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Published online by Cambridge University Press: 16 January 2009
The literature on possessio has now assumed such proportions that it will require a volume at least to do anything like justice to it. The purpose of this article is only to outline an approach to the Roman law of possessio as suggested by Kocourek's analysis of possession in the common law. The present writer believes that a substantial similarity exists between these two great systems in their approach to possession and this has not been due to any borrowing by the one from the other: a fact which, if proved, should be of no little jurisprudential interest. It is, therefore, merely as a prologue to a fuller exposition elsewhere that the following contentions are advanced as to possessio in Roman law.
Kocourek, writing of the common law, maintained that “possession” as a juridical concept distinct from physical control on the one hand and the right to have physical control on the other was unnecessary. If a person actually holds a thing, he either has a right to continue holding it or he has no right; if he is not holding a thing, he either has or has not a right to hold it. In all cases what matters is the right to have physical control. As long as the term “possession” is confined to physical control, no harm is done, but what Kocourek objects to is that mysterious tertium quid, called “possession,” from which are distinguished both physical control and the right to it, the former being known variously as “de facto possession,” “custody,” “detention,” and the latter as the “right to possess.”
1 See Windscheid, Lehrb. des Pandektenrechts, 9th ed., 1906, i. 732Google Scholar, Bonfante. Corso di Diritto Romano (1933), iii. 130Google Scholar, Jörs-Kunkel, , Röm. Recht (1935), 111.Google Scholar
2 Jural Relations, 2nd ed., 1928Google Scholar, Chap. 20. I am indebted to Dr. Glanville Williams, who first drew my attention to it. I am also indebted to a course of lectures by Mr. J. W. C. Turner, who reached somewhat similar conclusions by a different line of argument.
3 Op. cit., 389.
4 Riccobono, , Z.S.S. (1910), 321Google Scholaret seq., Buckland, , Text Book, 2nd ed., 1932, p. 197.Google Scholar The latter admitted “both looseness in the use of the terms and the probability of interpolation.”
5 Symbolae Friburgenses in honorem Ottonis Lenel (1933), 40Google Scholaret seq.
6 Der röm.Obligationsbegriff (1927), i.Google Scholar Some doubt may be felt how far Classical lawyers would have used the term “civilis” to embrace practorian remedies, such as the interdicts. Buckland, ubi sup., suggests that interpolation by the compilers sometimes made the Classical jurists appear to have done this.
7 Recht des Besitzes, trans. Perry, (1848).Google Scholar
8 Even Paul, on whom Savigny relies so much, does not say that possessio “is” corpus and animus, but only that we acquire it by means of corpus and animus. Thus, 41.2.3.1: “apiscimur possessionem corpore et animo”; P. Sent. 5.2.1: “possessionem adquirimus et animo et corpore.” Also 41.2.8, 50.17.153.
9 Grund des Besitzesschutzes (1869)Google Scholar, Besitzwille (1889).Google Scholar
10 Lightwood (1887) 3 L.Q.R. 32, and Bond (1890) 6 L.Q.R. 259, are more sympathetic to Ihering than to Savigny.
11 Maitland, P. & M.History of English Law, 2nd ed., 1898, ii, 44.Google Scholar
12 Doubtful cases: holder of ager vectigalis and precario tenens. Some texts give the latter possessio, though he was only a holder at will and though the borrower for a term had no possessio. 41.2.3.5, 41.2.10.1, 41.2.13.7, 43.26.6.2. 43.26.15.4, 43.26.19 pr.
13 Compare Maitland's summary of early English law. “Legal reasoning seems circular:—for example. it is argued in one case that a man has an action of trespass because he has possession, in the next case that he has possession because he has an action of trespass… This play of reasoning between right and remedy fixes the use of words”: op. cit., 31.
14 See further, Riccobono, , Z.S.S. (1910), 325.Google Scholar It is fashionable to regard references to “naturalis” as interpolated. Even if this is true, it does not affect the present argument.
15 As one writer wittily remarked in another connection: “If, however, the adjective and noun are to be combined so as to produce a composite noun of an entirely different meaning, this must be carefully explained, or confusion may result; a dog does not cease to be a dog because it may be called a white dog, or a black dog; the expression ‘hot dog,’ however, is one which would require careful explanation should it become necessary to use it in the course of litigation”: Turner, , Modern Approach to Criminal Law (1945), 208.Google Scholar
16 This is evident in various ways. Ihering was certainly correct when he said that interdictal protection of possessio was with a view to protecting dominium. The attitude is also to be detected in the fact that servitudes were not conceived as burdens on dominium, but as qualities of the land: 8.6.12 (“fundus enim qualiter se habens”), Buckland, , Text Book, 265, Main Institutions, 154; Kagan (1945–1946) 20 Tulane L.R. 102–103, (1947) 22 Tulane L.R. 101 et seq. Hence it is that a servitude could continue to exist over land the dominium of which has been abandoned: 8.5.6.2 fin. Gaius and Justinian say that usufruct was limited in duration so as not to weaken dominium indefinitely: 7.1.3.2, Inst. 2.4.1. The reasons why dominium acquired such sanctity are conjectural, but it may originate in an early identification with patria potestas as part and parcel of a single concept of sovereignty. It is significant that (a) mancipatio and cessio in jure were primitive modes of acquiring both dominium and patria potestas; (b) lapse of an uninterrupted year was a means of acquiring both dominium (usucapio) and patria potestas (manus); (c) originally patria potestas, like dominium, included the power of life and death, sale, pledge; (d) the term “potestas” applied to both “dominica potestas” and “patria potestas,” G. 1.52, 55; (e) the words “dominium” and “dominus” mean “lordship” and “lord,” i.e., something more than mere ownership, “proprietas.” More doubtfully, (f) there is the view that testamentary succession was originally regarded as a devolution of sovereignty rather than ownership; (g) a view held by some is that in its earliest form dominium, being sovereignty and hence a personal attribute, was not transferable; (h) it has also been suggested ingeniously that the word “liber,” meaning both “child” and “free,” dates from a time when the whole familia was under one sovereignty, but the children were the “free” members (liberi) as distinct from the unfree members.Google Scholar
17 Sabinus and Trebatius applied similar reasoning to precarium in 41.2.3.5, while Labeo and Paul did not; nor did Ulpian in 41.2.13.7, nor Julian in 43.26.19 pr. Pomponius remarks on the dispute in 43.26.15.4. 41.2.43.1 says that a bona fide possessor is not prevented by the existence of an usufruct from usucaping. This is not an example of possessio being vested in two persons for different purposes, but at most possessio of different things. The bona fide possessor possessed the object, while the fructuary, as we shall see, possessed the right, but more usually he was only treated “as if in possession.”
18 Other reasons are also given: Buckland, , Slavery (1908), 269Google Scholar. See generally, 7.1.12.3, 41.2.3.10, 41.2.13 pr., 41.2.15, 41.2.47, 41.3.15.1, 44.3.8, P. Sent. 2.31.37 and 4.14.3.
19 Contrast the rule of accessio possessionum: where a person in via usucapiendi sold the thing, the purchaser could add on the seller's possessio to his own, but his is a new possessio and he also must begin in good faith: 41.4.2.17.
20 In utrubi Gains allowed the heir to add on his predecessor's possession to his own, but only when he took possession himself: G. 4.151; and this is supported by 41.2.13.12 and 44.3.16, both of which are thought to have been written of utrubi. In 41.2.13.4 there is a suggestion, which is rejected, that the heir should avail himself of his predecessor's possession even without possession in himself. See De Zulueta, Ad 41.1 & 41.2.
1 Where the instrument was inanimate, it is submitted that the criterion of “efficiency” was the probability of non-interference by others, which varies with the circumstances. Where the instrument was a human being, his state of mind only showed whether he was an efficient instrument for his principal or not. See Buckland, R. H. (1925), 355, Bull. Acad. royale de Belgique (1939), xxv, 188, Schultz, , Einführung (1916), 63Google Scholar, Classical Law (1951), 435Google Scholar, Mitteis, , R.Pr. (1908), 211.Google Scholar
2 There was a rule, attributed to the Lex Atinia, that if a stolen thing returned to the “potestas” of the dominus, someone else could usucape it. 41.3.41 says that although recovery by a procurator vested possession in the dominus, this was not return to his potestas within the meaning of the usucapion rule; to hold otherwise would be “captiosum.”
3 Op. cit., 247.
4 Op. cit., 253, 266.
5 It is held that quasi possessio and possessio juris are terms of late origin and that “aut quasi possessione” in G. 4.139 is a gloss. Albertario, Bull. dell Istituto di Diritto Romano (1912), 1, (1914), 275. If this contention is correct, it would only reinforce the present argument.
6 The question of the relationship between servitudes and usufruct is not germane to the present point, nor the question of their nature, especially that of usufruct. In both cases the holders of the rights had access to the objects over which the rights were exercised. We are here concerned with the question why such access was called “possessio.”
7 It is not necessary to consider whether the term quasi possessio or possessio juris came first. They were applied to an increasingly large number of rights. Arangio-Ruiz, Istituzioni di Diritto Romano, 9th ed., 279.
8 I am indebted to Professor P. W. Duff and Dr. Glanville Williams for suggestions and criticisms, especially on this part of the article, and I am grateful also to Professor Daube for reading the original draft. It must not be assumed that they necessarily agree with everything set out here.
