support the suggestion that “the right of resuming possession is apt to be confounded
with possession itself”
58 due to the fact that the owner is entitled by law to acquire
the “right of possession”. This may result in discerning “possession” as a “sliding
principle”—since the right to possess is different from the right of possession, and
may shift from one person to another with consent from the true owner.
The “sliding principle” or shifting nature of possession can also be explained in
terms of “physical possession”.
59 Physical or actual possession establishes a de facto
form of control, which is supported by the fact that the possessor manifests a form of
active dominion over it.
60 If the possessor is simply a custodian, then the ownerpossessor can at any given time reclaim possession of the property. It is then that the
de facto form of control reverts to the owner-possessor. After acquiring actual
possession of the property, the owner-possessor, if he deems it necessary, could
again transfer the de facto control to another person, this time to a different
custodian. And so the transferee until reclaimed again by the owner-possessor enjoys
de facto control over the property. While the de facto control over the property is
absolute and free from all dialectical questions, what the owner-possessor perceives
in his mind regarding the property during the period a custodian or transferee enjoys
active dominion, requires separate assessment.
what ownership is in right. Possession is the de facto exercise of a claim; ownership is the de jure
recognition of one. A thing is owned by me when my claim to it is maintained by the will of the
State as expressed in the law; it is possessed by me, when my claim to it is maintained by my own
self-assertive will. Ownership is the guarantee of the law; possession is the guarantee of the facts. It
is well to have both forms of security if possible; and indeed they normally co-exist. But where there
is no law, or where the law is against a man, he must content himself with the precarious security of
the facts. Even when the law is in one’s favour, it is well to have the facts on one’s side also . . . Beati
possidentes. Possession, therefore, is the de facto counterpart of ownership. It is the external form in
which rightful claims normally manifest themselves. The separation of these two things is an
exceptional incident, due to accident, wrong, or the special nature of the claim in question.
Possession without ownership is the body of fact, uniformed by the spirit of right which usually
accompanies it. Ownership without possession is right, unaccompanied by that environment of fact
in which it normally realizes itself. The two things tend mutually to coincide. Ownership strives to
realize itself in possession, and possession endeavours to justify itself as ownership. The law of
prescription determines the process by which, through the influence of time, possession without title
ripens into ownership, and ownership without possession withers away and dies [footnote omitted]
[emphasis added].”
58 Pollock and Wright (1888), p. 3.
59 Ibid., p. 3. The authors cite Sir. E. Perry, who by way of introduction to his translation of Savigny
ou Possession, cites a passage from Bentham on physical possession: “What is it to possess? This
appears a very simple question:– there is none more difficult of resolution, and it is in vain that its
solution is sought for in books of law: the difficulty has not even been perceived, It is not, however,
a vain speculation of metaphysics. Every thing which is most precious to a man may depend upon
this question:– his property, his liberty, his honour, and even his life, indeed, in defence of my
possession, I may lawfully strike, wound, and even kill if necessary. But was the thing in my
possession? If the law trace no line of demarcation, if it decide not what is possession and what is
not, I may, whilst acting with the best intentions, find myself guilty of the greatest crime, and what I
thought was legitimate defence may, in the opinion of the judge, be robbery and murder . . .”.
60 Ibid., p. 7.
352
T. M. Johansson
with possession itself”
58 due to the fact that the owner is entitled by law to acquire
the “right of possession”. This may result in discerning “possession” as a “sliding
principle”—since the right to possess is different from the right of possession, and
may shift from one person to another with consent from the true owner.
The “sliding principle” or shifting nature of possession can also be explained in
terms of “physical possession”.
59 Physical or actual possession establishes a de facto
form of control, which is supported by the fact that the possessor manifests a form of
active dominion over it.
60 If the possessor is simply a custodian, then the ownerpossessor can at any given time reclaim possession of the property. It is then that the
de facto form of control reverts to the owner-possessor. After acquiring actual
possession of the property, the owner-possessor, if he deems it necessary, could
again transfer the de facto control to another person, this time to a different
custodian. And so the transferee until reclaimed again by the owner-possessor enjoys
de facto control over the property. While the de facto control over the property is
absolute and free from all dialectical questions, what the owner-possessor perceives
in his mind regarding the property during the period a custodian or transferee enjoys
active dominion, requires separate assessment.
what ownership is in right. Possession is the de facto exercise of a claim; ownership is the de jure
recognition of one. A thing is owned by me when my claim to it is maintained by the will of the
State as expressed in the law; it is possessed by me, when my claim to it is maintained by my own
self-assertive will. Ownership is the guarantee of the law; possession is the guarantee of the facts. It
is well to have both forms of security if possible; and indeed they normally co-exist. But where there
is no law, or where the law is against a man, he must content himself with the precarious security of
the facts. Even when the law is in one’s favour, it is well to have the facts on one’s side also . . . Beati
possidentes. Possession, therefore, is the de facto counterpart of ownership. It is the external form in
which rightful claims normally manifest themselves. The separation of these two things is an
exceptional incident, due to accident, wrong, or the special nature of the claim in question.
Possession without ownership is the body of fact, uniformed by the spirit of right which usually
accompanies it. Ownership without possession is right, unaccompanied by that environment of fact
in which it normally realizes itself. The two things tend mutually to coincide. Ownership strives to
realize itself in possession, and possession endeavours to justify itself as ownership. The law of
prescription determines the process by which, through the influence of time, possession without title
ripens into ownership, and ownership without possession withers away and dies [footnote omitted]
[emphasis added].”
58 Pollock and Wright (1888), p. 3.
59 Ibid., p. 3. The authors cite Sir. E. Perry, who by way of introduction to his translation of Savigny
ou Possession, cites a passage from Bentham on physical possession: “What is it to possess? This
appears a very simple question:– there is none more difficult of resolution, and it is in vain that its
solution is sought for in books of law: the difficulty has not even been perceived, It is not, however,
a vain speculation of metaphysics. Every thing which is most precious to a man may depend upon
this question:– his property, his liberty, his honour, and even his life, indeed, in defence of my
possession, I may lawfully strike, wound, and even kill if necessary. But was the thing in my
possession? If the law trace no line of demarcation, if it decide not what is possession and what is
not, I may, whilst acting with the best intentions, find myself guilty of the greatest crime, and what I
thought was legitimate defence may, in the opinion of the judge, be robbery and murder . . .”.
60 Ibid., p. 7.
352
T. M. Johansson