It has long been disputed whether in classical Roman law constitutum possessorium was recognised as a means of transferring possession and ownership. Many authors have held that, at best, it was recognised where the constituens was the procurator omnium bonorum of the acquirer but that the texts which give it general recognition are the work of the Compilers. Others have held that it was classical, while one or two have taken up an intermediate position. Riccobono held that it was rejected by the majority of the classical writers but widely used in practice and Pflüger that it could be used in all cases except where the transfer was donationis causa, the exclusion in this case resting on the lex Cincia:

The main arguments against its classicality are three in number:

1. (a) it conflicts with the rule traditionibus non nudis pactis dominia rerum transferuntur because constitutum possessorium is essentially a mere agreement;

2. (b) it is a case of acquisition by representative and in classical law the only free representative through whom one could acquire possession was a procurator omnium bonorum, so that constitutum possessorium can only be valid in classical law if the constituens is such a procurator; and

3. (c) the textual evidence for it is slight.