Meeting 4.2 Private Law 2024/25 PDF

Introduction to P R I VAT E L AW 2024/25  Meeting 4.2 Possession The concept of possession and its relationship with the right of ownership is an important part of property law. Possession is not just a...

Introduction to P R I VAT E L AW 2024/25  Meeting 4.2 Possession The concept of possession and its relationship with the right of ownership is an important part of property law. Possession is not just a statement of a factual situation that describes the relationship between a person and an object because possession is also a legal concept. It may be the case that having possession of an object, especially if that object is a movable, results in the legal presumption that the possessor is also the owner of the object. This presumption is highly practical and creates legal certainty. For example, we can assume that, for example, the students and tutor in a tutorial are all the owners of the clothes that they are wearing and the books and laptops that they have on the desk in front of them. In addition to this, in some situations, possession may be protected by possessory rights and actions. Extracts 1 – 3: The first three extracts in this reader are focused providing an overview of the complex character of the concept of possession across property law systems. As you read these extracts, map out a definition of the concept of possession, its key elements and its function. Make note of the different understandings of possession that can be found in French, German law and Dutch law (it is not necessary to focus on references to English law). Possession can also be contrasted with detentorship. As you read the second and third extracts, particularly the third extract by Emerich, compare the concept of possession with the concept of detentorship and the right of ownership. Consider the ways in which all three are connected through both similarities and differences. Transfer Systems Extracts 4 & 5: During the previous meetings on property law, the focus of our discussion has been on the property rights that are available in civil law jurisdictions. Property law is not only concerned with what types of rights are available in the numerus clausus of a property system. It is also concerned with the question of how and when property rights are transferred from one person to another. The rules on the voluntary transfer of (primary) property rights from one person to another are an integral part of social orders that are structured around a free market economy, which is the form of social ordering that best describes the late-capitalist societies that dominate in the global north. As Lars van Vliet illustrates in the extract on ‘Transfer of property inter vivos”, there are several difficulties that need to be dealt with when describing the systems in place that govern the voluntary transfer of ownership. The author shows that there are several different types of transfer systems, each with their own internal logic and rationale. As you read this extract, keep in mind the two dividing lines and consider what transfer systems for movables are used in France, Germany and the Netherlands. The first distinction that can be made is between consensual and tradition (traditio) transfer systems. The second distinction can be made concerning the causal and abstract nature of transfer systems. In your mind-maps describe what is meant by consensual/traditio and causal/abstract transfer systems and the criteria that must be fulfilled in each system for ownership of a movable object to be transferred. Then identify whether the transfer systems in French, German 1 and Dutch law are (1) consensual or traditional, and (2) causal or abstract. Finally, consider the different ways that the French, German and Dutch property law systems protect individuals who have acquired the right of ownership over an object in good faith. Extracts Extracts on Possession Bram Akkermans, ‘Property Law’ in Hage, Jaap, Waltermann, Antonia and Akkermans, Bram (Eds), Introduction to Law (2nd ed. 2017 Springer) pp. 84- 85, 88 – 89. Monika Hinteregger, ‘The protection of property rights’ in Sjef van Erp & Bram Akkermans, Cases Materials & Text on Property Law Ius Commune Casebooks for the Common Law of Europe (Bloomsbury 2012) pp. 99 – 105. Yaëll Emerich, ‘Possession’ in Michele Graziadei and Lionel Smith (Eds), Comparative Property Law: Global Perspectives, Research Handbooks in Comparative Law series (Edward Elgar 2017) pp. 171 – 187. Extracts on Transfer Systems Bram Akkermans, ‘Property Law’ in Hage, Jaap, Waltermann, Antonia and Akkermans, Bram (Eds), Introduction to Law (2nd ed. 2017 Springer) pp. 104 - 105 Lars van Vliet, ‘Transfer of property inter vivos’ in Michele Graziadei and Lionel Smith (Eds), Comparative Property Law: Global Perspectives, Research Handbooks in Comparative Law series (Edward Elgar 2017) pp. 150 – 158. 2  Bram Akkermans, ‘Property Law’ in Hage, Jaap, Waltermann, Antonia and Akkermans, Bram (Eds), 84 B. Akkermans Introduction to Law (2nd ed. 2017 Springer) pp. 84- 85, 88 – 89. Primary property rights are discussed in 7 Sect. 4; secondary property rights are the topic of 7 Sect. 5. In property law, there is a major divide between continen- tal European systems, the civil law systems, and the law of England and Wales, the common law. Civil law systems are dealt with in 7 Sect. 3.1, while common law property law will be dealt with in 7 Sects. 3.2 and 3.3. 3.1 Civil Law Property 5 Ownership, Possession, and Detentorship In the civil law tradition, a distinction is made between own- ership, possession, and detentorship of a good. Ownership Ownership is a property right that a person has in respect to some object. This is an immaterial relation between the person and the object, without the need for any physical equivalent. For instance, Jean can own a book even if she lent the book to Louise or if the book was stolen from her. Possession Possession is not the same as ownership; it is a factual relation between a person and an object. A person who pos- sesses an object exercises factual control over this object. Usually, ownership and possession coincide so that the owner is also the possessor of a thing. Even though it is a factual state, property law attaches importance to possession, usually allowing someone who was dispossessed to recover possession: An example would be the person who has bought a good and has received it from the seller. Normally he has also become the owner – possession and ownership usually go together – but this does not have to be so. If the seller was not the owner, it may be the case that the buyer did not become the owner either. However, the buyer does control the good and therefore he is the possessor of the good (in good faith), even though he has not become the owner. Another example of a possessor who is not the owner is a thief. The thief has factual control over what he stole. But theft is not a way to obtain ownership, and therefore the thief is merely the possessor (in bad faith), but not the owner. Detentorship Possession must be distinguished from detentorship. A deten- tor also exercises factual control over a good but not on behalf of himself; he recognizes that he is holding factual Property Law 85 5 control for someone else. The detentor therefore recognizes the right of someone else. This difference is relevant in respect to the possibilities to retrieve an object if it has been taken. Whereas, as we save right above, the possessor can generally retrieve an object with a possessory action, a detentor cannot. Examples of detention are when a person has borrowed or leased a good. Away from the Feudal System Civil law systems share a basis in Roman law. This basis can be found throughout the system of property law, from the clas- sification of objects in land and goods to the rights that can exist in respect of these objects and the way in which these rights are created, transferred, and terminated. After the fall of the Roman Empire, continental Europe fell under the influence of Germanic law. Germanic law was tribal law, very different from the highly systematized and centrally organized Roman law. It was very fragmented in nature, and each local lord (of a tribe) used his own version. However, what united the Germanic tribes was their system of landholding. Under the influence of this Germanic tribal law, a feudal system came into existence. A feudal system is not only a system of government but Feudal System also a system of property law (or better of landholding). In this system, a lord (such as a King) grants feudal rights, known as fees, to a vassal. A vassal might grant a further fee from his own fee to a subvassal, thereby creating a pyramid of landholding. In this feudal system, property rights and personal rights (or better duties) were closely interwoven. These rights on the land were accompanied by duties of the vassal toward his lord. A fee that was held by a vassal was, on one hand, a kind of property right on the land and at the same time included the duties that the vassal had toward his lord: To state that a fee was a combination of a property right and a set of duties is in a sense an anachronism. In the Germanic system, in which feudality was grounded, the distinction between absolute property rights and relative personal rights did not exist. Only in retrospect can we say that a fee contained both what we now call a property right and personal duties. It may be interesting to realize that the distinction between property rights and personal rights was already made in Roman law. However, knowledge of Roman law was lost under the influence of the Germans who had invaded much of continental Europe, and was only rediscov- ered in the twelfth century.  88 B. Akkermans his right. For example, the owner of a stolen bike can reclaim the power over his bike from a thief by way of vindication. One Right of In the civil law tradition, there can be only one right of Ownership ownership in respect to an object. If one person holds the right of ownership of a good, then all other persons are not owners. Ownership is therefore a matter of all or nothing, not a matter of degree as it is in common law where different per- sons can have different titles to a good. Specific Protection Property rights, ownership, and other property rights enjoy a special form of protection by the law. This special 5 protection takes the form of specific enforceability, meaning that the duties that follow from the right can be enforced as such. At first sight, it may seem obvious that legal duties can be enforced, but this is not always the case. Often, if someone does not fulfill his duties, the person to whom the duty was owed can receive monetary compensation for the damages but cannot demand that the duty be fulfilled: Tort law is a good illustration of this phenomenon. If someone damages someone else’s object, the victim can claim mone- tary compensation, but cannot necessarily require that the damage be undone, or that the act of damaging stops. For example, a water leakage from the upstairs apartment may create damage to the apartment below. A successful action in tort allows a person to claim damages, but not automatically to stop the water flow. In the case of contractual default, the same is the case: the creditor can claim damages, but not nec- essarily specific performance. There are, after all, situations where performance is difficult or where the debtor really does not want to perform. Think for instance of a soccer profes- sional who does not want to play under any circumstance. Contract law can generally only give monetary incentive to perform. A debtor who really does not want to perform can generally not be forced to do so other than through the pay- ment of money. Vindication In the civil law tradition, each property right generally has its own action protecting it. The right of ownership, for instance, is protected by the action that is known as vindication. Vindication means that the owner is restored in factual power over the object that she owns. For example, if a thief stole your bike, vindication means that you can claim the actual bike back from the thief. An action parallel to vindication is also possible in con- nection with other property rights that involve the factual Property Law 89 5 power over a good. For instance, if a thief stole the bike on which you hold a right of usufruct, you can also claim the actual bike back from the thief. In common law, only rights relating to land are specifically Tort of Conversion enforceable; rights relating to chattels are enforced through the law of torts under the tort of conversion. The tort of con- version generally forces the tort-feasor, in this case the person who interferes with someone else’s property right, to choose between paying damages or returning the object or ending the interference with it: When a thief steals your bike, you may sue the thief in tort and claim damages from him. The thief will then have a choice to pay damages or to return your bike to you. It should, finally, be noted that property rights are protected not only by property law but also by criminal law. The thief and the person who deliberately destroys someone else’s prop- erty are liable to be punished. 3.2 Common Law Property Law The unitary system of ownership, according to which the «same» ownership applies to both immovable and movable objects, distinguishes the civil law tradition from the common law tradition that exists in England and Wales. The common law system, as it is applied in England and Wales, comprises two subsystems: common law in the narrow sense and equity. Both have their own version(s) of property rights. In this sec- tion, the property law of common law in the narrow sense is discussed. Property law in equity is discussed in 7 Sect. 3.3. The common law is the system of customary law that has Fragmented System developed since the Battle of Hastings in 1066. It has two kinds of property law, one for land, land law, and another for «what is not land», personal property law. This division essentially follows the distinction between immovable objects (land) and movable objects (chattels or goods). It is the rea- son why the common law system of property law is called «fragmented»: The common law of property and the origin of common law are closely related, as William the Conqueror claimed all land in England for himself upon his victory in 1066. From that moment on, all persons held land from the Crown instead of entirely for themselves. Personal property law, i.e. the law relating to movable objects (goods), did not become relevant until the industrial revolution, when movable objects also became of value. Monika Hinteregger, ‘The protection of property rights’ in Sjef van Erp & Bram Akkermans, Cases Materials & Text on Property Law Ius Commune Casebooks for the Common Law of Europe (Bloomsbury 2012) pp. 99 – 105. C IVIL LAW [I.A] short description of the notion of possession and then continues with the discussion of the instruments for the protection of possession and the protection of ownership. I. CIVIL LAW I.A POSSESSION AND POSSESSORY CLAIMS Based on the Roman law distinction between possessorium and petitorium, all the civil law systems analysed in this casebook distinguish between ownership and possession. Whilst ownership and the limited property rights deal with the legal entitlements a person may have with respect to an object (see Chapter 3), posses- sion relates primarily to the factual control of an object. In civil law systems possession serves several important functions. Possession of an object indicates the existence of a property right and thus makes it public. Accordingly, French and German law provide for a legal presumption that the possessor of a movable object is also its owner (Article 2276 Cciv, §1006 BGB) and §323 ABGB presumes that the possessor has a valid title, meaning that he is a lawful possessor. This publicity function of possession is one of the reasons that possession plays an important role in the acquisition and the transfer of property rights on movables (see Chapters 7 and 8). Moreover, the civil law systems provide for specific instruments for the protection of possession which are granted regardless of the legal entitlement the possessor enjoys with respect to the object. Possessory protection serves to prevent unlawful and violent behaviour and thus shall enhance the preservation of peace in a society. In the following we will start with a short description of the main features of possession, and then analyse in depth the instruments of possessory protection. I.A.1 POSSESSION I.A.1.a France Code civil 2.1 (FR) Article 2255 Possession is the detention or enjoyment of an object or of a right which we hold or exercise by ourselves, or by another who holds and exercises it in our name. Article 2261 To be able to prescribe, one must have a continuous and uninterrupted, peaceful, public and unequivocal possession, exercised in the capacity of an owner. Article 2256 One is always presumed to possess for oneself, and in the capacity of an owner, where it is not proved that one has started possession by possessing for another. Article 2257 Where one has started possession by possessing for another, one is always presumed to possess in the same capacity, unless there is proof to the contrary. Article 2262 Acts which are merely allowed or simply tolerated may not give rise to possession or prescription. 99 2.1 (FR) T H E P R O T E C T I O N O F P R O P E RT Y R I G H T S Article 2263 Acts of duress may not give rise to a possession capable of bringing about prescription either. Possession begins to produce effects only from the time the duress has ceased. Article 2264 A present possessor who proves that he has formerly possessed, is presumed to have possessed during the intervening time, unless there is proof to the contrary. Article 2265 To complete a prescription, one may join to one’s possession that of one’s predecessor, in whatever manner one may have succeeded to him, whether by virtue of a universal or specific title, or for value or gratuitously. Article 2266 Those who possess for another never acquire ownership by prescrip- tion, whatever the time elapsed may be. Thus a farm tenant, a depositary, a usufructuary, and all those who precariously hold the object of an owner, may not prescribe it. Notes (1) The Code civil does not provide for a comprehensive regulation of posses- sion. The main rules on possession are Articles 2255 Cciv et seq, which primarily deal with the role of possession as a prerequisite of acquisitive prescription. The protection of possession is regulated in Articles 2278 and 2279 Cciv and Articles 1264–67 of the Nouveau Code de Procedure Civile (NCPC).7 (2) Article 2255 Cciv contains the definition of possession. Possession relates to corporeal objects and to claims which are incorporated in a corporeal title (eg bearer instruments). Whether Article 2255 Cciv, by referring to the ‘enjoyment of an object or a right’, also encompasses mere claims is contested.8 Possession extends to movables and immovable property alike, although with quite different effects. (3) Possession requires two factors: (i) the actual control of the object (corpus) and (ii) the will to hold the object as an owner respectively as the holder of a limited property right (animus domini or animus rem sibi habendi; Article 2261 Cciv). To hold an object for another does not amount to possession but constitutes only detention (détention précaire). Accordingly, a farm tenant or a depository9 holds the object not as a possessor, but for lack of the animus domini, as an inter- mediary of the possessor (in corpore alieno). The distinction between possession and detention plays an important role for the acquisition of property rights, as the detentor cannot acquire ownership of the object by way of acquisitive prescription (Article 2266 Cciv).10 7 As provided by Loi 75-596 of 9 July 1975. 8 Cf S Ginosar, Droit réel, propriété et créance—élaboration d’un système rationnel des droits pat- rimoniaux (Paris, Librarie Générale de Droit et de Jurisprudence (LGDJ), 1960); F Zenati-Castaing and Th Revet, Les biens, 3rd edn (Paris, Presse Universitaires de France, 2008) 647, para 441. J Bergel, M Bruschi and S Cimamonti, Traité de droit civil: Les biens, 2nd edn (Paris, LGDJ, 2010) 147 et seq, 158 and 159, however, reject this view. They see the wording of Art 2255 Cciv merely as a reference to the distinction between the enjoyment of an object as the owner (jouissance d’une chose) or as the holder of a limited property right (jouissance d’un droit). 9 See Art 2266(2) Cciv. The usufructuary, however, has a double position. In respect of ownership he is a detentor, but with respect to his limited property right he holds the object as a possessor. 10 See in detail Chapter 7. 100 C IVIL LAW [I.A] (4) According to Article 2256 Cciv, one is always presumed to possess for oneself and in the capacity of an owner. It is therefore up to the person who contests the possession of another with actual control of the object to prove that this person has started possession by possessing for another. If, however, this is proved, it is then up to the presumed detentor to prove a change of title in order to reach the posi- tion as possessor (Article 2257 Cciv; inversion du titre de détention). (5) Possession is terminated when either the animus or the corpus is lost. As provided by Article 2255 Cciv, it is, however, sufficient to exercise the actual control of the object by an intermediary (in corpore alieno) in order to become a possessor, and, despite the loss of actual control, possession may be maintained under certain conditions only by the will to possess (solo animo). I.A.1.b Germany Bürgerliches Gesetzbuch (BGB) 2.2 (DE) §854 Acquisition of possession (1) Possession of an object is acquired by obtaining actual control of the object. (2) Agreement between the previous possessor and the acquirer is sufficient for acqui- sition if the acquirer is able to exercise control over the object. §855 Servant in possession If a person exercises actual control over an object for another in the other’s house- hold or business or in a similar relationship, by virtue of which he has to follow the other’s directives relating to the object, so only the other is possessor. §856 Termination of possession (1) Possession is terminated as a result of the possessor giving up, or losing in another way, actual control of the object. (2) As a result of a, in its nature, temporary prevention to exercise control posses- sion is not terminated. §857 Transferability of possession by succession Possession devolves on the heir. §858 Unlawful interference (1) Whoever deprives the possessor against his will of the possession or interferes with the possession acts, except where the deprivation or interference is permitted by law, unlawfully (unlawful interference). (2) The possession obtained as a result of unlawful interference is defective. The successor in possession must allow the defectiveness to be asserted against him if he is the heir of the possessor or if he knows when he acquires possession of the defectiveness of his predecessor’s possession. §859 Self-help by the possessor (1) The possessor may ward off unlawful interference by use of force. (2) If a moveable object is taken away from the possessor by means of unlawful interference, the possessor may use force to remove the object from the perpetrator caught in the act or pursued. (3) The possessor of a parcel who is deprived of possession by unlawful interference 101 2.3 (DE) T H E P R O T E C T I O N O F P R O P E RT Y R I G H T S least for the time being those provisions which relate to possession as a condition for other legal provisions, in particular with respect to property. This main thought of the applications has been approved without contradiction, … B. The applications furthermore terminologically differed from the draft to that effect, as they proposed to characterise as ‘possession’ each possessory protected relation- ship of the person to the object. This recommendation, due to the reasons advanced by the critique, met with approval from all sides. Notes (1) Contrary to the French Code civil and the Austrian ABGB, the BGB does not provide for a general definition of possession, but rather concentrates on the aspect of the protection of possession. (2) Accordingly, possession is understood in a very broad sense as the actual control of a corporeal object.12 It comprises movables as well as immovable property and, as is explicitly provided by §865 BGB, may also extend only to an integral part of a object, eg one room of a house or apartment. Possession can be shared by several persons (§866 BGB, co-possession). If all the co-possessors can use the object only together, one speaks of joint possession (gesamthänderischer Mitbesitz). (3) German law distinguishes between different types of possession, namely between Eigenbesitz and Fremdbesitz and direct (unmittelbarer) and indirect posses- sion (mittelbarer Besitz). The distinction between Eigenbesitz and Fremdbesitz depends on the intention of the possessor. A person who holds an object for himself is Eigenbesitzer (§872 BGB), no matter whether he is the rightful owner or even a thief, while a person who holds an object for another is a Fremdbesitzer. Exam- ples for a Fremdbesitzer are the tenant, the depositary or the borrower of a object. Accordingly, the finder of an object is Eigenbesitzer, if he wants to keep the object for himself, or Fremdbesitzer, if he has the intention to return it. Eigenbesitzer and Fremdbesitzer are possessors and thus enjoy the legal protection of possession. This distinction, however, plays a role with regard to other provisions, such as the presumption of ownership (§1006 BGB) or the preconditions of acquisitive prescrip- tion (§937 BGB) which both only apply to the Eigenbesitzer. The old distinction between Sachbesitz and Rechtsbesitz, as still provided by Austrian law, is rejected by German doctrine as being misleading13 and only accepted with regard to the rare case of the exercise of an easement that does not comprise actual control of the parcel (§1029 and §1090(2) BGB).14 The direct possessor has actual control of the object, whilst the indirect possessor exercises his possession not in person, but by an intermediary. This intermediary is called Besitzmittler. §868 BGB enumerates some examples of indirect possession. Contrary to the servant in possession (Besitzdiener, §855 BGB), who is only an 12 D Joost in FJ Säcker et al (eds), Münchener Kommentar zum Bürgerlichen Gesetzbuch, vol VI, 5th edn (München, Beck, 2009) before §854 at 14, para 6; J Baur and R Stürner, Sachenrecht, 18th edn (München, Beck, 2009) §7 at 67, para 1; M Wolf and M Wellenhofer, Sachenrecht, 26th edn (München, Beck, 2010) 39, paras 1 et seq. 13 Joost, above n 12, before §854 at 15, para 7. 14 Ibid, before §854 at 14, para 5; Wolf and Wellenhofer, above n 12, 39, para 1 and at 479, para 13. 104 C IVIL LAW [I.A] agent without any right of his own, the Besitzmittler has the position of a possessor and enjoys, as well as the indirect possessor, possessory protection. He is direct possessor and, as he does not possess the object as an owner, but only according to a specific entitlement, he is a Fremdbesitzer. (4) Direct possession is acquired by gaining actual control of the object (§854(1) BGB). This can be done by way of original acquisition or by way of transfer (deriv- ative acquisition). In both cases the acquisition of possession must be perceptible to the outside world and, according to the majority opinion of legal doctrine,15 the acquirer must have the ‘natural’ will to acquire possession of the object. For this it is sufficient that the acquirer has the factual capacity to obtain actual control of the object. Legal capacity or even knowledge of the existence of the object by the acquirer is not necessary.16 In case of transfer of possession, the transferor must also have the ‘natural’ will to transfer the possession to the acquirer. In order to facilitate the acquisition of possession, §854(2) BGB lets the agreement17 between the former possessor and the acquirer suffice, provided that the acquirer is able to exercise actual control over the object. According to the BGH,18 the transfer of possession, however, only takes place, if the transferor gives his possession up. In cases of universal succession, such as succession by inheritance or the merger of two companies, possession is transferred by operation of law without a need to acquire actual control (§857 BGB). The legal person acquires possession through its organs.19 While direct possession is primarily acquired in a factual way, the creation of indirect possession is the result of a legal transaction (eg the creation of a lease and delivery of possession of the leased object). The transfer of indirect possession can also be performed by assigning the claim for restoration of property (§870 BGB). Direct possession is terminated by the loss of the actual control over the object (§856 BGB), be it by a wilful act of the possessor to give up possession or, without the will of the possessor, by the final loss of the object. Only temporary preven- tion to exercise control is not sufficient. Indirect possession is terminated if the direct possessor loses the possession, or if the direct possessor shows by way of a perceptible act that he no longer accepts the position of the indirect possessor, or if the indirect possessor loses the claim for restoration of property. I.A.1.c Austria Allgemeines Bürgerliches Gesetzbuch (ABGB) 2.4 (AT) §309 Holder, possessor He who has an object in his power or custody is called the holder of it. If the holder of an object has the intention of keeping it as his own, then he is the possessor. 15 A Stadler in Th Soergel (ed), Kommentar zum Bürgerlichen Gesetzbuch, vol XIV, 13th edn by W Siebert et al (Stuttgart, Kohlhammer, 2002) §854 at 33, para 9-11l; Baur and Stürner, above n 12, §7 at 70, para 15; Joost, above n 12, §854 at 22, paras 8 et seq. 16 Joost, above n 12, §854 at 22, paras 9 et seq. 17 The nature of this agreement, whether legal or not, is contested: ibid, §854 at 28 et seq, paras 31 et seq. 18 BGH, 10 January 1979, NJW 1979, 714. 19 Joost, above n 12, §854 at 25 et seq, paras 17 et seq. 105 JOBNAME: Graziadei & Smith PAGE: 1 SESS: 3 OUTPUT: Tue Dec 20 10:52:53 2016 Yaëll Emerich, ‘Possession’ in Michele Graziadei and Lionel Smith (Eds), Comparative Property Law: Global Perspectives, Research Handbooks in Comparative Law series (Edward Elgar 2017) pp. 171 – 187. 8. Possession Yaëll Emerich 1. INTRODUCTION The tensions present within the law of possession have long fascinated writers in both the common law and civil law traditions (Harris, 1961: 69). Possession gives rise to a number of legal effects. The most important of these are legal protections available in both common law and civil law systems to possessors against disruptions of their possession; presumptions that the possessor of a thing is also the thing’s owner; and acquisition through adverse possession in the common law, or through acquisitive prescription in the civil law. This potential for the right of possession to prevail even over the rights of a true owner is one of the most remarkable aspects of possession: in some situations the law goes so far as to protect thieves and squatters against the thieved or against the owner. The various common law and civil law jurisdictions can be roughly arranged on a spectrum according to their relative willingness to recognize a person as having possession of a thing rather than mere detention, the latter being the word used in some jurisdictions to refer to situations deemed less worthy of legal protection. This chapter compares the law of possession in some legal systems, especially France, Quebec, England, Canada, and Germany, with additional forays into the law of Switzerland and the United States. This chapter also takes up some of the primary features of possession: it compares approaches to the traditional definition of possession according to a physical element and one of intention, it discusses the protections to which possession gives rise, and it also explains the conceptual independence of possession from any underlying right of ownership. Although these features are accepted in the major legal systems, the approach taken by each system to these features may vary. 2. POINTS OF CONTENTION Two of the most prominent of these disagreements are, first, the proper formulation of the elements of possession, namely the physical and – especially – mental requirements to be in possession, a topic which has been greatly influenced by the nineteenth-century debate between two German legal scholars, Savigny and Jhering; and, second, the tendency for civil law jurisdictions to view possession as a fact, while common law jurisdictions see it instead as a right. These two debates, which reflect different paths to the regulation of possession, will be discussed in turn. Each is now less pronounced than it has been in the past, allowing the potential to imagine a harmonized approach to possession. 171 Yaëll Emerich - 9781785369162 Downloaded from https://www.elgaronline.com/ at 11/13/2024 05:24:00PM via Maastricht University Library Columns Design XML Ltd / Job: Graziadei-Smith-Comparative_Property_Law / Division: 08-chapter8 /Pg. Position: 1 / Date: 24/10 JOBNAME: Graziadei & Smith PAGE: 2 SESS: 3 OUTPUT: Tue Dec 20 10:52:53 2016 172 Comparative property law The two debates raised here are not the only points of contention with respect to the law of possession. Important disagreements also arise surrounding actions to protect possession, notably concerning who should be entitled to the benefit of such protection. These further questions – which flow from these initial issues – are dealt with in the remainder of the chapter. A. What Constitutes Possession? The Savigny–Jhering Debate When should a person be recognized as being in possession of a thing? This question centres on the proper understanding of the two elements of possession, known in the civil law as corpus and animus. Even civilian traditions remain divided on this question according to the foundational doctrinal debate between two nineteenth-century German scholars, Frederich von Savigny and Rudolf von Jhering. Savigny’s narrower, subjective view of possession is normally seen as coinciding with French law, which allows for the distinction between possessor and detentor, while Jhering’s more permissive, objective approach was consciously adopted by the codifiers of Germany’s Civil Code (BGB) (Bergel et al., 2000: 138), which adopts a unitary notion of possession (Besitz), although leaving the door open to the distinction between Eigenbesitz (Article 872) and Fremdbesitz. Switzerland built its own approach to possession from Germany’s objective framework (Bergel et al., 2000: 139; Steinauer, 2012: 89), while the mixed civil law jurisdiction of Quebec has clung more tenaciously than France to Savigny’s subjective view (see Section 4A below). In Savigny’s view, to which he refers as the subjective theory of possession, corpus is physical custody of a thing, while animus is the intention to exercise the right of property, or another real right such as usufruct (Savigny, 1845: 102). The animus domini – the intention to own the thing – plays an essential role in this theory. In Jhering’s objective theory of possession, in contrast, corpus is fulfilled through acts that an owner would carry out, while animus is simply the will to exercise the corpus. In the subjective theory, ‘the animus recedes behind the corpus, nearly to the point of disappearing entirely’ (Jourdain, 1995: 18). The animus tends to be inferred from the corpus, although an expression of the possessor’s will remains necessary. In Quebec, the subjective theory is less explicitly discussed than in France, but in practice the same underlying idea emerges (Normand, 2000: 301). Even if the Savigny–Jhering debate is not the starting point of an analysis of possession in the common law, it has still held a measure of influence over developments in this area (Pollock and Maitland, 1968: 44, see also Holmes, 1881: ch. 6). Given the importance it places on corpus, the common law is usually seen as having adopted an essentially objective approach to possession. It would, however, be too simplistic to state that the common law simply follows the objective theory, while the civil law has adopted a subjective approach. This is, first, because ‘objective though it may be, the English notion of possession cannot free itself entirely from a mental element’ (Papandréou-Deterville, 2004: 114).1 Second, as noted, not all civil law jurisdictions have adopted the subjective theory, and in fact Germany and Switzerland place even less importance on intention than does the common law, 1 All translations in this text from French sources to English are the author’s. Yaëll Emerich - 9781785369162 Downloaded from https://www.elgaronline.com/ at 11/13/2024 05:24:00PM via Maastricht University Library Columns Design XML Ltd / Job: Graziadei-Smith-Comparative_Property_Law / Division: 08-chapter8 /Pg. Position: 2 / Date: 24/10 JOBNAME: Graziadei & Smith PAGE: 3 SESS: 3 OUTPUT: Tue Dec 20 10:52:53 2016 Possession 173 and are more permissive in allowing, for example, concurrent possession in a thing. Even in France, the text of the Code Napoléon was initially closer to the objective theory, although it later developed in the direction of the subjective interpretation (see, e.g., Larroumet, 2004: 50). Although one may be tempted to present these variations as problem of conceptual definition of the notion of possession, the truth of the matter is that the path to the modern law shows the traces of different historical backgrounds and understandings lurking behind the subjective and the objective notions of possession illustrated above. They are connected to the distinction between the Romanistic possessio and the Germanistic Gewere, the first attached to the distinction between possession and ownership, the second ignoring it (Zwalve, 2014). B. Possession as a Fact or as a Right Civilian jurisdictions – such as France, Quebec, Germany, and Switzerland – tend to describe possession as primarily factual, while common law jurisdictions – like England, the United States, and Canada – analyze it instead as a right. The factual civilian approach is often intended to clearly distinguish possession from the corres- ponding right of ownership. As explained by Mazeaud and Chabas (1984: 152), ‘Possession is power in fact’ whereas ‘Property … is power in law’. Quebec civil law adopts a similar approach. The definition of possession in Article 921 of its Civil Code refers to ‘the exercise in fact … of a real right’. Pierre-Claude Lafond explains the provision by citing the French writer Carbonnier’s description of possession as ‘custody in fact, physical power exercised over a thing’ (Lafond, 2007: 200). This opposition would traditionally have been impossible to set up in the common law, in which a notion of ownership is much more recent (Reeve, 1980). Previously the concept of seisin played the most prominent role in common law. Because the common law evolved gradually from its feudal origins, in which no absolute right of ownership was known, seisin as a predominant right in property had strong conceptual ties with possession: according to common law historian J.H. Baker, seisin was simply the word for ‘[t]he fact of being in possession as a feudal tenant’ (Baker, 1990: 263). But others, such as Milsom, doubt that from a contemporary perspective we can fully understand the concept, which he describes as ‘a possession contrasted with right, yet somehow imbued with it’, which of course ‘[i]n a Roman or modern world, … is a contradiction’ (Pollock and Maitland, 1968: vol 1, xlix). This helps to explain how seisin came to incorporate aspects of both property and possession (Radley-Gardner, 2005). The same mechanism, the action of ejectment, was used to protect both possession and ownership (Runnington, 1781: 9). Possession was thus functionally a lower-order version of the right of ownership: where ownership allowed the exclusion of any other person, possession permitted the exclusion of anyone aside from the owner. The fact–right divide, however, is not nearly as stark as it at first appears. In the civil law Carbonnier, for example, is quick to clarify that possession ‘is undoubtedly not purely factual’ (2000: 215) and is best understood as the ‘shadow of property’ (2000: 202). Similarly, Roman law viewed possession as a fact, but a ‘legal fact’ (Ourliac and Malafosse, 1957: 201): Yaëll Emerich - 9781785369162 Downloaded from https://www.elgaronline.com/ at 11/13/2024 05:24:00PM via Maastricht University Library Columns Design XML Ltd / Job: Graziadei-Smith-Comparative_Property_Law / Division: 08-chapter8 /Pg. Position: 3 / Date: 24/10 JOBNAME: Graziadei & Smith PAGE: 4 SESS: 4 OUTPUT: Tue Dec 20 10:52:53 2016 174 Comparative property law [P]ossession was not a fact if by that one means that it was unregulated by law. In the case, for example, of my taking possession of a farm, whether I have entered on the land is indeed a question of fact, but whether such an entry, assuming it to have occurred, amounts to a taking of possession is a matter governed by legal rules. What the Romans did mean by possession as a fact can be seen by contrasting possession with ownership, which in this sense is not a fact but a right. Ownership exists whether or not there is any material manifestation of it, whereas possession is dependent for its existence on such manifestation. (Nicholas, 1965: 115) Moreover the common law has significantly shifted from its earlier approach. After seisin ceased to be the foundational notion of property in land, Salmond on Jurispru- dence in the 1960s, for example, clearly differentiated ownership, described as a set of rights, from possession, characterized as a set of facts and actions (Salmond and Fitzgerald, 1966: 266; Gray and Gray, 2011: 205–206). Therefore, both traditions now tend to occupy similar positions, at least in that property and possession are two distinct yet nonetheless loosely connected concepts. 3. THE ELEMENTS OF POSSESSION Roman law defined possession through its two constitutive elements, corpus and animus (Ourliac and Malafosse, 1957: 201). Civil law doctrine invariably makes reference to these twin concepts (Mazeaud et al., 1984: 158; Bergel et al., 2000: 145; Carbonnier, 2000: 202; Lafond, 2007: 205), even when only to note that a particular system places little importance on animus (Fromont, 2001: 145; Steinauer, 2012: 89). Corpus is generally defined as ‘physical control’ over a thing, whereas animus refers to a possessor’s will to present himself as the owner or the holder of a real right in the eyes of others (Normand, 2000: 300–301; Lafond, 2007: 207). The formulation of Article 2192 of the Civil Code of Lower Canada, for example, whose wording defined possession identically to Article 2255 of the Civil Code of France, relies on law to define possession as ‘the detention or enjoyment of a thing or of a right …’.2 Today, the Civil Code of Quebec (CCQ) describes possession in Article 921 as ‘the exercise in fact, by a person himself or by another person having detention of the property, of a real right, with the intention of acting as the holder of that right’. If possession can also relate to an incorporeal right, the requirement of factual control becomes less intuitive. The common law similarly requires that possessors satisfy twin elements of control and intention, but it has not felt as bound by the Roman framework. Although in the writings of Bracton in the thirteenth century, ‘[a]nimus and corpus are both treated on Roman lines’ (Scrutton, 1885: 89), and while Sir John William Salmond – for whom ‘[i]n the whole range of legal theory there is no conception more difficult than that of possession’ – carefully analysed the concept on the basis of the two principles of Roman origin (Salmond and Williams, 1957: 321–325), other authoritative common law writers have ignored corpus and animus altogether. For example, Blackstone’s Commentaries on the Laws of England does not explicitly refer to corpus or animus at 2 ‘La possession est la détention ou la jouissance d’une chose ou d’un droit …’. Yaëll Emerich - 9781785369162 Downloaded from https://www.elgaronline.com/ at 11/13/2024 05:24:00PM via Maastricht University Library Columns Design XML Ltd / Job: Graziadei-Smith-Comparative_Property_Law / Division: 08-chapter8 /Pg. Position: 4 / Date: 13/12 JOBNAME: Graziadei & Smith PAGE: 5 SESS: 4 OUTPUT: Tue Dec 20 10:52:53 2016 Possession 175 all (Blackstone, 1783 ): 159–162). There are nonetheless important points of commonality between the traditions, and even where the common law does not name corpus and animus, both traditions require two necessary elements for possession, one of them physical, the other intentional. A. The Physical Element: Corpus In both the common law and civil law traditions, a physical element of possession is necessary, which is often referred to as corpus or factum. The basic understanding is essentially the same across systems: physical control of a thing. But there are also a number of extensions beyond direct physical contact. Some systems, for example, explicitly define possession as including the enjoyment of a right, or allow incorporeal property to be possessed despite the impossibility of physical contact. The latter part of this section discusses another means of indirectly exercising corpus, in particular by means of another person acting as an intermediary. i. Control or enjoyment The physical element is implied by the definition of possession in the Civil Code of France, which requires ‘detention or enjoyment of a thing or of a right …’. As Jean Carbonnier describes, ‘[t]he corpus of possession consists in physical actions carried out on the thing, of the kind that an owner would perform. But only physical actions. Legal actions (e.g., lease, sale) are of no significance with respect to possession, as there is no need to be in possession to carry them out’ (2000: 202–203). But Carbonnier immediately qualifies this by stating that the corpus can be much more conceptual than physical. For example, it includes ‘acts of enjoyment’ that involve no physical contact with the object itself, such as accepting rental payments, or exercising ‘virtual’ control: ‘a motorist who steps away momentarily from a car in a parking lot retains it nonetheless in possession’ (2000: 203). Germany’s Civil Code – the BGB – defines possession in Article 854(1), which declares that ‘[p]ossession of a thing is acquired by obtaining actual control of the thing’. Multiple simultaneous possessors are permitted (Fromont, 2001: 144). As in France, even simply being ‘in a position to exercise control over the thing’ is sufficient for a person to whom the previous possessor has agreed to transfer possession, according to Article 854(2). Michel Fromont notes that ‘the mere fact of access to the thing, for example after delivery of the key, with the consent of the previous owner is thus sufficient’ (2001: 145). These forms of symbolic delivery are allowed in many legal systems. Possession in the Civil Code of Switzerland is similar to that in the BGB. Article 919 requires only ‘effective control of the thing.’ Paul-Henri Steinauer (2012: 90) notes that not only when a person lacks immediate control, but also when others could just as easily seize the property, such as where a pile of wood has been cut and left in a forest, this is a sufficient basis for the Swiss ‘open’ conception of possession (offener Besitz). This conception only denies the status of possession to custody which is ‘purely transitory’, so that ‘a client who is handed articles by a merchant does not acquire their possession’ (Steinauer, 2012: 91). Yaëll Emerich - 9781785369162 Downloaded from https://www.elgaronline.com/ at 11/13/2024 05:24:00PM via Maastricht University Library Columns Design XML Ltd / Job: Graziadei-Smith-Comparative_Property_Law / Division: 08-chapter8 /Pg. Position: 5 / Date: 24/10 JOBNAME: Graziadei & Smith PAGE: 6 SESS: 3 OUTPUT: Tue Dec 20 10:52:53 2016 176 Comparative property law The common law instead takes a stricter view, at least for real property. In Powell v McFarlane, the High Court of Justice of England and Wales, Chancery Division, comes close to the view of Carbonnier that, beyond merely having custody, a possessor must interact with the thing in the same way its owner would. The court held that ‘what must be shown … is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so’.3 England and Canada have been particularly sensitive to the concern that custody is more challenging for aspiring possessors to demonstrate for certain types of property, and adopt an accordingly relative standard of corpus. Although ‘possession cannot be founded on trivial or equivocal conduct … what is trivial varies in accordance with the nature and location of the thing being claimed. Acts which are insignificant in relation to large areas of open land may take on quite a different relevance in a suburban garden’ and thus ‘[i]n establishing the required possessory control over an area of land it helps to show a bit of “attitude”’ (Gray and Gray, 2011: 80). Civil law jurisdictions have, in their own way, also demonstrated sensitivity to the object of possession, the thing possessed. In France, for example, writers have been less troubled by things that are difficult to control, and have instead turned their attention to incorporeal things, which are arguably impossible to physically control. This includes both more recent forms, such as intellectual property, as well as incorporeal rights that have been recognized since Roman times, such as servitudes and usufructs, property rights that are more restricted than a full right of ownership. The civil law traditionally aimed to respond to these challenges by using concepts such as ‘quasi-possession’ to refer to possession of rights. On the other hand, the circumstance that under German law a ‘thing’ is defined as a corporeal object (Article 90 BGB), and that possession is possession of a ‘thing’ makes it difficult to conceive that objects of intellectual property can be possessed at least in this jurisdiction. ii. Possession on behalf of another All legal systems allow the corpus of possession to be held through intermediaries. The Civil Code of France establishes presumptions: 2256. A person is always presumed to possess for themselves, and as owner, unless it is proven that the person became a possessor on behalf of another person. 2257. When a person becomes a possessor on behalf of another person, that relationship is always presumed to persist, absent proof to the contrary.4 French writers refer to this arrangement as possession in corpore alieno: through the body of another. ‘By inhabiting a landlord’s building, the lessor enjoys it, exercises rights of way, and maintains it on the landlord’s behalf’ (Bergel et al., 2000: 146). 3 Powell v McFarlane (1977) 38 P & CR 452 (Ch) at 471. 4 2256. On est toujours présumé posséder pour soi, et à titre de propriétaire, s’il n’est prouvé qu’on a commencé à posséder pour un autre. 2257. Quand on a commencé à posséder pour autrui, on est toujours présumé posséder au même titre, s’il n’y a preuve du contraire. Yaëll Emerich - 9781785369162 Downloaded from https://www.elgaronline.com/ at 11/13/2024 05:24:00PM via Maastricht University Library Columns Design XML Ltd / Job: Graziadei-Smith-Comparative_Property_Law / Division: 08-chapter8 /Pg. Position: 6 / Date: 24/10 JOBNAME: Graziadei & Smith PAGE: 7 SESS: 3 OUTPUT: Tue Dec 20 10:52:53 2016 Possession 177 The general principle of possession on another’s behalf operates in a similar fashion in German law. Agency in possession is set out in Article 855 of the BGB: If a person exercises actual control over a thing for another in the other’s household or in the other’s trade or business or in a similar relationship, by virtue of which he has to follow instructions from the other that relate to the thing, only the other shall be the possessor. Unlike the BGB, with its notion of agency in possession, the Swiss Code does not explicitly provide for any form of possession on behalf of another. Swiss doctrine and jurisprudence, however, generally accept that possession through an intermediary, referred to as an ‘auxiliary of possession’, exists in the case of ‘a worker, with respect to tools or instruments placed at her disposal; a store employee, with respect to the merchandise at that outlet; a shepherd, with respect to the livestock under his supervision, Children may also be auxiliaries to their parents’ possession’ (Steinauer, 2012: 95). The common law similarly allows for possession through an intermediary. One mechanism that is used to achieve this result is symbolic possession (Pollock and Wright, 1888: 13). Constructive possession is a notion that applies more broadly to situations in which a person is not in direct contact with property and is yet deemed by common law courts to be in legal possession of the thing, and some have suggested that the notion also encompasses possession through another person (Pollock and Wright, 1888: 14; Ziff, 2010: 133). B. The Intentional Element: Animus The second element required by legal systems for possession is an element of intention. The content and scope of the intention varies more widely than the physical corpus, but its presence is pivotal. In civil law jurisdictions, corpus without this intention is often seen as mere detention, which traditionally did not give rise to protections or legal effects. The common law has a somewhat similar pair of concepts, and considers that physical control without the necessary intention gives rise only to factual possession, and not full-fledged legal possession (Pollock and Wright, 1888: 118). Civil law jurisdictions that mostly follow Savigny’s subjective approach, such as France, have seen significant debate as to whether the appropriate animus for possession is animus domini, the intention to own, or animus possidendi, which at various times has been employed to mean either an intention to use, to possess, or to exclude others. The dominant approach in France is animus domini. Bergel observes that the necessary animus goes beyond simply the intent to carry out acts on a thing. In order ‘to assert or acquire rights, a more specific intention is required, namely, to act as would the holder of those rights, to have custody of the thing as an owner, a usufructuary, or the beneficiary of a servitude …’ (Bergel et al., 2000: 147). Carbonnier describes the animus domini as ‘the will to act toward the thing as its owner, absolutely and in perpetuity, without having to account to or to provide restitution to any person’ (2000: 203). The BGB’s approach to intention flows from the definition of possession in Article 854(1): ‘Possession of a thing is acquired by obtaining actual control of the thing.’ German possession evolved from the medieval possessory notion of Gewere, which Yaëll Emerich - 9781785369162 Downloaded from https://www.elgaronline.com/ at 11/13/2024 05:24:00PM via Maastricht University Library Columns Design XML Ltd / Job: Graziadei-Smith-Comparative_Property_Law / Division: 08-chapter8 /Pg. Position: 7 / Date: 24/10 JOBNAME: Graziadei & Smith PAGE: 8 SESS: 4 OUTPUT: Tue Dec 20 10:52:53 2016 178 Comparative property law originated in the solemn act of transferring title of immovable land (Bergel et al., 2000: 126), and which thus bears a similarity in its origin to the common law possession-like notion of seisin. As mentioned above, Gewere laid the groundwork for the BGB’s later adoption of Jhering’s objective approach to possession, which requires very little in the way of animus, thereby greatly expanding the scope of potential possessors. German ‘possession is broader in scope than the French notion in the sense that it simply refers to physical custody of the thing, animus not normally being required for there to be possession; no more is required of the animus than it be conscious and lasting’ (Fromont, 2001: 144–145). Animus thus does not entirely disappear, though it is largely inferred from the fact of corpus. Nonetheless, Swiss law, which relies very little on animus, similarly requires an element of intention (or ‘will’) despite the fact that this will can be both very limited and very general: That the will to possess is required is controversial in [Swiss] doctrine, but it is accepted by the leading doctrinal sources as being included within the notion of effective control in the first paragraph of article 919 [of the Civil Code]. It is not necessary that the person concerned have the will to possess each item over which that person has factual control. It is sufficient to have the wholly general will to possess property of a determinate kind or that meets certain conditions. (Steinauer, 2012: 91) Common law systems have come to the same basic conclusion that intentional custody of a thing is required to give rise to legal effects. Common law judges and writers have disagreed with one another, however, about whether the necessary intention is one of animus possidendi or animus excludendi. Oliver Wendell Holmes suggested that the intentional element of possession is properly understood as animus excludendi, an intention to exclude others. This criterion is regularly found in common law decisions, and is seen as less problematic that the notion of animus possidendi, which was particularly ambiguous in the case of leasehold tenants, who could not hold the thing for themselves. The jurisprudence therefore reflects a sort of semantic slide which led to the meaning of the two terms merging gradually. For example, in Littledale v Liverpool College, the animus possidendi was defined as the intention to exclude others.5 More recently, in Keefer v Arrilota, a Canadian court used a similar definition of animus: ‘The animus possidendi which a person claiming a possessory title must have is an intention to exclude the owner from such uses as the owner wants to make of his property.’6 In England, the rejection of animus domini in favour of a combined possidendi– excludendi approach is the ‘clear consensus’ (Gray and Gray, 2011: 81). Justice Slade, in the English case of Buckinghamshire County Council v Moran, for example, held: There are some dicta in the authorities which might be read as suggesting that an intention to own the land is required. … Nevertheless, I agree with the judge [in the lower court] that ‘what is required for this purpose is not an intention to own or even an intention to acquire 5 1 Ch 16, 16 TLR 44. 6 (1976) 13 OR (3d) 680, 72 DLR (3d) 182. Yaëll Emerich - 9781785369162 Downloaded from https://www.elgaronline.com/ at 11/13/2024 05:24:00PM via Maastricht University Library Columns Design XML Ltd / Job: Graziadei-Smith-Comparative_Property_Law / Division: 08-chapter8 /Pg. Position: 8 / Date: 13/12 JOBNAME: Graziadei & Smith PAGE: 9 SESS: 3 OUTPUT: Tue Dec 20 10:52:53 2016 Possession 179 ownership but an intention to possess’ – that is to say, an intention for the time being to possess the land to the exclusion of all other persons, including the owner with the paper title.7 In the recent House of Lords case of J.A. Pye (Oxford) Ltd. v Graham,8 possession is even easier to prove as a possessor no longer has to demonstrate the intention to exclude the paper owner or registered proprietor, but merely the intention to further the possessor’s self-interest. Lord Justice Browne-Wilkinson held that ‘[t]he only intention which has to be demonstrated’ is ‘an intention to occupy and use the land as one’s own’ and to ‘stay as long as he can for his own benefit’ even if expecting eviction.9 The unifying features across all legal traditions is that each one requires both a physical and a mental element to show possession. However the required physical or intentional investment may vary across legal traditions, depending primarily on whether the system tends more toward an objective or subjective view of property. 4. CONCEPTUAL APPROACHES TO POSSESSION A. Possession as Communication A comparative approach to possession strengthens the idea, which has been suggested by some authors, that the concept functions as a form of communication or messaging to third parties. Carol Rose, for example, suggests that possession ‘requires a kind of communication, and the original claim to the property looks like a kind of speech, with the audience composed of all others who might be interested in claiming the object in question’ (1985: 78). Rose cites the famous United States common law decision of Pierson v Post.10 In this case, Post had organized a fox hunt and, while in pursuit of a fox, Pierson came across the fox and killed it, taking the fox for himself. The Supreme Court of New York noted that possession requires a clear and unequivocal act demonstrating the intention to possess even, apparently, if this runs contrary to the principle that property rewards socially useful behaviour, such as organizing a fox hunt (Rose, 1985: 77). This notion of a ‘clear act’, according to Rose, is a form of communication that rewards socially useful behaviour on an even more basic level, by requiring that a possessor establish a clear and unequivocal intention to be recognized as a person with rights over the thing. This is not far off traditional Western conceptions of possession. The French author Raymond Saleilles, for example, sees a possessor as ‘a person who appears in the world of external facts as the person in factual control of the thing, and who desires to be so’ (1984: 376). Therefore, possession is ‘the conscious and intended actualization of the economic appropriation of things’ (1984: 113). Other civilian theories have expressed ideas close to those of Saleilles (Danos, 2007: 289). 7 Buckinghamshire County Council v Moran (1989) Ch 623, 3 WLR 152 at 643. 8 UKHL 30, 3 WLR 221 [cited to UKHL]. 9 Ibid at para 71. 10 3 Cai R 175, 2 Am Dec 264 (Sup Ct NY 1805). Yaëll Emerich - 9781785369162 Downloaded from https://www.elgaronline.com/ at 11/13/2024 05:24:00PM via Maastricht University Library Columns Design XML Ltd / Job: Graziadei-Smith-Comparative_Property_Law / Division: 08-chapter8 /Pg. Position: 9 / Date: 24/10 JOBNAME: Graziadei & Smith PAGE: 10 SESS: 3 OUTPUT: Tue Dec 20 10:52:53 2016 180 Comparative property law Practical examples abound in both legal traditions. Frédéric Zenati-Castaing, for example, underlines that applying the legal mechanism for possession to incorporeal property is ‘not without difficulty’ but reassures the reader that ‘a few adaptations allow the obstacles to be overcome’: ‘In particular, a reduced role for possession, given that the thing is impossible to have in one’s physical custody, is compensated for by means of the public registry, which plays the same role with respect to third parties as possession’ (Zenati-Castaing and Revet, 2008: 99). Where possession is unworkable, in other words, the civil law substitutes – as an apparently equivalent mechanism – the publication of rights in the public registry, a clear means of communicating rights to third parties. Possession becomes unworkable in the English common law under different circum- stances, but with the same result: the common law substitutes a more direct form of communication instead of possession. As mentioned earlier, it can be more difficult to demonstrate corpus in the case of an expansive area than of a tiny plot, and as such Gray and Gray suggest, one has to send the proper message to all others: hands off, this is mine! The communicative function of possession is also apparent in Swiss legal doctrine. Steinauer notes that ‘[t]he owner of a mailbox is … the possessor of the mail deposited in it even before having collected it, because by setting it out, he has already expressed, in a general sense, his will to have its contents in his custody’. Once again, initially counterintuitive effects of possession become clear when understood as serving an essentially communicative function. The Supreme Court of Canada, as it attempts to establish a new form of possession for the purposes of Aboriginal title that is not tied to common law notions, has made the communicative role even more explicit. In order to ground a claim of Aboriginal title, ‘the Aboriginal group in question must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes’.11 B. Conceptual Independence from Ownership Another fundamental feature of possession is its conceptual independence from ownership. It is common for legal doctrine to observe that in the normal state of affairs, the two coincide in the same person (Carbonnier, 2000: 202; Steinauer, 2012: 87), but that there is no causal relationship between the two: either one can be present without the other. The conceptual independence of possession and ownership in fact goes even further than these writers claim. Beyond simply failing to coincide with actual possession, there are forms of ownership which include no right to possess. The beneficiary of a common law trust, for example, generally has no right – whether present or future – to use the thing that constitutes the object of the property in question, but instead holds a set of rights of enjoyment in the property, including a right to the income it produces or to a share of it, and a right to the proceeds of any sale of the property or part of the property (Waters et al., 2012: 1263–1267). A similar situation exists in France for owners of a fonds commun de placement. This form of 11 Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para 38, 2 SCR 256 (emphasis added). Yaëll Emerich - 9781785369162 Downloaded from https://www.elgaronline.com/ at 11/13/2024 05:24:00PM via Maastricht University Library Columns Design XML Ltd / Job: Graziadei-Smith-Comparative_Property_Law / Division: 08-chapter8 /Pg. Position: 10 / Date: 24/10 JOBNAME: Graziadei & Smith PAGE: 11 SESS: 3 OUTPUT: Tue Dec 20 10:52:53 2016 Possession 181 property is defined by statute in the French Code monétaire et financier, and is conceptually independent both of company law and of the law of trusts. It is instead presented as analogous to physical land: a fonds is an aggregate abstraction that bears fruits as an organized unit (Zenati-Castaing and Revet, 2008: 100–101). But the owner of a fonds does not have ownership of its assets, as the regime divides responsibilities between investors and managers (Zenati-Castaing and Revet, 2008: 110–111). Because most legal systems allow possession’s corpus to be fulfilled by appropriation of the fruits the property produces, this means that despite that owners of common law trusts and French fonds commun de placement may still be able to possess the property by receiving the profits or proceeds. In other situations, the separation of possession and ownership is even more complete. For example, neither a vested remainder interest at common law, nor bare ownership of a property in civilian jurisdictions, brings with it any right of immediate possession of the property, either to use or to benefit from it. This remains the case until the encumbering life estate, usufructuary dismemberment, or other lesser property interest, as the case may be, is ultimately extinguished. 5. ACQUISITIVE PRESCRIPTION AND ADVERSE POSSESSION The main effect of possession is acquisitive prescription in civil law and adverse possession in common law. Acquisitive prescription in French and Quebec civil law is a means of acquiring property that is based on possession. As stated in Article 2258 of the French Civil Code (C civ), ‘la prescription acquisitive est un moyen d’acquérir un bien ou un droit par l’effet de la possession sans que celui qui l’allègue soit obligé d’en rapporter un titre ou qu’on puisse lui opposer l’exception tirée de sa mauvaise foi’. Similarly, Quebec law defines it as ‘a means of acquiring a right of ownership, or one of its dismemberments, through the effect of possession’ (Article 2910 CCQ). There is a general agreement that, in the majority of cases, acquisitive prescription reinforces the owner’s rights and helps to support ownership, by conferring true title or assisting in proving ownership (Aubry and Rau, 1961: 697; Martineau, 1977; Lafond, 2007: 668). Sometimes, however, acquisitive prescription can deprive an owner of his right by conferring title on another who was not the owner (Martineau, 1977: 14). In common law, adverse possession is the functional equivalent of acquisitive prescription, as it also permits a possessor to become an owner after the passage of time and under certain conditions (Massey, 2012: 75). In the English case Treloar v Nute, the court ruled that ‘if a squatter takes possession of land belonging to another and remains in possession for [the statutory period] to the exclusion of the owner that represents adverse possession’.12 Adverse possession is generally considered in parallel with the limitation principle: if adverse possession is a possible source of title for real property, the principle of limitation refers to the fact that the prior possessor’s right to recover possession is itself curtailed by the imposition of time limits on the assertion of claims. As title is relative in common law, the absence of a limitation period would make the owner’s position perpetually subject to an action by a prior possessor for 12 1 WLR 1295 (CA). Yaëll Emerich - 9781785369162 Downloaded from https://www.elgaronline.com/ at 11/13/2024 05:24:00PM via Maastricht University Library Columns Design XML Ltd / Job: Graziadei-Smith-Comparative_Property_Law / Division: 08-chapter8 /Pg. Position: 11 / Date: 24/10 JOBNAME: Graziadei & Smith PAGE: 12 SESS: 3 OUTPUT: Tue Dec 20 10:52:53 2016 182 Comparative property law recovery of possession. To avoid this, Limitation Acts impose a time period, typically 12 years in English common law, during which prior possessors can recover possession of property. After this period has run, no one can claim better title than the current possessor, who, through the indirect effect of Limitation Acts, thereby acquires an exclusive title (Gray and Gray, 2009: 1158). In French and Quebec civil law, for possession to be useful and lead to acquisitive prescription, it must simply be peaceful (not obtained through physical duress or psychological abuse), continuous (without abnormal interruption), public (not clandes- tine) and unequivocal (exclusive and not ambiguous).13 Common law jurisdictions also require that certain criteria for possession be present for the purposes of adverse possession. In Canada possession must be public (open and notorious), exclusive (not shared with the owner), peaceful (not obtained by force), actual (the possessor must be using the property as though he were the owner) and continuous (without interruption). In all cases, there must be an element of adversity: in other words, the possessor seeking to invoke adverse possession must be in possession without the consent or authorization of the owner (Ziff, 2010: 142). One can find similar requirements in English common law, where possession must be public, exclusive (the possessor cannot be in possession at the same time as the owner), actual (the possessor must show that he dealt with the land as an owner would have) and continuous (without loss of control over the property).14 In English common law as well, possession needs to be adverse (Mackenzie and Phillips, 2012: 142). If adverse possession is limited to real property or land, acquisitive prescription is generally limited to immovable property but is also applicable to movable property. With respect to movables, other modes of acquisition of ownership based on possession exist in both traditions. Occupation is, in civil law, a mode of acquisition of res nullius (things without an owner), based on possession (Cornu, 2005: 479). Occupancy also exists in common law. One can find a clear example of occupancy in the case Pierson v Post already discussed.15 In respect of lost or forgotten movables, they cannot be acquired by occupation in civil law. In Quebec law, they continue to belong to the owner despite the disposses- sion; however, they could be acquired by acquisitive prescription.16 The prescription period for acquisitive prescription is 10 years.17 Therefore, the owner of a lost or forgotten thing may revendicate it, on certain conditions, so long as no prescription has arisen.18 If the thing has been alienated, the owner’s right is exercised only against what is left of the price of sale, at certain conditions.19 In French law, Article 2276, paragraph 2 C civ authorizes the true owner to claim his property even from the bona fide purchaser, when he has been unintentionally dispossessed as a result of a loss or a theft. Acquisitive prescription is, however, possible, by three years if the possessor is in 13 Arts 2261 C civ and 922 CCQ. 14 Zarb and Another v Parry and Another EWCA Civ 1306, 1 WLR 1240. 15 3 Cai R 175, 2 Am Dec 264 (Sup Ct NY 1805). 16 Art 939 CCQ. 17 Art 2917 CCQ. 18 Art 946, para 1 CCQ. 19 Art 946, para 2 CCQ. Yaëll Emerich - 9781785369162 Downloaded from https://www.elgaronline.com/ at 11/13/2024 05:24:00PM via Maastricht University Library Columns Design XML Ltd / Job: Graziadei-Smith-Comparative_Property_Law / Division: 08-chapter8 /Pg. Position: 12 / Date: 24/10 JOBNAME: Graziadei & Smith PAGE: 13 SESS: 3 OUTPUT: Tue Dec 20 10:52:53 2016 Possession 183 good faith, or by 30 years if he is in bad faith (e.g., the thief) (Cornu, 2005: 680). One may find similar rules in common law; it is indeed well established that the finder of lost property, ‘though he does not by such finding acquire an absolute property or ownership … has such a property as will enable him to keep it against all but the owner’.20 Unless the relevant time limit has expired (which varies from jurisdiction to jurisdiction), a finder who refuses to answer the loser’s demand for delivery of the thing can successfully be sued in conversion (Hickey, 2010: 159). Similarly, the bona fide purchaser of stolen personal property may become immune from the owner’s claim after a certain number of years (which varies from jurisdiction to jurisdiction) (Dari-Mattiacci and Guerriero, 2015: 3–4). For example, English law does not recognize the Roman institution of usucapio, but its function is fulfilled, depending on circumstances, by the six-year statute of limitations, as from the date on which the purchaser in good faith acquired the object (Kowalski, 2000: 97). Similarly, in the American legal system, the statute of limitations gives a purchaser in good faith an opportunity to keep the purchased object. Such case does not entail the transfer of title but rather bars the owner’s claim, which in practice has the same effect (Gerstenblith, 1988). However, in French law, if the owner has entrusted the property to another person, who, in turn, alienated it without due authorization, the owner has to bear the consequences of his excessive confidence. The penalty for such over-trust is the inability to recover the property in question from a bona fide purchaser. The rule ‘With regard to movables, possession is equivalent to title’, which is of Germanic origin (Kowalski, 2000: 92), applies in such circumstances.21 The rule differs in Quebec law. Article 1714, paragraph 1 CCQ stipulates that the true owner may revendicate the sold property from the buyer unless the sale was made under judicial authority or unless the buyer can set up acquisitive prescription. The period for acquisitive prescription is 10 years,22 except for the possessor in good faith who acquires the movable property by three years running from the dispossession of the owner.23 If the property is a movable sold in the ordinary course of business of an enterprise, the owner is bound to reimburse the buyer in good faith for the price he has paid.24 6. POSSESSORY PROTECTION While the previous section examined the independence of possession and ownership from the perspective that ownership does not always include a right of possession, it is also the case that the effects of possession are not always linked to the right of ownership. Although some of possession’s effects – such as the potential to acquire property – are linked t