1. Concept of possession and its functions in the European legal tradition
‘It is commonly accepted that possession is the situation in which it is not only possible for the possessor to affect a thing physically, but also to prevent anyone else from affecting the thing in this way.’ This definition by Friedrich Carl von Savigny is still valid under today’s European private law. Possession is a person’s factual control over a corporeal thing. This purely factual control must be kept strictly separate from ownership, the latter being the legal right to control a thing.
Under many European legal systems, special remedies are available for a possessor who is disturbed in his possession. These remedies are typically available even where the possessor was not the owner nor otherwise entitled to possession. The possessory remedies protect the factual status quo regardless of whether the disturbance of possession actually violated a (real or contractual) right of the possessor. In addition to providing the basis for these peculiar remedies, possession is important in the context of the acquisition of ownership. Possession, being the factual control over a thing, is regarded by the law as an indication that the possessor is also entitled to the control which he or she exercises in fact. Possession of the previous owner is therefore frequently named as a requirement for a valid transfer of ownership. Things which have no owner can be acquired by anyone gaining possession of them. Things belonging to another can be acquired by a non-owner through acquisitive prescription if they are in the possession of the non-owner for a sufficient amount of time as fixed by statute (transfer of title (movable goods)).
Both functions of possession can be traced to Roman law. Already in the Roman system, possession had provided the basis for remedies designed to maintain or restore the factual status quo regarding the distribution of control over movable and immovable things. It was also a requirement for the acquisition of ownership in a variety of situations.
In Roman law, if a thing was forcibly or surreptitiously taken away from its possessor, or if the possessor was in any other way disturbed in the quiet possession of a movable or immovable object, the possessor was able to avail himself of so-called interdicta. Special procedural provisions were applicable to the interdicts, which aimed to guarantee the quick recovery of undisturbed possession by the (former) possessor. If the item had been taken away, the only thing that had to be proven under the interdictal procedure was previous possession. Whoever was able to prove that he had been in possession was able to recover the thing from any person who had acquired possession in a violent or clandestine manner.
Concerning transfer of ownership, Roman law as codified by Justinian (Corpus Juris Civilis), required traditio: the thing to be conveyed to a new owner had to be handed over physically. Thus, transfer of ownership normally presupposed a transfer of possession. Besides transfer of ownership by traditio, the acquisition of an ownerless thing through the acquisition of physical control (occupatio) and acquisitive prescription (usucapio) were also known to Roman law.
In Roman law, possession was not strictly limited to situations of physical control. Rather, possession—and in consequence—the protection of the interdicts was also attributed to a person who had transferred physical control to another pursuant to a contract of lease or a similar legal relationship. On the other hand, tenants under a contract of lease and others who—while exercising actual physical control—respected the paramount position of another, were not regarded as possessors. In the eyes of the Roman jurists, the physical control exercised by a tenant and similar persons did not amount to possessio, but only to a detentio which was not legally protected in any special way.
Slaves and children in the power of their father (patria potestas) were completely excluded from possession. If they exercised physical control, it was in law attributed to their owner or father, resulting in the latter’s possession.
By relaxing the requirement of actual physical control as the basis of possession in certain situations, Roman law created problems that were to haunt the future development of property law in Europe for a considerable time.
The legal systems which were based on local custom and had developed independently from Roman law in the Middle Ages did not provide for a clear distinction of possession and ownership in the Roman way. In German customary law, the concept of gewere bears features and has functions which, in the Roman taxonomy, belong in part to ownership and in part to possession. In principle, gewere—like Roman possessio—is physical control. As far as movables are concerned, no particular legal protection is accorded to the person having gewere. The fact that the person having exercised physical control is deprived of that control without his consent gives rise to a remedy. Protection of gewere over movables is thus similar to that accorded to possessio by way of the Roman interdicts. In the case of land, however, it was accepted that gewere could continue to exist even after the loss of physical control. In this way, gewere over immovable property is closer to Roman dominium. French saisine and English seisin are counterparts of German gewere.
In the course of the development of the ius commune on the Continent, the remedy accorded to an owner under Roman law (rei vindicatio) took over certain features of the customary remedies designed to protect gewere or saisine. The Roman interdicts existed alongside this modified rei vindicatio. As an additional remedy, canon law developed the actio spolii, which became part of the remedial framework of the ius commune. The actio spolii was yet another means to recover property which had illegally been taken away from the person factually controlling it. The most important difference from the Roman interdicts was that the actio spolii was available to persons who did not have possession under Justinianic law. The actio spolii was thus a suitable remedy for a tenant who was disturbed in his enjoyment of the leased property by a third party.
English law never accepted the sharp distinction between possession and ownership. The remedies of English law, designed to guarantee the quiet enjoyment of real and personal property and to give redress in the event of disturbances of such quiet enjoyment, were available to mere possessors and owners alike. They were based on the defendant’s alleged interference with the claimant’s physical control. A mere possessor (like a tenant under a lease) could bring these remedies against third parties, but not against the landlord. An owner (or more precisely, in the case of real property, a freeholder) could defend his property against all the world with the same remedies.
As possession presupposes physical control (at least in principle), it is only conceivable with regard to corporeal things. However, the concept of (quasi) possessio iuris—possession of a right—emerged at an early stage in the history of possession: the Roman jurists accorded a protection similar to that enjoyed by the possessor of a thing to a person who was actually and continually exercising the acts to which a certain legal right (eg a right of way or a similar limited right over another’s property) would entitle him against anyone attempting to prevent him from continuing to do such acts and exercise in fact the right in question. In the course of development of the ius commune, the scope of application of quasi-possessio iuris was broadened considerably.
2. Trends of legal development
In the European legal systems of today, the trends that were already discernible in the later ius commune continue. On the Continent, the owner’s ability to recover his property from a possessor with no right to possession is limited by the institute of bona fide purchase. French and German law exclude the possibility of bona fide purchase when the previous possessor has lost possession without his or her consent. This shows that, to a certain extent, features of gewere/ saisine and the mechanisms available for its protection under customary law are still alive in modern French and German law. An owner, who lost possession, is not protected against a bona fide purchaser, unless he was deprived of physical control against his will or without his consent. The continuity of older legal concepts which sidestep the Roman distinction between possession and ownership is most clearly discernible in the French maxim: ‘En fait de meubles, possession vaut titre.’ According to this rule, (only) the possessor as the presumptive owner enjoys legal protection. The property rights of an owner who lost physical control to a new possessor will only enable him to recover physical control from that new possessor in exceptional circumstances.
German law is less stringent in its effort to limit the possibility to recover possession of movables. However, even in the thoroughly Romanized German civil code, some traces of Germanic gewere survive in the provisions regarding bona fide purchase.
Apart from these more or less restricted remedies allowing the owner to recover possession from a third party, a remedy based on possession alone and modelled after the Roman interdicts and the medieval actio spolii has survived in the continental systems. The English common law still accords the same remedies to owners and non-owners in possession. However, the issue whether a mere possessor without any right to possession should be protected against third parties interfering with his possession is intensely discussed. It seems justified to conclude that a remedy protecting the status quo and protecting possession as such, even where it is not based on a right to possession, belongs to the common core of European private law.
Likewise, the discussion why possession as such should be protected is common to all European systems. This discussion is still dominated by theories developed in the 19th century by Savigny and Rudolf von Jhering. According to Savigny, possession is protected in order to maintain public order and the state’s monopoly on the use of force. No one is allowed to take the law into his own hands. For this reason, not even a person having a better right to possession may use force and interfere with another’s possession. In Jhering’s view, the possessory remedies are a complement to the remedies protecting ownership. The reason why possession is protected is that it is typically coupled with ownership.
The importance of possession as a requirement for the transfer of ownership also survives in the modern systems, but the degree of importance attributed to possession varies from one country to another. In many countries, like Germany and Austria, the Roman principle that a transfer of ownership presupposes traditio is still followed for movable things. For immovable things, traditio is usually replaced by the requirement that the conveyance has to be recorded in a land register in order to be valid. In French law, the passing of ownership is—in theory—based on the agreement of the previous owner and the purchaser alone. However, the conveyance is only valid against a third party once possession has passed to the purchaser. English law does not require a transfer of possession for ownership to pass on the basis of a sale. It does have this requirement, however, if ownership is supposed to pass based on legal grounds other than sale. The acquisition of an ownerless thing by taking possession (occupation) is yet another common feature of today’s European legal systems, as is acquisitive prescription.
As in Roman law, physical control is the core element of the concept of possession. However, as in Roman law, the factual requirements of possession are modified in various ways in the several national legal systems in order to extend some or all of the legal consequences associated with possession to situations where physical control cannot be found, or to avoid these consequences in some cases even though physical control is undeniable.
3. Regime of possession in detail
In spite of the many common features, there are considerable differences in the provisions regarding possession when it comes to the details.
This is most obvious with regard to the term and the concept of ‘possession’ itself. The German Bürgerliches Gesetzbuch (BGB) departs from the tradition of the ius commune by introducing the concepts of direct possession (unmittelbarer Besitz) and indirect possession (mittelbarer Besitz). If a possessor transfers physical control to another under a contract of lease, loan for use, or on similar grounds, both the person exercising control as tenant, lessee, or on a similar basis, and the person whose paramount position as landlord, lessor, or holder of a similar title respected by the tenant, lessee, or other person in control are recognized as possessors. This means that both can make use of the possessory remedies. The person having physical control is said to have direct possession. The other is said to have indirect possession.
Since the person having direct possession respects the superior position of the indirect possessor, he is also a so-called Fremdbesitzer. The complementary term is Eigenbesitzer, a possessor who acts—rightly or wrongly—as the thing’s owner and does not respect the superior position of another with regard to the piece of property in question.
To complicate things further, German law recognizes a third category in addition to the direct possessor and the indirect possessor. The Besitzdiener is a person exercising physical control as a servant or employee of another. Because of the dependency of the person exercising direct control, possession is attributed only to the master or employer. The servant or employee does not have possession himself.
The English common law resembles German law in some aspects. When physical control is ceded to another based on some contractual relationship like lease or loan for consumption, both parties to the contract are treated as possessors. Most continental systems, however, like French and Austrian law, follow the old Roman distinction between possession (attributed to the landlord, lessor and others in a like position) and mere detentio (attributed to tenants and similar persons). These continental systems, however, arrive at solutions very similar to those of German law by making the possessory remedies available to persons whose physical control is qualified as mere detentio. In this they are in conformity with the medieval model of the actio spolii. French law expressly provides for the extension of the possessory remedies to mere holders (détenteurs). Italian law contains a similar provision, but states expressly that the remedies cannot be brought by a holder (detentore) exercising physical control under a contract for services or a similar contract. In this way, Italian law follows German law with its exclusion of Besitzdiener from the protection accorded to possessors. Austrian law uses the old concept of (quasi) possessio iuris to extend the protection of possession to those having only detentio. Under Austrian law, a tenant has only detentio of the house or other object he is renting. However, he is in possession of the rights of use to which he is entitled under the lease contract. If a third person interferes with his right to use the rented property, this constitutes an interference with the tenant’s possessio iuris.
As shown by these examples, the differences between the national legal systems are mostly terminological in nature. It is a basic rule of European private law that whoever exercises physical control over a corporeal thing as a tenant, lessee or in a similar position will be protected by special remedies against interferences by third parties and especially against any attempt to take the thing from his control against his will by use of force or otherwise. Similar protection is accorded to the landlord, lessor or another person who does not himself exercise physical control, but whose superior position regarding the thing in question is respected by a tenant, lessee, or a similar person. Such protection is also accorded to an employer with regard to a thing under the physical control of his employee.
French law departs from the tradition of Roman law and the ius commune by providing special remedies for the protection of possession only with regard to immovable property. The protection of movables is restricted to the remedies available to the owner (action en revendication) which are severely limited by the rule: ‘En fait de meubles, la possession vaut titre.’ However, most legal systems otherwise imitating the French model do not follow the provisions of the French code on this point.
A defendant, against whom a remedy based on interference with possession is brought, cannot invoke a better right to possession (or the fact that he is actually the owner of the thing in question) in his defence. This rule banning so-called ‘petitory’ defences (in German, petitorische Einreden) is another common feature of the various national systems on the European Continent. The rule follows from the function of the possessory remedies. These remedies are designed to prevent unilateral changes of the status quo and to stifle attempts to enforce actual or imaginary rights without recourse to the courts. Therefore, an owner who used force to recover his property from a possessor who had no right to possession must return the thing to the possessor before he may assert his right of ownership. The rule against petitory exception applies in varying degrees of rigour, however. French law contains detailed and very strict provisions in point. In German law, the statutory provisions are less extensive and the courts have considerably limited the impact of the rule. A prohibition of petitory exceptions is not known to English law and the common law tradition. If a person who once had mere possession of a piece of property sues a defendant who took away that piece of property, the defendant is free to invoke his own right of ownership in his defence.
The fact that, terminological differences notwithstanding, all European systems of private law recognize landlords, lessees and other persons in a similar position as possessors, even though they do not have actual physical control, gives rise to a number of variations regarding traditio as a requirement for the passing of property. For example, an owner wishing to convey his right to a purchaser may conclude a contract of lease or a similar contract with the purchaser in terms of which the purchaser becomes intermediate possessor and the (former) owner continues to have physical control. This so-called constitutum possessorium is one of several alternatives to simple traditio which are part of the common European stock of legal ideas. The frequent use of such alternative forms of passing possession (and ownership) is responsible for a number of difficult practical issues.
4. Possession in European law
The impact of European directives has been less important in the law of possession than in many other areas of the law. Only a few directives have to be mentioned. There is a noteworthy provision in Directive 93/7 on the return of cultural objects unlawfully removed from the territory of a Member State. This directive contains provisions regarding proceedings with the aim of returning cultural objects. According to the German version of Art 5, such proceedings can be brought against the owner (Eigentümer) or the possessor (Besitzer) of the object in question. However, definitions nos 6 and 7, respectively, defining Eigentümer and Besitzer, reveal that the directive aims at the traditional distinction of the ius commune and of many modern systems, eg the French, the Italian and the Austrian systems, between the possessor and the mere holder of a piece of property. Consequently, the English version uses the terms ‘possessor’ and ‘holder’ respectively, where the German version has Eigentümer and Besitzer. Thus, return proceedings can be brought against a person exercising physical control over a cultural object by himself or through a lessee or a similarly situated proxy. Whether or not the possessor is also the owner of the cultural object under the applicable provisions of property law is immaterial. If it is impossible to bring proceedings against the possessor, proceedings can be brought against the holder who exercises physical control for another as lessee or similar person. The example illustrates what practical differences can still arise from the conceptual difficulties inherent in the notion of possession in the civil law tradition, even though the distinction between true possessors and mere holders has lost its importance for the availability of the possessory remedies. The fact that possession is based on physical control, but is neither necessarily attributed to all persons having physical control nor exclusively to such persons, is still a source of ambiguities and misunderstandings.
A working group of the Study Group on a European Civil Code has prepared a draft on the ‘acquisition and loss of ownership of goods’ which has now been incorporated into the Draft Common Frame of Reference as Book 8. Even though the title suggests that the focus is on conveyances only, book 8 contains detailed rules on possession. There are rules on the concept of possession concerning movable property (Arts VIII.-1:205–208) as well as provisions on transfer of property by traditio (Arts VIII.-2:104 and 2:105) and on acquisitive prescription (Arts VIII.-4:101–4:302). The draft also features various rules on possessory remedies which are in line with continental tradition (Arts VIII.-6:201–6:302). Only the possibility to acquire ownerless things by occupation is outside the scope of the draft (Art VIII.1-101(2)(g)).
The definition of possession in Art VIII.-1:205 makes it clear that the draft’s notion of possession goes beyond situations of direct physical control. The notion of possessor comprises both persons who actually have physical control and persons who are in a contractual relationship with a partner who—by virtue of that relationship—is obliged or entitled to exercise physical control. This other person exercising physical control is either a limited-right possessor under Art VIII.-1:207 or possession-agent under Art VIII.-1:208. The category of possession agents comprises employees exercising physical control for their employers (Art VIII.-1:208(2)(a)). It is obvious that the categories of the limited-right possessor and of the possession-agent are designed to correspond to the categories of Fremdbesitzer and Besitzdiener in German law. Like the German Besitzdiener, the possession-agent is not a possessor himself and cannot avail himself of the possessory remedies; these remedies are, in contrast, available to the limited-right possessor (Arts VIII.-6:203(1) and VIII.-6:301(1)).
Eduard Maurits Meijers, ‘Historische bijzonderheden omtrent de bezitsacties’ in Eduard Maurits Meijers, Études d’histoire du droit, vol II (1972) 226; Rodolfo Sacco, ‘Possesso (Diritto. Privato.)’ in Enciclopedia del diritto, vol XXXIV (1985) 491; Wolfgang Ernst, Eigenbesitz und Mobiliarerwerb (1992); James Gordley, Foundations of Private Law (2006, reprinted 2007); James Gordley and Ugo Mattei, ‘Protecting Possession’ (1996) 44 Am J Comp L 293; Olaf Sosnitza, Besitz und Besitzschutz (2003); Raffaele Caterina, ‘Concepts and Remedies in the Law of Possession’ (2005) 11 Cardozo Electronic Law Bullettin <www.jus.unitn.it/cardozo/Review/ 2005/Caterina1.pdf>; Rolf Knütel, ‘Der Wettlauf der Okkupanten’ in Haferkamp and Repgen (eds), Usus modernus pandectarum: Römisches Recht, Deutsches Recht und Naturrecht in der Frühen Neuzeit (2007) 75; Jean-Louis Halpérin, Histoire du droit des biens (2008) 36 ff, 69 ff; Guido Bömer, Besitzmittlungswillle und mittelbarer Besitz (2009).