SAVIGNY’S THEORY OF POSSESSION

SAV1GNY. on the basis of a text of Roman jurist PAUL, said that there are two elements of
possession.

According to SAVIGNY. both..

1) The corpus of possession “copurs possessionis (popularly known as 'corpus ) "

and

2) The animal possidendi “animus domini (known as 'animus’)” ...must be present to

constitute possession If Corpus by corpus is meant an effective physical control of the object.
SAVIGNY explaining it says : ’the physical power of dealing with (he subject immediately
and of excluding any foreign agency over it... is the factum which must exist in every
acquisition of possession. The immediate physical power is not necessary to continue the
possession, as was required to give rise to it; and continuing possession depends rather on
the constant power of reproducing the original relationship at will For this reason, we do not
lose possession by mere absence form the subject, which we have once appropriated to
ourselves, although the physical relation in which we now stand to it, would not have
sufficed in the first instance to obtain possession

As regards the “corpus " of possession it is necessary that in every acquisition of possession
there must exist in the possessor a physical power of dealing with the subject immediately
and of excluding others. When the possession of a thing has been acquired and that
possession is intended to be continued, the possessor must have the ability to bring forth
physical power to exclude others if they try to interfere with him in any way. However,
immediately physical power of the possessor over the thing is not necessary.

2) Animus .

By animus is meant the mental element of the intention to hold the object as owner against all
others.

In other words, it is a conscious intention to exclude others from the object. Without the
mental element there can be no possession.

SAVIGNY’s theory explains as to why the tenant, the borrower and the agent had not
possession "of the object let, lent or entrusted to deal with to them ” in Roman law. They had
no "animus domini" as they did not intend to hold the object in their own right. But
SAVINGY’s theory fails to explain those cases where Roman law had given possessory right
"the right to gel or recover possession" to the persons who were not the owners of the object
or property - S A VIGNY said that those cases were anomalies and suggests that they were
cases of "derivative possession”.

SAVIGNY remarks thus: "animus possidendi” must be explained by "animus domini or

animus sibi habendi", and he only is to be looked on as in possession who deals as owner
with the subject of which he has the detention. That is to say, he must contemplate dealing
with it practically just as an owner is accustomed to do by virtue of his right and
consequently not as one recognizing anybody better entitled than himself.

SAVIGNY’S ANALYSIS IS WRONG

The analysis of possession in Roman law given by SAVIGNY is wrong and it has a number
of weaknesses. He based his theory on the text of a single jurist, and interpreted it without
putting it in its proper context. He wrongly assumed that "corpus" and "animus” which were
required for acquisition constituted possession itself. He did not mark the change in the
conception of "possession ” which had taken place in later times. According to this theory,
the possession was lost when either of the elements of possession “ 'corpus' and 'animus was
lost but in actual practice possession continued although one o the elements which was lost,
and sometimes, it continued even though both were lost. A number of instances can be
produced from Roman law to show this development.

In the eye of law a matter was considered in possession of what was held by his slave. A
theoretical explanation of it was given that the master had the "animus" and the “corpus" was
provided by the slave, and as the slave was possessed by the master, the master possessed the
"res” held by the slave. With the development of commerce, it became not only difficult but
impossible for the master to have a specific “animus” towards every “res” acquired by this
slave. Therefore, the rule was relaxed and the master was considered to be in possession of
whatever was acquired by his slave in connection with the “peculiam". In this way, now
master was considered in possession of an object, without having any of the elements of the
possession. Secondly, in Roman law the “praetor ” did not protect a possession acquired
unlawfully.
For example, the possession by a thief of a stolen object was not protected by law. It was
considered that a person who lost possession by violence “as by theft" was still in possession.
In this case too the elements of possession were lacking the law recognized possession.

According to SAVIGNY, possession continued only so long as the effective physical control
over the object existed or it was reproducible at will, but in actual practice the possession if
once proved to have come into existence was considered to be continuing until it was
abandoned by the owner or was seized by another. If a person leaving his property in Roman
went abroad with an intention of returning back, he was considered to be in possession of his
property though he had neither the physical control of the property nor it as reproducible at
will. Thus, the instances can be multiplied to show that the actual practice had left the
classical theory "then of corpus and animus” far behind the idea of “corpus ” and “animus ”
were considerably modified, and the law proceeded more on the basis of convenience. To this
development some say that it was a sacrifice of principle to convenience. It is submitted that
it cannot be said to be a sacrifice because principle and convenience are not two different or
inconsistent things. Any theory or principle must fit in and it must be picked up from actual
practice. Generally, every rule has some exceptions but when exceptions overwhelm the rule
or eat it away, they become the rule, and if any part of the “former" rule is left out, it becomes
the exception. Thus, SAVIGNY’s theory does not hold good and it misrepresents the Roman
law.

IHERINGS THEORY

IHERING’s theory of possession is more objective and it presents a sociological approach to

possession. He takes up the question as to why Roman law protected possession by means of
"interdicts ”? The answer, according to him, is that the persons holding property in majority
of the cases would be owners and the possession was attributed to such person so that the
"interdicts” might be made available to them. Therefore, IHERING says that "whenever a
person looked like an owner in relation to thing, he had possession of it, unless possession
was denied to him by rules of law based on practical convenience

The "animus” element was merely an intelligent consciousness of the fact. This theory is
more in consonance with the practice'in Roman law than SAVIGNY’s theory. At the same
time, this theory is flexible. It explains those cases which SAVIGNY’s theory found difficult
to explain.
WEAKNESS OF IHERING’S THEORY

Though IHERING’s theory is greatly superior to SAVIGNY’s theory, this too had certain
weaknesses. It looks at possession from the point of view of “interadicts” and therefore it is
incapable of explaining the cases where law refused “possessory rights” to the persons who
were in effective physical control. The cases in which the persons did not look like an owner
“in relation to a thing” but certain purposes law recognized them to be in possession cannot
be explained by IHERING’s theory. IHERING says that such cases are exceptions but it is
submitted that they point out the narrowness of the theory.

HOLME’S THEORY OF POSSESSION

HOLMES who started by refuting a “priori" philosophical idea, perceived that less facts are
required to initiate possession than to acquire it. What constitutes possession can be best
studied only when possession is first gained. Accordingly, he pointed out:

"To gain possession, then a man must stand in a certain physical relation to the object and to
the rest of the world, and must have a certain intent. These relations and this intent are the
facts of which who are in search ”1

HOLMES suggested that English law does not require the “animus domini” element, but
merely the intent to exclude others. For instance, the tenant desires not to hold as owner ' of
the land, but only to exclude the landlord.

HOLMES statement is, nonetheless, tentamount, to SAVIGNYIAN adoption of “corpus ”

and ‘animus”. At the same time, he may also be accused for having cited no authority at all,
and thus, he, having rejected the “a priori ” philosophical conception, proceeded to do that
very thing himself.

1
HOLMES, The Common Law, P.216
SALMOND’S THOERY

Having rejected two different conceptions of possession,

i) “possession in fact ” and

ii) “possession in law”

SALMOND said that there is only one conception that is possession in fact, which is
possession “in truth and in fact’’2. In law, the exercise of possession depends solely on the
criteria of common sense, and further, since possession of law is identified with possession in
fact, so possession in law, for him, is fictitious. But the idea of possession remains no longer
tried to fact, it has rather acquired the meaning in the most technical sense

However, having thus, assumed that possession in fact is possession in truth, SALMOND
then proceeded to draw a dividing line between possession of physical objects, which he
termed "corporeal possession’’ which he named “incorporeal possession’’. For corporeal
possession, he said that it is a “continuing exercise of a claim to the exclusive use of it”. The
continuing exercising of this claim, according to him, is consisted of two elements namely,

i) “corpus possession ” and

it) “animus possidents”3

Thus, for SALMOND, possession is both corpus and animus. The former, SALOND, thought
comprised of both the power to use the thing possessed and the existence of grounds for the
exception that the possessors use shall not be interfered with. The latter, on the other hand,
consisted of an intent to appropriate to oneself the exclusive use of thething possessed1.
SALMOND’s "animus possidendi", which is an intent to exclude others, is an adoption of the
modified version of SAVINGY’s "animus domini”.

The whole trouble in SALMOND’s theory is due to his assumption that "corpus" and
“animus" which are necessary conditions for the acquisition of possession, are possession
itself. His view that possession is lost when either “corpus” or "animus" is lost, has been
challenged by Dr.G.WILLIAMS the learned editor of the SALMOND’s 11th edition, by
saying that "the possession once acquired may continue even though 'animus’ or 'corpus’, or

2
SALMOND : Op. Cit, Chap.9
3
SALMOND : Jurisprudence, (7,h Ed.) PP.297-308
even both, disappear’’4 . Dr.WILLIAMS is correct, but it destroys the entire foundation of
SALMOND’s theory that possession is both "corpus” and “animus".

POLLOCK’S THEORY

POLLOCK, a distinguished jurist, said that, "in common speech a man is said to possess or to
be in possession of anything which he has the apparent control, or from the use of which has
the apparent power of excluding others ”5

From the above it is obvious that POLLOCK laid stress, not on "animus” but "de facto"
control, which he defined as physical control. A general intent is sufficient. The reduction of
possession to a general criterion such as "de facto ” control has, however, led POLLOCK to
face certain difficulties. His theory is an utter failure to explain how it is that servants have
"custody” for some purposes and “possession” for others. Further, true it is, that possession
need not only a physical power over the "res ” itself, but also the ability of excluding others
physical control to exclude others might be all important factor in a primitive and lawless
society but the more settle the community, the less important is actual physical powers in the
actual physical powers in the acquisition of possession. Thus, the child has not physical
power to exclude the ruffian, but nonetheless he has possession unless the ruffian actually
takes it from him.6

Having thus summarily observed the above theories of possession in common law it may be
stated that the emphasis laid therein on the intent, i.e. “animus" and the intent which
constitute possession is the intent to exclude others. According to HOLMES, “such an intent
is all that the common law deems needful, and that on principle no more should be
required".7

Although, the "animus" in English law is one of the chief elements of possession, some sort
of physical relationship with the object has also been felt necessary. But this physical
relationship which the English law has emphasized at variance from that of Roman law. In he
light of the above discussion, it may be pointed out that in English law, as in Roman law, the
conception of possession is noting more than a device based on convenience and policy.
Appreciatingly SHARTEL has stated: “I want to make the point that there are many
4
SALMOND ' Jurisprudence, (11th ' Ed.) by Dr.G.Williams, P.339
5
POLLOCK & WRIGHT • Possession m the Common Law
6
KOCOUREK, Jural Relations, (2nd Ed.) P.364

7
HOLMES : The common law
meanings of the word 'possession that possession can only be useful defined with reference to
the purpose in hand; and that possession may have one meaning in one connection and
another meaning in another"8.

Professor SALMOND, too, in his book on jurisprudence, has candidly remarked that, “of all
the divergences between legal and actual possession that is the most notable, viz, that outside
the law possession is used in an absolute sense, whereas within the law it is employed in a
relative sense Outside the law, we do not speak of person having possession as against
someone else, we say that the either has or has not got possession. In law we talk rather of
possession as something which one person has against another ". He further stated, "if I have
overlook this, then decisions like R.N.HARDING and London corporation V Appleyard, are
unnecessarily difficult. How could the servant in the first case have possession of the coat and
yet tit the same time not have possession of it? If the law used possession in an absolute
sense, then of course she could not. As it is, she had possession as against the thief but not as
against her employer Likewise, the occupier of the land in the second case had possession of
the notes as against the workmen who found them; he would not of course have had
possession as against the true owner, had the latter advanced his claim ”.

However, though there had been much confusion regarding the concept of possession both in
Roman and English laws, yet a conclusion drawn is that law has always attempted to seek a
convenient solution of practical problems. It rarely made too sharp a separation of "animus”
and "corpus”. They have never been rendered entirely redundant elements of possession. And
whenever a question arose as to how possession is acquired, the "corpus” and "animus”
theory was the only answer. Another conclusion that follows form the foregoing discussion of
theories is that possession also carries with it right to remain in possession unless someone
else has established a superior title. It has been suggested that “possession borrows a great
deal from right is not merely a matter of physical fact but also of right”. This principle has
been well illustrated in “Armorie V. Delamine ”. In this case, the plaintiff, a chimney-sweep’s
boy, found a jewel and took it to a goldsmith to know its value. The goldsmith refused to
return it to the boy on the ground that the boy was not the owner. The boy was allowed by the
court to recover the jewel from the goldsmith. The boy being the prior possessor, the court
held, had a better claim to it against the whole world except the real owner, and as the
defendant goldsmith’s claim was not on behalf of the owner, the claim of the boy prevailed

8
SHARTEL : Meaning of Possession (1932) 16 Minnesota L. Rev., 611 at P.612
against him. In other words, it may be said that the consequences attached to possession are
substantially as that attacked to ownership subject, to the question of possessory right. Thus,
in English la, if a bailee is unlawfully deprived of the goods bailed to him, he has got all the
rights of the owner against the person who has so deprived him, though he himself is not
responsible to the bailor for such loss.