POSSESSION IN SCOTS LAW

This paper is concerned with how possession is protected in Scots law. Most of the paper is concerned with one possessory remedy in particular, the so-called possessory judgment. To see how this fits into the law of possession more generally, we shall begin with an overview of the Scots law of possession.

Unlike the majority of civilian systems of property law, Scots law is not codified. Except where the law is governed by statute (and the law of possession is largely free from this), we look to the institutional writers of Scots law, especially Stair, and to the decisions of the courts.

When we look at the Scots law of possession, we find marked similarities to the Roman law. For example, we see in Roman law a distinction drawn between possession and ownership, Ulpian saying that the two have “nothing in common”, with the result that possessory questions are not determined by asking who has the right to possess. Possession gives no right to possess beyond a right not to have that possession disturbed without consent or legal process. Certainly, it gives no rights against third-party acquirers: the main possessory interdicts, utrubi for moveables and uti possidetis and unde vi for land, are not worded to give any right against third parties. Furthermore, Ulpian makes it clear that, if I acquire possession from one who got it forcibly, my possession is not thereby tainted.

We find the same approach in Scots law. Possession is “a distinct lesser right than property”, giving “the right to continue it against all illegal contrary acts”. In Scots law, possession is protected by the remedy of spuilzie, more commonly known as ejection when it relates to land. This gives the right, on being dispossessed without consent or order of the court, to be restored to possession pending consideration of the question of right: spoliatus ante omnia est restituendus. However, possession gives no right to possess beyond this, and the remedy is not available against third parties.

From a comparative law perspective, the South African legal system is usually classified as a “mixed legal system”. This indicates a mixture between civil law (Romano-Germanic law) in the form of Roman-Dutch law and English common law. Unlike most civil-law systems on the European continent, South African law is not codified. This means that the law is to be found in various sources: primary sources such as legislation, case law and common law and secondary sources such as modern scholarly writings. The South African constitution contains a bill of rights which recognises common law and it requires the courts to interpret and develop common law in such a way that it promotes the spirit, purport and objects of the bill of rights.

Our common law, in the form of Roman-Dutch law, was transplanted to the Cape of Good Hope in 1652 when the East India Company (Vereenigde Geoctroyeerde Oost-Indische Compagnie or VOC) established a refreshment station there. The exact meaning of “Roman-Dutch law” is not always clear. There exists a narrow approach that suggests that only the seventeenthand eighteenth-century institutional writers of the province of Holland are authoritative. Of the seven provinces of the Dutch Republic, Holland was the most prominent as the political and economic centre. However, there is also a wider approach that Roman-Dutch law developed during the reception of learned law in the whole of Western Europe from the eleventh century onwards and that it is part of the Roman-canon ius commune. Although the narrow approach is supported by a judgment of the Appellate Division of 1949, the courts generally follow the wider approach.

There are several areas of South African law that are strongly influenced by the English common law, especially in the field of procedural law and commercial or mercantile law. However, as far as property law is concerned, of which the law of possession forms part, the basis is Roman-Dutch with very strong roots in Roman law.

An unsolvable question

In his “Rhapsody of Questions which come up every day in court, but are not resolved by the laws”, the German jurist Karl Ferdinand Hommel (1722- 1781) presented his readers with hard cases – and usually solutions. However, the third edition of 1769 contained one case which Hommel considered unsolvable:

The issue presented in Hommel's case is whether the remedies of the ius commune for the protection of possession can be used to protect a service provider's “possession” of the business relationship with a client.

Death is a unique event in life and offers serious challenges for the bereaved. The law therefore dedicates special attention to this unique circumstance since death leads to several legal problems. In the law of possession, a specific challenge is determining what happens to possession once a person has passed away. Is there anything mystical like possession beyond death? Is there a way for an heir or a beneficiary to protect possession once the testator is deceased?

At the moment of death, actual control vanishes; likewise any intention of using one's belongings. Clearly the impact of death on possession law depends on how possession is defined. If we agree to understand possession as material and visible control over an item (corpus) combined with the intention to control (animus), death will lead to a situation where belongings remain without a possessor. Hence, death causes a lack of possession until the heir or beneficiary gains actual control over the items that make up the deceased's estate. Leaving aside the issue of adverse possession, this can lead to the following problem: before an heir or a beneficiary has intentionally gained actual control, a third party can wrongfully detain personal items or invade land belonging to the estate. Thus, a lack of possession makes the deceased's estate vulnerable to dispersal leading to a situation which is likely to erode the heir's economic position and to undermine the defunct's will. Additionally, having actual control over the estate is crucial to the heir since in Spanish and German law he or she has to administer it, unless the testator has appointed an executor. So a lack of possession not only endangers the proper administration of the estate, but can also seriously jeopardise the defunct's will.

Spanish and German law master the vacancy of possession by referring to possessio civilissima. They establish that an heir possesses the deceased's belongings right after the death without further ado. Therefore, neither actual control over the defunct's items (corpus) nor any intention to control (animus) is required. Furthermore, the heir does not even need to know about his or her heirship. In German law, this kind of non-material possession is called Erbenbesitz (Bürgerliches Gesetzbuch, § 857) while Spanish legal scholars name it posesión civilísima and link it to Código civil, art 440.

The Continental systems of possessory protection seem to be different mixtures of the same ingredients: namely, the Roman interdicts, the actions developed for protecting the Germanic Gewere, and the canon law's actio spolii. However, through accidents of history, these same ingredients gave origin to very different systems.

The great divide between systems which require animus domini in order to have possession of a thing, and thus distinguish between possession and detention (for instance France and Italy), and systems which do not consider the intent to possess as owner as an indispensable requirement for possession (for instance Germany) is well known and studied. However, there are important, profound differences between systems which are traditionally seen as quite close. France and Italy, for instance, give different answers to the important question about the extension of possessory protection to movables. As I will try to show, the different legal systems have in a way bent the same arsenal of tools in different directions, so that even intelligibility between two different legal systems is difficult.

It is easy to see some converging lines which seem to be the result of common practical needs. Possessory actions make thus an interesting case study of legal evolution, showing both how different systems are built starting from the same roots and how they can converge to meet the same practical needs.

THE ORIGINS OF POSSESSORY ACTIONS

The possessory remedies in force all over Europe, as we will see, did not have their origins in Roman law. However, since these remedies were often re-read through Roman lenses during the Middle Ages, a first important historical root to be considered is the Roman interdicts. Roman law gave protection to possessors. One who had been dispossessed could recover land by bringing the interdict unde vi. One who had not been dispossessed could bring the interdict uti possidetis against a person who interfered with his possession of land.

The present book contains the revised papers that were presented at a conference on ‘The Consequences of Possession’, which took place in the University of Edinburgh's Old College on 12-13 October 2012. Thanks are owed, first and foremost, to the speakers who made for a fascinating two days of presentations and discussion in the beautiful Raeburn Room; also to Karen Baston, Sarah Burnett, Daniel Carr, Paul du Plessis, Lorna Gallacher, George Gretton, Alasdair Peterson, Elspeth Reid, Kenneth Reid and John Watson for their help with the organisation of the conference and then the production of the book; and last but not least to the University of Edinburgh, the Edinburgh Law Review Trust and the Edinburgh Legal Education Trust for making the whole project – workshop and book – financially possible.

In An Introduction to Roman Law, Nicholas explains that the question of whether a person can be considered to be in possession of a thing is both a question of fact and a question of law:

The notion that “possession” is somehow both a matter of fact and a matter law is often repeated in respect of the common law as well. It can be seen in the common practice of qualifying the word by using terms such as “legal possession”, “constructive possession”, “deemed possession” and “possession in the eyes of the law”. Writing in this vein, for instance, Clarke and Kohler state, “A person who takes physical control of land or goods, with the intention of excluding all others from it or them, acquires possession of it or them as a matter of law”. It can also be seen in the other common practice of distinguishing between using the word to denote a fact and using it to describe a legal concept. Pollock and Wright adopt this approach, drawing a distinction between using “possession” to denote “an actual relation between a person and a thing”, and using it to describe “the state of being possessor in the eyes of the law”. Whilst “possession” may describe a factual state of affairs, these various approaches to possession each suggest that its meaning, at least in part, is defined by law. This chapter aims to explore and ultimately defend this characterisation of possession.

In the first section we will see that lawyers normally use the word “possession” to denote a factual state of affairs. The proof of this is that any litigant wishing to rely on a legal rule which makes reference to “possession” will usually have to introduce evidence of possession.

Labeo, at the turn of the Christian era, tells us that he who “sits” over a thing (res) possesses it. Subject to a difficulty about what sort of entities can be possessed, the metaphor could hardly be clearer: possession speaks of factual control, with its unavoidable corollary, the power to exclude others. In that sense, possession does not have to be invented by lawyers: it pre-exists any form of apprehension of reality by the interpretative and creative power of the law. This is probably the reason, or at least part of the reason, why it is routinely described as a raw “fact”: while this assertion needs to be severely nuanced, precisely because the intervention of the law is bound to bring in a degree of artificiality, it has to be our starting point both historically and conceptually: possession describes a relationship of factual control of a person over a thing.

From a civilian perspective at least (but this is language that can also be understood by common lawyers, and might in fact belong to the shared, pre-legal intuitions of mankind), possession will invariably be contrasted with ownership: whether there is any underlying analytical necessity or not, any reader will know from experience that no analysis of either concept is allowed to continue for long without the other being brought in as part of an exercise in contrast and differentiation. The dichotomy seems indeed simple and intuitively graspable by any layman: on the one hand, the possessor says, “I have it”; on the other, the owner claims, “it is mine” The neatness of the distinction provides us with an anchor that the artificiality of the law can never completely undo.

Yet difficulties are bound to crop up almost immediately. Sooner or later, “it is mine” will want to translate into either “I have it” or “I want to have it”: by asserting ownership, the rei vindicatio seeks possession.

The civil and common laws’ respective approaches to possession are often contrasted. While the civil law draws a neat distinction between the right of ownership and the fact of possession, the common law tends to relate possession to ownership by considering that possession confers a title that is valid against anyone who cannot demonstrate a better claim to it. Despite some differences between the approaches to possession in the two legal traditions, I have proposed a notion of possession that is reconcilable with both traditions, conceiving possession as a mode of communication to third parties. This paper pursues that line of enquiry by studying the consequences of possession. It aims to contribute to the discussion on the vocation and scope of the application of possessory protection through studying the example of Quebec, complemented by comparative insights drawn from French civil law as well as English and Canadian common law.

The main objective of this paper is to examine the legitimate parameters of possessory protection by adopting a theoretical and comparative approach. Following the examination of the notion of possession and the justifications for its protection, I submit that the person with detention of the property should benefit from possessory protection. When it comes to the qualities of possession required for a possessory action, I argue that such action should not be subject to the conditions developed for “useful” possession. Applying these conditions to a possessory action confuses the concepts of possession and acquisitive prescription and undermines the justifications for possessory protection. Taking into account the increasing economic significance of movables, I finally submit that the domain of possessory protection should be extended in order to include movable property.

While possession may primarily be a mode of communication to third parties, its role should not be limited to that of an accessory to ownership. This paper studies the effects of possession in relation to its functions and justifications. In civil law, the consequences of possession are often treated as unitary, although they do not all carry out the same functions. Some effects of possession, such as acquisitive prescription, are linked to ownership; others, however, are not. Indeed, the possessory action, traditionally distinguished from the petitory action, has a larger function than the protection of ownership insofar as it also aims to protect against violence.

In the common law, possession is said to create entitlement. Modern authorities treat the facts of possession (generally understood as some function of physical control and intention) as a causative event, sufficient to generate for the possessor a general property right in the thing possessed. This general property right has the content of ownership, and exists alongside and notwithstanding the continuing general property right(s) of any person(s) better entitled (a loser of goods, an ousted proprietor of land). In this way, the common-law doctrine of “relativity of title” becomes a doctrine about the permissible existence of multiple, competing property claims to land and goods, and law functions to resolve binary disputes between rival claimants as and when they manifest. Possession stands in the front line as a sufficient foundation for any claim, since the person who proves the earlier possession necessarily proves the earlier (and therefore better) property right.

This paper traces the provenance and development of the rule that possession generates a general property right at common law, and presents a view that is slightly sceptical of the orthodoxy. It begins by examining leading (possibly iconic) cases often cited in support of the rule, including the seminal decisions in Armory v Delamirie, a case about goods; and Asher v Whitlock, a case about land. While in each of these cases a claimant possessor was permitted to maintain a standard property action against a defendant, neither discusses with great clarity the nature or content of the right acquired by possession. Moreover, when understood in a broader context of common-law development, a surprising level of doubt is introduced to the common law of possession. This paper sets the leading cases in this context, and makes two main claims as a result. First, no a priori rationale for the rule that possession causes entitlement can be found within the primary sources of the common law. Rather the rule depends for its existence and validity on ex post rationalisations of historical procedure. Second, rationalisations of these procedures may sometimes have been insensitive to their function, and have thereby obscured the common law's aims in protecting possession.