The Concept of Possession | Jurisprudence - CLAT PG PDF Download

Possession

Possession is the relationship between an individual and an object or property. It is a complex legal concept that raises questions about why possession is protected even when the possessor is not the owner. Philosophers like Kant and Hegel argue that possession reflects the extension of an individual's will and personality into the object, deserving respect and protection.

Legal possession is seen as a group of facts, and the law aims to preserve certain sets of facts. Therefore, possession is both a fact and a right in the legal sense. To establish possession, two elements are necessary: animus possidendi(intention to possess) and corpus possessionis(physical control).

Elements of Possession

To establish possession, an individual must have a specific physical relationship with the object and with the rest of the world, along with a certain intent. In other words, possession comprises two key elements.

• Animus Possidendi/Domini: This refers to the intention of the individual to retain the object. The intent necessary for possession involves the exclusive claim to the material object, aiming to use it oneself and exclude others from interfering. Regarding this essential mental attitude of the possessor, the following points are noteworthy:
• Corpus Possessionis: To constitute possession, the animus domini must be manifested in a corpus. The claim of the possessor needs to be effectively realized in the facts, meaning it must be actively and continuously exercised. The will is sufficient only when expressed in an appropriate factual environment.

Types of Possession

Mediate and Immediate: Mediate possession occurs when one person possesses through another, while immediate possession is acquired or retained directly. For instance, if I buy a book myself, I acquire direct possession. If I send someone else to buy it for me, I initially have mediate possession until they bring it to me, at which point it becomes immediate.

Types of Mediate Possession:

1. Through an Agent or Servant: When possession is acquired through someone who holds solely on behalf of the owner, such as sending boots to a shoemaker for repair or allowing a servant to use tools for work. In these cases, the immediate possession is with the servant or artisan, but mediate possession remains with the owner.
2. By Agreement: Possession is transferred through an agreement where the possessor holds on behalf of someone else. For example, lending an item to someone who acknowledges the owner's title and is prepared to return it on demand.
3. Temporary Claim: Possession is held by someone until a condition is fulfilled, but they acknowledge another's title. For instance, lending an item for a fixed time or delivering it as a pledge to be returned upon debt payment.

Concurrent Possession: The civil law principle that two persons cannot possess the same thing simultaneously, as exclusiveness is essential to possession. However, non-adverse claims can coexist, allowing for duplicate possession in certain cases.

Modes of Acquisition of Possession

The modes of acquisition of possession are categorized into two main types: Taking and Delivery.

• Taking: This mode involves the acquisition of possession without the consent of the previous possessor. The item taken may or may not have already been in someone else's possession, and the act of taking can be either rightful or wrongful.
• Delivery: Delivery refers to the acquisition of possession with the consent and cooperation of the previous possessor. There are two forms of delivery: actual and constructive.
• Actual Delivery: This involves the physical transfer of immediate possession, where the item is passed from one person to another. For example, when I hand over a book to someone else.
• Constructive Delivery: Constructive delivery encompasses all forms of delivery that are not actual. There are three types of constructive delivery:
• Traditio Brevi Manu: This involves the surrender of mediate possession to someone who is already in immediate possession of the item. For instance, if I lend a book to someone and later agree to sell or give it to them while they still retain it, I can effectively deliver it by informing them they can keep it.
• Constitutum Possessorium: This is the transfer of mediate possession while retaining immediate possession. It involves an agreement that the possessor will hold the item on behalf of someone else in the future. No physical transfer is necessary, as mediate possession is acquired through the agreement.
• Attornment: This involves the transfer of mediate possession while immediate possession remains with a third person. For example, if I have goods in a warehouse and sell them to someone else, the delivery occurs when the warehouse agrees to hold the goods for the new owner.

Possessory Remedies

Possessory remedies, known as possessoria or possessory remedies, are legal measures designed to protect possession even against ownership claims. A wrongful possessor, who is deprived of possession by the owner outside of due process, can reclaim it based solely on their possession. When a true owner retakes possession, they must first restore it to the wrongdoer and then pursue recovery based on ownership through legal means.
Several reasons underlie the provisional protection of possession:

• The prevention of violent self-help is crucial, and taking away advantages derived from it is essential. Even those who use force to reclaim their own must restore the item to the thief.
• Possessory remedies address the imperfections of early proprietary remedies, which were cumbersome and inefficient. Restoring the original position of affairs before discussing the titles of disputants is necessary.
• The difficulty of proving ownership, especially in the absence of a title registration system, justifies the provisional protection of possession. It is easier to prove possession than ownership, and those who take by force must restore the item to the possessor, bearing the burden of proof for ownership.