Possession

Definition and Nature of Possession

Possession is one of the most fundamental and often debated concepts in jurisprudence. It refers to the relationship between a person and a thing that allows the person to exercise effective control over the thing. Unlike ownership, which is a legal right or title, possession is primarily a fact, though it gives rise to important legal consequences.

Definition:

Defining possession precisely is challenging as its meaning varies across different legal systems and contexts. However, jurists generally agree that it involves two main elements:

Corpus: The physical aspect of control or the ability to control a thing.
Animus: The mental aspect, the intention to possess the thing.

Possession denotes a de facto relationship with a thing, reflecting actual power or control, as opposed to ownership which is a de jure right.

Nature of Possession:

Fact and Law: Possession is primarily a fact (a state of control) but it is recognised and protected by law. Law attaches significant consequences to the fact of possession, including rights (jus possessionis) and remedies (possessory remedies).
Relative Title: Possession creates a title that is good against everyone except a person with a better title (usually the true owner). This is why 'possession is nine-tenths of the law' – a possessor has a good claim against anyone who cannot demonstrate a superior right.

Corporeal Possession

Corporeal Possession refers to possession over tangible or material things – physical objects that can be perceived by the senses. This is the most common and straightforward form of possession, involving physical control over a material object like a piece of land, a car, a book, or money.

Example: Holding a book in your hand, occupying a building, keeping money in your wallet.

Incorporeal Possession

Incorporeal Possession refers to possession over intangible things or rights. These are things that do not have a physical body but are capable of possession in a legal sense. This form of possession is less intuitive than corporeal possession.

Examples include:

Possession of a right of way (easement).
Possession of a copyright or patent (exercising the rights granted by the copyright or patent).
Possession of a debt (having the power to enforce payment of the debt).

Incorporeal possession involves exercising the rights associated with the intangible thing, rather than physical control over a material object. It reflects control over a bundle of rights or liberties recognised by law.

The distinction between corporeal and incorporeal possession helps in understanding how the concept of possession is applied to both material objects and intangible rights.

Elements of Possession

As discussed, possession is generally analysed into two constituent elements: the physical element (Corpus) and the mental element (Animus).

Corpus Possessionis (Physical relation to the thing)

Corpus Possessionis refers to the physical element of possession. It signifies the effective physical control or power over a thing. It is the factual relationship that exists between a person and a thing, enabling the person to use the thing and exclude others from using it.

The degree of physical control required for Corpus varies depending on the nature of the thing (e.g., holding a coin vs. possessing a large tract of land, possessing goods in a warehouse by having the key).
It does not necessarily mean constant actual physical contact. Having the means to control the thing and exclude others is often sufficient (e.g., owning a house even when away, possessing goods in a locked room).
Control can be exercised directly by the person or through others (e.g., a landlord possesses through his tenant, a master possesses through his servant).

Animus Possidendi (Intention to possess)

Animus Possidendi refers to the mental or intentional element of possession. It is the intention of the possessor to exercise control over the thing on their own behalf, or to the exclusion of others. It signifies the will to hold the thing for oneself, not merely as a custodian for another.

The necessary intent is usually the intention to hold the thing as owner (Animus Domini), even if the person is not the true owner. It means the intention to exclude others from using or interfering with the thing.
However, the strict requirement of Animus Domini is debated. Some argue that an intention to hold the thing for oneself, even without claiming ownership (e.g., a lessee intending to hold for the term of the lease against all others except the landlord), can be sufficient for legal possession.
The intention must be conscious and voluntary. A person who finds something but does not intend to keep it does not have Animus Possidendi.

For legal possession (or 'possession in fact' that law protects), the general requirement is the union of both Corpus (physical control) and Animus (intention to possess). Possession ceases if either element is lost (though there are exceptions and complexities in specific situations).

Theories of Possession

The relationship between the two elements of possession (Corpus and Animus) and their relative importance has been the subject of different theories proposed by jurists.

Savigny's Theory of Possession (Corpus and Animus)

Friedrich Carl von Savigny, influenced by Roman law, developed the Volitionist Theory of possession. According to Savigny:

Possession = Corpus + Animus: Both the physical element (Corpus) and the mental element (Animus Possidendi, specifically Animus Domini - intention to hold as owner) are essential and equally important for possession.
If either Corpus or Animus is absent, there is no true possession.
Servants or agents holding property for their master/principal are not in possession themselves because they lack Animus Domini; they hold on behalf of another.

Savigny's theory is considered stricter and focuses on the subjective intention of the possessor. It emphasizes the Roman law principle that possession required not merely physical detention but also the will to be the owner.

Pollock's Theory of Possession

Sir Frederick Pollock, an English jurist, offered a pragmatic definition of possession based on factual control.

Possession is Matter of Fact: Pollock defined possession as the 'physical control' over a thing, coupled with the 'intention to exclude others'.
He viewed possession primarily as a question of fact, focusing on the actual relationship of control over a thing.
His emphasis was on the factual ability to control and exclude others, which he saw as the basis for legal protection.

Pollock's definition is often seen as less focused on the subjective "intention to own" (Animus Domini) and more on the factual assertion of control against the world.

Hohfeld's Analysis of Possession

Wesley Hohfeld, in his analytical framework, did not provide a single definition of 'possession' as a unitary concept. Instead, he would analyse the legal relations involved in possession using his fundamental legal conceptions (right, duty, privilege, no-right, power, liability, immunity, disability).

Possession gives rise to a set of legal relations. For instance, a person in possession has a claim-right to continue in possession against anyone who interferes (correlative duty on others not to interfere).
The possessor also has the privilege to use the thing (correlative no-right in others to complain about the use).
In some cases (e.g., adverse possession), long possession may confer a power to transfer ownership (correlative liability in the true owner to lose title).

Hohfeld's analysis is valuable for clarifying the specific legal consequences and relations that arise from possession, breaking down the general term into more precise components.

Ihering's Theory of Possession

Rudolf von Ihering, a German jurist, developed the Objective Theory of possession, which was a critique of Savigny's theory.

Emphasis on Corpus: Ihering gave more importance to the physical element (Corpus). He argued that wherever physical control exists, the necessary intention (Animus) should be presumed.
Animus is the 'will to possess': For Ihering, the necessary intention is merely the will to hold the thing, which is naturally inferred from the factual control. The law does not require proof of a specific 'intention to own' (Animus Domini).
He argued that the exceptions where possession does not exist despite physical control (e.g., servants holding for masters) are specific instances created by law for practical reasons, not because the servant lacks Animus.
Focus on Social Function: Ihering viewed the legal protection of possession from a sociological perspective. Protecting possession contributes to social order and stability, as it prevents people from resorting to force to recover property.

Ihering's theory is considered more practical and objective than Savigny's, focusing on external observable facts and the function of law in protecting these facts. Most modern legal systems have adopted a position closer to Ihering's, allowing for possession based on factual control unless a specific legal rule excludes it.

Possession and Ownership

Possession and Ownership are distinct legal concepts, although they frequently coincide. Understanding the difference and relationship between them is crucial in property law and jurisprudence.

Distinction:

Feature	Possession	Ownership
Nature	De facto (fact of control).	De jure (legal right/title).
Elements	Corpus (physical control) + Animus (intention).	Bundle of rights (use, disposal, possession, etc.).
Relationship with Thing	Physical relationship with the thing.	Legal relationship with the thing.
Duration	May be temporary (e.g., lease, loan).	Generally perpetual (subject to legal limits).
Origin	Acquired by taking or delivery.	Acquired by operation of law (inheritance), agreement (sale), etc.
Protection	Protected by possessory remedies.	Protected by proprietary remedies.
Proof	Requires proof of factual control and intention.	Requires proof of legal title.

Relationship:

Overlap: In many cases, the owner is also the possessor of the thing. This is the simplest scenario.
Separation: Possession can exist without ownership (e.g., a thief, a lessee, a bailee) and ownership can exist without immediate possession (e.g., a landlord whose tenant is in possession, the owner of stolen goods before recovery, a person with a vested remainder interest). This highlights their distinctness.
Evidence: Possession is often strong evidence of ownership (prima facie evidence), especially in the absence of other proof.
Acquisition of Ownership: In certain circumstances, long and uninterrupted possession (adverse possession) can extinguish the title of the true owner and create a new title in the possessor.

Law protects possession because it is easier to prove than ownership and to maintain peace. The focus on protecting existing possession, even if wrongful against the true owner, ensures that disputes are settled legally rather than by force. While ownership is the ultimate right, possession is the visible fact that law regulates and protects for practical reasons of social order.

Possession of Movable and Immovable Property

While the general principles of possession (Corpus and Animus) apply to both movable and immovable property, there are some distinctions and specific rules that apply based on the nature of the property.

Movable Property (Goods):

Physical Control: Gaining Corpus over movable property usually requires a higher degree of physical handling or detention (e.g., holding, carrying, putting in a pocket).
Transfer: Possession of movables is typically transferred by actual delivery. Constructive delivery methods are also common.
Lost and Found Property: The rules regarding the possession of lost movable property involve the finder gaining possession upon taking physical control with the intention to possess, giving rise to certain rights and duties towards the true owner.
Presumption: Possession of movable property raises a strong presumption of ownership.

Legal principles governing the sale of goods, bailment, pledge, etc., heavily rely on the concept of possession of movables.

Immovable Property (Land and Buildings):

Physical Control: Gaining Corpus over immovable property does not require constant physical presence. It involves exercising such control as is normal for that type of property (e.g., occupying, fencing, cultivating, letting out on rent, keeping keys).
Transfer: Transfer of possession of immovable property may involve handing over keys, symbolic delivery, or merely the new possessor taking effective control.
Possessory Remedies: Specific legal remedies (like suit under Section 6 of the Specific Relief Act, 1963 in India) are provided for the recovery of possession of immovable property to prevent forceful dispossession.
Adverse Possession: The concept of adverse possession, where ownership can be acquired through long, uninterrupted, and hostile possession against the true owner, is particularly relevant for immovable property.

The rules governing possession of immovable property are often more detailed and complex than those for movables, reflecting the enduring nature and higher value typically associated with land. However, the underlying elements of Corpus and Animus remain central to the concept of possession for both types of property.