Possession: Salmond, Paton, and the argument between Savigny and Holmes

Salmond said that in the whole of legal theory there is no conception more difficult than that of possession. Open with that, because it explains why the topic is examined as a set of distinctions rather than a definition.

Why it matters in practice:

• Possession is evidence of ownership: the possessor of a thing is presumed to be its owner, and may put all other claimants to proof of their title. Hence the saying that possession is nine points of the law.
• The transfer of possession is one of the chief methods of transferring ownership.
• Possession is of such efficacy that a possessor may in many cases confer a good title on another, even though he has none himself.

| | Latin | What it is | |---|---|---| | The physical element | corpus possessionis | Physical possession. | | The mental element | animus possidendi | The intention to possess. |

The corpus. The claim of the possessor must be effectively realised in the facts — actually and continuously exercised. But it consists in nothing more than the continuing exclusion of alien interference, coupled with the ability to use the thing oneself at will. Actual use is not essential. That last sentence disposes of the objection that a man who leaves his car in a garage for a year loses possession of it.

The animus. The intent necessary is the intent to appropriate to oneself the exclusive use of the thing possessed — an exclusive claim to a material object. Salmond's five observations:

1. It is not necessarily a claim of right — which is why a thief possesses.
2. The claim must be exclusive.
3. It need not amount to a claim or intent to use the thing as owner — which is why a bailee possesses.
4. It need not be a claim on one's own behalf.
5. It need not be specific but may be merely general, and does not necessarily involve any continuous or present knowledge of the particular thing possessed or of the possessor's relation to it.

Salmond's three propositions, which answer the syllabus head directly:

1. Possession may and usually does exist both in fact and in law. The law recognises as possession all that is such in fact, and nothing that is not such in fact, unless there is some special reason to the contrary.
2. Possession may exist in fact but not in law. The possession by a servant of his master's property is for some purposes not recognised as possession by the law, and he is then said to have detention or custody rather than possession.
3. Possession may exist in law but not in fact, where for some special reason the law attributes the advantages and results of possession to someone who as a matter of fact does not possess. The possession so fictitiously attributed is termed constructive.

In Roman law possession in fact is possessio naturalis and possession in law is possessio civilis.

Corporeal possession is possession of a material object — in Roman law possessio corporis. Incorporeal possession is possession of anything other than a material object, distinguished as possessio juris, the possession of a right, just as incorporeal ownership is the ownership of a right.

Corporeal possession is clearly some form of continuing relation between a person and a material object, and — this is the sentence to carry — it is a relation of fact and not one of right.

The possession of a material object is the continuing exercise of a claim to the exclusive use of it, and involves two distinct elements: the mental or subjective element, comprising the intention of the possessor, and the physical or objective element, comprising the external facts in which that intention has realised or embodied itself. The Romans called the first animus and the second corpus; the mental element also goes by the names animus possidendi, animus sibi habendi and animus domini.

Incorporeal possession requires the same two elements, with one difference of the first importance: in the case of incorporeal things, continuing non-use is inconsistent with possession, though in the case of corporeal things it is consistent with it. A right of way not used ceases to be possessed; a bicycle not ridden does not.

The distinction between corporeal and incorporeal possession is clearly analogous to that between corporeal and incorporeal ownership; in essence the two forms of possession are identical, as the two forms of ownership are. Hence possession in its full compass and generic application means the continuing exercise of any claim or right.

Possession held by one man through another is mediate; possession acquired or retained directly or personally is immediate or direct.

There are three kinds of mediate possession:

1. Possession acquired through an agent or servant who claims no interest of his own.
2. Possession where the direct possessor holds both on the actual possessor's account and on his own, but recognises the actual possessor's superior right to obtain direct possession whenever he demands it.
3. Possession where the immediate possessor claims it for himself until some time has elapsed or a condition has been fulfilled, but acknowledges the title of another for whom he holds the thing and to whom he is prepared to deliver it when his own temporary claim ends.

Paton's objection. Paton said that for English law there is no need to talk of mediate and immediate possession: the bailee and the tenant clearly have full possession, and Salmond's analysis may be necessary for some other systems of law but is not needed in English law. Paton also observed that possession, though a concept of law, lacks a uniform approach among jurists; that some distinguish legal from lawful possession — the possession of a thief is legal but not lawful; and that where possession in the popular sense is meant it is easier to use a term such as physical control.

This is the argument to reproduce when the question asks why possession is protected.

Savigny, with the other German thinkers including Kant and Hegel, argued that possession in the eyes of the law requires that the person claiming possession intend to hold the property as an owner, rather than recognise the superior title of another person — so that in providing possessory remedies to lessees, bailees and others who lack such an intention, modern law sacrifices principle to convenience.

Holmes replied that he could not see what is left of a principle which avows itself inconsistent with convenience and the actual course of legislation. The first call of a theory of law is that it should fit the facts. It must explain the observed course of legislation; and since men will make laws that seem to them convenient without troubling themselves much about what principles their legislation offends, a principle which defies convenience is likely to wait some time before it finds itself permanently realised.

Holmes made a second, historical criticism of the German theorists, and of Savigny in particular: they have known no other system than the Roman. He set out to prove that the Anglo-American law of possession derives not from Roman law but from pre-Roman German law.

• The definition question. Do not attempt a single definition. Give the two elements with their qualifications, the three propositions on fact and law, and then possession in its generic sense as the continuing exercise of any claim or right.
• Why is possession protected? Use the three practical reasons — presumption of ownership, transfer, and the power to confer a good title — and then the Savigny and Holmes exchange, which converts the question from a list into an argument.
• The trap in the animus. It is not an intention to hold as owner. Salmond's third and fourth observations say so expressly, and it is precisely on that point that Savigny disagreed.