Concept of Possession in Property Law

Abstract

Possession is one of the most important concepts in property law. But it is very difficult to define the term of Possession. Not only corpus but also animus must be present to constitute Possession. Ownership is a legal concept whereas Possession is factual as well as legal concept. Ulpian, in the Digest said, “Ownership has nothing in common with Possession” (nihil commune habet proprietas cum possessione). Roman law knew possessory interdicts to protect Possession.
Based on an extensive and methodical study of Roman law, two leading German authors attempted to define and systematize the concept of Possession in the 19th century: Friedrich Carl von Savigny, and Rudolf von Ihering. For both, the principal challenge was to set the boundary between Possession and Detention. With Savigny’s subjective theory of Possession, the intention to possess as an owner as a necessary element of Possession. On the other hand, Ihering proposed an objective theory of Possession and rejected the requirement of the animus domini.
In France, before 1975, with the Code civil inspired by Savigny’s subjective theory of Possession, a precarious possessor could not be plaintiff in a possessory action brought against the person for whom he possessed. In Germany, with Ihering’s objective theory of Possession, the BGB takes no difference between de facto Possession and Legal Possession. Therefore, in France two articles, arts. 2282, 2283, were added to the Civil Code in 1975 in order to accord possessory protection to precarious possessors. Presently, these two majors civil law countries give the harmonized solution. In Japan, as well as in Thailand, the Possession dispositions follow the objective theory of Possession.