Civil Law: Possession and Detention

• This document provides study notes about civil law
• As per the first ENAM announcement it covers points 11 to 15
• The content was updated on July 19, 2024

Doctrine (Summary)

Possession

• Possession and detention are discussed
• Possession is addressed before detention for didactic reasons
• The definition, nature, theories and classification of possession are analyzed.

Definition

• Possession is a special nature of right, related to the factual domain a person exerts over a thing
• Some doctrinal understanding exists over the notion that possession constitutes an actual right like a natural unfolding of property
• Article 1196 of the Civil Code states that any person that has the de facto exercise, full or not, of some of the powers inherent to ownership is considered a possessor
• The owner has the right to use, enjoy, and dispose of the thing, and the right to recover it from whoever unjustly possesses or detains it (article 1228 of the Civil Code)
• The concept of possession is well laid out in article 1.251 of the Portuguese Civil Code
• When someone acts in a way that corresponds to the exercise of the right of ownership or of another actual right there is possession.

Doctrinal Theories

Subjective Theory (Friedrich Carl von Savigny)

• Possession requires the presence of corpus (power on the thing) and the animus domini (intention of having the thing as property)
• Savigny advocated for the autonomy of possession
• Separating it from property
• Ihering argued against the need for animus since the possessor could have the thing without intending to keep it for themselves permanently.

Objective Theory (Rudolf Von Ihering)

• Distinguished corpus from animus
• Considers that the notion of animus is found in corpus through the way an owner acts in front of what he is possesing
• The Civil Code affiliates with Ihering theory, but occasionally adopts Savigny's subjective theory as in the case of usucaption
• Modernly, theories refer to social theories of the possession, which recognize the possession as based on social function
• Social Theories of Possession differ from former theories by the characteristics which set who is the best possessor

Sociological Theory of Possession

• It characterizes the possession based on the fulfillment of the social function
• The possessor has to act as owner and has to take advantage of the possession for existential, economical and social interests.

Nature of Possession

• Views about the juridical nature of possession are divided
• A current understands the possession as a mere fact
• Another understands that possession must be considered a right.

The Eclétic Theory of Savigny

• Defends that the possession is fact and right simultaneously
• According to Tartuce, It prevails over the understanding that the possession is a right.

Real vs Obligational

• Those who understand the possession as a right, diverge if it's a real or obligational right
• Obligations defend that the role of art. 1.225 of the Civil Code, which enlists the real rights, did not include to possession and it would be a taxation role
• Conversely, part of the doctrine understands that the possession is an actual right, once the characteristics conceptionally of the actual rights are present in the possession
• Its incidence over determined object, erga omnes opposability and indetermination of the passive subject
• The possession has legal and typical discipline
• However, the cession of the possession operated validly by particular instrument is admited

Classification of Possession

Based on Unfolding

• Direct possession refers to a person who has physical possession of the thing like a tenant
• Indirect possession refers to a person who has owner powers but doesn't have direct possession of the good like a leaser

Based on objective presence of vices:

• Just possession refers to possession which isn't violent, clandestine or precarious
• Unjust possession refers to possession that shows violent, clandestine or precarious behaviors listed below.

Various Types of Vices

• A violent possession is one acquired through physical strength or moral coercion
• A clandestine possession is exerted hidden from the one to whom the right belongs
• A precarious possession comes from confidence abuse, actualizing when one who received a thing, with obligation to give it back, illegally refuse to do so

Subjective Good Faith

• Good faith possession occurs when the possessor ignores the vices or the obstacle who/that impede the acquisition of the thing
• Except in contrary evidence, possession w/a fair title is presume-se good faith
• Bad faith possession is when the possessor has knowledge of the vice of their good.

Presence of Title

• Possession with Title refers to a situation when there is cause representative of a transmission of possession
• Possession without Title is a situation the cause representative is, at least, apparent, of the transmission of the factual domain

On Time

• New property: property that has less than one year and one day, so it is the one that is of up to one year
• Old property: property that has more than one year and one day

Regarding Processual

• the classification of possession regarding time is important for the processual law
• depending on possession, different actions may be used
• If new property, guardian will be given by a possessory action with special rite
• After one year and one day the property can still be guardians, but through regular action, not losing, however, the possessory characteristic

Effects

• Possession ad interdicta is the possession who/that can be defended by intermediary(ies) of the direct possessory actions or interditos possessórios
• The possession has to be fair, not conducting to the long time ownership
• Possession ad usucapionem is the one which prolongs to the time and allows the acquisition of property, since the legal parameters are observed

Other Classifications

Proper vs Improper

• Proper property is possessing the animus domini
• Improper property is possessing subordination to another person that possesses proper possession;

Simultaneos Possessin

• It is possible that two or more people has simultaneous possession over the same good, already possessed is the exteriorization of some of the powers of propriety who and two and more people can exteriorize the propriety concomitantly over the same thing
• Is the Composition or condominium of possessions
• Em relação ao seu estado, a composse se classifica em:
• On its state, composition can be classified as:

Composse pro indiviso or indivisível

• The compossuidores has ideal fraction of the possession
• It is not possible to determine what is the part of each one

Composse pro diviso or divisíve

• Each compossuider knows what is his part, what is detemrinable in a practical and corpus plan, having a real fraction of the possession.

Detention

• The detainer can not be confounded with the possessor
• Article 1.198 of the Civil Code says it's considered the detainer which, finding in relation of dependency for another one, retains the possession as its name in accomplishment of its orders or instructions
• Detainer is the relation of the person with the good that the juridical ordainment does not confers protection
• Detainment or degraded possession can be understood how a possession that found obstacles in the law and that, therefore, can not be understood as this
• The term tença is used by Pontes de Miranda to describe situations in which the physical aprehension of the good exists, without any juridical consequence arising from it

Acquisition and Transmission of Possession

• Possession is the exteriorization of propriety with the exceptions when it is acquired from the moment the exercise becomes possible, in your/his/her name, of some of the inherent powers of the propriety
• Article 1.204 of the 2002 CC preconize which one acquires the possession from the moment which an exercise becomes possible

Possession civil vs possession natural

• Natural possession characterizes itself by the exteriorization of the domain, that is, in reason of behavior of the possessor
• Civil possession comes directly from the law or of the will among the parts

Original possession vs derived possession

• Original possession gives itself when it doesn't have relation with the cause between the actual and the anterior possession, once the acquisition haven't passed along with the consent of an old possessor
• Derivative possession happens when there is relation with the cause between the actual and the past possession, having which/who emanated of the consent of old possessor
• The possession can still be acquired
• By the own person who is pretending or its representative or by third one without mandate depending on ratification
• In accordance with the principle of continuity of the character of possession, as a ruler, the possession is transmitted with the same original characters, either, either the possession is fair, it's going to continue fair; either unjust, it's remaining with unjust

Transmutation of Possession

• Transmigration is when conversion of detencion in possession, from that broken subordinate, in the hypothesys of exercise under own name of the possessory acts

Interversion of Possession

• It shows the modification of the tile in the hypothesis in that the to this point direct possessor demonstrates external act and unequivocal from oposition to old indirect possesor, having due effect the charaterization of ownership intent

Constituto Possessório

• It is when someone possessed a good with its personal domain and passed to posses it over other one's name
• Its is an aquisition kind and loss of possession;

Some key points about this process

• Present in the negociatiation with alienation
• Aforetimes the condition of possessor in the name of other people, switching then, its situation to that of conventional possessor

Traditio brevi manu

• Is the contrary of the possessory constitute, or, it runs,when one/who, that possessed in someone else’s name, past to the possess in own name

List of Relevant Affects of Possession

• Effects of the possession are the juridical consequences which run through the condition of possessor

Protection of Possession

• Possession protection can be given per the direct defense permitted in the law, or through the typical possessory actions, also called interdicts possessórios.

Third Possessory

• The interdict prohibitory, the maintenance of the possession and the reintegration
• These are destinated to defend the possessor against the agressions to the possession
• these aggressions can be the despoil, the turbation or the threating of despoil, or turbation

Despoil

• The illegal subtraction of possession of who exercises it
• Turbation refers to aggression which impedes you from the full exercise of it, but not eliminating altogether
• Despoil is opposed to the action with reintegration of possession.
• Turbation is opposed to the maintenance acition. By turbation, the specific action will be the interdict prohibitory

Reintegration Action

• Suitable with the case of despoil (possession loss)

Maintenance Action

• Suitable in the case of (for) turbation, obstacle of the possession

Interdito Proibitório

• Suitable with the case of treating to pose, that is, interdict prohibitory aims its attention to the protection of the possessor of any imminent danger

List of extra possessory actions.

• Action of Inmision in the Position
• Its a regular procedure action for getting the position to the one which do not provides of that factually,
• With foundation in propriety’s right;

Action of Damage Infection

Action of Work denuncification

• action related to the right of familiar, condominium law, and public stances
• Its aim the paralization of the work

Third Embargoes

• Art. 674 is not part of the process
• The third owner can ask for dismanitling due to the constrictive act

New Strnght vs Old Strenght actions

• the possessoty actions that are trialed in less than a year from the violence or depradation submeter-ses the procedure
• Those actions that happen more than a year its submeted to comune one, not losing, contudo, possuetory
• Any actions can be admited in favour of possesors

Perception of frutes

• As Tartuce expalins: acessary which are acessible without diminushing its amount
• Being figuremed in any negociations, which it was not perceived, so not consuting , in case of products, this that the frutes can not be minimuze
• The code assure a possesor the ride to fruit percived

responsability and loss

• Be treated as ways distinct the ones who posses is good and evil

Imdenization and retention

• Once More, the civil code distinction

Usucaption

• Consisting aquiring property as a result is a long possestion can fullfill requiremens

Compossession

• Its the situation with one or more people exercise at the same time

Property

Defenition

• The real right generates for the owner of the holder the ways to use,have, manage, use as social function
• A propertys is something someone possess is to all
• It must be attended as social function
• Its the attributes and is presented in the civil code