1.
Introductory remarks on the notion of Possession
In human life as well as in the legal realm, the concept of possession plays
a crucial role in defining and understanding the overall property rights;
For instance, we can see how the concept of possession is important to
understand the overall ideas behind the right of OWP and a usufruct.
Though the concept of possession is basic and essential in human life, it is
difficult to define;
As a result, there is no fixed or precise definition of possession
because it is a legal as well as factual concept.
As a result of its factual and legal aspects , the concept of possession is
divided into two categories;
Possession in fact and
Possession in law
A. Possession in fact:
“Possession” in fact literally refers to a person’s physical control over the
thing.
It expresses the closest relation of fact that can exist between a thing
and the person, who possess it.
This is also known as defacto possession or possessionis naturalis.
B. Possession in law:
Through time, possession has grown from being only a factual concept
towards becoming a legal concept as well;
In law, the concept of possession includes not only physical control
over a thing but also an intention to exercise that physical control.
Most definitions of possession spin around the above mentioned idea of
possession in Law;
i. Grotius: “possession is the actual holding of a thing
accompanied by the intention to hold it for oneself and not for
another”
ii. Maine: “possession is a physical detention coupled with the
intention to hold the thing detained as one’s own”.
iii. Salmond: “Possession of the material object is the continuing
exercise of a claim to the exclusive use of it”
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2. Elements of Possession
Possession has the following two fundamental elements:
The Corpus or Physical element – Equivalent to the De facto
possession.
The Animus or mental element – Equivalent to the De jure possession.
A. The Corpus or Physical element: The Corpus Possessionis;
The corpus element refers to that physical control of the person over the
corporeal object of property;
Corpus possession or physical possession of a thing implies two things;
Possessor’s physical relation to the object;
It referrers to the existence of some physical contact of a
person with the thing which he possesses.
The possessor’s relationship to the rest of the world;
It refers to the creation of a reasonable expectation that
others will not interfere with it.
This relation of the possessor to the rest of the world is
essential for assurance of non-interference.
This was a full-fledged idea of corpus/physical possession in the ancient
societies.
Because at that time there was no distinction between detention and
possession.
Later on, however, the classical Roman jurists acknowledged two levels of
authority over a possessed thing/corpus possession;
While the lesser of which is referred to as detention and
The highest as possession, properly so-called.
Consequential to the contemporary recognition accorded to the distinction
between detention and possession;
Nowadays, there exist two major categories of corpus possession.
Corpus can be direct (immediate) or indirect (mediate), which proves the
transformation of the idea of physical possession of the ancient societies:
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Immediate/direct possession:
Immediate/direct possession simply refers to the usual and normal type of
possession;
The one who exhibits external power over the object with the
attendant intention element.
Accordingly, if a person is directly exercising physical control of a thing
with the required mental element, he will be treated as having possession
direct or immediate possession.
Mediate/indirect possession:
Mediate possession is a possession of things through another person.
When one person is holding a given object for and on account of
someone else, the latter is said to be in possession of that thing by the
agency of the former who holds the thing in fact.
Salmond points out three categories of mediate possession;
Possession acquired through an agent
Possession held through a borrow
Possession lent for a fixed period of time
a. Possession acquired through an agent:
The first kind of mediate possession is that which a person acquires through
an agent or servant.
It is a corpus possession through someone who holds solely on his
account i.e. and claims no interest of his own. For instance:
When you allow your servant to use your own tool in his work.
When you deposit goods with a warehouseman who holds them
on your account.
b. Possession held through a borrow:
The second kind of mediate possession is that in which the direct physical
control (corpus) is;
In one who holds both on your account and on his own, but
Who recognizes your superior right to obtain from him the direct
possession whenever you choose to demand it. For instance:
When you lend a given object for a borrower, you have mediate
possession.
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c. Possession lent for a fixed period of time:
The third type is that in which the immediate “possession” is in a person
who claims it for himself;
Until sometime has elapsed or
Until some condition has been fulfilled
Nevertheless, he acknowledges the title of another for whom he holds the
thing, and to whom he is prepared to deliver it when his own temporary
claim has come to an end. For instance:
When you deliver it as a pledge to be returned on the payment of a debt.
NB. Here, there is an important distinction to be held:
For some purposes, mediate possession exists as against third persons only,
and not as against the immediate possessor;
In the case of goods with a warehouseman, mediate possessor retain
possession as against all other persons; because as against them he
have the benefit of the warehouseman’s custody.
But as between the warehouseman and the mediate possessor,
the warehouseman is in possession and not the mediate
possessor.
So in the case of a pledge, the debtor continues to possess against the
world at large; but as between debtor and creditor, possession is in
the Creditor.
The debtor’s possession is mediate and relative; the creditor’s
is immediate and absolute.
So also with landlord and tenant, bailor and bailee, master and
servant, principal and agent, and all other cases of mediate
possession.
Immediate possession, on the other hand, is valid as against the entire
world, including the mediate possessor himself.
B. The Animus/Mental/Intention Element: Animus Domini:
It implies the intention to appropriate to oneself the exclusive use and
enjoyment of the thing possessed, not detaining on behalf of others.
The possessor must have the intention to possess and control the thing
for his own.
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3. Types of Possession
A. Actual Possession
This type of possession refers to physical control or occupation of a property
or object.
The person exercising actual possession is in direct physical contact
with the property and has the ability to use, enjoy, and control it.
For instance, a homeowner living in their house is in actual
possession of the property.
B. Constructive Possession
Constructive possession occurs when an individual has control and authority
over an object or property, even if they are not physically present at the
location.
This often applies to situations where multiple parties have a shared
interest in the same property, such as an owner of a building and
mortgage right of Banks.
C. Adverse Possession
Adverse possession arises when an individual gains legal ownership of
property by;
Openly and notoriously occupying it for a specified period
Typically against the owner’s permission.
Adverse possession means possession by a person initially holding the land
on behalf of another person and
Subsequently setting up his own claim as a true owner of that land.
To acquire the property through adverse possession the claimant must meet
certain criteria, such as continuous possession and hostility towards the true
owner’s rights.
D. Concurrent or duplicate possession
Concurrent or duplicate possession is when two or more person possesses in
common the same thing at the same time, but their claims are not adverse to
each other.
There are several possible cases of duplicate possession;
Thus, two or more persons may possess the same thing in common,
just as they may own it in common.
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4. Theories of Possession
The concept of possession is as difficult to define as it is essential to protect.
The major point of difference between various theories of possession
is the fact of;
Either recognizing or denying some of the elements of
possession and types of possession discussed above.
Various theories of possession advocated by various scholars can be
subsumed under either subjective school of thought or objective school of
thought.
A. Subjective School of thought/Theory
1. Savigny’s Theory:
Possession in the context of Savigny’s subjective theory is defined as;
“The holding of a thing in the power of a person who intends to exercise
with regard to it a property right of ownership”.
I. The two basic elements of Posession in the Savigny’s Theory
He emphasized that possession has two basic elements:
Corpus possessionis
Animus Domini
According to Savigny’s theory, only those persons that have the will
(animus) to possess a thing as their own are regarded as possessors;
The will to possess the thing
And possessing the thing as an owner.
a) The will to possess the thing:
It is the conscious intention of the possessor to exclude others from
interfering with his right of possession;
The possessor should be aware of their possession and exercise
control over the property knowingly.
This helps to differentiate between mere presence and actual
possession.
Here, the intent to possess the thing is an indispensable element of
possession.
b) Possessing the thing as an owner:
According to savigny, only an owner can have possession.
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Only he who can use, enjoy and dispose of an object can be a
possessor.
He who lacks the power of disposition of the object cannot properly
attain a status of possessor.
Here, the intent to own the thing ( animus domini ) is an indispensable
element of possession because;
For savigny, the law recognizes and protects possession because it has
the effect of protecting owners.
II. Criticism on Savigny’s Theory of possession
a) Failure to explain some categories of property rights:
Savigny’s idea of animus Domini, fails to explain those property right
holders who have possession but do not intend to hold as owners;
In practice, there are many peoples who are simultaneously using and
enjoying the same type of object with the owner.
And these peoples should be and will be treated as possessors so to
effectively protect their property rights.
In contrast to Savigny’s thought, these groups of peoples are treated as
having possession, whether direct or indirect, over an object at the same
time with the owner of the object;
Lessees, tenants, usufructuaries, pledgees, bailees, warehouse men, so
and so forth shall be treated as having possession over objects under
their control or occupancy.
NB. These groups of people will be protected in their possession not only
against third parties but also even against the owners.
b) The Counter Critics of the first criticism :
Savigny’s theory have not adopted an approach of complete ignorance
towards the mentioned right holders;
Savigny and his followers actually recognizes the adverse effects of
their arguments:
Many people that may have personal and real interests in
another’s thing would remain without legal protection.
In order to tackle possible challenges against these latter categories of people
they invented the idea of quasi possession and quasi-possessory actions;
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This scheme of protection enables the non-owner quasi-possessors to
get protection against third parties other than owners.
c) The criticism of being reluctant about the fate of unlawful
possessors:
Savigny have not expressly taken that the law does not protect a possession
that is acquired unlawfully.
He has overlooked the fact that, even if both corpus possession and
animus domini are present, the law doesn’t safeguard a possession
obtained illegally. For instance:
A thief of a stolen item is not protected by the law.
2. Grotius Theory of Possession
Possession for Grotius is;
“The actual holding of a thing accompanied by the intention to hold it
for oneself and not for another”
B. Objective School of thought/Theory
Ss
On the other continuum of possession theory, we find the objective school of
thought advocated by several popular jurists.
1) Ihering’s theory of Possession
Ss
Ihering’s theory of possession looks to be more practical and realistic.
According to Ihering’s thought, possession refers to only the externally
visible physical relation of a person and an object at any given moment.
He says that whenever a person looked like an owner in relation to a
thing,
He had possession of it unless possession was denied to him by rules
of law based on practical convenience.
Ihering challenged the subjective theory of possession and sought to
demonstrate that;
The subjective intent of the person who has physical control over a
thing is implicit in his factual authority, but
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It is not determinative for the qualification of that authority as
possession.
Ihering distinguished between possession and detention, but he did not
ground the distinction on the presence or absence of the intent to own the
thing.
According to Ihering, a person has detention rather than possession
when the causa possessionis (the “cause of possession”) is of a nature
that implies exercise of physical control over a thing on behalf of
another person.
Thus, according to the Ihering’s objective theory of possession, possession
has one ingredient which is corpus;
The mental element is to be presumed from the factual physical
control.
And this element which is to be presumed should not necessarily be an
animus domini (Intention of an owner).
An animus possesendi is sufficient.
Hence, any person who exercises physical control/factual authority over a
thing is possessor, even if he exercises that authority on behalf of another
person.
But 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, only such other
person is the possessor.
The detainer is referred to as possessor servant or possession helper.
Consequently, therefore, lessees, tenants, depositaries, borrowers, bailees,
warehousemen, pledgees etc. are possessors in the proper sense of the term.
2) Salmond’s Theory of Possession
He started by distinguishing between possession in fact and possession in
law;
He claims that there is only one possession and that is possession in
fact which is possession in truth and in fact, and
Possession in law is a legal fiction.
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He then distinguished between possession of physical objects, which he
called corporeal possession and possession of rights, which he called
incorporeal possession.
Corporeal possession
It is the continuing exercise of claim to the exclusive use of physical or
corporeal things
The extent of this claim involves two ingredients corpus possessionis and
animus possedendi.
Hence, corporeal possessionis is the corpus element and animus
possesendi is the intent to exclude others, i.e., to hold for one’s own
interest.
He further classified the corpus possessionis under two headings:
The relation of the possessor to the thing, which must allow him to put
the thing to the use which accords with its nature and
The relation of the possession to other persons.
According to the second heading, a person shall be considered to be in
possession of a thing, where the facts of the case are such as to create a
reasonable expectation of non-interference in the use of it.
C. Concluding Remarks on the Two School of Thought
1) In effect both schools of thoughts are almost similar;
While the subjective theorists narrow the scope of possessors and broaden
the class of detainers and quasi possessors because;
Unless a person has animus domini he/she will not be possessor.
The objective theorists treat much class of people as having this status of
possession;
The legal consequences that go into this large category of people in
the objective school of thought are almost the same with the legal
effects of becoming detainer or quasi-possessor in the subjective
school of thought.
2) After all this extended background, we now proceed to relate these
theories with the Ethiopian perspective on this issue of possession;
How is possession defined under the Ethiopian legal regime?
Who is/can be a possessor?
What is the distinction between a possessor and a mere holder?
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