2.2 Possession: Actual, Constructive and Adverse
The most basic definition of “possession” can be found in Black’s Law Dictionary
where it has been defined as “[t]he simple holding of a thing, often under a contract,
with no intent of keeping it permanently”. This type of possession exists when the
possessor’s holding of the object is limited by recognition of another person’s
outstanding right which is why it is said that possession is only prima facie evidence
of ownership in the absence of a better claim.
45 In other words, the possessor must
surrender his possession once the true owner returns or comes forward to assert his
claim to the property in question.
46 Where a finder is in possession of a derelict, to
retain such possession, he must bear the burden of proof to show that there was no
animus revertendi on the part of the owner; and if he fails, he must surrender
possession. “The holder may be a usufructuary, a bailee, or a servant - also termed
naturalis possessio; nuda detentio; detentio; possession in fact”.
47 From a general
viewpoint, possession is central to transactions between two parties involving goods.
Black’s definition of possession that is apparently based on a contractual perspective
needs further interpretation to understand its position in the doctrine of abandonment. Scholars have over the years relied on the meaning and interpretation provided
by judges
48 and legal writers that have in turn introduced one complex and possessory term after another.
49 At common law, possession is often said to be “nine-tenths
of the law” in ordinary legal parlance, which is where we start our contemporary
analysis on possession and relevant terms relating to it.
While common law judges have applied their discretion in explaining those terms
relating to possession, e.g., “physical possession”, “actual possession”, “de facto
possession”, “right to possession”, “right of possession”, “constructive possession”,
“possession in law”, “legal possession”, “rightful possession” etc., author Tay
concludes that “[t]o make confusion confounded, the distinctions are not rigidly
observed, in the course of their judgments, by the very men who have drawn
attention to them”.
50 In order to untangle the contorted heap of recondite components associated with the definition of possession,
51 traditional common law writers
have insisted that “possession as a law concept”, “de facto possession”, “actual
45 Tay (1962–1964), pp. 384–388.
46 This notion is related to the “law of derelict”, which in turn, is connected to “ownership” and
“possession” in relation to property law.
47 Black and Garner (2000)
48 Referring to common law that is a system of case laws developed by judges, courts and similar
tribunals.
49 Tay (1963–1964), pp. 476–492.
50 Ibid. Tay (1963–1964), p. 476.
51 Bentham cited in ibid. Tay (1963–1964), p. 476. Stressing on the efforts of scholars, the author
states that “Bentham distinguishes physical possession from legal possession, exclusive possession
from possession in common, possession of things moveable from possession of things immoveable,
possession of services and possession of fictitious entities.”
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T. M. Johansson
The most basic definition of “possession” can be found in Black’s Law Dictionary
where it has been defined as “[t]he simple holding of a thing, often under a contract,
with no intent of keeping it permanently”. This type of possession exists when the
possessor’s holding of the object is limited by recognition of another person’s
outstanding right which is why it is said that possession is only prima facie evidence
of ownership in the absence of a better claim.
45 In other words, the possessor must
surrender his possession once the true owner returns or comes forward to assert his
claim to the property in question.
46 Where a finder is in possession of a derelict, to
retain such possession, he must bear the burden of proof to show that there was no
animus revertendi on the part of the owner; and if he fails, he must surrender
possession. “The holder may be a usufructuary, a bailee, or a servant - also termed
naturalis possessio; nuda detentio; detentio; possession in fact”.
47 From a general
viewpoint, possession is central to transactions between two parties involving goods.
Black’s definition of possession that is apparently based on a contractual perspective
needs further interpretation to understand its position in the doctrine of abandonment. Scholars have over the years relied on the meaning and interpretation provided
by judges
48 and legal writers that have in turn introduced one complex and possessory term after another.
49 At common law, possession is often said to be “nine-tenths
of the law” in ordinary legal parlance, which is where we start our contemporary
analysis on possession and relevant terms relating to it.
While common law judges have applied their discretion in explaining those terms
relating to possession, e.g., “physical possession”, “actual possession”, “de facto
possession”, “right to possession”, “right of possession”, “constructive possession”,
“possession in law”, “legal possession”, “rightful possession” etc., author Tay
concludes that “[t]o make confusion confounded, the distinctions are not rigidly
observed, in the course of their judgments, by the very men who have drawn
attention to them”.
50 In order to untangle the contorted heap of recondite components associated with the definition of possession,
51 traditional common law writers
have insisted that “possession as a law concept”, “de facto possession”, “actual
45 Tay (1962–1964), pp. 384–388.
46 This notion is related to the “law of derelict”, which in turn, is connected to “ownership” and
“possession” in relation to property law.
47 Black and Garner (2000)
48 Referring to common law that is a system of case laws developed by judges, courts and similar
tribunals.
49 Tay (1963–1964), pp. 476–492.
50 Ibid. Tay (1963–1964), p. 476.
51 Bentham cited in ibid. Tay (1963–1964), p. 476. Stressing on the efforts of scholars, the author
states that “Bentham distinguishes physical possession from legal possession, exclusive possession
from possession in common, possession of things moveable from possession of things immoveable,
possession of services and possession of fictitious entities.”
350
T. M. Johansson