial step (fase sumarísima), the heir claims to be invested in possession by proving his inheritance and that the items, which he wishes to possess, were part of the deceased’s estate before he died. He also must name persons able to testify on his behalf that nobody else possesses the goods as usufructuary (usufructario) or owner (dueño).40 Since it does not involve a respondent, this step is an ex parte procedure. As soon as the judge delivers a judgment (auto) granting him possession on a preliminary basis, the heir can effectively go into possession, enforced immediately by judicial agents if necessary.41 At the same time, the judgment will be published for forty days in order to allow possible opponents alleging a better right to possess to recover possession from the heir. After forty days, the procedure passes into a second stage (fase sumaria). Unlike the first stage, the second step can be a contradictory procedure (if an opponent shows up) dealing with the better right to possess. If no opponent appears within forty days, the judgment, which previously granted possession, is confirmed (sentencia). Neither the first judgment nor the second confirming judgment considers the status as heir or ownership.42 The interdicto de adquirir deals only with possession and, if an opponent 37 García Garrido (n 1) at 152-154. Favouring the interdicto de recobrar: Prieto-Castro y Ferrándiz 1988: 387; J Puig Brutau, Fundamentos de Derecho civil, 2nd edn, vol V.1 (1975) 335, 338-343. Tomé Paule & Márquez Carrasco (n 36) 796 ff; Vázquez Barros (n 5) 96 ff; partially drawing on conflicting jurisdiction and probably favoring an interdicto de recobrar: Fernández López, Rifá Soler and Valls Gombau (n 34) 599, 627-631, 645-650; cf AP Avila, 9 October 1981 [La Ley 1980-1, 931 (595-R), p 645 n 96). This judgment conflicts with AP Palma de Mallorca (Sección 3a) 584/1993, 29 October 1994 (La Llei 1994, 1298-R, pp 627 ff.) 38 For the scope of application see Tomé Paule & Márquez Carrasco (n 36) 796 ff. 39 Cf, for instance, Puig Brutau (n 37) 335, 338 ff; P Gónzalez Poveda, Acciones protectoras del dominio y de la posesión (2002) 228 ff. Favouring an interdicto de adquirir, F Cordón Moreno,“Artículo 250”, F Armenta Deu, J J Muerza Esparza & I Tapia Fernández (eds), Comentarios a la Ley de Enjuiciamiento Civil, 2nd edn, vol I (2011) 1220 at1224. 40 LEC-2000, art 441(1) 1st sentence. 41 Fernández López, Rifá Soler & Valls Gombau (n 34) 599, 606; Á V Illescas Rus, “Artículo 441”, in M Ángel Fernández-Ballesteros, J M Rifá Soler and J F Valls Gombau, Comentarios a la nueva Ley de Enjuiciamiento civil, vol II (2000) 2002 n 5; Cordón Moreno (n 39) at 1224 ff. 42 García Gómez de Mercado (n 31) at 827.

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shows up, with better rights to possess. Yet under no circumstance does it refer to heirship. If he is successful, the heir’s initial possessio civilissima, a legal possession, turns finally in material possession in the real world. The interdicto de adquirir is not actually pure possession protection because it can turn into a petitory action dealing with a better right to possess (exclusively based on ownership or usufructus). Indeed, the interdicto de adquirir serves as a mere notification procedure if the heir is already convinced that he has a right to possess. However, the heir’s goal is different when a third person, like the above housekeeper, wrongfully detains items which the defunct previously possessed. He does not aim to notify others that he is the new possessor. Instead he wants to recover possession. Accordingly, the interdicto de adquirir is less efficient than the interdicto de recobrar because it is primarily a notification procedure involving potential better rights to possess. The interdicto de adquirir is therefore not a possessory, but a petitory remedy. Nonetheless, it turns the posesión civilísima, which has been up to now a legal possession,43 into a material possession (posesión material).44 It is a kind of vesting procedure.45 It is vital to the Spanish debate whether or not the posesión civilísima satifies the interdicto de recobrar. After all, the heir has never possessed any of the defunct’s item in factual terms. To this effect, many Spanish legal scholars argue that the idea of possessio civilissima targets precisely on protecting the deceased’s estate from dispersal and economical devaluation. If the interdict de recobrar was only available for those who previously have already had a material possession, this goal is undermined. Following this approach, in the above case the heir can file an interdicto de recobrar against the housekeeper in order to recover the two paintings. (d) Conclusions If a third person wrongfully detains an item of an estate, both German and Spanish law treat the heir as being deprived of possession. They therefore 43 Some Spanish legal scholars define the posesión civilísima as an incorporal possession. But some scholars reject this idea since the heir has never had the corporal, i.e. material possession before. See for further discussion, e.g., Morales Moreno (n 10) 63-71 (espiritualización del corpus); A Calvo Meijide, La posesión en el derecho hereditario (1991) 19-25. 44 Tomé Paule & Márquez Carrasco (n 36) 796: “El interdicto de adquirir está destinado … a la investidura de la posesión de los bienes hereditarios pero el heredero sólo ha de acudir a este medio procesal de convertir la … investidura legal del artículo 440 del CC en investidura real …”. 45 Valls Gombau (n 1) 1086-1088. Although it refers to the previous Ley de Enjuiciamiento of 1881 (LEC-1881), see Fernández López, Rifá Soler & Valls Gombau (n 35) 599, 601; L Prieto-Castro y Ferrándiz, Derecho procesal civil, 4th edn (1988) 387 ff; L Prieto-Castro y Ferrándiz, Derecho procesal civil: Procesos sumarios y especiales, proceso de ejecución singular, 9th edn, vol II (1969) 157 ff, n 539.

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put two different sets of facts on the same level of legal consequences. Thus, the heir can claim to recover possession of an item that he has never intentionally controlled before. To this end, in the event of death both legal systems abandon the previously established elements of corpus and animus, which had been vital to possession in the defunct’s lifetime. This approach is portrayed by possessio civilissima. At first glance, both provisions establishing possessio civilissima (art 440, § 857) are astonishing since the law cannot change the facts of the natural world. And if we agree that possession is a mere matter of fact, it cannot easily pass to the heir like a right does. Rights exist in the legal world and thus they are rather detached from the material world. But possession as a factual concept coexists in both the natural and legal worlds. Hence, when a possessor passes away, the fact of possession vanishes. Corpus and animus, the factual elements of possession, cannot therefore simply be shifted by legal provisions since the law cannot change the natural world. Correspondingly, definitions of possession are usually more deeply rooted in a material natural world than are those of ownership. However, possessio civilissima seems to circumvent these ideas on two levels. First, it allows the defunct’s possession to be passed to the heir as if it were a right. And second, it enables the heir to continue the deceased’s possession as if the defunct were still alive. However, if he were really alive, the defunct could still lose his possession. On the contrary, possessio civilissima freezes the defunct’s possession as it existed at the moment of death. The heir loses his possessio civilissima only if he actually goes into possession of the estate. The event of death therefore brings possession close to a right. Likewise, an owner’s death does not extinguish the right of ownership because the right can still exist without its holder. Consequently, rights can be transferred mortis causa from one subject to another. Except death itself, this transfer does not necessarily46 require a change in real life. Possessio civilissima relies on fiction in order to override the factual elements of possession. In the late nineteenth and early twentieth century, Spanish and German legal scholars often (but not to the same extent) defined possessio civilissima as a fictitious possession.47 Nowadays, approaching 46 However, if a legal system like the Spanish distinguishes between delation and succession, succession requires that the appointed heir accepts his heirship. This acceptance has to manifest in reality. 47 German legal scholars who favour the idea of fiction: W Turnau and K Förster, Das Liegenschaftsrecht, nach den deutschen Reichsgesetzen und den preussischen Ausführungsbestimmungen, 2nd edn, vol 1 (1902): § 825 BGB n 1, § 857 BGB n 1; Rotering, “Aus der Lehre vom Besitze” (1906) 27 Archiv für bürgerliches Recht 55 at 95-99; F Leonhard, “§ 1922 BGB”, in Kommentar zum

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possessio civilissima as a fiction has completely disappeared or has been openly rejected.48 Remarkably, this is a relatively new tendency. The majority of German legal scholars consider the possessio civilissima (Erbenbesitz) as a special kind of possession.49 However, if we agree that the special and the general have to have something in common, it is problematic to determine Bürgerlichen Gesetzbuche und seinen Nebengesetzen – Fünftes Buch (Erbrecht), 2nd edn (1912) 3 (n  II.A.3a); F Leonhard, “§ 2025 BGB”, in Kommentar zum Bürgerlichen Gesetzbuche und seinen Nebengesetzen – Fünftes Buch (Erbrecht), 2nd edn (1912) 161 (n V); Boethke, “Rezension zu Krückmann, Paul Institutionen des Bürgerlichen Gesetzbuch, 3rd edn, Göttingen 1901” in F Rassow, O Küntzel & M E Eccius (eds), Beiträge zur Erläuterung des Deutschen Rechts, vol 46 (1902) 149 at 151; E Rohde, Studien im Besitzrecht: Abschnitt XVIII (Der Erbenbesitz im BGB.), vol II (1913) 6 ff; J Binder, Rechtsstellung des Erben nach dem deutschen buergerlichen Gesetzbuch, vol 1 (1901) 47; H Berg, Erwerb und Verlust des Besitzes (1905) 70. Who reject the idea of fiction: implicitly F C F Kniep, Der Besitz des bürgerlichen Gesetzbuches gegenübergestellt dem römischen und gemeinen Recht (1900) 185 ff; subscribing to Kniep’s view W von Blume, “Dr Ferdinand Kniep, Professor der Rechte in Jena. Der Besitz des Bürgerlichen Gesetzbuches, gegenübergestellt dem römischen und gemeinen Recht 8. (494 S.) Jena 1900, Gustav Fischer [book review]” (1902) 52 Zeitschrift für das Gesammte Handelsrecht 349-353; implicitly F Endemann, Einführung in das Studium des Bürgerlichen Gesetzbuchs – Lehrbuch des bürgerlichen Rechts (Sachenrecht – Familienrecht), 3rd-5th edns, vol II.1 (1900) 99 n 10, 143-145; M Wolff , Lehrbuch des bürgerlichen Rechts – Sachenrecht (Zweite Bearbeitung), 6th-8th edns, vol II.1 (1913) 33; F Ulich, Die Vererbung des Sachbesitzes (1911) 4 ff; W Reif, “Der Erbenbesitz”, in H Lange (ed), Erwerb, Sicherung und Abwicklung der Erbschaft – 4. Denkschrift des Erbrechtsausschusses der Akademie für Deutsches Recht (1940) 97 at 98. Spanish legal scholars who reject the idea of fiction: Puig Brutau (n 10) 88 ff; Puig Brutau (n 38) 335, 336; implicitly M Albaladejo García, Derecho civil: Derecho de bienes, 11th edn, vol 3 (2010) 34 ff describing possessio civilissima as poder jurídico; J Vallet de Goytisolo, Apuntes de derecho sucesorio (1955) 285 at 289. Spanish legal scholars who favour the idea of fiction: Castán Tobeñas & García Cantero (n 5) at 689 (posesión ficticia o presunta); F Sánchez Román, Estudios de Derecho Civil: Derechos reales, 2nd edn, vol III (1900) 459; regarding the interdicto de adquirir putting forward a presumption (presunción) Cordón Moreno (n 40) at 1224; A Luna Serrano, Le finzioni nel diritto (2008) 99. 48 See for the discussion in current German legal scholarship: E Bund, “§ 857 BGB”, in J von Staudinger & K-H Gursky, J von Staudingers Kommentar zum Bürgerlichen Gesetzbuch, Bk 3: Einleitung zum Sachenrecht, §§ 854-882 BGB, rev edn (2007) n 3 ff; Gutzeit (n 25) at 4; D Joost, “§ 857 BGB”, in K Rebmann et al (eds), Münchener Kommentar zum Bürgerlichen Gesetzbuch – Sachenrecht (§§ 854-1296, Wohnungseigentumsgesetz, Erbbaurechtsgesetz), 5th edn, vol 6 (2009) n 4; briefly Baur & Stürner (n 8) s 8 n 2 (“vergeistigte Sachherrschaft” as distinct from “reale Sachherrschaft”). Currently, favouring a fictitious possession: H J Wieling, Sachenrecht, 5th edn (2007) 59 (s 4 V a); O Sosnitza, Besitz und Besitzschutz: Sachherrschaft zwischen faktischem Verhältnis, schuldrechtlicher Befugnis und dinglichem Recht (2003) 13-15. F Klinck, Der Besitz als Gegenstand des Bereicherungsanspruchs (2012) 38: “Da der Besitz ein Faktum ist, steht es nicht im Belieben des Gesetzgebers, einen Zustand ohne tatsächliche Sachgewalt als Besitz zu definieren. Der Gesetzgeber kann Besitz nur fingieren, also die Rechtsfolgen des Besitzes an einen Tatbestand knüpfen, der die tatsächlichen Voraussetzungen des Besitzes nicht erfüllt” [“Since possession is a fact, it is not at the legislator’s discretion to name a situation possession in which a person lacks actual control. The legislator can only feign possession which means to attach the legal consequences of regular possession to a situation which does actually not comply with the factual conditions of possession”]. In the early years after the German Civil Code entered into force in 1900, the debate was far more vibrant than today. In the mid-1930s, the discussion gradually stopped; for the Spanish legal scholarship see the references in the previous note. 49 See, e.g., Wilhelm (n 5) 483; Gutzeit (n 24) at 4 with further references.

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exactly what links possessio civilissima has with possession based on corpus and animus. In contrast, others admit that possessio civilissima and possession exclusively share the same legal consequences (Rechtsfolgenzuordnung).50 Especially in law,51 the term fiction has been associated with many different meanings. I cannot outline all these different meanings here.52 Therefore, I will rely upon a methodological53 understanding of fiction embracing both fictions found in Civil Codes and fictions used in legal scholarship and by courts (legal fictions). For fictions contained in Civil Codes, I call them legislative fictions in order to distinguish them from those used in doctrine and jurisdiction (fictions for reasoning). Fiction in law serves as a generic term. So what is essential to such a fiction?54 By invoking a fiction, a lawyer goes over an element previously established in a legal definition (legal fact) in order to attribute the same legal consequences to two different sets of facts. Regarding possession, corpus and animus are such legal facts. When put together, they form a legal definition which describes a legal concept. Lawyers most often deduce and prescind legal facts from natural facts which are described in ordinary language. Subsequently, they transpose the ordinary meanings of natural facts into the legal language of a legal world to formulate legal definitions.55 A fiction concerns both legal reality (the legal world) and natural reality (the extralegal, natural world), provided that both are autonomous but correlated.56 A fiction does not change a natural fact but rather alters a legal one and thus 50 Joost (n 48) n  3 (“bloße Rechtsfolgenzuordnung”); A Stadler, “§ 90 BGB”, in K Rebmann et al (eds), Münchener Kommentar zum Bürgerlichen Gesetzbuch – Allgemeiner Teil (§§ 1-240, ProstG, AGG), 6th edn, vol 1 (2002) n 1. 51 Bridging other disciplines H Vaihinger, Die Philosophie des Als-Ob: System der theoretischen, praktischen und religiösen Fiktionen der Menschheit auf Grund eines idealistischen Positivismus; mit einem Anhang über Kant und Nietzsche (1911); H Vaihinger and R Schmidt (eds), Annalen der Philosophie und philosophischen Kritik, vol 1 (1919). 52 See for further discussions on the categories of fiction, e.g., L L Fuller, Legal Fictions (1967): 3-48; Luna Serrano (n 47) 37-80, 105-108. Cf the different approach of Simon Douglas, Chapter 3 of this volume, part B(3). 53 See also the controversial approach to limit fictions by the language used to describe them (“as if”, “gilt als”, “als ob”, “come se”, “como si”, “comme si”) Luna Serrano (n 48) 34-36; E Michel, Probleme des Erbenbesitzes nach § 857 BGB (1990) 23; A Bayart, “Peut-on éliminer les fictions du discours juridique?”, in C Perelman and P Foriers (eds), Les présomptions et fictions en droit (1974) 27 at 29. 54 Due to limited space, I only follow an apodictic structure. 55 For the relationship between ordinary and legal language see F Schauer, “Legal fictions revisted” (2011) available at http://www.academia.edu/928652/Legal_Fictions_Revisited; cf H L A Hart, “Definition and theory in jurisprudence” (1954) 70 Law Quarterly Review 37-60 at 38. 56 Cf for the distinction between two realities, e.g., implicitly H Kelsen, “Die Theorie der juristischen Fiktionen” (1919) 1 Annalen der Philosophie 630; F Todescan, Diritto e realità: Storia e teoria della fictio iuris (1979) 1-14, 211-466; implicitly Hart (n 55) at 38-45.

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either broadens or restricts the legal meaning of a legal concept. Only as a consequence of this, a fiction changes the existing bond between natural and legal facts. Drawing on a fiction therefore implies intentionally ignoring a contradicting legal fact in the legal world57 and only accessorily disregards a natural fact in the natural world. In this regard, fiction is an important methodological tool allowing a legal system to evolve and adapt to changing needs in a natural world.58 For instance, law can provide that parents are obliged to maintain their minor biological child because there is a biological bond between them leading to a legal relationship. The legal concepts of parent(s) and maintenance reflect or imitate the biological link and relationship (natural facts) given in the natural reality. In the case of adoption, such a biological bond is obviously missing. Nonetheless, the legal relationship between the adopted child and its adoptive parents shares the same legal quality and consequences as one founded on a biological link. This result can be explained by a fiction.59 For this, the fiction ignores the previously established element of the legal definition according to which an obligation to maintain is based on a blood relationship. So a fiction can treat the adoptive parents as if they were the child’s parents in the legal world. Consequently, a fiction does not alter the natural reality (the adoptive parents will not become the child’s biological parents), but it extends the legal meaning of “parents”. Accordingly, fiction intervenes in the previously established entanglement of legal and natural reality by changing the meaning of legal words and, more importantly, its reference to the so-far corresponding natural facts. So, fiction does not change natural reality but it does change the relations of the legal world to it. Yet in the case of possessio civilissima, it is not so clear which legal fact fiction overrides. There are two possibilities. Either the fiction refers to the heir’s or the defunct’s possession by simulating their corpus and animus. Relating possession to the defunct necessarily implies pretending that the defunct is still alive. Which should be chosen depends on the goals that the legislator, courts or doctrine wish to pursue by using a fiction. Since it is a 57 In this regard, see similarly Kelsen (n 56) at 647: “Die juristische Fiktion kann nur eine fiktive Rechtsbehauptung, nicht eine fiktive Tatsachenbehauptung sein (“The legal fiction can only be a fictitious assertion of law, but not a fictitious assertion of facts”). Sosnitza (n 48) 14 ff. 58 Without any reference to evolutionary transitions in a legal system, see Hart (n 55) at 56-60. 59 See for this approach in the ius commune Y Thomas, “‘Auctoritas legum non potest veritatem naturalem tollere’: Rechtsfiktion und Natur bei den Kommentatoren des Mittelalters”, in J-F Kervégan and H Mohnhaupt, (eds), Recht zwischen Natur und Geschichte: Le droit entre nature et histoire – deutsch-französisches Symposium vom 24. bis 26. November 1994 an der Universität Cergy-Pontoise (1997) 1, at 26-29. Nowadays, in Spanish and German law, fiction is not invoked; see BGB, §§ 1754, 1755, Cc, art 178. Rejecting a fiction in case of adoption Kelsen (n 56) at 642 ff.

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methodological tool, fiction is controlled by certain motivations. The different purposes of possessio civilissima become apparent if we compare the possession protection offered, on one hand, to an executor and, on the other hand, to an heir in Spanish and German law. While some legal scholars argue that an executor can be a possessor civilissimus, others reject it emphatically. (3) Executing a will and protecting possession All possession protection is meaningless if the heir is not aware of the dispersing of the deceased’s estate. If, in the above case, he was not frequently in touch with the testator, most probably the heir would not realise what has happened. Most likely he would not even know about his status as heir. To prevent this, it is up to the testator to provide for safeguarding measures, such as appointing an executor (in German Testamentsvollstrecker,60 in Spanish albacea or ejecutor de la última voluntad).61 In both German and Spanish law, the appointment of an executor is not compulsory because the heir (Erbe, heredero), who is not a mere beneficiary, will administer the estate. Therefore under no circumstances does the executor succeed formally to the testator’s position. However, both legal systems differ significantly regarding the executor’s faculties. While the German Civil code provides for a powerful executor, the executor in the Spanish Código civil is rather a helping hand to the heirs. Yet, under Spanish law the testator has the possibility to expand the executor’s faculties notably. If he does so, both figures are comparably strong and can replace the heir’s central spot in inheritance law. Beyond all differences between both legal systems, the proper administration of the deceased’s estate is one of the most important tasks an executor has to fulfil. Having actual control over the deceased’s items is therefore vital for executors to comply with their task. Accordingly, in both legal systems executors have the right to go into possession as they enjoy a right to possess. Indeed, once he has gained actual control over the estate, the executor is the immediate possessor (unmittelbarer Besitzer, posesor inmediato), while the heir remains the mediate possessor (mittelbarer Besitzer, posesor mediato).62 60 BGB, §§ 2197-2228. 61 Inter alia Cc, arts 892-911. 62 For German law see, e.g., J Damrau, “§ 2205 BGB”, in H T Soergel, W Siebert and J Damrau (eds), Kommentar zum Bürgerlichen Gesetzbuch – §§ 2064-2273, §§ 1-35 BeurkG, 13th edn, vol 22 (2003) 12; M Bonefeld, “§ 2205 BGB”, in J Damrau and M Bonefeld (eds), Praxiskommentar Erbrecht, 2nd edn (2011) 8; W Reimann, “§ 2205 BGB”, in J von Staudinger and C Baldus (eds), J von Staudingers Kommentar zum Bürgerlichen Gesetzbuch – Buch 5, §§ 2197-2228, rev edn (2012) 29; for Spanish law see, e.g., M Albaladejo García, “Artículos 901-903”, in M Albaladejo García (ed), Comentarios al Código Civil y Compilaciones Forales, vol 12.2 (1990) at 243-247 with further references.

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(a) Testamentsvollstreckung and possession protection Regarding the execution, it is important to distinguish two time segments: the time before the executor has gained actual possession (Besitzergreifung) of the deceased’s estate and the time afterwards. The overwhelming majority of legal scholars assert that an executor can only claim possessory possession protection if he has already seized the items belonging to the estate and provided that he has accepted his appointment.63 The extention of possessio civilissima to the executor is widely rejected, frequently without many reasons being provided. Most often it is simply put forward that the heir is exclusively the testator’s immediate successor. Hence, an infringement upon the executor’s possession, which German legal doctrine calls administrative possession (Verwaltungsbesitz), always requires interfering with the executor’s actual possession. So, if the above housekeeper had taken away the paintings before the executor gained actual control over them, he will not be entitled to claim possession protection.64 Paradoxically, neither can the heir claim possessory possession protection because the appointment of an executor blocks him from filing any lawsuit related to the estate during the administration time (BGB, s 2212). Moreover, it remains widely undiscussed whether or not the executor can implement the heir’s possessory protection claim in court after the executor has gone into actual possession. Indeed, in court he can claim recovery of possession based on the heir’s ownership.65 Bearing this in mind, it is unclear why an executor should not be able to claim possessory possession protection for the heir. After all, the executor has to ensure proper estate administration. Preventing the estate from dispersal and economical devaluation is essential to this task. It favours the testator’s and the heir’s interests. Yet this approach requires either granting possessio civilissima to the executor or providing him at least with the right to sue in court. Apparently, German 63 See, e.g., D Weidlich, “§ 2205 BGB”, in O Palandt, Bürgerliches Gesetzbuch, 71th edn (2012) 6; Reimann (n 63) at 31; Damrau (n 62) at 12; W Zimmermann, “§ 2205 BGB”, in K Rebmann et al (eds), Münchener Kommentar zum Bürgerlichen Gesetzbuch – Erbrecht (§§ 1922-2385 BGB; §§ 27-35 BeurkG), 5th edn, vol 9 (2010) 57; Bonefeld (n 62) at 8; rejecting this majoritarian point of view: K Muscheler, Erbrecht, vol II (2010) s 40 n 2801; susbribing to this view N Schönleber, “Erbrecht – Bde. I und II. Von Karlheinz Muscheler” (2012) Neue Juristische Wochenschrift 593. Cf for the diverging views in former times Wolff (n 48) 34, who favours the executor’s possessio civilissima; for a different approach see T Kipp, Lehrbuch des bürgerlichen Rechts – Erbrcht (Zweite Bearbeitung), 6th-8th edn, vol II.3 (1913) 368. 64 However, once he has accepted his appointment, he can file against the housekeeper based on his own right to go into possession (Besitznahmerecht), see BGB, § 2205, second sentence. 65 Cf rei vindicatio (Vindikationsanspruch), BGB, § 985; see, e.g., C Baldus, “§ 943 BGB”, in K Rebmann et al (eds), Münchener Kommentar zum Bürgerlichen Gesetzbuch – Sachenrecht (§§ 854-1296, Wohnungseigentumsgesetz, Erbbaurechtsgesetz), 5th edn, vol 6 (2009) n 10.

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legal ­scholarship is reluctant to adopt this approach because it seems to interfere with the important paradigm that the heir is exclusively the testator’s immediate successor. (b) Ejecución de la última voluntad and possession protection Similar problems have arisen in Spanish legal scholarship. Whereas many legal scholars similarly reject extending possessio civilissima to an executor, as in German legal doctrine,66 some scholars have approached the problem differently.67 It is vital to bear in mind two important differences from German law. First, the estate administration and execution of wills is far more flexible in Spanish than in German succession because Spanish legal doctrine can freely rely upon mortis causa stipulations. This means that the testator is free to decide whether or not he equips an executor with powerful or weak faculties. This flexibility is due to a numerus apertus which is alien to German succession. Correspondingly, if he committed the estate administration to an executor, the testator probably also meant to provide the executor with possessio civilissima. However, if the testator did not stipulate in enough detail, the executor’s faculties are restricted to those provided in Código civil, 66 Cf, for instance, Puig Brutau (n 37) 479 (regarding Cc, art 902 n 4): “Sin duda se refiere la ley en este supuesto a las medidas provisionales que son necessarias para evitar la pérdida o deterioro de los bienes hereditarios, sin que ello le faculte para posesionarse de los mismos ni para administrarlos, excepto cuando precisamente lo exijan las precauciones que tenga la obligación de adoptar”. Others seem to construe Cc, art 902 n 4 broadly. Thus they consider the executor entitled to file against third persons who infringe upon possession, e.g., M Carballo Fidalgo, “Artículo 902”, in A Cañizares Laso et al (eds), Código civil comentado, vol 2 (2011) at 1183: “Su esfera de actuación se limita así a los actos estrictamente destinados a evitar el perecimiento o deterioro de las cosas y derechos que lo integran, ya se trate de actos de mera conservación física (reparaciones urgentes; guarda de documentos, sumas de dinero o cosas de fácil extravío ...), ya de actos de trascendencia jurídica (interrupción de la prescripción de tercero, incluido el ejercicio de las acciones de tutela sumaria de la posesión; ...)”. 67 Albaladejo García (n 62) at 243-247 argues that the testator can provide the executor with posesión civilísima. In any case, the executor can rely upon his right to possess (derecho a poseer) like an executor under German law. In Spanish law, it is rather unclear upon which action the executor can rely to enforce his right to possess. Most probably, the executor can use the interdicto de adquirir under the same circumstances like an heir. Cf Valls Gombau (n 1) 1087 n 8 in fine: “Además de los herederos, pueden deducir la pretensión el albacea, el administrador de la herencia yacente y los legatarios …”; more restrictive is Gónzalez Poveda (n 40) 292 ff: “… e igualmente en el caso de que, existiendo heredero o albacea éstos no se hubieren hecho cargo de los bienes no poseídos por nadie a título de dueño o de usufructuario. Tienen igualmente legitimación los albaceas testamentarios dentro de las facultades que expresamente les haya conferido el testador, entre las que pueden encontrarse las de apoderamiento de los bienes del caudal hereditario para su distribución entre los herederos, sin otra limitación que la de no perjudicar las legítimas …”; Vázques Barros (n 5) 97. Presumably, these legal scholars construe the wording adquirido por herencia in LEC-2000, art 250(1) n 3 broadly. For an opposite interpretation see Illescas (n 41) 2001 n 2.

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art 902 n 4.68 Secondly, in Spanish law estate administration and execution are usually a common concern for heirs and executors which requires them to cooperate. On the contrary, in German law it is mainly based on a division of power. Thus the German Civil Code provides for an extraordinarily powerful executor which can supersede the heir completely, including the heir’s right to sue in court (Klagebefugnis).69 Yet Spanish law is less familiar with the idea of providing an executor with such an exclusive right.70 Accordingly, some legal scholars put forward that a testator is free to provide an executor with possessio civilissima in his will to the exclusion of the heir.71 In consequence, the executor is possessor civilissimus und therefore entitled to file against third persons who have wrongfully detained items belonging to the testator’s estate. In this case, it does not matter whether or not the executor has already gained actual control over the items. He does not even need to be aware of his appointment as long as he accepts it afterwards. Hence by stipulating mortis causa, the testator can shift the heir’s possessio civilissima to an executor. This approach reveals that possessio civilissima is much more attached to the testator than in the German legal system. By this means, the testator manages to trust the executor with possessory possession protection. In doing so, his impact beyond death can be far greater than under German law. Finally, provided that we follow this approach, in the above case the executor is entitled to file an interdicto de recobrar against the housekeeper to recover possession. However, Spanish and German legal doctrine predominantly draw the same conclusion. In the circumstance of death, the possessio civilissima descends on the heirs. Therefore, executors can only rely on their right to possess which is inherent to their role as estate administrators. Because of this right they can go into actual possession to prevent the estate’s dispersal. Before this moment, there is no possibility for them to impede its dispersal. They are therefore only entitled to (possessory) possession protection, if somebody infringes their actual possession based on corpus and animus.

68 This question is controversial in Spanish legal doctrine, cf., e.g., Carballo Fidalgo (n 67) at 1182 ff, who construes precaución broadly as conservación y custodia del caudal hereditario versteht. Additionally, she seems to exclude the heirs from any administrative measure. For a different and more restrictive approach see, e.g., Albaladejo García (n 62) at 207-209. 69 Cf BGB, § 2212. 70 For further discussion on the legitimación procesal del albacea, see Puig Brutau (n 37) 492-497. 71 Albaladejo García (n 62) at 243-247. Rejecting this idea C Sánchez Hernández, “Artículo 440”, in A Cañizares Laso et al (eds), Código civil comentado, vol 1 (2011) 1795 at 1798: “Se [la posesión civilísima] produce por ministerio de la Ley de manera forzosa o necesaria”.

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C. Final conclusions and remarks (1) Possessio civilissima does not reach beyond death to protect the testator’s will Possessio civilissima can help implement the testator’s will but this is not its paramount purpose. It is not a possession reaching beyond death, but it is principally an instrument to protect actual possession which is essential to the heirs’ right of ownership. Possessio civilissima helps the heir to recover items which belong to the defunct’s estate in order to use them freely. In parallel, it facilitates adverse possession. Primarily for the sake of protecting (future) ownership, both Civil Codes detach possession from corpus and animus in the circumstance of death. Seen from this angle, it is coherent that both legal systems impede executors from recovering possession by invoking possessio civilissima. Executors are not the testator’s successors. Under no circumstance will they own the deceased’s estate. Nonetheless, granting possessio civilissima to an executor can be a powerful tool to safeguard proper estate administration as intended by the testator. However, in both legal systems executors have to administer the defunct’s estate not only in the testator’s but also in the heir’s best interests. Even if the executor was a possessor civilissimus, the testator’s intentions cannot entirely guide possession protection. In conclusion, possessio civilissima does not imply pretending that the testator is still alive.72 Instead it makes up for the heir’s or executor’s missing corpus and animus. (2) Possessio civilissima does not blend ownership and possession Though it detaches possession from a material world, possessio civilissima does not blend ownership and possession. In neither Spanish nor German law does it close a gap in property protection.73 Both legal systems protect the heir’s ownership and possession separately.74 Beyond that the interplay between ownership and possessio civilissima is threefold. If the deceased did not own all the items of the estate, possessio civilissima facilitates adverse possession. By invoking possessio civilissima, it is possible to extend the requisites of adverse possession beyond death (accessio temporis) in order to become an owner of those items.75 Likewise, if the deceased was 72 For historical aspects on the defunct’s postmortal legal existence, see inter alia, Luna Serrano (n 47) 55-57. 73 This is different with regard to the torts of trespass to chattels and trespass to land, see Simon Douglas, Chapter 3 of this volume (part B(3)). 74 See BGB, § 985, 2018 and Cc, art 348(2). For the acción de petición de herencia cf Cc, art 192. 75 See in German law BGB, § 943 and C Baldus, “§ 943 BGB”, in K Rebmann et al (eds), Münchener

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already an owner of all the items, possessio civilissima helps the heir to gain actual control quickly and this is the factual core of ownership. Correspondingly, in court, an heir only has to introduce evidence for his entitlement as an heir, for the defunct’s previous possession, and for the event of dispossession. However, it is not necessary to provide evidence that the defunct had owned the detained item. Due to possessio civilissima, the heir is disburdened from introducing time-consuming evidence for the defunct’s previous ownership. Nonetheless, claiming possession protection can imply that an heir (finally) accepts his heirship. This shows that, in the moment of death, possession and ownership are close to each other but are still technically distinct. In German legal doctrine, mere measures of estate administration do not necessarily imply that a person intends to be the testator’s final successor, i.e. heir. Therefore, filing against a person who has infringed upon the testator’s previous possession does not imperatively imply accepting heirship.76 The Spanish Civil Code follows a similar approach in art 999(3).77 However, Spanish legal doctrine and the Spanish Supreme Court (Tribunal Supremo)78 put forward that it is necessary to decide this question on a case-by-case basis. Correspondingly, it is unsettled whether or not initiating a possessory action means accepting inheritance. The majority of Spanish legal scholars argue that possession protection based on possessory actions does not imply Kommentar zum Bürgerlichen Gesetzbuch – Sachenrecht (§§ 854-1296, Wohnungseigentumsgesetz, Erbbaurechtsgesetz), 5th edn, vol 6 (2009) n 2. In Spanish law see Cc, arts 440, 442, 1960 n 1. Regarding the relationship of these provisions, see Morales Moreno (n 10) 64, 67 n 153. 76 Cf G Otte, “§ 1943 BGB”, in J von Staudinger and G Otte, Gerhard (eds), J von Staudingers Kommentar zum Bürgerlichen Gesetzbuch – Buch 5, Einleitung zum Erbrecht, §§ 1922-1966 (Erbfolge), rev edn (2008) n 8; D Leipold, “§ 1943 BGB”, in K Rebmann et al (eds), Münchener Kommentar zum Bürgerlichen Gesetzbuch – Erbrecht (§§ 1922-2385 BGB; §§ 27-35 BeurkG), 5th edn, vol 9 (2010) n 5; H Lange and K Kuchinke, Erbrecht, 5th edn (2001) 196 ff (§ 8 III 3). German law is not familiar with the appointed heirs (llamado heredero) found in Spanish law since delation and succession coincide. In contrast, the heir succeeds in the defunct’s position ipso iure, BGB, § 1922(1). Thereafter the heir has the right to reject his heirship, BGB, §§ 1943-1945 (Ausschlagung). In Spanish law delation and succession are subsequent steps. At the event of death delation happens, but succession remains postponed till the appointed heir accepts his heirship, Cc, art 999. The time gap between delation and succession leads to a hereditas iacens (herencia yacente, yacencia). 77 Cc, art 999(3): “Los actos de mera conservación o administración provisional no implican la aceptación de la herencia, si con ellos no se ha tomado el título o la calidad de heredero”. Cf for the controversial contruction of “táctia” (implicit) in Cc, art 999, e.g., M Albaladejo García, Curso de Derecho civil: Derecho de sucesiones, 7th edn, vol 5 (1997) 98-100. For similar controversies in German law see B Kühle, Der Dualismus von ausdrücklicher und stillschweigender Willens­ erklärung (2009). 78 A Villagómez Rodil, “Artículo 999”, in I Sierra Gil de la Cuesta (ed), Comentario del Código civil, vol 5 (2000) 402 at 404 n 6, inter alia referring to the Supreme Court judgment STS, 18 June 18 1900. E Arroyo Amayuelas, “Artículo 999”, in A Cañizares Laso et al (eds), Código civil comentado, vol 2 (2011) at 1504-1507 with extensive references to jurisdiction.

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acceptance of heirship.79 It is put forward that acciones posesorias, i.e. claims and actions exclusively based on possession as a matter of fact or on possessio civilissima, do not embody the statement of being an owner. Thus, possessio civilissima invigorates current ownership and prepares for future ownership; however, under no circumstances does it merge possession and ownership. (3) Fictions can be a methodological compass to navigate through policy arguments and social propositions By invoking fiction along with possessio civilissima, lawyers can override and amplify the notion of possession significantly. In fact, it seems like an obvious distortion of a legal concept. Yet such twists do not only occur in Spanish and German succession but also in the law of possession inter vivos. Additionally, these distortions are less overt because they originate from problem-oriented reasoning in single case studies and not from fiction. (a) The Verkehrsauffassung in German legal doctrine In German law, an example of the above is the topos80 of Verkehrsauffassung81 which can be paraphrased as “the generally accepted and common opinion in a legal community”. Though formally Verkehrsauffassung is part of a definition, it is in fact a tool for reasoning on a single-case basis. For this 79 Puig Brutau (n 37) 335, 338; implicitly, J Rams Albesa, Elementos de Derecho civil: Sucesiones, 2nd edn, vol V (2004) 35. To my knowledge, there is no judgment of the Spanish Supreme court elaborating on this question; however cf STS [Sentencia Tribunal Supremo] [judgment Supreme Court] 14 March 1978 (Aran. n 957), cuarto considerando, p 958: “… e igual valor de aceptación tácita reviste el ejercicio de acciones relativas a los bienes relictos, pues la simple demanda comporta la asunción de la cualidad de heredero en cuanto que es acto de titularidad o señorío y la consiguiente adquisición de la posesión real a efectos del desahuicio (…) ‘ca por tales señales, o por otras semejantes, se prueba que quiere ser heredero’, según ya aleccionaba nuestro derecho histórico (Partida Sexta, Tít. VI, Ley 11)”; furthermore cf STS [Sentencia Tribunal Supremo] [judgment Supreme Court] 7 January 1942 (Aran. n 4) and STS [Sentencia Tribunal Supremo] [judgment Supreme Court] 13 March 1952 (Aran. n 808) see first considerando in particular. 80 For potential meanings of “topos” in the German legal culture see, e.g., T Viehweg, Topik und Jurisprudenz: Ein Beitrag zur rechtswissenschaftlichen Grundlagenforschung, 5th edn (1974) 14, 24; G Struck, Topische Jurisprudenz: Argument und Gemeinplatz in der juristischen Arbeit (1971) 20-34 (a non-exhaustive catalogue of topoi); criticising Viehweg’s and Struck‘s approach, e.g., K Larenz, Methodenlehre der Rechtswissenschaft, 6th edn (1991) 147-155; R Alexy, Theorie der juristischen Argumentation: Die Theorie des rationalen Diskurses als Theorie der juristischen Begründung, 2nd edn (1991) 39-43; E Schlüchter, Mittlerfunktion der Präjudizien, (1986) 11 ff; for a historical study see C Fischer, Topoi versteckter Rechtsfortbildungen im Zivilrecht (2007) 14-32 and J Schröder, Recht als Wissenschaft: Geschichte der juristischen Methodenlehre in der Neuzeit (1500-1933), 2nd edn (2012) 25-50, 121-132, 211 ff. 81 Verkehrsauffassung and Verkehrsanschauung are synomyms. An equivalent in Spanish legal scholarship on possession law is the opinión social sobre el poder posesorio, see Albaladejo García (2010) 38.

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reason, I call it topos. German legal doctrine and jurisdiction usually construe the corpus-element broadly by relying on Verkehrsauffassung.82 For instance, a car owner continues to possess his car parked in Heidelberg even if he has gone abroad for several weeks and leaves his car keys at home.83 In contrast, a neighbour does not jointly possess a piece of land although he uses a utility line running through his neighbor’s land for his own water supply, electricity, and telecommunication.84 In these cases, Verkehrsauffassung allows judges to loosen the naturalistic and descriptive requisite of actual control over an item (corpus) by introducing normative considerations. (b) The methodological benefit of fiction: linking definition (abstract meaning) with reasoning (concrete use) Undoubtedly, possession is a legal concept which requires a normative and flexible element alongside its naturalistic anchoring. Even though possession is more deeply rooted in natural reality than ownership, corpus neither merely depicts this reality nor simply gives a natural fact a legal name. Corpus is a legal fact which relates a set of natural facts to the legal world. This process goes along with normative considerations. Certainly, the flexibility given by Verkehrsauffassung can have significant advantages. However, in a system without binding precedents a topos like Verkehrsauffassung can easily lead to legal uncertainty because it blurs the meaning of legal concepts instead of forming new and clear categories. Therefore, in my opinion, it is problematic to disguise normative judgments as formal elements of definitions. At the same time, it is likewise disquieting to dismantle the meaning of possession by deciding cases in a disconnected manner. Methodologically, fiction can balance both approaches since it can contribute, on the one hand, 82 Recently Bundesgerichtshof [BGH] [German Federal Court of Justice] 2 December 2011, in Multimedia und Recht [MMR] (2012) 417 at 418 n 10 (file number: V ZR 119/11, free access at www.bundesgerichtshof.de). On the development in (German) legal doctrine and for criticism see, e.g., C Baldus, “Die systematische Funktion der sogenannten Verkehrsauffassung beim Verlust des Besitzes: Portugiesisches, deutsches, und römisches Modell” (2006) 14 Zeitschrift für Europäisches Privatrecht 766 770-780; M Schenk, Die Verkehrsauffassung in BGB und UWG (2009) 27-49, 51 ff; Gutzeit (n 10) 37 ff. 83 Baldus (n 82) at 766 ff. Regarding animus, the topos of genereller Erwerbswille (general animus to acquire possession) can be considered as a counterpart to Verkehrsauffassung. E.g., a customer is regarded to possess goods which a seller supplied to him without their being ordered by the customer beforehand. The same idea applies to mail posted into a mailbox which the recipient has previously installed for his home. On the contrary, if somebody throws dead mice in this mailbox, the recipient will not be considered as a possessor of the mice; see M Gutzeit, “§ 854 BGB”, in J von Staudinger and K-H Gursky, J von Staudingers Kommentar zum Bürgerlichen Gesetzbuch, 3: Einleitung zum Sachenrecht, §§ 854-882 BGB, rev edn (2012) 38 at 51. 84 Bundesgerichtshof [BGH] [German Federal Court of Justice] (n 82) at 418 nn 10-15.

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to more legal consistency in a legal system and, on the other hand, to flexible considerations on a single-case basis. This idea is suggested for the following reason: the methodological use of fiction in law presupposes a definition or at least a set of requirements to draw a certain legal conclusion. Definitions are a part of the attempt to approach law in a deductive, systematic, and comprehensive way. On the contrary, at least in a codified system, legal reasoning is problem-centred: it is not concerned much about the deductive consistency of an entire legal system. It is not problematic to determine the meaning of possession case by case, but it creates problems if the case law is not coordinated and linked back to a basic definition of possession. The use of fiction would make this borderline between a system-oriented definition of possession and a problem-oriented legal reasoning more visible. Indeed, fiction can link the abstract meaning of possession, which is preserved in (basic) definitions, with its concrete use in case law. When applying to the above examples, this leads to the following result. If we agree to understand corpus as a strictly naturalistic and mainly descriptive element, we can conclude that “actual control” is more than a mere expectation to recover control in the future. “Actual control” means at least to be in the position to rule immediately over an item because it is a relationship of visible domination between a person and an object. Thus, a car owner who is abroad does not have actual control over the vehicle because he cannot reach it. So he does not possess the car. However, if we still want to provide him with possession protection, we have to treat him as if he was actually controlling the vehicle. In this situation, we diverge from a naturalistic understanding of the corpus-element (legal fact) in order to establish the appreciated legal consequence. This is the moment where we cross the gateway between a descriptive and a normative understanding of possession. We are stepping from its definition into legal reasoning about it. In this context, our previous fictitious assumption urges us to reveal and justify why we diverge from the previously established definition of “actual control”. In the utility line case, the same approach allows us to clarify, first, the transition from a descriptive to a normative understanding of possession and, second, the reasons for combining both approaches. (c) Deconstructing possessio civilissima: fiction and the attribution of legal consequences In the Spanish and German law of possession, the use of fictions and normative considerations (as enshrined in the topos Verkehrsauffassung) shares the goal of granting possession protection. It therefore seems pretty clear that

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possession should be protected, but it often remains unclear how this outcome is reconnected to the abstract meaning of possession. Correspondingly, an all-embracing and precise definition of possession is still not found because both legal doctrines do not principally consider possession as a legal concept which can be detached completely from the natural world.85 Rather they set up an extraordinarily elastic notion of possession based on paradigmatic cases and provide for reasoning case by case. As a result, the consequences of possession seem to be puzzling. In this context, a study of possessio civilissima allows us to deconstruct this situation by distinguishing two distinct, but interconnected steps: fiction and the attribution86 of legal consequences (Rechtsfolgenzuweisung).87 This deconstruction may be useful for the entire law of possession because normative considerations have exactly the same purpose. It is all about granting possession protection. It therefore matters less what possession means; instead it seems crucial to protect something we consider worth protecting. Particularly in the twentieth century, the use of fiction was often criticised for being a methodological gimmick which helped lawyers to introduce policy arguments and social propositions secretly at their discretion.88 As a result, fictions have been nearly abandoned. In Spanish and German legal scholarship fictions are predominately subjects for legal history and jurisprudence.89 Nonetheless, relying upon fiction does not blur intentions. Quite the contrary, since in the law of possession it enhances awareness about 85 Regardless of the question whether or not rights or possession exist as natural facts in the natural world, there is a crucial difference when defining the legal word “right” and “possession”. A lawyer can create or denominate a right autonomously from the material facts of the natural world. In contrast, possession can neither be created nor denominated completely without such facts if a lawyer wants to delineate possession from a right; cf Hart’s approach to define a right in Hart (n 56) at 45-49, regarding possession see 44 n 9. On English law and the description of three distinct concepts see Simon Douglas, Chapter 3 of this volume. 86 To my understanding, “attribution” (Zuweisung) is not synonymous with “imputation” (Zurechnung). Both fiction and imputation aim at attributing the same legal consequences to different factual settings. 87 Cf similarly Sosnitza (n 48) 15. 88 E.g., J Esser, Wert und Bedeutung der Rechtsfiktionen, 2nd edn (1969) 141-198; Larenz (n 80) 264 regarding fictions used by courts; Bayart (n 53) at 29-42; Kelsen (n 56) at 646-649; for further (earlier) references see Luna Serrano (n 47) 122-127, 131 ff; for criticism see H-P Haferkamp, “‘Methodenehrlichkeit?’: Die juristische Fiktion im Wandel der Zeiten”, in K P Berger et al (eds), Zivil- und Wirtschaftsrecht im Europäischen und Globalen Kontext / Private and Commercial Law in a European and Global Context, Festschrift für Norbert Horn zum 70 (2006) 1077 at 1080-1089 and Luna Serrano (n 47) 132-136. 89 See, e.g., Luna Serrano (n 47); M J García Garrido, “Sobre los verdaderos límites de la ficción en derecho romano”, in F Fernández Buján de Fernández and F Reinoso Barbero (eds), Miscelánea Romanística, vol I (2006) 49-75; F Brunetta d’Usseaux (ed), Le finzioni del diritto (2002); E Bianchi, Fictio iuris: Ricerche sulla finzione in diritto romano dal periodo arcaico all’epoca augustea (1997); F Todescan, Diritto e realità: Storia e teoria della fictio iuris (1972); Esser (n 88).

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whether or not a lawyer is distorting a previously established legal concept. It additionally clarifies the transition from its definition to legal reasoning in a concrete situation. Generally speaking, fiction can identify a legal concept’s incompleteness in linguistic and substantial terms.90 Therefore, it can help to restructure the use of policy arguments and social propositions and to prevent the arbitrary distortion of legal concepts. If we do not want to give up legal concepts and a systematic approach to law, we need to reconnect these reasons with the notion of possession. To this effect, it may even be worth rethinking whether or not all aspects of possession protection are really related to possession in its paradigmatic meaning. Going back to the sixteenth century, Antonio Gómez (after 1500- before 1572) gave great attention to the fictitious character of possessio civilissima when commenting on the ley 4591 of the Leyes de Toro (1505).92 When we take a glance at the later comments of Sancho de Llamas y Molina (17441829) on the same ley, we see that the fiction has already disappeared since he talks exclusively about the attribution of legal consequences.93 If fiction and the attribution of legal consequences are placed on a timeline, fiction was first and was only preceded by the mere attribution of identical legal consequences to distinct factual situations. Regarding possessio civilissima, this means that what started as a fiction has become over time for some legal scholars a mechanism by which the legislator or a court merely attributes identical legal consequences to different sets of facts.94 From this perspective, it may be possible to see for the entire law of possession that legal certainty can hardly be reached by determining the meaning of possession in abstract terms. Instead, it is necessary to structure the reasons why identical legal consequences are attached to different sets of facts. Fiction can be a useful methodological tool for this. 90 In case of possessio civilissima, the Latin superlative “civilissima” indicates that a new legal concept is about to be born. When using a superlative, most often we wish to single out one appearance contrasting them to all the rest out of a well-known group. 91 Ley 45 concerns the majorat and is widely considered as an antecedent of the posesión civilisíma in Cc, art. 440; see, e.g., A Martín Pérez, “Artículo 440”, in M Albaladejo García and S Díaz Alabart (eds), Comentarios al Código civil y compilaciónes forales, 6th edn, vol VI (1993) 211 at 213; Calvo Meijide (n 43) 43. Ley 45 reads: “Mandamos que las cosas que son de mayorazgo, agora sean villas ó fortalezas, ó de otra cualquier calidad que sean, muerto el tenedor del mayorazgo, luego sin otro acto de apprehension de posesion se traspase la posesion civil y natural en el siguiente en grado, que segun la disposicion del mayorazgo debiere suceder en él, aunque haya tomado otro la posesion de ellas en vida del tenedor del mayorazgo, ó ya muerto, ó el dicho tenedor le haya dado posesion de ellas”. 92 A Gómez, Opus praeclarum & Commentum super legibus Tauri (1552) 181a-183a, n 111. 93 S de Llamas y Molina, Comentario crítico-jurídico-literal a los ochenta y tres Leyes de Toro (1827): Ley xlv, 50-90, nn 66-71 esp n 67. 94 See, for different approaches, n 48 above.

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D. Annex Bürgerliches Gesetzbuch, § 857 95

Código civil, art 440

Der Besitz geht auf den Erben über.

La posesión de los bienes hereditarios se entiende transmitida al heredero sin interrupción y desde el momento de la muerte del causante, en el caso de que llegue a adirse la herencia. El que válidamente repudia una herencia se entiende que no la ha poseído en ningún momento.

Possession passes to the heir.

The possession of goods forming the deceased’s estate is deemed to be descended to the heir without interruption and in the moment of death, provided that the heirship is accepted. The one who rejects the heirship validly is deemed to not having possessed the deceased’s estate in any moment.

Bürgerliches Gesetzbuch, § 861 (1) Wird der Besitz durch verbotene Eigenmacht dem Besitzer entzogen, so kann dieser die Wiedereinräumung des Besitzes von demjenigen verlangen, welcher ihm gegenüber fehlerhaft besitzt. (2) Der Anspruch ist ausgeschlossen, wenn der entzogene Besitz dem gegenwärtigen Besitzer oder dessen Rechtsvorgänger gegenüber fehlerhaft war und in dem letzten Jahre vor der Entziehung erlangt worden ist.

(1) If the possessor is deprived of possession by unlawful interference, the possessor may require possession to be restored by the person who is in defective possession in relation to him. (2) The claim is excluded if the possession that was removed was defective in relation to the present possessor or his predecessor in title and was obtained in the last year before the deprivation of possession.

       Ley de Enjuiciamiento Civil, art 250(1)   Se deciderán en juicio verbal, cualquiera que sea su cuantía, las demandas siguientes:

The followings claims shall be subject to oral proceedings regardless of their amounts in controversy:

95 Translations of the German Civil Code (Bürgerliches Gesetzbuch) are taken from the non-official translation provided by the German Federal Ministery of Justice (Bundesjustizministerium), available at http://www.gesetze-im-internet.de/englisch_bgb/index.html#gl_p0022. Translations of the Spanish Civil Code are the author’s own.

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n 3 Las que pretendan que el tribunal ponga en posesión de bienes a quien los hubiere adquirido por herencia si no estuvieren siendo poseídos por nadie a título de dueño o usufructuario.

Claims which seek a court to put a person into possession of assets which are acquired mortis causa unless another person possesses them as an owner or a usufructuary.

n 4 Las que pretendan la tutela sumaria de la tenencia o de la posesión de una cosa o derecho por quien haya sido despojado de ellas o perturbado en su disfrute.

Claims of persons who have been dispossessed of a thing or a right or disturbed in their use seeking for the summary protection of the actual control (tenencia) or the possession of this thing or right.

Bürgerliches Gesetzbuch, § 2205 Der Testamentsvollstrecker hat den Nachlass zu verwalten. Er ist insbesondere berechtigt, den Nachlass in Besitz zu nehmen und über die Nachlassgegenstände zu verfügen. Zu unentgeltlichen Verfügungen ist er nur berechtigt, soweit sie einer sittlichen Pflicht oder einer auf den Anstand zu nehmenden Rücksicht entsprechen.

The executor must administer the estate. In particular, he is entitled to take possession of the estate and to dispose of the objects of the estate. He is entitled to make gratuitous dispositions only to the extent that they are made to discharge a moral obligation or from consideration for common decency.

Bürgerliches Gesetzbuch, § 2212 Ein der Verwaltung des Testamentsvollstreckers unterliegendes Recht kann nur von dem Testamentsvollstrecker gerichtlich geltend gemacht werden.

A right subject to the administration of the executor may be asserted only by the executor in court.

Código civil, art 902 n 4 No habiendo el testador determinado especialmente las facultades de los albaceas, tendrán las siguientes: (…) Tomar las precauciones necesarias para la conservación y custodia de los bienes, con intervención de los herederos presentes.

If the testator did not specially determine the executor’s powers, he shall have the following ones: (…) Taking safeguarding measures, with the collaboration of the available heirs, which are necessary to preserve, hold, and administer the estate.

8  Possession of Incorporeals Thomas Rüfner A. An unsolvable question In his “Rhapsody of Questions which come up every day in court, but are not resolved by the laws”, the German jurist Karl Ferdinand Hommel (17221781) presented his readers with hard cases – and usually solutions. However, the third edition of 1769 contained one case which Hommel considered unsolvable: Quaestio inexplicabilis Dicat mihi aliquis et erit mihi magnus Apollo, quare sartor meus, quem nuper abdicavi, aut dismissus famulus, non possit adversus me possessorium summarissimum instituere, ut porro retineam? Quid si medicus ita agat: Ich befinde mich seit 1. 2. 3. und mehrern Jahren in ruhigem Besitze, daß Beklagter, so oft er krank geworden, mich rufen und sich von mir heilen lassen: Nachdem er aber mich neulich in diesem Besitze dadurch gekränket, daß er einen andern Arzt angenommen, so bitte so lange, bis Beklagter in Possessorio Ordinario oder Petitorio ein anders ausgeführet, mich zu schützen und demselben bey 20. Thlr. Strafe alle fernere Beeinträchtigungen zu untersagen. Sentio actionem non tenere, sed sentio tantum, nec si vel mortem mineris, possum dicere quare? Tu, si sapis, rationem decidendi suggere …1 An unsolvable question Could someone tell me – and I would call him my great Apollo for it – why my tailor, with whom I recently parted ways, or a servant I dismissed cannot bring summary possessory proceedings against me in order that I continue to employ him? What if a physician brought a complaint as follows: “I have been in quiet possession for one, two, three and more years, of the fact that whenever Defendant fell ill, he would call me and let himself be cured by me. Since now he has recently disturbed me in this possession by retaining another physician, I pray to protect me as long as Defendant has not shown cause in ordinary possessory2 or petitory proceedings and to enjoin him under a penalty of 20 thalers from any further disturbance”. I feel that the action does not lie, but I only feel it and even if you threaten me with death, I cannot tell you why. You, if you know one, suggest a reason for this decision …

The issue presented in Hommel’s case is whether the remedies of the ius com­­­mune for the protection of possession can be used to protect a service  1 K F Hommel, Rhapsodia Quaestionum in foro quotidie obenientium neque tamen legibus decisarum, 3rd edn (1769) Obs 489.  2 The petitorium ordinarium in the ius commune was not a possessory proceeding in the strict sense of the term, see T Müller, Besitzschutz in Europa (2010) 31 ff.

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provider’s “possession” of the business relationship with a client. His inability to give a reason why the remedy should not lie was cited (and ridiculed) by Savigny as an example of the failure of contemporary legal scholars to understand the Roman concept of iuris quasi possessio.3 It seems unlikely that a German court in the late eighteenth century would have found it difficult to dismiss an action of the kind presented in Hommel’s hypothetical. Even so, there is a more abstract issue behind the case which was of some practical importance in the eighteenth century. This is the question whether there are (factual) situations where a person should be protected by possessory remedies although the person does not qualify as possessor of a corporeal thing. For some cases at least, the lawyers of the late ius commune answered this question in the affirmative.4 They accepted the possession of an incorporeal thing as a sufficient basis for the possessory remedies. This paper is not concerned with the historical developments that led to the state of the law which is reflected in Hommel’s book.5 Rather, we will analyse more recent cases from Austria and Germany, where the protection of control over incorporeal things by means of possessory remedies was discussed. We will focus on the Austrian and German legal systems because they seem particularly suitable for a comparative treatment of the question to which a modern observer is led by Hommel’s puzzlement. Can the concept of “possession of incorporeals” and the protection of such possession by the traditional possessory remedies in particular serve a useful purpose in modern (civil law) systems? Despite being very similar in many other regards, the Austrian and the German systems of private law take very different conceptual approaches to incorporeal objects. The Austrian Allgemeines Bürgerliches Gesetzbuch (Civil Code, ABGB) of 1811 contains a definition of thing (Sache) which comprises both tangible assets and incorporeals of all sorts (§ 285 ABGB). Rights are viewed by the legislator as the most important category of incorporeal things, but the term also comprises services (Dienstleistungen, § 303 ABGB). Franz von Zeiller (1751-1828), the principal drafter of the Austrian  3 F K von Savigny, Das Recht des Besitzes (1803) 141; on Savigny’s criticism of the wide concept of thing in the late ius commune and in the Austrian Civil Code see T Rüfner, “Savigny und der Sachbegriff des BGB”, in S Leible et al (eds), Unkörperliche Güter im Zivilrecht (2011) 33-48 at 38 ff.  4 See Hommel, Rhapsodia (n 1) Obs 422 and the legal opinion cited there.   5 On the historical development of the concept of res see T Rüfner, in M Schmoeckel et al (eds), Historisch-kritischer Kommentar zum BGB, vol 1 (2003) §§ 90-103 n 3 ff; on the history of possession of incorporeal rights see G Wesener, “Zur Dogmengeschichte des Rechtsbesitzes”, in Festschrift für Walter Willburg zum 70. Geburtstag (1975) 453-476.

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code, stated in his commentary that even the undisturbed view from a certain house qualified as an incorporeal thing in its own right under the code.6 The code also makes it clear that the concept of possession applies to incorporeal things (§ 311, § 312 ABGB i.f.). It is therefore indisputable that the provisions on the remedies available to possessors in the case of unlawful interference with the thing possessed are applicable where the thing is ­incorporeal.7 The German Civil Code (Bürgerliches Gesetzbuch, BGB) restricts its definition of Sache to corporeal objects. Since possession is based on the physical control over a thing (tatsächliche Gewalt über eine Sache, § 854 BGB), there is no room for possession of incorporeal things. A very limited exception to this rule is contained in § 1029 BGB with reference to servitudes. According to this provision, the possessor of a plot of land which is the dominant plot in relation to a servitude may bring a possessory remedy if he is prevented in fact from using the servient plot in accordance with the servitude. In this way, the factual exercise (or possession) of the servitude is protected by a possessory remedy. This can be conceptualised as a limited recognition of the possibility of possession of a right (i.e. an incorporeal object). Against the background of the different approaches to incorporeals, we will ask, in each of the cases to be discussed, whether the less restrictive provisions of the Austrian code enable Austrian law to find better solutions than German law. In this way, we will make a contribution to the verification of the claim that the Austrian code’s wide concept of thing (Sache) is one of its great advantages over the German BGB.8 It should be noted at this point that the prevailing opinion among legal scholars in Austria restricts the purview of the possessory remedies with regard to the possession of incorporeals in a way which significantly reduces the differences between the Austrian and the German position: It is often said that the possession of an incorporeal right can only be protected by the possessory remedies where it is coupled with physical control over a corporeal thing.9 The justification of this restrictive view is disputed, however, and  6 F von Zeiller, Commentar über das allgemeine bürgerliche Gesetzbuch für die gesammten deutschen Erbländer der österreichischen Monarchie, vol 2 (1812) 12.  7 Müller, Besitzschutz (n 2) 94.   8 See A Wittwer, Vertragsschluss, Vertragsauslegung und Vertragsanfechtung nach europäischem Recht (2004) 57 with references in n 268.   9 See G Iro, Besitzerwerb durch Gehilfen (1982) 5 ff; B Eccher, in H Koziol et al (eds), Allgemeines Bürgerliches Gesetzbuch Kommentar, 2nd edn (2012) § 312 n 1 and the references in G Kodek, Die Besitzstörung (2002) 104 f; G Kodek, in H Klang (ed), Kommentar zum Allgemeinen Bürgerlichen Gesetzbuch, §§ 285 – 352 ABGB, 3rd edn (2000) § 311 n 15 ff; K Grüblinger, in M Schwimann and G Kodek (eds), ABGB Praxiskommentar, vol 2, 4th edn (2012) § 311 n 4. Note,

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it has not been endorsed by the Austrian Supreme Court. Where the controversy is relevant, our question will be whether Austrian law could find better solutions if the opinion of those who oppose the prevailing restrictive view were followed. B. The regime of possession in Austria and Germany (1) Possession and detention Before we turn to the cases, a few general explanations may be in order. In both countries, factual control over a thing is the basis of possession. In the case of incorporeal things, the Austrian code defines that the use of a right or other incorporeal thing is equivalent to the exercise of physical control over a corporeal thing (§ 309 ABGB). Since the German code does not recognise the possession of incorporeals, there is no counterpart to this provision. In addition to the element of factual control, the Austrian code – in accordance with the civil law tradition10 – requires that such control be exercised by the possessor with the intention to keep the thing as his or her own. This requirement excludes tenants, borrowers and others who exercise control over the property of a third person under a contract. They are but detainers of the thing under their control. Possession remains with the landlords, lenders, and so on.11 German law takes a different approach. Tenants, borrowers and the like are accepted as possessors. At the same time, landlords, lenders and the like are also recognised as possessors (§ 868 BGB). Rented property has two possessors: the tenant as direct possessor and the landlord as indirect possessor. Both are entitled to the possessory remedies (§ 869 BGB). The direct possessor can even bring a possessory remedy against the indirect possessor if the latter interferes with the former’s physical control over the thing.12 (2) The possessory remedies With this, we can turn to the possessory remedies themselves. These remedies have distinctive features which can be found in all civil-law jurisdictions.13 however, that both Kodek and Grüblinger are critical of this restrictive view. 10 See the historical overview in T Rüfner, “Possession”, in J Basedow et al (eds), The Max Planck Encyclopedia of European Private Law, vol 2 (2012) 1293-1297 with further references. 11 Kodek, Besitzstörung (n 9) 93; Grüblinger (n 9) § 309 n 1 ff. 12 J Joost, in Münchener Kommentar zum BGB vol 6, 6th edn (2013) § 869 n 9. 13 See Müller, Besitzschutz (n 2) 210 ff.

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Yet, it may be useful to recall the points which are most important for our purposes. In both countries, a possessor who is ousted from his possession can claim the return of the thing formerly in his possession (§ 861 BGB and §§ 345 and 346 ABGB). If possessors are merely “disturbed” (§ 862 BGB and § 339 ABGB) in their quiet possession, they can sue for the clearance of disturbances14 and for a court order forbidding future disturbances. The most characteristic feature of the possessory remedies is the limitation of defences.15 The assertion of title or of a right to possess the thing in question is no defence against the possessory remedies. Even the owner of a thing may not take it away from the possessor against the possessor’s will. Rather, the owner has to seek the help of the courts. Only provisions which expressly authorise self-help justify an otherwise unlawful interference with possession.16 This paper deals exclusively with possessory remedies characterised by the limitation of defences just explained. Remedies in the tradition of the Roman actio Publiciana17 such as those provided for in § 1007 BGB and § 372 ABGB will not be discussed. The limitation of defences turns the possessory remedies into strong weapons. It enables the possessor to obtain the help of the courts quickly. At the same time, the relief which can be obtained through the possessory remedies is limited. Its nature is provisional. While title to the thing or a better right to possess it cannot be asserted as a defence against the possessory remedy, the holder of such rights can subsequently bring a fresh action against the possessor and enforce his right. (3) Preliminary injunctions to protect possession As explained above, the possessory remedies are designed to afford possessors a means to protect their interests, which is quick but provisional by nature. Preliminary injunctions serve the same purpose for all kinds of claims. Both in Germany and in Austria, the two mechanisms for quick, summary relief can be combined: it is possible to apply for a preliminary injunction based on a possessory claim.18 14 See Kodek, Besitzstörung (n 9) 457 ff on the issues surrounding the claim for clearance of disturbances claim under Austrian law. 15 Müller, Besitzschutz (n 2) 217 ff. 16 See for Austria, Kodek, Besitzstörung (n 9) 552 and Müller, Besitzschutz (n 2) 103 ff. For Germany, Joost (n 12) § 863 n 6. 17 On this second model of the protection of possession see Müller, Besitzschutz (n 2) 220 ff. 18 On the necessity to allege a substantive claim (Verfügungsanspruch) as the basis of injunctive relief see, in general, D Leipold, Grundlagen des einstweiligen Rechtsschutzes (1971) 17 ff.

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In order better to protect the interests of possessors, preliminary injunctions for the protection of possession are treated in a privileged way, especially by the German courts. According to §  935 and §  940 of the (German) Zivilprozessordnung (Code of Civil Procedure, ZPO), injunctive relief can only be obtained if the claimant makes a showing that there are special facts which require the immediate intervention of the courts. The German courts take the view that the need for quick relief is self-evident in all cases of unlawful interference with possession. Thus, if the application for a preliminary injunction is based on a possessory claim, no additional facts need to be alleged to show the propriety of injunctive relief.19 Moreover, the courts take a liberal approach to so-called Befriedigungsverfügungen in possessory cases. Befriedigungsverfügung is the name given to a preliminary injunction which fulfils the principal claim and thus anticipates the relief which the claimant might obtain after a full trial on the merits. Generally, Befriedigungsverfügungen are only available under exceptional circumstances.20 A claimant who sues for a sum of money will usually not be able to obtain an injunction for the actual payment of the money. The court will only take such measures as are necessary to secure payment after the trial on the merits. However, in the case of claims under § 861 and § 863 BGB, the rule that Befriedigungssverfügungen will only be made under exceptional circumstances is not applied: most notably, a defendant can be enjoined to hand over a thing which he has taken in breach of the claimant’s prior possession although this fulfils the claim under § 861 BGB.21 In Austria, the requirements for preliminary injunctions in the context of the possessory remedies are set out in §  458 (Austrian) ZPO. There is some dispute as to the requirements contained in this provision. One of the heads under which a preliminary injunction can be granted is the “prevention of violence” (Verhütung von Gewalttätigkeiten). At least some influential authors view most or all cases of unlawful breach of possession as instances of violence.22 It is further assumed that the violence can still be prevented – even after it has occurred – by an injunction (as long as its effects 19 See e.g. OLG Stuttgart, 22 November 2011 [2012] Neue Juristische Wochenschrift 625 at 626 ff; I Drescher, in Münchener Kommentar zur ZPO, vol 2, 4th edn (2012) § 935 n 23. 20 W Grunsky, in F Stein and M Jonas (eds), Kommentar zur Zivilprozeßordnung, vol 7/1, 21st edn (1996) Vor § 935 n 32. 21 Grunsky (n 20) Vor § 935 n 44. 22 Kodek, Besitzstörung (n 9) 954 ff; G Kodek, in H Fasching, Kommentar zu den Zivilprozeßgesetzen, vol 3, 2nd edn (2004) § 458 n 18; cf A Konecny, Der Anwendungsbereich der einstweiligen Verfügung (1992) 294.

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are not irreversible).23 Thus, as in Germany, an injunction can usually be obtained without the need to allege further facts which require an immediate ­intervention by the court. Austrian courts are generally less concerned with the potential pre-emption of ordinary proceedings by Befriedigungsverfügungen.24 It is accepted that injunctive relief may take the form of an order to return a thing to the claimant’s possession.25 C. Cases (1) Tenant lock-out In both Germany and in Austria, the possessory remedies are often used by tenants against their landlords. One situation which courts in both countries frequently deal with is that of a landlord who locks the tenant out of the rented house or apartment by changing the locks on the door. In Germany, both the landlord and the tenant are regarded as possessors of the rented property. The lock-out constitutes an interference with the tenant’s possession. Since a direct possessor enjoys the protection of the possessory remedies even against an indirect possessor of the same thing, the tenant will regain access through a court order.26 In Austria, the situation is more difficult. The tenant is not regarded as possessor of the rented house or apartment. However, Austrian law has found a way to protect the tenant nonetheless. The tenant has possession not of the rented property itself, but of the right to use this property under the lease contract. Since the lock-out interferes with this possession – not of the corporeal thing (the house or apartment) but of the incorporeal right of use – the tenant is entitled to bring a possessory remedy.27 It should be noted that in the case of the tenant, the possession of the right to use the rented property is coupled with physical control over the corporeal piece of property. Therefore, even the proponents of the restrictive view of possession of incorporeals28 agree that the tenant should be protected. The outcome in the lock-out cases is therefore identical in both countries: the possessory remedies and the attendant injunctive relief are available to the tenant. Thus, the tenant can quickly return to his home. 23 Kodek (n 22) § 458 n 18. 24 Konecny (n 22) 41 ff. 25 Kodek, Besitzstörung (n 9) 961; Kodek (n 22) § 458 n 22. 26 For example KG, 22 June 1967 [1967] Neue Juristische Wochenschrift 1915. 27 Grüblinger (n 9) § 339 n 34; Wesener (n 5) 453 with references to early decisions in n 4. 28 See n 8 above.

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It is obvious that Austrian law uses the broad concept of “thing” to overcome the consequences of the restrictive definition of possession.29 This may well make sense within the framework of Austrian law; it does not prove the general usefulness of the concept of possession of incorporeals. (2) Tenant freeze-out Sometimes, landlords resort to another tactic. Rather than locking out their tenants, they cut off water, electricity or heating. This can often be done without any intrusion on the rented premises and it may be a way to get rid of the tenant which is just as effective as changing the locks on the doors. The legal implications may depend on whether the utility company has a contract with the tenant directly or with the landlord. In the former case, the landlord’s act constitutes an interference with the contractual relationship between the utility company and the tenant. For reasons of brevity, we will focus on the latter case. In this scenario, the landlord pays the utilities bill and provides the tenant with the utilities. The provision of the tenant with water, heat and electricity is an additional obligation of the landlord under the lease contract. If the landlord cuts off the utilities, this means that the landlord stops performing on this additional obligation. Landlords will often have very good reasons to cut off the utilities, especially if they, and not the tenant, have to pay for them. German courts have long held that the cutting-off of utilities is tantamount to locking the tenant out since it can make the premises uninhabitable.30 Consequently, tenants have obtained injunctive relief based on the possessory remedies. However, in 2009, the German Bundesgerichtshof (Federal Supreme Court) held that the utilities were not in the tenant’s possession; therefore, the cut-off could not be qualified as an interference with the tenant’s possession.31 As a matter of the German law of possession, this decision seems correct. It is quite difficult to explain why the continuing provision with utilities should be a corporeal thing in the tenant’s possession.32

29 Cf Wesener (n 5) 475, who notes that the broader concept of possession of a thing under German law made the category of possession of an incorporeal right redundant in many cases. 30 See OLG Köln, 26 April 2004 [2005] Neue Juristische Wochenschrift – Rechtsprechungsreport 99 and the cases cited by T Scheidacker, “Wasser abstellen erlaubt?” (2005) Neue Zeitschrift für Miet- und Wohnungsrecht 281-288 at 282 ff. 31 BGH, 6 May 2009, 180 Entscheidungen des Bundesgerichtshofs in Zivilsachen 300 n 24. 32 In the same sense Scheidacker (n 30) 286; see however, the criticism of the Bundesgerichtshof’s decision by Joost (n 12) § 858 n 6.

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In Austria, the cutting-off of utilities has also frequently been qualified as an interference with the tenant’s possession. The relevant decisions find an infringement of the tenant’s possession of the right to be provided with the utilities in question.33 The controversial additional requirement that possession of the right be coupled with physical control over a corporeal thing does not appear to be bothering the courts. It has to be assumed that the courts either do not accept this additional requirement or regard the connection of the right to be provided with the utilities with the tenant’s control over the rented property as sufficient. The question of why the courts do not discuss the requirement is not relevant here. It is sufficient to state that under Austrian law, the protection of the tenant through the possessory remedies in the freeze-out cases can be brought under the relevant provisions of the Civil Code. For German law, the Bundesgerichtshof’s decision that such protection is not available to the tenant is more easily reconcilable with the words of the law than the contrary opinion which prevailed until 2009. With this we can return to the question whether the Austrian approach is preferable. Should a legal system be able to afford a tenant the protection of possessory remedies in the event of a cutting-off of utilities? It would appear to the present writer that this is not the case. Allowing tenants to bring possessory remedies in cut-off cases means ignoring the boundaries that separate the areas of contract and property law.34 A possessor’s physical control over a thing and the limited control that one person may have over the actions of another under a contract are not analogous. If the possessory remedies are used to force the landlord to continue to provide the tenant with utilities, they are used to enforce an alleged contractual right, not to defend possession in any proper sense. The most evident argument against an extension of the possessory remedies to the cut-off cases is the existence of provisions on the so-called exceptio non adimpleti contractus. One party to a contract cannot be forced to perform if the other party does not perform. This rule is applicable both in Austria (§ 1052 ABGB) and in Germany (§ 320 BGB). It would become pointless for a large number of contracts if possession of the right to performance were protected by possessory remedies. 33 Cf L G Wiener Neustadt, 18 June 1998 [1999] Wirtschaftsrechtliche Blätter 373 at 375: “Rechtsbesitz am Strombezugsrecht”; LGZ Wien, 13 March 1970, 22 Mietrechtliche Entscheidungen 11 at n 14: “Rechtsbesitz an einem Recht auf Strom- oder Gaszufuhr”. 34 Iro, Besitzerwerb (n 9) 6; H Hoyer, “Zum possessorischen Schutz des Rechtsbesitzes” (1999) Wirtschaftsrechtliche Blätter 341-348 at 344.

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Some authors35 seek to counter this argument by limiting the availability of possessory remedies to a tenant who is willing (and able) to pay for the utilities. However, apart from the fact that it has been expressly rejected by the Austrian courts,36 this limitation is not really convincing, because it leads to further problems. As explained above, it is characteristic of the possessory remedies that they are available even where the claimant has no right to possess. In cases involving physical control over a corporeal thing, this is undisputed since the tenant’s control over the rented property itself is (provisionally) protected by the possessory remedies even if the lease is terminated and no rent is paid. If it is necessary to introduce a different rule for the possessory protection of the right to be provided with utilities, this shows that the situation is not analogous to that of the protection of physical control.37 Perhaps more importantly, there is no real need for possessory protection. At first sight, it seems reasonable to protect the tenant because the cutting-off of the utilities may in fact make his dwelling place uninhabitable. However, there is no need to resort to a conception which is out of tune with the system of the civil law. As explained above, both the Austrian and the German systems allow for injunctive relief outside the context of the possessory remedies. In Austria the differences in the requirements are few. In Germany the applicant who asks for a preliminary injunction which is not based on a possessory claim must show that injunctive relief is necessary. This will not be a problem for a tenant who is in danger of losing his principal dwelling place through a “freeze out” or the cutting-off of other important utilities. Nor will the circumspection regarding Befriedigungsverfügungen prevent German courts from issuing preliminary injunctions in such cases. It is accepted that a Befriedigungsverfügung is warranted where the applicant is in existential need of the relief claimed.38 The tenant can therefore obtain sufficient protection through an application for injunctive relief based on his contractual rights under the lease or on statutory rights which allow the tenant to stay in the apartment even after the lease is terminated.39 If the injunction is sought on that basis, the limitation 35 See especially Kodek, Besitzstörung (n 9) 134 ff; for an example of similar reasoning in Germany see Joost (n 12) § 858 n 6. 36 See the references in H Hoyer, “Bezugsverträge und Besitzstörung” (1997) Wirtschaftrechtliche Blätter 147-152 at 151 n 57. 37 This problem is acknowledged by Kodek, Besitzstörung (n 9) 142. 38 A G Berlin-Schöneberg, 26 April 2010 [2011] Neue Zeitschrift für Miet- und Wohnungsrecht 72; A Lorenz, in W Erman (ed), Bürgerliches Gesetzbuch vol 2, 13th edn (2011) § 858 n 3. 39 Cf BGH, 180 Entscheidungen des Bundesgerichtshofs in Zivilsachen 300 n 16 ff.

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of defences which is typical of the possessory remedies does not apply. This is an advantage since the court’s decision will be based on a careful balancing of the interests of both parties (including the landlord’s interest to receive payment at least for the utilities) and not on the presumed need to maintain a certain factual situation. In sum, the need to protect the tenant in the case of a “freeze-out” does not prove the general usefulness of the concept of “possession of incorporeal”. Rather, our analysis has shown that there are better ways of affording the tenant an appropriate level of protection. (3) Possession of a patent Fryderyk Zoll Jr published his studies on patent law with particular regard to Austrian law in 1894. In these, he developed the idea of Patentbesitz – possession of a patent. Zoll explained that the factual enjoyment of the advantages of an invention with or without a valid patent could be conceptualised as a special form of possession. Even though he was writing on Austrian law, Zoll stressed the fact that the possession of a patent did not fit well into the categories of the Austrian Civil Code. He concluded that it would not be appropriate to apply any of the ABGB’s provisions on possession and its protection to patents.40 Patentbesitz never seems to have been much discussed in Austria.41 Paradoxically, it became popular in Germany even though it is much more difficult to accommodate within the framework of German law.42 A look at an old case decided by the Reichsgericht (Imperial Supreme Court) in 1913 serves as an illustration. The claimant in the case held a non-exclusive licence for a patented variety of rubber heels. The licensee sued a competitor alleging that the competitor used the rubber heels patent but did not have a licence from the patent holder. The court decided that the claimant as the holder of a non-exclusive licence did not have a right to sue. The reasoning behind this decision was that a non-exclusive licence was not more than a contract between the patent holder and the licensee. Unlike 40 F Zoll, “Privatrechtliche Studien aus dem Patentrechte mit vornehmlicher Berücksichtigung des österreichischen Rechtes” (1894) 21 Zeitschrift für das privat- und öffentliche Recht der Gegenwart 533-582 at 575. 41 But see the reference to Patentbesitz by Kodek (n 9) § 311 n 10; the decision of the Austrian Supreme Court OGH, 12 February 1991, 64 Sammlung Zivilrecht 10 does not concern the protection of Patentbesitz through the possessory remedies, but the applicability of Austria’s version of the actio Publiciana, § 372 ABGB and is therefore outside the scope of this paper. 42 Cf L Pahlow, Lizenz und Lizenzvertrag im Recht des Geistigen Eigentums (2006) 507 ff.

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the patent itself or an exclusive licence, the non-exclusive license did not give the licensee a right against third parties.43 Legal scholars criticised the decision and sought a way to enhance the protection of the non-exclusive licensee. In 1965, Lichtenstein proposed applying the provisions on possessory remedies by analogy. Lichtenstein reasoned that the position of the licensee was similar to that of a tenant since both the tenant and the non-exclusive licensee had no right against third parties but instead a contractual right of use. Therefore, Lichtenstein proposed to afford the licensee a protection against third-party infringers of the patent through possessory remedies.44 While there may be good reasons to protect a non-exclusive licensee in some way, the analogy between the licensee and the tenant seems weak. The possession of an (alleged) tenant is protected whether or not there is in fact a valid lease, and factual control of a piece of property alone is the basis of the possessory remedies. On the other hand, even if the defendant who disturbed the claimant’s possession had a right to possess the thing in question under a lease contract, he would not be able to raise this right as a defence against the possessory remedy. If the protection of the possessor of a patent against an infringer were structured along these lines, absurd results would ensue since even a person using the patent without a licence would be able to bring a possessory remedy and even the holder of a licence would be unable to defend himself or herself against it. This, of course, is not what Lichtenstein had in mind. But if it is to be one that is only available to the holder of a valid licence against an infringer, the remedy cannot be based on an analogy with the possessory remedies.45 It is not necessary to discuss possible alternatives to Lichtenstein’s proposal. There is no indication that the idea of possession of a patent can be useful for better protecting the interests of non-exclusive licence holders. Again, the concept of possession of incorporeals has failed to recommend itself. (4) Sale and lease of an internet domain To conclude, we will discuss a (relatively) recent Austrian case concerning the use of a domain name. An Austrian limited liability company registered the domain klopeinersee.at with the Austrian national registry nic.at. The domain was then leased to another person for an indefinite term. While the 43 RG, 17 September 1913, 83 Entscheidungen des Reichsgerichts in Zivilsachen 93 44 E Lichtenstein, “Zum Abwehranspruch des einfachen Lizenznehmers” (1965) Gewerblicher Rechtsschutz und Urheberrecht 344-346 at 345 ff. 45 In the same sense Pahlow, Lizenz und Lizenzvertrag (n 42) 512 ff.

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lease was still running, the company that had registered the domain sold it to the tourism association for the area of the Klopeiner See in southern Carinthia. The lessee of the domain was informed at very short notice of the imminent transfer of the domain. A few days later, the content which the lessee had offered under the URL http://www.klopeinersee.at became unreachable. Instead, the content offered by the tourism association became available under that address. The lessee sued both the company that had originally registered the domain and the tourism association that had bought it for breach of his possession of the domain name under the Austrian Civil Code. The court dismissed the claim. It based its decision expressly on the view that the possessory remedies are only available if the possession of an incorporeal right is coupled with physical control over a corporeal thing.46 Since this was not the case, the claimant could not bring the possessory remedy.47 This decision seems convincing as against the original holder of the domain the lessee is protected by a contractual claim if the transfer of the domain violated the lessee’s rights. If the lessee were given a remedy against the new holder of the domain, this would mean that the contractual relationship between the former holder of the domain and the lessee would be given certain effects as against third parties. Basically, the old maxim emptio non tollit locatum (sale does not break hire), which was developed for leases of immovable property,48 would be extended to all kind of contracts. This does not seem warranted on the balance of the interests of the parties. If the Austrian court made the right decision, the concept of possession of incorporeal things has not been useful in connection with the possessory remedies. D. Hommel’s puzzlement and Savigny’s derision The results of our survey of cases do not support the view that the possessory remedies have a great role to play in connection with the possession of incorporeal things. Of course, our survey has no claim to completeness even with regard to the German and Austrian case law. Moreover, there may be cases from other jurisdictions which prove the usefulness of protecting the possession of incorporeals. The writer does not wish to express an opinion on 46 See (n 9) above. 47 LG Klagenfurt, 15 February 2002 (2003) Österreichisches Anwaltsblatt 222. 48 On the historical development see R Zimmermann, The Law of Obligations (1990) 380 ff and the references therein.

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the South African decisions discussed in this volume by Duard Kleyn49 or on the Italian cases involving the possession of television frequencies.50 Still, for the cases analysed in this paper, the application of the possessory remedies is not a good solution. Our discussion of the tenant freeze-out cases indicates that it would be better to grant preliminary injunctions on the basis of contractual claims more freely than to enhance the scope of application of the possessory remedies. Likewise, if there is a need to protect the interests of non-exclusive licensees better, another legal theory should be found on which such protection could be based. All the cases discussed show the dangers inherent in the concept of possession of incorporeal things. The use of the possessory remedies when they are not based on possession of a corporeal thing entails the risk of thwarting established principles of contract law and can lead to absurd results. Hommel’s puzzlement and Savigny’s derision should still serve as warnings against a revival of this old but not venerable idea.

49 Kleyn, Chapter 9 of this volume, text to nn 65-153. 50 See A Barberini, “L’oggetto del possesso”, in L Balestra (ed), Proprietà e diritti reali, vol 3 (2012) 330 ff. I wish to thank Rafaele Caterina for pointing me to these interesting cases.

9  The Protection of Quasi-Possession in South African Law Duard Kleyn* From a comparative law perspective, the South African legal system is usually classified as a “mixed legal system”. This indicates a mixture between civil law (Romano-Germanic law) in the form of Roman-Dutch law and English common law.1 Unlike most civil-law systems on the European continent, South African law is not codified. This means that the law is to be found in various sources: primary sources such as legislation, case law and common law and secondary sources such as modern scholarly writings.2 The South African constitution contains a bill of rights which recognises common law and it requires the courts to interpret and develop common law in such a way that it promotes the spirit, purport and objects of the bill of rights.3 Our common law, in the form of Roman-Dutch law, was transplanted to the Cape of Good Hope in 1652 when the East India Company (Vereenigde Geoctroyeerde Oost-Indische Compagnie or VOC) established a refreshment station there. The exact meaning of “Roman-Dutch law” is not always clear. There exists a narrow approach that suggests that only the seventeenthand eighteenth-century institutional writers of the province of Holland are authoritative. Of the seven provinces of the Dutch Republic, Holland was the most prominent as the political and economic centre. However, there is also a wider approach that Roman-Dutch law developed during the reception   * I express my sincere gratitude to professors Johan (University of Pretoria) and Susan (University of South Africa) Scott for their support and advice with the preparation of this contribution.   1 R Zimmermann and D Visser, “South African law as a mixed legal system”, in R Zimmermann and D Visser (eds), Southern Cross: Civil Law and Common Law in South Africa (1996) 1-30. The authors remark (at 2) that “[t]o some extent of course, all the major legal systems of the Western world are mixed … [n]evertheless, the terms ‘mixed legal system’ or ‘mixed jurisdiction’ are usually reserved for a number of legal systems at the intersection, so to speak of civil law and common law”. See also R Zimmerman, “Double Cross: Comparing Scots and South African Law”, in R Zimmermann, D Visser and K Reid (eds), Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (2004) at 1-4.   2 See in general Zimmermann (n 1) at 4-6, 12-16; H R Hahlo and E Kahn, The South African Legal System and its Background (1968) 139-325.   3 The Constitution of the Republic of South Africa 1996, ss 8(3)(a) and 39(2).

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of learned law in the whole of Western Europe from the eleventh century onwards and that it is part of the Roman-canon ius commune. Although the narrow approach is supported by a judgment of the Appellate Division of 1949,4 the courts generally follow the wider approach.5 There are several areas of South African law that are strongly influenced by the English common law, especially in the field of procedural law and commercial or mercantile law.6 However, as far as property law is concerned, of which the law of possession forms part, the basis is Roman-Dutch with very strong roots in Roman law.7 General possessory theory, such as the concept of possession itself (that it consists of a physical element, the corpus, and the mental element, the animus); issues relating to the acquisition, retention and loss of possession; and the functioning of possessory protection, is fundamentally based on Roman law. However, the possessory remedy itself has its origins in canon law: the mandament van spolie or spoliation order.8 When applying the mandament van spolie our courts have followed the wide approach to common law and relied not only on Dutch authors such as Van der Linden, Willem de Groot and Wassenaar but also on Italian authors such as Menochius and Maranta and German authors such as Leyser and Savigny.9 In South African property law, a clear distinction is drawn between possession and ownership. Ownership is seen as a real right (full title) in respect of a thing. In fact, it is the strongest real right, providing the owner with the fullest entitlements with regard to the thing and protected by an action, the rei vindicatio. Possession is in the first place a factual relationship of control over a thing, but whether it is also a real right concerns an age-old debate which remains clouded in confusion.10  4 Tjollo Ateljees (Eins) Bpk v Small 1949 (1) SA 856 (A).   5 D H Van Zyl, Geskiedenis van die Romeins-Hollandse Reg (1979) 490-492; E Fagan, “RomanDutch law in its South African historical context”, in Zimmermann & Visser (eds), Southern Cross (n 1) 133 ff.   6 Hahlo & Kahn, South African Legal System (n 2) 578-596; Zimmermann (n 1) at 6.   7 Ph J Thomas, C G van der Merwe and B C Stoop, Historical Foundations of South African Private Law (2000) 133: “[I]t is simply not an exaggeration to state that Roman law of things constitutes the essence of the modern South African law of things”. Zimmermann (n 1) at 6 with regard to South African law: “The law of property… have generally preserved their Roman-Dutch character”. See also P J Badenhorst, J M Pienaar and H Mostert, Silberberg and Schoeman’s The Law of Property (2006) 6-7.   8 D Kleyn, “Possession”, in R Zimmermann and D Visser (eds), Southern Cross (n 1) 835-844.  9 See e.g. Meyer v Glendinning 1939 CPD 84; Nienaber v Stuckey 1946 AD 1049. See also D Kleyn, “The concept and the protection of possession”, in R Feenstra and R Zimmermann (eds), Das römisch-holländische Recht: Fortschritte des Zivilrechts im 17. und 18. Jahrhundert (1992) at 546 who points to the very same approach followed by the Roman-Dutch authors. 10 Badenhorst, Pienaar & Mostert, Law of Property (n 7) 91-95, 273-275; Kleyn (n 8) at 832-835; Kleyn (n 9) at 549-554.

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However, this contribution focuses on the protection of quasi-possession by the mandament van spolie, which is the only possessory remedy in the true sense of the word in South African law and which functions quite differently from remedies protecting rights in general, such as the rei vindicatio. The purpose of the mandament van spolie is to restore possession that was lost as a result of spoliation. It is unique in that when the court applies the remedy in order to solve a possessory dispute, it does not concern itself with the merits of the case, as it does not consider the rights of the parties. It only tries to establish whether there was possession (or quasi-possession) and whether it was spoliated (in other words, whether the possessor was unlawfully dispossessed).11 Possession in the ordinary sense of the word denotes factual control of a corporeal thing. Quasi-possession in South African law refers to the possession of rights.12 Now, here we are immediately confronted by two questions: what kinds of rights are worthy of protection by the mandament van spolie and, secondly, how does one possess a right? With regard to the first question it has been stated by the Supreme Court of Appeal that: [T]he mandament van spolie does not have a “catch-all function” to protect the quasi-possessio of all kinds of rights irrespective of their nature … [it is not the appropriate remedy] where contractual rights are in dispute or specific performance of contractual obligations is claimed … The right held in quasi-possessio must be a “gebruiksreg” [right of use] or an incident of the possession or control of the property.13

With regard to the second question it is accepted that “[t]he quasi-possessio consists in the actual exercise of an alleged right”.14 In the case of Telkom SA Ltd v Xsinet (Pty) Ltd,15 the court made the following observation: Originally, the mandament only protected the physical possession of movable or immovable property. But in the course of centuries of development, the law entered the world of metaphysics. A need was felt to protect certain rights (tautologically called incorporeal rights) from being violated. The mandament was extended to provide a remedy in some cases. Because rights cannot be possessed, it was said that the holder of a right had “quasi-possession” of it, when he has exercised such rights. Many theoretical and methodological objections can be raised against this construct, inter alia, that it confuses contractual remedies and remedies designed for protecting real rights. However, be that as it may, the semantics of “quasipossession” has passed into our law. This is all firmly established. 11 See parts A and B below. 12 Badenhorst, Pienaar & Mostert, Law of Property (n 7) 273. 13 Firstrand Ltd t/a Rand Merchant Bank and Another v Scholtz NO and Others 2008 (2) SA 503 at 510 para 13. 14 Firstrand (n 13) at 509 para 12. 15 2003 (5) SA 314-315 at para 9.

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In practice, cases relating to our topic often concern servitutal disputes or situations where water, electricity and telecommunication services have been cut off by one of the parties, either because that party alleges the right in question does not exist (for example a servitutal right) or because of a dispute concerning outstanding contractual fees relating to the provision of the abovementioned services. In such cases, the dispossessed party (the spoliatus) applies for a mandament van spolie to seek immediate restoration of the possession of incorporeals (quasi-possession) before the dispute on the merits is settled; in other words, restoration ante omnia. In recent times this has become a very complicated and confusing matter in South African law because the courts have started to focus on the rights of the parties in possessory cases like these.16 A historical background is necessary to fully understand the issue. A. Historical background (1) Possessory remedies and procedure Roman law provides us with no definition of possession. Paul,17 following Labeo, merely points out that the term possessio is derived from “seat” or “position”. However, Ulpian18 states that possession has nothing in common with ownership. This is quite a sweeping statement,19 but the difference between ownership and possession is clearly illustrated by the protection of possession by means of the possessory remedies and the procedural aspects thereof. Special remedies, the interdicta, were created by the praetor to protect possession as such. There were three authentic possessory interdicts: the interdicta uti possidetis, utrubi and unde vi.20 The interdictum unde vi can be considered as the earliest root of the mandament van spolie because it only concerned the restoration of possession (lost by means of violence). The remedy was not available in cases of mere disturbances of possession.21 16 See part B below. 17 D 41.2.1. pr. 18 D 41.2.12.1. See also D 41.2 .17.1; D 41.2.52. pr; D 43.17.1.2; D 44.2.14.3. 19 Possession was often a requirement for the acquisition of ownership, for instance in the case of prescription, traditio and occupatio. It is also accepted that initially the two concepts were not distinguished from each other and that it was only later that ownership developed as a separate technical concept. See C W Westrup, Introduction to Early Roman Law (1934-1954) vol 2, 157; vol 3, 233 ff; M Kaser, Eigentum und Besitz im älteren römischen Recht (1956) 6 ff. 20 See in this regard Gai Inst 4.143-155. The purpose of the interdictum quorum bonorum and the interdictum Salvianum as discussed in G Inst 4.144-147 were not to protect possession but to obtain possession by someone who has never had possession of the specific thing before. See also M Kaser, Das römische Privatrecht, 2nd edn, I (1971) 396-400. 21 J Inst 4.15.6; M Kaser, Das römische Privatrecht, 2nd edn, II (1975) 257-258.

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The reasoning behind the Roman approach to the protection of possession is explained by the remark of the emperor Marcus Aurelius22 that violence (vis) implies not only physical violence, but that it is also present when someone dispossesses another without the intervention of the legal process. It therefore concerns the situation where someone who professes to be entitled to the possession of a thing takes the law into his own hands (acts as his own judge)23 by disturbing or dispossessing the possessor. Procedurally, therefore, a distinction was made between the preceding possessory suit (iudicium possessorium) and the subsequent petitory suit (iudicium petitorium). Possession must first be restored. During the possessory suit, the judge does not consider the merits of the case and the rights of the parties. He merely deals with the de facto issue of possession and the disturbance or deprivation thereof. The unsuccessful party in the possessory suit can thereafter enforce his rights in the petitory suit. The successful party of the possessory suit would then be the defendant, who might in the end lose his possession. In this sense, the possessory remedy sometimes provides only temporary relief. During the petitory suit other remedies, such as actions (for example the rei vindicatio), are instituted and the plaintiff must prove his title, what we nowadays refer to as his rights. In the case of the rei vindicatio, for instance, the plaintiff had to prove ownership and that he was entitled to the possession because the defendant’s possession was unlawful.24 The possessory remedies of Roman law were received into Western Euro­­ pean law by the late eleventh century, but during the reception period before the codification movement in Europe, several other possessory remedies came into existence.25 Three possessory remedies were in use in Roman-Dutch law during the seventeenth and eighteenth centuries. They were the mandament van complainte, the mandament van maintenue and the mandament van spolie. These remedies were received in the Netherlands from France.26 The mandament van spolie emerged in canon law with the creation of the so-called “condictio ex canone redintegranda” in the glosses of the Decretum ­Gratiani.27 22 D 4.2.13. 23 “isque sibi ius in eam rem dixisse.” 24 D 41.2.35; D 43.17.1.3; C 8.1.3. 25 See in general D G Kleyn, Die Mandament van Spolie in die Suid-Afrikaanse Reg (unpublished doctoral thesis) (1986) 128-279; J Gordley and U Mattei, “Protecting possession” (1996) AJCL at 293 ff. 26 T W Price, The Possessory Remedies in Roman-Dutch Law (1947) 10 ff; Kleyn (n 9) at 557-559. 27 The condictio ex canone redintegranda has its roots in the exceptio solii which was created by the unknown author of the Decretales Pseudo-Isidorianae, a ninth-century source on canon law. This source is one of the many medieval falsifications (piae fraudes): See R C Mortimer, Western

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In later centuries this remedy was also received into secular law as the remedy of réintégrande in France28 and as the actio spolii in Germany.29 As far as the application of the possessory remedies in general is concerned, the Roman doctrine of the separation of the possessory and petitory suits was received in the law of civil procedure in canon law and in the European ius commune. The underlying principle of the mandament van spolie was spoliatus ante omnia restituendus est: the spoliated person must be reinstated in possession before anything else (i.e. before an evaluation of the merits of the dispute) because the spoliator took the law into his own hands.30 (2) The possession of incorporeals It is generally accepted that, initially, in Roman law only corporeals were regarded as things (res) in the eyes of the law and capable of possession, but at an early stage, presumably during the late Republican period, the existence of incorporeal things was recognised.31 Gaius, in his Institutiones,32 Canon Law (1953) 34 ff. The exceptio provided a bishop who was unlawfully deprived of his seat (spoliated), a defence that allowed him to refuse to answer to any criminal charges against him until he has been reinstated in possession. The texts in the Pseudo Isidoriana dealing with the expectio spolii are generally regarded as falsifications: C G Bruns, Das Recht des Besitzes im Mittelalter und in der Gegenwart (1848) 137 ff; F C von Savigny, Das Recht des Besitzes (1865; repr. 1967) 510 ff. When he compiled the Concordia discordantium canonum (also known as the Decrectum Gratiani) in the twelfth century, Gratianus incorporated the exceptio spolii. However, what is peculiar is the fact that he did not deal with the topic in one section (causa) as can be expected but in two different sections (causae), namely C(ausa) 2 q(uaestio) 2 and C 3 q 1. This led the glossators of the Decretum to distinguish between the two causae. For them C 2 q 2 concerns restoration of possession by means of the exceptio and C 3 q 1 deals with restoration of possession by means of an action. This action became known as the condictio ex canone redintegranda. See Bruns, Recht des Besitzes 168, and in general F Ruffini, L’actio spolii (1889). 28 It was received into French customary law and was discussed in the Coutumes de Beauvaisis, compiled by Philippe de Beaumanoir in the thirteenth century: see Bruns, Recht des Besitzes (n 27) 362; P Viollet, Histoire du droit civil français (repr 1966) 631. See further J Cujacius, Opera Omnia (1758) Commentaria ad X 2 13, 2-4; R J Pothier, “Coutumes des duché, bailliage et prévôté d’Orléans”, in Œuvres complètes, vol 17 (1844) at 3.22.40. 29 A Leyser, Meditationes ad Pandectas, vol 7 (1778) sp 504.9; S Stryk, Dissertationum Juridicarum Francofurtensium in Opera Omnia (1837-1842) 10.2.3 n 51; Bruns, Recht des Besitzes (n 27) 390 ff; E Meischeider, Besitz und Besitzschutz (1876) 168. Although Savigny, Recht des Besitzes (n 27) 513 rejected the condictio, the Pandectists did not follow suit and acknowledged the actio spolii as a remedy for the restitution of spoliated possession in practice: H Dernburg, Pandecten (1894) 1 para 189. 30 See e.g. the following Roman-Dutch authorities: J Voet, Commentarius ad Pandectas (1757) 43.17.7; P Merula, Manier van Procederen in de Provintien van Hollandt, Zeelandt en WestVrieslandt, belangende Civile Zaken (1750) 4.37.2.8; W van Alphen, Papegae ofte FormulierBoeck (1682-1683) 1.14. 31 Kaser, Römische Privatrecht (n 20) 140-141; H F Jolowicz and B Nicholas, Historical Introduction to the Study of Roman Law (1972) 412-414; J A C Thomas, Textbook of Roman Law (1976) 126; W W Buckland, A Text-Book of Roman Law from Augustus to Justinian, 3rd edn (1963) 196. 32 Gai Inst 1.8.

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provides us with his tripartite division of law into things, persons and actions. He then distinguishes between corporeal things (res corporales) and incorporeal things (res incorporales).33 The same approach was followed by Justinian in the Corpus Iuris Civilis.34 Both also mention that the interdicts protect possession and quasi-possession.35 Corporeal things are things that can be touched. Incorporeals are things that exist merely in law, such as a usufruct and obligations,36 what we today regard as examples of real and personal rights. Thomas refers to this abstraction that rights can function as things or objects as ‘a laudable feat of abstraction and rationalisation’.37 Although he merely suggests that the interdictum uti possidetis should be extended to usufructuaries,38 Ulpian states as a fact that usufructuaries are protected by the interdictum unde vi and refers to their relationship in respect of the thing as quasi possessio.39 The Roman doctrine of the quasi possessio of incorporeal things was eventually received into canon law and the ius commune. In canon law the possessory protection of quasi possessio (also referred to as possessio iuris) was extended far beyond the scope of usufruct.40 Roman-Dutch authors such as Hugo de Groot,41 Dionysius van der Keessel,42 Johannes Voet,43 Simon van Leeuwen44 and Ulric Huber45 were similarly acquainted with the notion of incorporeals and the possessory protection thereof. For instance, to prevent a person from exercising a servitutal right was regarded as spoliation and in such a case the mandament van spolie could be applied for.46 33 Gai Inst 2.12-14. 34 J Inst 1.2.12; J Inst 2.2. pr-2. 35 Gai Inst 4.139; J Inst 4.14. pr. 36 Gai 2.12-14; J Inst 2.2. pr-2. 37 Thomas, Textbook (n 31) 126. 38 D 43.17.4. 39 D 43.16.3. 13-14; D 43.16.3. 16-17. See also the view of Paul in D 43.16.9.1. See in general Kaser Römische Privatrecht I (n 20) 390; Kaser, Römische Privatrecht, II (n 21) 256; D Kleyn, “Dogmatiese probleme rakende die rol van die onstoflike sake in die sakereg” (1993) De Jure at 6-7; R Cloete, “Die historiese onderskeid tussen stoflike en onstoflike sake in die Suid-Afrikaanse sakereg: ‘n Sinopsis” (2005) De Jure 295-304; Thomas, Textbook (n 31) 125-127. 40 X 2.13.8; X 2.13.13-14; R Beneventanus, Libelli Iuris Canonici pars sexta in Corpus Glossatorum Juris Civilis (1968) photographic reprint. 41 H de Groot, Inleidinge tot de Hollandsche Rechts-Geleerdheid, 2nd edn, ed F Dovring, H F W D Fischer and E M Meijers (1965) 2.1.9. 42 D van der Keessel, Praelectiones Iuris Hodierni ad Hugonis Grotii Introductionem ad Jurisprudentiam Hollandicam, with tr by P Van Warmelo, L I Coertze and H L Gonin (1961-1975) 2.1.910. 43 Voet, Commentarius (n 30) 1.8.11. 44 S van Leeuwen, Censura Forensis Theoretico-Practica, id est Totius Juris Civilis Romani, Usque Recepti, et Practici Methodica Collaio (1741) 2.1.3. 45 U Huber, Hedendaegse Rechtsgeleertheyt, Soo elders, als in Frieslandt gebruikelyk (1742) 2.1.2-3. 46 P Stockmans, Decisionum Curiae Brabantiae in Opera Omnia (1686) 143 no 1; I van den Berg

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B. South African Law (1) The mandament van spolie as only possessory remedy In the late nineteenth and early twentieth centuries there were a few cases concerning the restitution of possession where the court seemed to apply the mandament van complainte, but also mentioned spoliation and the maxim spoliatus ante omnia restituendus est at the same time. However, these decisions are extremely vague and confusing and it is not clear exactly which possessory remedy was applied.47 It has now, however, been settled that the mandament van spolie is the only Roman-Dutch mandament that has survived and that complainte and maintenue have fallen into desuetude. Hahlo and Kahn48 remark that: “It is remarkable that it is this remedy (mandament van spolie) which was not much used in Roman-Dutch law, has become the basis of the protection of possession in modern law”. As far as the origin of the modern mandament van spolie is concerned, Curlewis J in Muller v Muller49 observed that: “Now it is quite clear that, though our spoliation order has its roots in Roman law, it is really derived from Canon law … We have to do then with the Canon law and with a mandament van spolie as obtained in the old Dutch courts …” English law, meanwhile, has never been applied in respect of the mandament van spolie.50 Possession can also be protected by other remedies, such as interdicts and delictual actions,51 but these cannot be considered as possessory remedies in the true sense of the word because, in such cases, the rights of the parties have to be proved. The mandament van spolie is the only true possessory remedy in South African law where the applicant need only prove that he Neder-Lands Advys-Boek, pt 4 (1698) 4.118; M A van Lamszweerde, Consultatien Advysen ende Advertissimenten van Rechten, vol 1 (1776) 1.6. 47 Curatoren van Pioneer Lodge NO 1 v Champion en Anderen 1879 OFS 51; De Villiers v Holloway (1902) 12 CTR 566; Bester v Grundling 1917 TPD 492. See Kleyn (n. 8) 836. 48 H R Hahlo and E Kahn, The Union of South Africa: The Development of its Laws and Constitution (1960) 576-577. 49 1915 TPD 28 at 30-31. 50 See Donges NO v Dadoo 1950 (2) SA 321 (A) at 332: “The remedy invoked was one which the Roman-Dutch Law provides and which is governed by Roman-Dutch principles. It would be futile to suggest that, since the prerogative is involved, those principles have been modified by rules of British constitutional law …” Also Ntai and Others v Vereeniging Town Council and Another 1953 (4) SA 579 (A) at 592H: “During argument we were referred to certain English authorities, but they cannot assist us, since English law differs radically from our own on this subject.” 51 A J van der Walt and G J Pienaar, Introduction to the Law of Property (2009) 196 ff; F du Bois et al, Wille’s Principles of South African Law (2007) 453; Badenhorst, Pienaar & Mostert, Law of Property (n 7) 308-312.

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was in possession and that he was despoiled (unlawfully dispossessed).52 The court does not concern itself with the merits of the case, as explained above. True possessory remedies for mere disturbance of, or interference with, possession, as had existed in our common law, are unknown in South African law.53 In such cases the parties must resort to an interdict. The mandament is therefore a unique and, perhaps for some, a peculiar remedy of South African law. When applying the mandament van spolie, the courts have mentioned that the purpose of the principle spoliatus ante omnia restituendus est is to prevent people from taking the law into their own hands. This led A J van der Walt in the 1980s to regard the mandament van spolie not as a possessory remedy, but rather as a general remedy that protects the public order against disturbances of the peace. It is for this reason, according to him, that the mandament van spolie, apart from its other peculiarities, also protects quasi-possession.54 (2) Quasi-possession (a) Introduction Notwithstanding the long civil-law tradition of recognising incorporeal things and the quasi-possession thereof, this does not always sit comfortably within the realm of “property law” or the “law of things” as this area of law is sometimes known. Although early South African authors recognised it,55 the recognition of quasi-possession suffered a setback with the reception of the theories of the German Pandectists during the 1950s, as evidenced in the works of W A Joubert,56 C G van der Merwe57 and J C Sonnekus.58 52 Badenhorst, Pienaar & Mostert, Law of Property (n 7) 287-288; H Mostert et al, The Principles of The Law of Property in South Africa (2010) 83-86. 53 Badenhorst, Pienaar & Mostert, Law of Property (n 7) 288. 54 Case discussion of Naidoo v Moodley 1982 (4) SA 82 (T) in (1983) Tydskrif vir Hedendaagse Romeins-Hollands Reg 237 at 238-239; “Nog eens Naidoo v Moodley – ‘n repliek” (1984) Tydskrif vir Hedendaagse Romeins-Hollands Reg 429 at 430, 435. 55 W Burge, Commentaries on the Civil Law and the Law of Holland (1887) 136; A F Maasdorp, The Institutes of Cape Law: Bk II: The Law of Things (1903) 14 ff; M Nathan, The Common Law of South Africa, vol I: Persons and Property (1913) 377; R W Lee, An Introduction to Roman-Dutch Law (1915) 148. 56 W A Joubert, Grondslae van die Persoonlikheidsreg (LLD thesis) (1950) esp. 119-121; W A Joubert, “Die realiteit van die subjektiewe reg en die betekenis daarvan vir die privaatreg” (1958) Tydskrif vir Hedendaagse Romeins-Hollands Reg 12-15, 98-115. 57 C G van der Merwe, Sakereg (1979) 17-21; C G van der Merwe, Sakereg, 2nd edn (1989) 20-21, 24-25. See also C G van der Merwe, “Things”, in W A Joubert (ed), The Law of South Africa, vol 27 (2002) 160 para 242. 58 J C Sonnekus, Sakereg Vonnisbundel (1980) 54; J C Sonnekus, “Mandament van spolie – kragtige remedie by kragonderbreking?” (1985) Tydskrif vir die Suid-Afrikaanse Reg 331 at 333-334; J C Sonnekus and J L Neels, Sakereg Vonnisbundel (1994) 23-24.

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Their approach is to limit the law of things (property law) to corporeals.59 Various reasons are furnished for this approach, amongst others that privatelaw rights are distinguished with regard to their objects and that to recognise rights as objects would confuse the distinction between real rights (with corporeals as objects) and personal rights (such as contractual rights with performances, which are incorporeal as objects).60 However, the fact that rights (incorporeals) can function as the objects of real rights is recognised in South African case law and legislation.61 The reason for this is obviously that such rights have a monetary value.62 Malan remarked that wealth today is more and more incorporated in incorporeals which can be regarded as the res mancipi of the modern world.63 The South African constitution also does not confine property to corporeal things.64 (b) Protection of quasi-possession by the mandament van spolie The South African courts have a long tradition of protecting quasi-possession by means of the mandament van spolie.65 As noted above,66 although quasipossession concerns the possession of rights, the mandament van spolie does not have a catch-all function to protect the so-called quasi-possession of all rights. In earlier case law, and authorities cited therein, a superficial reading might suggest that a wide approach is followed in this regard. For instance, in 59 Cloete (n 39) at 312-314; Badenhorst, Pienaar & Mostert, Law of Property (n 7) 13; G L Gretton, “Owning rights and things” (1997) Stellenbosch Law Review 176. 60 Badenhorst, Pienaar & Mostert, Law of Property (n 7) 14-19. 61 Badenhorst, Pienaar & Mostert, Law of Property (n 7) 15-16; Kleyn (n 39) at 5. 62 S Scott, “Vorderingsregte as onliggaamlike sake – waarom nie?” (2010) Tydskrif vir Hedendaagse Romeins-Hollands Reg 629 at 636. 63 F Malan, “Oor inligting, rekenaarmisbruik en die strafreg” (1989) De Jure 211 at 211-212. 64 First National Bank of SA Ltd t/a Wesbank v Commissioner for the South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (7) BCLR 702 (C); 2002 (4) SA 768 (C) para 51; Zondi v MEC for Traditional and Local Government Affairs 2004 (5) BCLR 547 (N) at 536D-E; 2005 (3) SA 25 (N) at 34E; A J van der Walt, Constitutional Property Law (2011) 111 ff. 65 Pretorius v Pretorius 1927 TPD 178 at 180-181; Nienaber v Stuckey 1946 AD 1049 at 1055-1056; Shapiro v South African Savings and Credit Bank 1949 (4) SA 985 (W) at 991; Sebastian and Others v Malelane Irrigation Board 1950 (2) SA 690 (T) at 694; Painter v Strauss 1951 (3) SA 307 (O) at 318F-H; Stanhope Motors & Machinery Sales v Pretoria Light Aircraft Co (Pty) Ltd (1951) 2 PH F79 (T); Rooibokoord Sitrus (Edms) Bpk v Louw’s Creek Sitrus Koöperatiewe Maatskappy Bpk 1964 (3) SA 601 (T) at 604D-E; Deljon v Bloemkop Properties (Pty) Ltd (1972) 2 PH A58 (C); Adamson v Boshoff 1975 (3) SA 221 (C) at 230A-B; Beukes v Crous 1975 (4) SA 215 (NC) at 218G; Bennett Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230 (E) at 233E; Bank van die Oranje-Vrystaat v Rossouw 1984 (2) SA 644 (C) at 648D; Ntshwaqela v Chairman, Western Cape Regional Services Council 1988 (3) SA 218 (C) at 221E; Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 508 (A); Xsinet (Pty) Ltd v Telkom SA Ltd 2002 (3) SA 629 (C). 66 See above, text to n 13.

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Nienaber v Stuckey,67 the court referred to the locus classicus, Nino Bonino v De Lange, where the court remarked that “spoliation is any illicit deprivation … of a legal right”. The Court also cited the Dutch author, Wassenaar, who states that the spoliation remedy is available in the case of deprivation of “eenige gerechtigheden” (all rights). However, this is not correct. Of particular importance here is the fact that specific performance of a personal right (contractual right) cannot be enforced with the mandament van spolie. For instance, where a lessor refuses to deliver the object of the lease to the lessee, the mandament is not the appropriate remedy to enforce the lease. The lessee should have recourse to the contractual remedy. In such a case it is also clear that the lessee did not have possession in the first place. A seller, likewise, cannot force the buyer to pay the outstanding amount of the price with the mandament.68 As mentioned above, the rights that are protected are, essentially, rights of use of a corporeal thing. These can be what is referred to as “servitutal rights”, such as a right of way or a right to draw water, or they can incorporate so-called “incidents of possession”, where someone who is in possession of premises also has access to services such as electricity, water supply and telecommunication. It is important to note that the use can either exist in terms of a professed real right (such as a servitude) or a contractual (personal) right such as a lease. There needs to be a close connection between the use and the possession of a corporeal thing. In Shoprite Checkers Ltd v Pangbourne Properties Ltd,69 the applicant, a supermarket, leased premises from the respondent, a shopping centre. There was an open parking area which could be used by customers of all the tenants, but was under the exclusive control of the lessor. The lessor started building operations for new shops and an extended parking area, which interfered with the use of the parking area by the applicant’s employees and customers. The court refused an application for a mandament van spolie and remarked as follows:

67 Nienaber (n 65) at 1055. 68 See the following case law: Stanhope Motors & Machinery Sales v Pretoria Light Aircraft Co (Pty) Ltd (1951) 2 PH F79 (T); Slabbert v Theodoulou and Another 1952 (2) SA 667 (T); Plaatjie and Another v Olivier NO and Others 1993 (2) SA 156 (OPD) at 159J-160A; Shoprite Checkers Ltd v Pangbourne Properties Ltd 1994 (1) SA 616 (WLD) at 623D; Firstrand (n 13) at 510 B-D; ATM Solutions (Pty) Ltd v Olkra Handelaars CC and Another 2009 (4) SA 337 (SCA) para 9-10; Pinzon Traders 8 (Pty) Ltd v Clublink (Pty) Ltd and Another 2010 (1) SA 506 (ECG) para 5. See also A J van der Walt and P J Sutherland, “Dispossession of incorporeals or rights – Is the mandament van spolie the appropriate remedy?” (2003) South African Mercantile Law Journal 95 ff. 69 Shoprite Checkers (n 68).

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The mere fact that the applicant might or might not have had a right, derived from contract which it entered into with the respondent, to make use of the parking area, did not in my view, amount to a “possession” as envisaged in the authorities, of such designated area for the purposes of establishing an entitlement to the mandament van spolie.70

During spoliation proceedings where the possession of corporeals is protected, the applicant only has to prove that he or she was in possession of the thing and that he or she was unlawfully dispossessed (spoliated). This was explained in Kramer v Trustees Coloured Vigilance Council Grassy Park:71 It is trite law that in order to obtain a spoliation order two allegations must be made and proved, namely (a) that applicant was in peaceful and undisturbed possession of the property and (b) that respondent deprived him of the possession forcibly or wrongfully against his consent.

The same approach is followed in respect of the protection of quasi-possession of incorporeals as explained by Hefer JA in the locus classicus in this regard, Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi72 where he stated that possession and spoliation of the alleged right must be proved. In the case of a servitude, possession lies in the use of the servitude over some time and this replaces the physical possession of a corporeal. It concerns the exercise of actions that are usually associated with the particular rights.73 In certain cases before Bon Quelle the applicant was required to prove the existence of the professed right in order to succeed with the mandament van spolie.74 This was the approach in canon law before the thirteenth century but was rejected in Bon Quelle as it implied that the court must adjudicate upon the merits of the case, namely upon the rights of the parties. This is contrary to general possessory theory.75 It was explained in subsequent cases that: “[T]he status quo that the spoliatus desired to restore by means of the mandament van spolie was the factual exercise of the servitude and not the servitude itself”,76 and also: “Although it might appear illogical that the servitude does 70 Shoprite Checkers (n 68) at 622 B. See also Plaatjie and Another (n 68) at 159 E-F; Microsure (Pty) Ltd and Others v Net 1 Applied Technologies South Africa Ltd 2010 (2) SA 59 (NPD) para 36. See also A J van der Walt, “Die mandament van spolie en quasi-besit” (1989) Tydskrif vir Hedendaagse Romeins-Hollands Reg 444 at 451. 71 1948 (1) SA 748 (C) at 753. This has also been endorsed by the Appellate Division in Yeko v Qana 1973 (4) SA 735 (A) at 739E. 72 Bon Quelle (n 65) at 514-515. 73 See also Van der Walt (n 70) at 448. 74 Pretorius (n 65); Jansen v Maden 1968 (1) SA 81 GW; Beukes v Crous 1975 (4) SA 215 NC. 75 For the position in canon law see gloss “et ab eo cognita” ad X 2.13.8: “[N]ec est simile hoc possessorium aliis possessoriis de recuperanda possession: quia ibi non est necesse probare de iure … Hic non sufficit sola possessio: quia possessio hic haberi non potest sine iure”. See also Bon Quelle (n 65) at 513. 76 Shoprite Checkers (n 65) at 620D. See also Xsinet (n 65) at 637 E-G.

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not have to be proved, it is the status quo which has to be restored by the mandament van spolie until it is determined whether the servitude indeed exists …”77 Nevertheless, Sonnekus maintains that the professed right must be proved to exist.78 The same discomfort or aversion that exists regarding the recognition of incorporeals and their possessory protection within the area of property law79 also presents itself in the works of some academics on the topic of the protection of quasi-possession by the mandament van spolie.80 Sonnekus maintains that it is unacceptable from both historical and theoretical points of view since only corporeals can be possessed. He considers the protection of incorporeals by means of the mandament van spolie as an extraordinary application of the remedy and is of the opinion that in cases where the so-called “possession of rights” has in fact been protected, the possession concerned actually amounted to the possession of a corporeal thing.81 Van der Walt also considers the protection of quasi-possession as peculiar, but ascribes this to the extended application of the mandament as a protective remedy for the public against self-help. He maintains that in most cases it actually amounts to the protection of possession of a corporeal thing. He agrees that the protection of a servitude, essentially concerns the interrupted and limited ­possession of the servient tenement, which is corporeal. Therefore, terminology such as “quasi possession of a right” clouds the issue, because it excludes the role of the corporeal thing. He concedes, however, that this solution is difficult to align with the protection of the use of water and electricity which are incidents of the possession of premises.82 Sonnekus’s view that the possession of incorporeals is historically and theoretically unacceptable cannot be supported as it is historically incorrect. Furthermore, it is doubtful whether the possession of, for instance, a right of way over the servient tenement could ever constitute possession, whether interrupted or limited, of the road or land itself. Similar doubts have been raised in case law. In Zulu v Minister of Works, KwaZulu and Others83 the court remarked: “In truth the mandament van 77 De Beer v Zimbali Estate Management Association (Pty) Ltd and Another 2007 (3) SA 254 (N) para 44. 78 J C Sonnekus, “Mandament van spolie en ongeregistreerde serwitute vir water” (2006) Tydskrif vir die Suid-Afrikaanse Reg 392 at 400-402. 79 Above part B(2)(a). 80 See Kleyn (n 8) at 831. 81 Sonnekus, Sakereg Vonnisbundel (n 58) 54; Sonnekus & Neels Sakereg Vonnisbundel (n 58) 168 ff; Sonnekus (n 58) 333 ff; J C Sonnekus, “Besit van serwituutbevoeghede, mandament van spolie en logika” (1989) Tydskrif vir die Suid-Afrikaanse Reg 429 at 430 ff. 82 Van der Walt (n 54) at 430, 435; Van der Walt (n 70) 446 ff; Van der Walt & Pienaar, Introduction (n 51) 202. 83 1992 (1) SA 181 at 187G.

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spolie is not concerned with the protection or restoration of rights at all. Its aim is to restore the factual possession of which the spoliatus has been unlawfully deprived”. In Microsure v Net 1 Applied Technologies SA84 the court remarked that [a] number of well-meaning jurists appear to have encouraged the extension of the application of the mandament van spolie to instances of quasi-possession of incorporeals. That is undesirable and could possibly even be detrimental to economic and commercial activity”.

Such a view draws a line through the whole historical development since Roman times of the topic under discussion. (c) Focusing on the rights of the parties In the light of our common law, the distinction between the possessory suit and the petitory suit in modern-day South African law implies that the rights of the parties in the possessory suit are not under consideration. Quasi-possession concerns use, namely the exercise of actions usually associated with the professed or alleged rights. Unfortunate formulation in some judgments can, however, create confusion; for instance, where the court proclaims that the applicant was spoliated of a “right of possession” or that he or she was in “possession of an incorporeal right”. 85 This formulation suggests the existence of a ius possidendi (a right to possession) that has its origin in either a real or a personal right.86 This is probably the reason why, in some past cases, it was required to prove the existence of the right.87 We now turn to the possessory protection of so-called “servitutal rights” and “incidents of possession” as examples of quasi-possession. It is not always possible to draw a sharp distinction between these two categories. (i) Servitutal rights Servitutal rights originated in Roman law where usufruct was referred to as quasi-possessio and was protected by the possessory interdicts.88 Today these mostly concern disputes about the right of way or access, or rights to 84 Microsure (n 68) at para 33. 85 See Mans v Marais 1932 CPD at 355 where the court remarked “There was, in my opinion an illicit deprivation by Mans of Marais’ right of possession”; Petersen v Petersen (1974) 1 PH B5 (R). See also Pinzon (n 68) para 5: “The mandament applies where a right to possess property is disputed and the possession of the property is disturbed without process of law”. See Van der Walt (n 70) at 446-448. 86 Sonnekus & Neels, Sakereg Vonnisbundel (n 58) 169. 87 See part B(2)(b) of this chapter; Van der Walt (n 71) at 448. 88 See part A(2) above.

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water supply. In Nienaber v Stuckey,89 the applicant and respondent had an agreement (contract) that the applicant could plough and cultivate a part of the respondent’s land. A dispute arose between the parties regarding the nature of the agreement (lease or not) and for how long the respondent had granted the right. After two years the respondent’s manager, on instruction of the respondent, closed the gate that gave the applicant access to the land. The Appellate Division referred to the applicant’s right as a “servitutal right”, found that he was in possession of the right and that he had been despoiled.90 The court refused to consider the rights of the parties originating from their contractual relationship.91 Similarly in Van Wyk v Kleynhans,92 the applicant alleged that he had a right of way over the respondent’s farm. However, a dispute existed between them regarding the use of the road. The respondent then closed the gate. The Court, relying on Nienaber, did not consider the merits of the case, and awarded the mandament van spolie on the principle of spoliatus ante omnia restituendus est.93 As regards the right to water supply, one can turn to Sebastian and Others v Malelane Irrigation Board94 as a point of departure. The appellants were riparian owners of a river from which they were supplied with water by a canal. They did not want to participate in a new expensive pumping scheme but wished to continue with the status quo. The Court found that they were in possession of the use of the water and that they were despoiled when the Irrigation Board removed the pipes leading from the canal.95 The Court did not consider the dispute between the parties and granted the mandament van spolie because the respondent “took the law into its own hands”.96 The locus classicus in respect of the protection of quasi-possession in general, the case of Bon Quelle,97 referred to above, also concerned water. For decades, the respondent used water from fountains on a farm owned by the appellant. There was then a dispute between the parties as to whether a servitude had actually existed. However, the appellant cut off the water supply without recourse to the legal process. In its judgment the Court laid 89 1946 AD 1049. 90 Nienaber (n 9) at 1056. 91 Nienaber (n 9) at 1053. 92 1969 (1) SA 221 (GW). 93 At 223-224. See also with regard to the right of way Buffelsfontein Gold Mining Co Ltd en ‘n ander v Bekker en Andere 1961 (3) SA 381 (T); Jansen v Madden 1968 (1) SA 81 (GW). 94 1950 (2) SA 690 (T). 95 Sebastian and Others (n 65) at 693. 96 Sebastian and Others (n 65) at 694. See also Painter v Strauss 1951 (3) SA 307 (O). 97 Bon Quelle (n 65).

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down several important principles with regard to the protection of quasipossession: relying on Nienaber, it referred to these rights as “servitutal rights”; in these cases it is the right that is possessed, not a corporeal thing; the existence of the alleged right need not be proved; and quasi-possession lies in the actual use of the alleged right. It is submitted that the Bon Quelle judgment correctly reflects the common-law position. It is clear from the above cases that the facta probanda were possession (use or exercise) of the right and the occurrence of spoliation. But then things changed as the courts increasingly started to focus on the actual rights of the spoliatus and not the mere use or exercise of the alleged rights. In Zulu v Minister of Works, KwaZulu, and Others,98 the applicant was a senior Zulu prince whose dwelling was some distance away from the royal compound. In terms of an arrangement with the provincial authorities, he was permitted to draw surplus water for his own use, at no cost, from the pipeline that provided the royal compound with water. This carried on for about twenty years until the authorities terminated his water supply because the water consumption of the royal compound increased to such an extent that surplus water no longer remained. The applicant applied for a mandament van spolie, compelling the respondents to resume the supply of water to his house. The application was denied. There are many inconsistencies in the judgment, but one of the main problems is that the court considered the merits of the case and ruled that the applicant had no right to the water supply. Thirion J expressed himself as follows: According to the respondent the applicant does not have any right to be supplied with water by the KwaZulu Government nor do the respondents have authority or power to supply water to him … In my view therefore the KwaZulu Government exceeded its powers in supplying water free of charge to the applicant.99

The judgment was criticised by several authors,100 but not Sonnekus,101 who is of the opinion that in the case of quasi-possession the existence of the right must be proved.102 In 2008, in the case of Impala Water Users Association v Lourens NO and Others,103 the Supreme Court of Appeal considered a case concerning water supply. The respondents were sugarcane farmers who had initially been  98 Zulu (n 83).  99 Zulu (n 83) at 184 B, 185 E. 100 Van der Walt & Pienaar, Introduction (n 51) 204-205; De Bois et al, Wille’s Principles (n 51) 458; Badenhorst, Pienaar & Mostert Property (n 7) 297-298. 101 Sonnekus (n 78) at 400-401. 102 See part B(2)(b) above. 103 2008 (2) SA 495 (SCA).

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members of the Impala Irrigation Board under the Water Act 54 of 1956 and who automatically became members of the Impala Water Users Association under the National Water Act 36 of 1998. Under the 1956 Act they registered certain portions of land for irrigation. A dispute arose between the appellants and the respondents concerning the water charge raised by the appellants against its members for financing the construction of a dam. The appellants then terminated the water supply by locking the sluices. The respondents applied for a mandament van spolie which was granted. The court a quo relied on Bon Quelle and followed the traditional approach. It found that the respondents had been in quasi-possession, in that they exercised their rights without disturbance, and that they were subsequently unlawfully deprived of it. On appeal, counsel for the appellants contended that the respondents did not have servitutal rights, as in Bon Quelle, but that they were actually relying on personal rights originating from the contract between the appellant and each of the members concerned. This approach became very popular in spoliation cases after 2003, when the Supreme Court of Appeal refused an application for a mandament van spolie in the Telkom case, discussed below, because it found that the applicant was actually trying to apply the mandament van spolie to enforce specific performance of a personal (contractual) right. However, in Impala the Court distinguished the case from Telkom and ruled that the rights of the respondents were not merely personal rights, as they were registered rights in terms of the 1956 Act which were subsumed into rights under the 1998 Act. The use of water was accordingly an incident of possession of each farm.104 The approach of the Court a quo is to be preferred. In the Supreme Court of Appeal too much emphasis was placed on the fact that the rights of the respondents were registered. What if they were not? What if they were merely contractual? Surely one can obtain the right to use through a contract. The respondents had exercised their rights to use the water for many years. The applicants took the law into their own hands when they locked the sluices without settling the dispute regarding the water charge in court. The difference between drawing water on the basis of a professed servitutal right and on the basis of a contract became crucial in the Supreme Court of Appeal in the case of Firstrand Ltd t/a Merchant Bank and Another v Scholtz NO and Others.105 The respondents were farmers who drew water from the Blyde River Dam. As in Impala, above, they were members of the Irrigation Board under the 1956 Water Act and had their rights registered 104 Impala (n 103) paras 18 and 19. 105 Firstrand (n 13).

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as servitudes. Under the 1998 Water Act, they therefore became members of the Blyde River Water Users Association. Initially, the water was supplied by a canal system, but this became inefficient. The canal was replaced by a pipeline, which was financed by the first appellant and managed by the second appellant, the Blyde River Water Utility Co (Pty) Ltd. In January 2004, a contract was concluded between the respondents and the second appellant for water supply through the pipeline in return for payment. This contract expired on 31 December 2004. There was then a disagreement between the parties regarding the fees for the following year, 2005. On 31 December 2004 the second appellant cut off the water supply. On the next day, the parties concluded an agreement for water supply, pending an application by the respondents for a mandament van spolie. The Court a quo granted the application, relying on Impala. It found that the rights were not merely contractual; that they were registered and therefore statutory in nature; and that they were therefore an incident of possession, thus capable of quasi-possession.106 An appeal was lodged against the decision and the Supreme Court of Appeal upheld the appeal. It drew a sharp distinction between the statutory rights and the contractual rights of the respondents. It considered the judgment in Impala as correct, but pointed out that, in their affidavits in Firstrand, the respondents did not rely on the exercise of their old registered statutory rights but on their 2004 and subsequent contractual rights, for which the mandament cannot be used for purposes of enforcement. The Court said:107 The respondents’ rights, whether they are described as statutory rights to water or rights to a water supply or as quasi-possessio of a water supply, may well be incidents of their possession or control of their properties. However, what the respondents were dispossessed of was not any of these rights but of an erstwhile contractual right that expired on 31 December 2004 against the appellants to convey their water entitlements. This right was and is no incident of the possession or control of their properties but a contractual right that came about long after the respondents became entitled to their statutory water rights. This conclusion is illustrated by the very contentions advanced by the respondents in their founding affidavit where they refer not only to the agreements entered into with the second appellant for the conveyance of water that expired on 31 December 2004 but also to water supply agreements they have concluded subsequently with the WUA and effective from 1 January 2005. The source of any rights the respondents may have had to the use of the pipeline is contract. They were deprived not of the quasipossessio of their statutory water rights which they still have and may exercise in any manner they wish but of an expired contractual right for the conveyance of water through the pipeline. 106 Firstrand (n 13) at 508-509. 107 Firstrand (n 13) at 112.

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It is regrettable that the respondents did not rely on their old rights, but that they applied for a mandament van spolie to enforce specific performance of a contractual right. In Impala the Supreme Court of Appeal regarded rights of the water users as statutory rights and not as mere personal rights, and therefore their use was protected by the mandament van spolie. The Impala decision was confirmed in both the court a quo and the Supreme Court of Appeal in Firstrand. In the most recent case, City of Cape Town v Strumpher,108 the Supreme Court of Appeal went a step further and elevated the statutory rights of water users to a constitutional level. The respondent in this case owned a caravan park for thirty-seven years and had a contract with the city council for water supply. The city council then notified the respondent that he was in arrears of R182  000 for his water supply. The respondent’s attorneys sent a letter to the council declaring a dispute. An employee of the council visited the property and found the water meter to be defective after which the council replaced the meter. The council then disconnected the water supply without responding to the letter by respondent’s attorneys. The respondent then applied for a mandament van spolie, maintaining that he was despoiled of his statutory rights in terms of the Water Services Act 108 of 1997. The council, amongst other things, relied on the Telkom case:109 the water was supplied in terms of a contract and mere contractual rights cannot be enforced with the mandament van spolie. The mandament was, however, granted by the Magistrates’ Court and confirmed by the full bench of the Cape High Court and the Supreme Court of Appeal. The Supreme Court of Appeal confirmed its decision in Impala.110 It pointed out111 that consumers living within a municipal area who wish to access water from a water service authority, such as the City, have to conclude a water supply contract with that authority. Such a contract does not relegate the consumer’s right to water to a mere personal right. The city or authority has a constitutional and statutory obligation to supply water to users such as the respondent. In terms of the Constitution,112 the right to water is a basic right, which is given effect to by the provisions of the Water Services Act. This is a statutory right.113 The Court thus distinguished the case under discussion from its decision in Telkom.114 108 109 110 111 112 113 114

2012 (4) SA 207 (SCA). See part B(2)(b)(ii) below. City of Cape Town (n 108) paras 10-11. City of Cape Town (n 108) para 9. The Constitution of South Africa 1996 s 27(1)(b). City of Cape Town (n 108) para 11. City of Cape Town (n 108) para 10.

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Hence, it seems that the current position with regard to the right to water supply is that, where a user entered into a contract with a water supply authority in terms of applicable legislation, that right is a statutory and constitutional right and not a mere personal right, so the decision in Telkom does not apply. The Supreme Court of Appeal was at pains to distinguish its judgments in Impala and Strumpher from its decision in Telkom (which it refers to as the Xsinet-case, which was the matter in the court a quo). But one can still ask whether the result in Impala and Strumpher115 could have been reached on the basis of the principles laid down in Bon Quelle, thus avoiding an investigation of the rights of the parties which basically concerns the property-contract law divide. (ii) Incidents of possession Another form of quasi-possession, distinguishable from the quasi-possession of servitutal rights, manifested itself later in South African law. These so-called “incidents of possession” cases primarily concern situations where premises are occupied and provided with services such as water, electricity and telecommunication services. In these cases, a dispute usually arises between the parties, which leads to one party terminating these services by taking the law into his own hands. These cases are based on the principles of quasi-possession as applied in the servitutal rights cases. However, some of the jargon and outcomes in these cases have had a definite influence on servitutal judgments. The cases of Naidoo v Moodley116 and Froman v Herbmore Timber & Hardware117 were quite similar. Both concerned contracts of lease. In the Naidoo case the lessee was entitled to electricity services and in the Froman case the lessee was entitled to electricity and water. In light of ensuing disputes the lessor terminated the services. In Naidoo, Eloff J coined the phrase “incident of occupation” when he referred to the use of the electricity. He pointed out that the lessee occupied the premises not only by being physically present there but also by using its appurtenances, including the electricity.118 In Froman, the Court did not use the term “incident of occupation” but merely stated that “there is no reason why an incorporeal right of this nature should not form the subject of spoliation proceedings”.119 In both cases, it was argued by the opposition that the demand to reinstate the services was 115 116 117 118 119

Firstrand is an exceptional case because of the nature of the affidavits. 1982 (4) SA 82 (T). 1984 (3) SA 609 (W). Naidoo (n 116) at 84 A-B. Froman (n 117) at 610 H.

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actually a claim based on contract and that the mandament van spolie was therefore not the appropriate remedy.120 In both cases, the court rejected this argument and granted the mandament. In Naidoo, it was especially the use of the right that was emphasised; this was later confirmed in Bon Quelle,121 which ruled that the possession of the professed right lies in the use of the right. Sonnekus122 maintains that it is unnecessary to work with the notion of possession of a right in cases such as Naidoo and Froman, because the exercise of the right is so closely connected to the corporeal thing that the loss of the right actually amounts to an interference with the possession of the thing itself. This approach was rejected by the Appellate Division in Bon Quelle,123 which pointed out that this will not always be the case. The case of Du Randt en ’n Ander v Du Randt124 concerned telecommunication services. The parties were involved in divorce proceedings. The husband removed the telephone from the communal dwelling. The court considered this as spoliation of quasi-possession and compared it to cases such as Bon Quelle, Naidoo and Froman. It regarded the access to telecommunication services as an incident of occupation and ordered restoration by granting a mandament van spolie.125 Xsinet (Pty) Ltd v Telkom SA LTD126 was quite controversial. The applicant (Xsinet) was an internet service provider. Telkom, which has an exclusive licence to provide public switched telecommunication services, supplied Xsinet with a bandwidth system, a telephone system and a connectivity service. Telkom alleged that Xsinet was indebted to it with respect to the connectivity service. Xsinet disputed this. Telkom then disconnected the telephone and bandwidth systems. Xsinet maintained that Telkom disconnected the services without its consent and without seeking resolution of the dispute by means of due legal process. It therefore sought restitution by applying for a mandament van spolie. Telkom maintained, inter alia, that, in effect, the applicant was seeking specific performance of a contractual obligation and that the mandament was therefore not the appropriate remedy. The Court referred with approval to Naidoo where the argument that, in substance, it concerned a claim for specific performance of a contractual right under the guise of an 120 Naidoo (n 116) at 84A; Froman (n 117) at 610H. 121 Bon Quelle (n 65). 122 Sonnekus, Sakereg Vonnisbundel (n 58) 54; Sonnekus & Neels, Sakereg Vonnisbundel (n 58) 168. 123 1989 (1) SA 508 (A) at 516 D-E. 124 1995 (1) SA 401 (O). 125 Du Randt (n 124) at 405 B-E. 126 2002 (3) SA 629 (C).

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application for a mandament van spolie was rejected.127 The Court considered Telkom as a spoliator which interrupted the services supplied to the premises of which the applicant had occupation and control. The situation was therefore analogous to the position in Naidoo and Froman. The Court stated that the bandwidth and telephone services constituted an incident of the applicant’s possession and granted a mandament.128 In what can be considered as quite an unsatisfactory decision, the Supreme Court of Appeal overturned Xsinet in Telkom SA Ltd v Xsinet (Pty) Ltd.129 In a very brief judgment the Court ruled, first, that, although Xsinet used the services at its premises, it was not an incident of possession as the use of electricity and water may be incidents of occupation of residential premises.130 Secondly, it also did not consider Telkom to have interfered with Xsinet’s possession of any of the mechanisms (modems and telephones) by which it was connected to the internet, because Telkom had not entered the premises in order to effect the disconnection.131 Thirdly, it found that the order sought was essentially to compel specific performance of a contractual right, which has never been allowed under the mandament van spolie.132 This decision created some confusion. Regarding the first point above, the Court does not explain why it is not an incident of possession such as the use of electricity and water. It conceded that Xsinet used the services as required in Bon Quelle to qualify as quasipossession.133 But it merely remarked that it would be artificial and illogical to conclude that Xsinet’s use of the Telkom services established “possession”.134 But one fails to see how the use of electricity and the use of services provided by Telkom differ. What influenced the Court’s decision? Was it that we have been accustomed to the electricity and water services as quasi-possession for some time now in our case law concerning the mandament van spolie and that the internet services are a new and/or strange phenomenon? This approach of the Court is not easy to reconcile with its remark quoted above that “in the course of centuries of development, the law entered the world of metaphysics”.135 Or could it be that the case under discussion did not 127 128 129 130 131 132 133 134 135

Xsinet (n 65) at 638 B-C. Xsinet (n 65) at 639. Telkom (n 15). Telkom (n 15) at 314 C. Telkom (n 15) at 314 E. Telkom (n 15) at 314 G. Telkom (n 15) at 315 D-G. Telkom (n 15) at 314 F. Telkom (n 15) at 314-315 para 9.

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concern residential premises, as pointed out by the Court?136 Some authors have remarked that the protection of telephone and other communication services is now unsettled and unclear.137 They also ask whether we should distinguish between essential services such as water and electricity supply and the supply of telecommunication services.138 Are not telecommunication services essential in our modern society? With regard to the second point above, that there was no dispossession because Telkom did not enter the premises of Xsinet when it disconnected the services, Badenhorst, Pienaar and Mostert find the argument “problematic”.139 Surely it is. In Naidoo140 and Impala,141 there was spoliation when electricity and water supply services were terminated without entering the premises. With regard to the third point above, namely that what was actually sought by the respondents (Xsinet) was specific performance of a contractual right which is not allowed under the mandament, the following remarks can be made. After the Telkom judgment this argument became very popular. As was seen above, it was raised not only in the servitutal cases of Impala and Firstrand but also in other subsequent cases.142 Caution must, however, be applied here. It is trite in law that one cannot claim specific performance of a contractual right with the mandament van spolie. However, one can obtain quasi-possession in terms of a contract and such possession can be protected by the mandament. Hence, the Telkom decision does not imply that quasipossession granted by contract can never be protected by the mandament. This is why, it is submitted, the Supreme Court of Appeal struggled to distinguish or defend their decision in Telkom in cases such as Impala and Firstrand. In two recent cases, two important issues that featured in Telkom came to the fore: the fact that, for quasi-possession to be protected by the mandament van spolie, there needs to be a close link between the use of the right and the possession of a corporeal thing (usually the premises) and, secondly, that mere contractual rights cannot be enforced by the mandament. The facts of Microsure (Pty) Ltd and others v Net 1 Applied Technologies South Africa Ltd143 are briefly as follows: the government paid pension funds 136 137 138 139 140 141 142

Telkom (n 15) at 314 C. Van der Walt & Pienaar, Introduction (n 51) 205; Du Bois et al (n 51) 459. Du Bois et al (n 51) 459. Badenhorst, Pienaar & Mostert, Law of Property (n 7) 300. Naidoo (n 116) at 83H. Impala (n 103) at 499 I-J. ATM Solutions (n 68) at 349 G; Microsure (n 70) at 67 E; Pinzon (n 68) at para 7; City of Cape Town (n 108) at para 1. 143 Microsure (n 84).

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due to pension beneficiaries to the respondent. The applicants were merchants who entered into contracts with the respondent to use its computer system to facilitate access by beneficiaries to their funds. The respondent provided the appellants with a point-of-sale terminal, a biometric fingerprint scanner and a merchant card. The merchant card is important, because it gave the appellants access to the respondent’s computer system so as to allow the beneficiaries access to their funds. For the card to work, the respondent had to activate it. A dispute arose between the parties, and the respondent deactivated the merchant cards. The appellants applied for a mandament van spolie to be reinstated in their rights (quasi-possession). Their application was dismissed on appeal. The Court found that there must be an element of possession and not merely possession of a card which only facilitates access to a computer server.144 It compared the merchant card to a smartcard issued in respect of a digital satellite television decoder or a sim card in a cell phone.145 Hence, it found that the appellants actually sought to achieve specific performance of a contractual obligation they were allegedly entitled to and facilitated by the merchant card.146 The Court remarked that the debate is really one for the law of contract, and not the law of property.147 The Court also found that the facts of this case could not be distinguished from those in Telkom.148 One can disagree with the latter finding. The decision in Microsure is correct, but on the facts it can be distinguished from Telkom. In Telkom there was much more of a real/physical connection between the use of the rights and the possession of a corporeal thing, the premises. Telkom also supplied Xsinet with modems, telephones and telephone lines. The merchant card in Microsure that granted it access to the computer system of the respondent did not provide a close enough link between the use of a right and a corporeal thing. In Pinzon Traders 8 (Pty) Ltd v Clublink (Pty) Ltd and Another,149 the applicant, a supermarket, had a written lease with the respondent, the owner of a shopping complex. The lease provided for certain extensions and renovations to the supermarket, amongst others a loading bay for eightton trucks and access for the trucks from a certain street entrance. When other shop owners complained about the trucks, the respondent built walls at the entrance which made it too narrow for the trucks to gain entry. The applicant then successfully applied for a mandament van spolie to have the 144 145 146 147 148 149

Microsure (n 84) at 69 A. Microsure (n 84) at 66 F-G. Microsure (n 84) at 67 E. Microsure (n 84) at 67 E. Microsure (n 84) at 67 D. Pinzon (n 68).

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walls removed. The respondent argued that the use of and access to the loading bay were not incidents of possession, but originated in a separate contractual right which cannot be enforced by the mandament. It relied on Shoprite Checkers.150 However, the Court distinguished Shoprite Checkers by ruling that the use of the loading bay and the street entrance were so closely connected to the possession of the supermarket that it formed part and parcel of that ­possession.151 Earlier in this contribution it was noted that the jargon cases concerning “incidents of possession” also impacted on the “servitutal” cases. The term “incident of occupation/possession” was coined by Eloff J in the Naidoo case but was used in subsequent cases such as Impala and the Court a quo in Firstrand where the Court argued that because the rights to draw water were registered in terms of the Act, they were incidents of possession.152 In Pinzon,153 the Court also referred to the gate granting access to the land in Nienaber v Stuckey154 as an incident of possession. C. Conclusion The mandament van spolie protects not only the possession of corporeals, but also the possession of incorporeals in the form of rights that provide one with the entitlement to use a thing. These rights can either be real (servitutal) rights, or personal (contractual) rights. It straddles the age-old divide between property law and the law of obligations, in this case specifically the law of contract. When protecting possession, the separation between the possessory and petitory suits is important. During the possessory suit the rights of the parties are not under investigation and when protecting quasi-possession the law was clearly laid down by the Appellate Division in Bon Quelle. It is settled law that one cannot claim specific performance of a contractual right with the mandament van spolie. The Telkom case that overturned the Xsinet case, it is submitted, was wrongly decided. This (might have) created the impression that contractual rights of use are generally not protected by the mandament. This seems to have influenced the Court in Impala and Strumpher which concerned access to water supply. Had the Court applied the law as proclaimed in Bon Quelle in these two cases, the outcome would have been the same. However, the right to access to water 150 151 152 153 154

Shoprite Checkers (n 68). Shoprite Checkers (n 68) at para 6. See part B(2)(c) above. Pinzon (n 68) at para 7. See part B(2)(c) above.

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is now considered as a statutory and, more specifically, a constitutional right. The legal position concerning rights to electricity and telecommunication services, however, seems to be unsettled.

Index

acciones posesorias, 164 acquisitive prescription, 31, 38, 39, 45–6, 48, 49, 55; see also positive prescription actio Publiciana, 116, 175 actio spolii, 12, 21, 22, 40, 96, 97, 104–5, 190 administrative possession, 159 adverse possession, 45n, 162 animus and corpus, 79, 81, 82, 83, 85, 90 English law, 13, 16–17 German law, 145, 165n problems with use of term, 13, 16–17 Spanish law, 145 animus domini, 17, 32, 38, 51 animus possidendi, 17, 41, 90 animus rem sibi habendi, 17 animus tenendi, 17, 39 Aubry, C, 27, 101 Austrian Civil Code (ABGB) concept of possession, 12, 172–3 Sache, definition, 172, 173 Austrian Code of Civil Procedure (AZPO) preliminary injunction requirements, 175–7, 180–1 Austrian law detention, possession and, 174 direct and indirect possessors, 174 factual control, 174 incorporeal things, 28, 172–3 internet, use of domain name, 182–3 limitation of defences, 175 patents, 181 possession and detention, 174 possessory remedies , 173, 174–5, preliminary injunction, 175–7, 180–1 rights, 172

Sache, 172–3 services, 172 tenant freeze-out, 179–81 tenant lock-out, 177–8 third-party control, 174 utilities, cutting-off, 179–81 violence, prevention of, 176–7 azione di manutenzione, 106, 107–8, 109 azione di reintegrazione, 106–7, 108, 109 azione di rivendicazione, 108 bad faith, 3, 10, 15, 36, 44, 114, 129, 131 bailee as possessor, 41–2 banknotes, 81 Bankton, 116, 127, 130, 131, 133 good-faith possession, 130 Befriedigungssverfügung, 176, 177, 180 Besitzdiener, 105, 108 BGB see German Civil Code (BGB) civil peace, protection, 55 civilian tradition actio spolii, 21, 22 immovables, 21–2 mechanisms to protect possession, 21–3 movables, 22 possession generally, 11–12 see also Austrian law, French law, German law, Italian law, ius commune, Quebec law, Roman law, South African law, Spanish law claim and action, 147–8 Coke, E, 69 common law see English law complainte en cas de saisine et nouvelleté, 22, 23, 32, 33, 37, 54, 98–101, 103, 110

212

index

condictio ex canone redintegranda, 96, 97, 189–90; see also réintégrande continuous possession, 45, 46, 48 conversion action in, 52, 53, 73 definition, 44n generally, 79 corporeal possession, 9 corpus and animus, 79, 81, 82, 83, 85, 90 common law, 13, 16–17 descriptive element, 166 fiction, 166 German law, 144–5 legal fact, 165 possessio civilissima, 162–4 Spanish law, 114–15 use of term, 13, 16, 114–15 criminal law, 59, 60–1 custody, 8 death possession, protection after, 141, 147–61 see also possessio civilissima debitum fundi, claim, 130, 133 Decretum Gratiani, 96, 189 de facto possession, 35, 39, 48n, 86 detention possession and, 8, 174 possessory protection, 30–1, 34–44 precarious, 35, 36n, 37–8, 102 Quebec law, 32, 35–6 use of term, 8 see also custody détention précaire, 102 detinue, 52 disturbance of possession, 109–10 Draft Common Frame of Reference holding on another’s behalf, 114 ejection, 112, 115, 116, 134, 137; see also spuilzie ejectment, 25, 33n, 34, 73, 85, 87, 88, 89 definition, 34 electricity services, 204, 205, 207, 210 electronic data, 146, 182–3 embezzlement, 69 emptio non tollit locatum, 183

English law action for the recovery of land, 25 conversion, 52, 53 detinue, 52 ejectment, 25 exclusivity, 48 factual possession creation of rights, 61–3 destruction of rights, 65–6 examples, 60–6 transferring rights, 63–5 holders, possessory protection of, 41 land, possession of, 87–91 mechanisms to protect possession, 23–5 movables and immovables, distinction, 24–5 personal property, 51–3 possession in, 13–15, 23–5, 44, 47–9, 91–4 relative ownership, 24 right to possession, 26 third party, action against, 52 trover, 52, 53 Erbenbesitz, 142, 148 Erskine, J, 113 exceptio spolii, 21, 96; see also actio spolii execution of will executor, 161 German law, 158, 159–60 Spanish law, 158, 160–1 feudal tenure, 117 fiction, 71–2, 73–5 attribution of legal consequences, 166–8 definition linked with reasoning, 165–6 legal meanings, 156–8 methodological benefit, 165–6, 167, 168 possessio civilissima as, 154–5, 157–8, 164–8 use, 167–8 French Civil Code, 7, 12, 102–4 French Code of Civil Procedure, 99–100, 102, 110 French law aircraft, 50n complainte en cas de saisine et nouvelleté, 22, 23, 32, 33, 37, 54, 98–101, 103

index contrasted with réintégrande, 98–101, 102 detention of property, 31–2 discontinuity of possession, 47 holders, possessory protection of, 41 incorporeal things, 27 justification for possessory protection, 43 mechanisms to protect possession, 21–3 movables, 49–50, 103–4 petitory and possessory actions distinguished, 54 possession, definition, 12 ‘possession counts as title’, 50 possessory actions, 98–102 possessory and petitory actions distinguished, 54 possessory remedies, 189–90 protection of possession, 41, 43, 102 reform of 1975, 102 réintégrande, 21, 22, 23, 32, 33, 34, 40, 47, 54, 99–101, 102 revendication, 22, 52, 103, 104 ships, 50n Gaius, 28–9, 190–1 German Civil Code (BGB), 23, 105, 148, 159, 172 Spanish law, comparison with, 169–70 German Code of Civil Procedure (ZPO), 176, 180–1 German law administrative possession, 159 claiming possession protection, 148–50 counterclaim of better right to possess, 144n, 147, 148, 149 cutting off utilities, 178, 179–81 direct and indirect possessors, 174 einstweiliger Rechtsschutz, 149, 151 electronic data, 146 elements of possession, 144–5 Erbenbesitz, 142, 148 executing a will, 158, 159–60 executor as estate administrator, 161 fiction, use in possession protection, 166–8 heirship, and possession protection, 147–58



213

holding on another’s behalf, 105 incorporeal things, 27, 172–3, 175, 177, 178, 179–81 injunctive relief, 176, 180 Klagebefugnis, 161 meaning of possession, 12, 144–5 mechanisms to protect possession, 21–2, 23 mediate possession, 148n non-material possession, 142 ordentliches Erkenntnisverfahren, 149 patents, 181–2 petitorische Einwendungen, 149 petitorische Widerklage, 144n, 149 possession, 12, 144–6, 166–8 possession protection, third person, 148–50, 153–4 possessory claims, 147 possessory and petitory actions distinguished, 143–4 possessory remedies, 23, 175, 177, 178, 179–81 preliminary injunction, 175–7, 180–1 preliminary relief procedure, 148, 149, 150 recovery of possession, 148–50 rei vindicatio, 23 rented property, 174 Sache, 173 servitudes, 173 Spanish law, common ground with, 143–5 tenant freeze-out, 178, 179–81 tenant lock-out, 177 Testamentsvollstrecker, 158, 159–60 unjust enrichment, 144n unlawful detainment, 150n utilities, 178, 179–81 Verkehrsauffassung, 164–5, 166 Verwaltungsbesitz, 159 will, execution of, 158–61 Gewere, 14n, 22, 95, 96, 98; see also saisine good faith, 51, 112, 128–32 Hart, HLA, 57, 58, 66, 67, 68 Henrion de Pansey, PPN, 100, 101 Holmes, OW, 87, 89, 91, 94 Hommel, KF, 28, 171–2, 184

214

index

Hope’s Minor Practicks, 136 incidents of possession electricity services, 204, 205, 207 meaning, 195, 204, 209 telecommunication services, 204, 205–6, 207 water services, 204, 207 Xsinet case (South Africa), 205–6, 207, 209 incorporeal things, 51, 121 Austrian view, 28, 172–4 detention, 174 examples of cases (Austria and Germany), 177–83 exceptio non adimpleti contractus, 179 German view, 27, 172, 173 internet domain, 182–3 patents, 181–2 pledgee of a thing, 10 possessory claim, 175–7 possessory remedies, 171–2, 174–5, 179, 183–4 preliminary injunction, 175–7 prevention of violence, 176–7 quasi-possession, 27–9, 193–4 service provider/client relationship, 171–2 tenant freeze-out, 178–81, 184 tenant lock-out, 177–8 utilities, cutting-off, 178–81 see also quasi-possession infeftment, 121, 130 innkeeper common-law duty, 81 institutional writers (Scotland), 111, 116–17 interdict acquiring possession, 151, 152–3 de adquirir, 151, 152–3 de recobrar, 151, 152, 153, 161 de retener, 151 de vi armata, 19 de vi non armata, 19 possessory judgment and, 133–5 provisional character, 151 public right of way, 137 quorum bonorum, 188n recovering possession, 151, 152

retaining possession, 151 Salvianum, 188n Scots law, definition in, 115 Spanish Civil Proceedings, 147, 150–3 two-stage procedure in Spanish law, 152 unde vi, 18–20, 27, 95, 97, 103, 111, 188, 191 uti possidetis, 20, 22, 95–6, 111, 114, 115, 116, 188 utrubi, 20, 96, 111, 114, 115, 188 interdictum see interdict internet, use of domain name, 182–3 Italian Civil Code 1865 regulation of possessory actions, 105–7 Italian Civil Code 1942, 107–8 Italian law azione di manutenzione, 106, 107–8, 109 azione di reintegrazione, 106–7, 108, 109 azione di rivendicazione, 108 disturbance of possession, 109–10 possessory actions, 107–10 possession of movables, 107, 108 possessory protection, 108 violence, 109 ius commune, 171–2, 186, 190 ius possidendi, 198 ius tertii defence, 82, 88 Jhering, R von, 11, 15, 31, 38–9, 42, 113 Justinian, 118, 191 Labeo, 1 Land Register (Scotland), 121n, 130n, 138 lease apparent, 124 period of possession, 124 possessory judgment, 117, 121, 123 tacit relocation doctrine, 124 Leyser, A von, 97 Llamas y Molina, S de, 168 mandament van complainte, 189, 192 mandament van maintenue, 189 mandament van spolie electricity, 195, 197 possessory remedy, 187–8, 189, 192–3

index

restrictions in use, 195 right of way, 195, 197, 199 servient tenement, 197 specific performance of a contractual right, 205, 206, 207, 208, 209 specific performance of a personal right, 195 telecommunication services, 195, 205–6 underlying principle, 190 use, 186, 191, 209 water supply, 195, 197, 199, 200, 201, 202, 203 master-servant relationship, 69–72 mediate possession, 7n melior est conditio possidentis, 136 mercantile agent, 65–6 movables borrower, 8 English law, 24–5 French law, 49–50, 103–4 good faith, 108 hirer as possessor, 114 immovables, distinction from, 24–5 Italian law, 107, 108 possessory protection, 49–55, 103–4 réintégrande, 103–4 Roman law, 20 Scots law, 114 natural possession, 9 negligence, 73 nemo dat quod non habet, 138n nuisance, 33–4, 73 obligations, voluntarily undertaken, 78, 82 one year and a day rule, 96, 98, 100, 113n ownership absolute, 84 contrasted with possession, 1–4 indirect protection through possession, 15 owner-possessor, 114 relative, 24, 77 Pandectists, 27, 193 patents, 181–2 Patentbesitz, 181 Paul, 27, 188

215

peace, preservation of, 16, 32, 39, 43–4, 92, 101, 193 peaceful possession, 3, 41, 45, 46, 47, 82, 85, 102, 106, 127–8, 196 Perry, Sir E, 89 personal property possessory protection in common law, 51–3 petitory action, 31 German law, 143–5 rule of non-accumulation of possessory and, 53–5 Spanish law, 143–5 pledgee of a thing, 10 Pollock, F right resulting from possession, 87–9, 91, 94 title by possession, 88 transfer, 88–9 transmissible ownership, 88 Pollock, F & Wright, RS, 4, 13, 25, 56, 68–9, 72, 86, 87–8 positive prescription, 127, 132; see also acquisitive prescription possessio civilis, 9 possessio civilissima adverse possession, 162 attribution of legal consequences, 166–8 BGB and Código civil, comparison, 169–70 claim and action, 147–8 corpus and animus, 162 executor, 158–61 fiction, as, 143, 154–5, 157–8, 164–8 heirship, 147–58, 163 ownership and possession, 162–4 possession protection, 148–53 purpose, 162 Rechtsfolgenzuweisung, 143, 167 Spanish legal scholarship, 160–1, 169–70 will, 162 possession animus, 13, 16–17 civilian tradition, in, 11–12 corpus, 13, 14, 16–17 death, and, 141, 147–61; see also ­possessio civilissima

216

index

definition, 3–4, 16–17, 38, 39, 58n, 59, 68–71, 165–6 detention, distinguished from, 31–2 dispossession, 135–7 English law, in, 13–15 expansion of meaning, 71–5, 76 fact or right, as, 25–7, 57–66 generally, 1–6 grounds of protection, 15–16 holding on another’s behalf, 105, 114 interdictal remedy, 133–4 juristic persons, 7n legal fiction, as, 71–2, 73–5, 76 non-lawyer use, 57–8 ownership, contrasted with, 1–4, 31 physical control see corpus right or fact, as, 25–7, 57–66 Roman law, in, 9–11 spuilzie see spuilzie technical term, 66–75, 76 terminology, 1–5 terms commonly associated with, 16–17 vitiation, 10, 15 see also administrative possession, adverse possession, continuous possession, corporeal possession, de facto possession, disturbance of possession, incidents of possession, mediate possession, natural possession, peaceful possession, possessio civilis, possessio civilissima, possession naturalis, possession of goods, possession of land, possession of rights, possessory action, possessory interdict, possessory judgment, possessory remedies, precarious possession, protection of possession, public possession, recovery of possession, unequivocal possession “possession counts as title”, 50, 51 possessio naturalis, 9 possession of goods Armory case (England), 78–81, 83, 92, 93 Jeffries case (England), 82–3 restraint of violence, 78, 82, 83

possession of land apparent title, 138 Armory case (England), 84 Asher case (England), 84–7 common-law reasoning, 87–91 controversies, 84–7 corpus and animus, 90 property right, generates, 84–7 possession of rights, 29, 187; see also quasi-possession possession précaire see precarious ­possession possessory action canon law, 96 conditions, 31 French law, 98–102 generally, 32–3 German law, 97, 104–5, 143–5 Italian Civil Code 1865, 105–7 Italian Civil Code 1942, 107–10 Italian law, 105–10 movables, 103–4 origins, 95–7 petitory action, 53–5 Roman interdicts, 95–6, 97 Spanish law, 143–5 third-party disruption, 55 possessory interdict, 18–21, 83, 188 possessory judgment abolition, 133–40 apparent rights, 120–2, 123 apparent servitude, 124–5, 140 apparent title, 137–9 debitum fundi, 130, 133 debt attached to land, 130, 133 declaratory action, 122–3 effect, 132–3 generally, 115–17 good faith, 128–32 interdict, 134–5, 139–40 interim protection, 120, 123 invalidity of title, 118, 120 justification of ancillary acts, 132 land owners, 121 lease, 117, 121, 123, 124 melior est conditio possidentis, 136 movable property, 117 non-violent possession, 127–8 origin, 117

index

period of possession, 125–7 positive prescription, 127 possessory nature, 118–20 protection of possession, 134–5 public rights of way, 117, 119, 122, 123, 125, 132, 136 pursuer’s apparent title, 137–9 question of right, 118, 119–20 reasons for and against retention, 139–40 recovery of possession, 132–3, 135–9 reduced title, 122, 123, 131 removing, 122, 131, 132, 134 retention, 140 rights not requiring writing, 123–5 rights of way, 117, 119, 122, 123, 125, 132, 136 Roman law, comparison with, 116 servitude, 117, 118, 122, 124–5, 133 spuilzie, 135, 136, 137, 140; see also spuilzie standard of possession required, 127–8 statutory provision, 123 title, need for, 120–3 validity of right, 120 violence, as fatal defect, 119 possessory remedies Austrian law, 173, 174–5 extension to mere holder, 104, 110 French law, 188–90 generally, 10, 12, 95–6 German law, 23, 175, 177, 178, 179–81 incorporeal things, 171–2, 174–5, 179, 183–4 Scots law, 113, 115 South African law, 186, 187, 192–3 see also possessory actions, possessory judgment Pontanus, JB, 97 Pothier, RJ, 23, 98–9, 110 precarious detention see detention precarious possession, 102, 106 prescription see acquisitive prescription, positive prescription property rights Armory case (England), 61–3, 77, 78–81, 83 Asher case (England), 77, 84–7

217



creation, 61–3 destruction, 65–6 disposition to third party by mercantile agent, 65–6 evidence of possession, 61–3 factual possession, 57–66 goods, 61–2, 77 land, 77, 84–7 livery of seisin, 64 possession generating right, 77–8 traditio, 63 transferring, 63–5 protection of possession civil versus natural possession, 35–42 civilian tradition, 21–3 conditions, 45–9 detention, person with, 30–1, 34–44 ejecución de la última voluntad, 158, 160–1 English law, 23–5 German law, 105, 147–50 grounds for, 15–16 holders, 38–9, 40–2 Italian Civil Code, 108 Jhering, 15 justifications, 42–4 mechanisms, 17–25 movables, 49–55, 103–4 one year and a day rule, 96, 98, 100, 113n outwork of ownership, 15 peace, protection of, 55, 92 personal property, 51–3 Roman law, 18–21 Savigny, 16 Spanish law, 147, 150–3 Testamentsvollstreckung, 158, 159–60 theft, 93 violence, 55 public order possessory actions, 106, 107 preservation, 42–3, 44, 78 see also peace, preservation of public possession, 45; see also peaceful possession quasi-possession Bon Quelle case (South Africa), 196, 199–200, 202, 204, 205, 209

218

index

close connection between use and ­possession, 195, 207, 208, 209 electricity services, 195, 204, 206, 207 generally, 27–9, 40, 193–4 incidents of possession, 188, 195, 204–9 mandament van spolie, protection by, 194–8, 200 meaning, 187 possession of rights, 28–9, 187, 190–1, 194 recognition of incorporeal things, 193–4 servitude, 196, 197 servitutal rights, 188, 195, 198–204 Shoprite Checkers case (South Africa), 195–6, 209 specific performance of a contractual right, 205, 206, 207, 208 supermarket loading bay, 208–9 supermarket parking area, 195–6 telecommunication services, 195, 205–7 water services, 195, 204, 206, 207 Xsinet case (South Africa), 205–6, 207, 209 Quebec law animus of possession, 35 corpus of possession, 35 de facto possession 35 definition of possession, 35 depositary, 35, 40 detention, 32, 35–6 generally, 12 good-faith possession, 51 holder as possessor, 40 incorporeal property, 51 intentional element, 35 justification of protection, 43 legal possession, 35 lessee, 35, 40 material element, 35 movables, 49, 50, 51 non-accumulation of possessory and petitory actions, 53–5 possessor with animus domini, 32 possessory action, 36 possessory protection, conditions, 45–7 possessory protection, scope of

­application, 49 precarious title, 35, 36n, 37 third parties, 37, 38 time requirement, 47 titulary of a real right, 36, 37 Quebec Civil Code possession, definition, 35 rule of non-accumulation of actions, 53–5 Quebec Civil Code Revision Office, 35, 36 Rankine, J good faith, 128, 131 possessory remedy, 113 Rau, C, 27, 101 Rechtsfolgenzuweisung, 143, 167 recovery of possession, 134–9 Register of Sasines, 121n, 130, 138 rei vindicatio, 2, 18, 20, 22, 23, 83, 104, 189 réintégrande action, 21, 22, 23, 32, 33, 34, 40, 47, 54, 110 as autonomous action, 99–101 complainte, contrasted with, 98–101, 102 movables, 103–4 possessory action before codification, 98–9 possessory remedy, 190 reform of 1975, 102 violent dispossession, 101, 102 relativity of title doctrine, 77 revendication, 52, 103, 104; see also rei vindicatio rights, possession of see quasi-possession rights of way, 113, 117, 119, 122, 123, 125, 132, 136, 137n, 195, 197, 199 Roman law acquisitive possession, 38 good faith, 131 immovables, 18–20 interdict de vi armata, 19 interdict de vi non armata, 19 interdict unde vi, 18–20, 27, 95, 111 interdict uti possidetis, 20, 22, 95, 111 interdict utrubi, 20, 96, 111 mechanisms to protect possession, 18–21

index

movables, 20 possession, 9–11 possession of incorporeals, 190–1 possessory interdicts, 83 possessory remedies and procedure, 188–90 protection of possession, 188–9 quasi possessio of incorporeal things, 191 rei vindicatio, 18, 20, 23 restoration of possession, 188 separation of possessory and petitory suits, 189, 190 servitutal rights, 198 third-party acquirers, 111 vi clam precario, 18 violence, 189

Sachbesitz, 105 saisine, 14n, 22, 96; see also Gewere Savigny, FC von actio spolii, 104–5 animus domini, 38 generally, 11, 12, 87, 110 incorporeal things, 172, 184 mental element of possession, 113 possessio civilis, 38 possessory protection, 42 preserving the peace, 16, 92 proof of possession, 89 restraint of violence, 83 subjective theory of possession, 10–11, 31, 105 usucaption, 45n Scots law bad-faith possessor, 114–15 good faith, 128–32 hirer of land or movables, as possessor, 114 holding on another’s behalf, 114 incorporeal property, 121 interdict, definition, 115 mental element of possession, 113–14 possession, generally, 12, 111–15, 125–8 possessory judgment see possessory judgment protection of possession, 134–5 recovery of possession, 135–9

219

rights not requiring writing, 123–5 scope of possessory remedies, 115 spuilzie see spuilzie tenant as possessor, 114 title, 117, 120–3 secrecy, 46 seisin, 13–14, 22, 64, 85, 86, 88, 96, 97 servitude apparent, 124–5, 140 factual exercise of, 196 German Civil Code, 173 grazing land, 118 ownership, competing claim, 133 possession of servient tenement, as, 197 time period, 113, 140 validity, 118 servitutal rights access to land, 198–9 Bon Quelle case (South Africa), 196, 199–200, 202, 204 common-law position, 200 Impala case (South Africa), 200–1, 202, 203, 204 meaning, 195 origin, 198 personal rights based on contract, 201–3 prevention from exercising right, 191 quasi-possession, 198–204 right of way, 113, 199 water supply, 199–204 “sitting over”, possession as, 1, 2, 3, 5, 6, 8, 9, 26, 29 social justice, 31 South African law background, 185–8 incorporeal things, 27 mandament van spolie, 186, 187–8, 192–4, 200, 209 ownership and possession, distinction, 186 possession, historical background, 188–91 possessory remedy, 186, 187, 192–3 quasi-possession see quasi-possession Roman-Dutch law, 185–6 servitutal rights, 188, 195–6, 198–204 spoliation order, 186

220

index

Spanish Civil Code possessio civilissima, comparison with BGB, 169–70 Spanish law acciones posesorias, 164 claim and action, 147 delation, 163n ejecución de la última voluntad, 158, 160–1 executing a will, 158–61 executor, 158–61, 162 fictions and normative considerations, 166–8 German law, common ground with, 143–5 heirship and possession protection, 147–58 interdictos, 147, 150–3 meaning and elements of possession, 144–5 medidas cautelares, 151n mortis causa, 160, 161 possessio civilissima, 142, 151, 152, 153, 160, 161 as fiction, 154–5 possession, 144–6, 166–8 protection of, 150–3 possessory actions, distinguished from petitory actions, 143–4 recovery of possession, 150–3 rights and things, 145–6 succession, 163n third party, 150, 153–4 special property, 79, 80, 81n, 85, 93 spoliation, 192, 195, 196 spoliation order see mandament van spolie spoliatus ante omnia restituendus, 112, 190, 192, 199 Spotiswood, J, 121 spuilzie, 112, 115, 116, 132, 134, 135, 136, 137, 140 Stair, Viscount generally, 111 good faith, 112, 129–30 period of possession, 126 possessory judgment, 121, 122, 132–3 possessory remedies, 113 recovery of possession, 132–3, 138



standard of possession, 128 title, 138

tacit relocation, doctrine, 124 telecommunication services, 204, 205–6, 207, 210 tenant freeze-out, 178–81, 184 generally, 8, 40, 114, 138 lock-out, 177–8 possessor, as, 41, 114, 174 possessory judgment, 120, 133 utilities, cutting-off, 28, 179, 188 theft, 68–71, 93 third party acquirers, 111 action against, 52 possessor, as, 174 possessory action, 55 property rights, 65–6 recovery of possession, 150, 153–4 title invalidity, 118, 120, 138 reduced, 122, 123 security of, 44 written, 120–3 see also ownership titularity, 29 trespass action for, 33, 51–2, 62–3 complainte, compared with, 33 definition, 33 goods, 51–2, 72 interception of mail, 75 land, 71–4 possession, requirement of, 73, 74–5 Troplong, RT, 100 trover action in, 52, 53, 79 generally, 87, 88 potential claimants, 79–80 special property, 79, 80 Ulpian, 15, 27, 29, 111, 112, 188, 191 unequivocal possession, 45, 46 United States possessory protection, 91 usucapio, 83n usucaption, 43, 45n, 49, 55, 83n

index usufruct, 27, 28, 29, 191, 198 utilities cutting-off, 28, 178, 179–81, 184, 188 electricity services, 195, 204, 205, 207, 210 quasi-possession, 195, 204–7 telecommunication services, 195, 205–7 water services, 195, 204, 206, 207 water supply, 195, 197, 199, 200, 201, 202, 203 Verkehrsauffassung, 143, 164–5, 166 vi clam precario, 18 vindicatio see rei vindicatio violence dispossession by, 32, 46, 47, 99, 101, 108 interpretation, Italian courts, 109



221 preliminary injunction, 176–7 restraint of, 78, 82, 83 Roman law, 189

wasteland redistribution, 84, 92 water services, 204, 207, 209–10 water supply, 194, 195, 197, 199–204 will execution, 158–61, 162 executor, 161 German/Spanish comparison, 158–61 Windscheid, B, 105 Wright, RS, 4, 13, 25, 56, 68–9, 72, 86, 87–8 Zeiller, F von, 172 Zivilprozessordung see Austrian Code of Civil Procedure, German Code of Civil Procedure