This is correct, for the same possession cannot be held by two persons, any more than you can be considered to stand on the very place on which I am standing, or to sit exactly where I am seated. Therefore, although you may be on a tract of land, still, if you do not intend to retain it, you will immediately lose possession. Hence, possession can be lost by the intention alone, although it cannot be acquired in this way.
But if a slave or a tenant, through whose agency I actually possess property, should either die, or depart, I will retain possession by intention. This, however, is only correct when he has remained for a long time at liberty; otherwise, if, from his condition as a slave, he demands his freedom, and petitions for a judicial decision on this point, he, nevertheless, remains under my control, and I hold possession of him by intention, until he has been pronounced to be free.
The fact that we possess certain property without being aware of it as is the case where slaves obtain peculium , should not present any difficulty, for we are held to possess it by both the intention and the actual agency of the slaves. For if a flock should be lost, or a vase should fall in such a way that it cannot be found, it immediately ceases to be in our possession, although no one else can obtain possession of it; but the case is different where anything cannot be found which is in my charge, because it still remains in the neighborhood, and diligent search will discover it.
But fish which are in a lake, or wild animals that wander in woods enclosed by hedges, are not in our possession, as they are left to their natural freedom; for otherwise, if anyone purchased the woods, he would be considered to have possession of all the animals therein, which is false. If, however, you do not move it from its place, and have the intention of denying that it was deposited with you, several ancient authorities, and among them Sabinus and Cassius, very properly hold that I still retain possession, for the reason that a theft cannot be committed without handling the article, nor can theft be committed by mere intention.
And, in conclusion, there is but one genus of possession, but the species are infinite in number. The opinion of Quintus Mucius, who included among the different kinds of possession that given by order of a magistrate, for the purpose of preserving the property, or where we obtain possession because security against threatened injury is not furnished, is perfectly ridiculous. For where anyone places a creditor in possession for the purpose of preserving property, or where this is done because security has not been furnished against threatened injury, or in the name of an unborn child, he does not really grant possession, but merely the custody and supervision of the property.
Hence, when a neighbor does not give security against threatened injury, and we are placed in charge, and this condition continues for a long time, the Praetor, upon proper cause being shown, will permit us to obtain actual possession of the property. A father immediately possesses whatever his son acquires as a part of his peculium, although he may not be aware that he is under his control. Moreover, the same rule should be adopted even if the son is in possession of another as a slave.
If I owe you Stichus under the terms of a stipulation, and I do not deliver him, and you obtain possession of him in some other way, you are a depredator. Likewise, if I should sell you any property and do not deliver it, and you obtain possession of the same without my consent, you will not do so as a purchaser, but as a depredator.
We say that he holds anything clandestinely who takes possession of it by stealth, suspecting that the other party, not knowing what he has done, may raise a controversy, and fearing that he will contend his right. He, however, who does not take possession secretly, but conceals himself, is in such a position that he is not considered to have clandestine possession. For not the manner in which he acquired possession, but the beginning of his acquiring it, should be taken into account, nor does anyone begin to acquire possession clandestinely who does so in good faith, with the knowledge or consent of him to whom the property belongs, or for any other good reason.
Hence Pomponius says that he obtains clandestine possession who, fearing that some future controversy may arise, and the person of whom he is apprehensive being ignorant of the fact, takes possession by stealth. Therefore, he who went to the market still retains possession, but if the trespasser should not admit the owner on his return, he will be considered to be in possession rather by force than clandestinely. If the owner is unwilling to return to the land because he fears the exertion of superior force, he will be considered to have lost possession.
This was also stated by Neratius. As possession cannot be acquired except by intention and a corporeal act, so in like manner, it cannot be lost, except in a case where the opposite of both of these things takes place. Where anyone leases property, and afterwards claims it by a precarious title, he is considered to have abandoned his lease.
If he claims it at first by a precarious title, and afterwards leases it, he is considered to hold possession under the lease; for whatever is done last should rather be taken into consideration. Pomponius, also, is of this opinion. Persons placed in possession for the purpose of preserving the property, as legatees or neighbors, on account of threatened injury, do not possess the property but are in possession of the same for the purpose of caring for it.
When this is done both of the above ways are merged into one. If, however, he leases it for a fair rent, it must then be ascertained what was done first. He possesses justly who does so by the authority of the Praetor. He who has the usufruct of property is held to possess it naturally. Pomponius relates that stones were sunk in the Tiber by a shipwreck and were afterwards recovered; and he asks whether the ownership remained unchanged during the time that they were in the river.
I think that the ownership, but not the possession, was retained. This instance is not similar to that of a fugitive slave, for the slave is considered to be possessed by us, in order to prevent him from depriving us of possession; but the case of the stones is different. Hence, with reference to the time during which the vendor has had possession of the property, we also take into consideration the questions of violence, secrecy, and precarious title. Some authorities think that he cannot, for the reason that the return of the slave annuls the sale; others hold that the purchaser can profit by the time of possession by the vendor, and the vendor by that of the purchaser.
This opinion, I think, should be adopted. And, indeed, possession is interrupted between the parties to the sale, but many authorities do not hold the same opinion with reference to heirs, as the right of succession is much more extensive than that of purchase. It is, however, more in accordance with a liberal interpretation of law that the same rule should be adopted concerning heirs which applies to purchasers. I think that he who transfers it by a precarious title cannot profit by the time of possession, as long as the title continues to be precarious; but if he again acquires possession, and the precarious title is extinguished, he can profit by the possession during the time when the property was held by a precarious title.
It was decided that he should not be granted the benefit of the time of possession, because his conduct was clandestine and dishonest. But let us see whether he will be benefited by the time that the property was in the possession of the heir. I think that, whether the legacy was bequeathed absolutely or conditionally, it should be held that the legatee can profit by the time that it was in the possession of the heir, before the condition was fulfilled, or the property delivered.
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The time that it was in the possession of the testator will always profit the legatee, if the legacy or the trust is genuine. If my slave, or my son who is under my control, should make a sale, the benefit of the time that he was in my power will be granted; that is, provided he acted with my consent, or had the free administration of his peculium. We are understood to cease to possess property which has been stolen from us, just as if we had been deprived of it by force.
But if someone who is under our control should steal anything from us, we will not lose possession of it, as long as it remains in his hands; for the reason that possession is acquired for us by means of persons of this kind. This is why we are considered to possess a fugitive slave; for, as we cannot be deprived of the possession of other things which he has, so, in like manner, we cannot be deprived of him.
Anything which a wife gives to her husband, or a husband to his wife, is held by him or her as its possessor. If anyone is forcibly dispossessed he should be considered to have remained in possession, as he has the power to recover it by means of an interdict on the ground of violence. Therefore, if a man delivers possession with the intention that the property shall afterwards be returned to him, he ceases to possess it. What I possess in my own name I can possess in that of another. For I do not change the title to my possession when I hold it through another, but I cease to possess the property, and I render him possessor by my own act.
It is not the same thing to possess personally and to possess in the name of another; for he possesses in whose name possession is held. A representative lends his agency to the possession of another. For it is sufficient to have relinquished possession, even if you did not legally transfer it, as it would be absurd to say that anyone did not intend to relinquish it unless he legally transferred it; and, indeed, it is because he thinks he transferred it that he manifests his intention to give possession. Or, if the vendor should show me from my tower a neighboring tract of land of which he says that he delivers me the possession, I begin to possess the said land, and just as if I had placed my foot within the boundaries of the same.
A man who purchased a tract of land from another in good faith afterwards leased the same land from the owner. I ask whether he ceased to possess it or not. I answered that he immediately ceased to do so. Where anyone who has lent an article to be used, sells it, and directs it to be delivered to the purchaser, and the borrower does not deliver it; in some instances the owner will be held to have lost possession, and in others he will not. For the owner will only lose possession when the article which has been lent is not returned when he demands it.
But what if there was a just and reasonable cause for returning it, and not merely that the borrower desired to retain possession of the property?
The Thailand Civil and Commercial Code
We can sometimes deliver to another the possession of property which we ourselves do not hold; as, for instance, when he who possesses an article as heir, and, before becoming the owner of the same, claims it under a precarious title from the real heir. He who obtains possession in such a way that he cannot retain it is not considered to have acquired it at all. The Same, Epistles, Book I. When we are appointed heirs, and the estate has been accepted, all rights to it pass to us; but possession does not belong to us until it is taken naturally.
The answer is that if you claim a freeman, I do not think that you possess him; and, as this is the case, there is much less reason that his property should be possessed by you; nor does the nature of things admit that we can possess anything by the agency of one whom I do not legally have in my power. Anything that your slave obtains possession of by violence, without your knowledge, you do not possess, because he who is under your control cannot acquire corporeal possession if you are not aware of it; but he can acquire legal possession, as, for instance, he possesses what comes into his hands as part of his peculium.
For when a master is said to possess by his slave, there is an excellent reason for this, because what is held by the slave actually, and for a good reason belongs to his peculium, and the peculium which a slave cannot possess as a citizen, but holds naturally, his master is considered to possess. Anything, however, which the slave acquires by illegal acts, is not possessed by the master, because it is not included in the peculium of the slave.
We cease to possess anything which has been in our possession, and which has been so completely lost that we do not know where it is.
If they die, become insane, or are hired by others, we are understood to still retain possession of them. There is no difference whatever, in this respect, between our tenant and our slave by whose agency we retain possession of property. This seems to be the more reasonable opinion.
A definite portion of a tract of land can be possessed and acquired by long possession, and also a certain portion which is. A portion, however, which is not specifically designated can neither be delivered nor received; as, for instance, if I transfer to you "all of such-and-such a tract of land that I am entitled to;" for anyone who is ignorant of the facts can neither transfer nor receive something which is uncertain.
Paulus, Epistles, Book V. If a person who has become insane retains possession of a forest, he does not lose possession of it as long as he remains in that condition, because a lunatic cannot lose the intention of possessing. Tertullianus, Questions, Book I. If I possess property, and afterwards lease it, do I lose possession?
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It makes a great deal of difference as to what the intention of the testator was in this case. First, it is important to ascertain whether I know that I am in possession, or am ignorant of the fact; and whether I lease the property as my own, or as belonging to someone else, and, knowing it to be mine, whether I lease it with reference to the ownership, or merely to obtain possession. It has been decided that a ward can lose possession without the authority of his guardian, but he does not cease to possess the property by intention, as he does by the performance of a corporeal act, for he can lose what depends upon an act.
The case is different where he desires to lose possession by intention, for he cannot do so. When anyone possesses an entire house, he is not considered to possess the different articles which are contained in the building. The same rule applies to a freeman who is held as a slave. Moreover, if I possess something and its form is changed, as, for instance, a garment is made out of wool, the same rule will apply. What I possess as a purchaser, however, my heir can obtain by usucaption through the agency of a tenant.
The same rule will apply if my tenant sublets my land, or he with whom I have deposited property should again deposit with another; and the same rule must be observed, even if this is done by several persons. If a tenant leaves the land without the intention of relinquishing possession, and returns, it is held that the same lessor holds possession. Although a ward is not bound without the authority of his guardian, we can still retain possession by him.
This opinion has been adopted on account of its convenience, for otherwise, an infant who receives possession of property would not know what he was doing. A ward can, nevertheless, obtain possession without the authority of his guardian, and an infant can possess peculium through the medium of a slave.
Even if the vendor of a tract of land should direct someone to place a purchaser in full possession of the same, the purchaser himself cannot legally acquire possession before this is done. Likewise, if a friend of the vendor, not being aware that the latter is dead, should place the purchaser in possession without being prevented from doing so by the heirs, possession will legally be delivered. But if he did this, knowing that the owner was dead, or if he was aware that the heirs were unwilling that it should be done, the contrary rule will apply.
If you place me in full possession of the Cornelian Estate, and I think that I am placed in possession of the Sempronian estate, but enter upon the Cornelian estate, I do not acquire possession unless we are only mistaken in the name, and agree with reference to the property. Since, however, we agree with reference to the property, a doubt may arise whether you do not lose possession; because Celsus and Marcellus say that we can lose and change possession merely by intention. And if possession can be acquired by intention, can it also be acquired in this instance? I do not think that a person who is mistaken can acquire it.
Therefore, he who only relinquishes possession, as it were conditionally, does not lose it. As it is held that it can be acquired by a person who is ignorant of the facts, it can also be acquired by one who is mistaken. But if my agent is mistaken, and I am not, the better opinion is that I will acquire possession. For even a slave belonging to another, as Vitellius says, can acquire possession for me, if he takes the property in my name, whether he is possessed by me or by no one at all. This also should be admitted.
A controversy for possession is terminated as soon as the judge decides which party is in possession. This is done in such a way that he who loses possession can take the position of plaintiff, and then bring an action against the owner. He who transfers a tract of land to a creditor, by way of pledge, is understood to retain possession of the same. But even if he should claim it by a precarious title, he can also acquire a good one by lapse of time; for, as possession by the creditor does not interfere with prescription, there is less reason that the claim of the debtor under a precarious title should present no obstacle, since he has much better right who claims property by a precarious title and is in possession, than he who has no possession at all.
Marcianus, On the Hypothecary Formula. When land is given in pledge, and possession is delivered, and the property has then been leased by the creditor, and it is agreed that he who encumbered it shall be considered as a tenant in the country, and as a lessee in the city, the creditor is considered to possess the property through the debtor who has leased it. A master who writes to his absent slave to remain at liberty has not the intention of immediately relinquishing possession of the slave; but his intention is rather deferred until the time when the slave will be informed of the fact.
It should, moreover, be understood that possession can be delivered conditionally, just as property is transferred under a condition and does not pass to the person who receives it unless the condition is complied with. For if a slave is due to a testator in accordance with the terms of a stipulation, or of a will, and the heir receives him, he will not be forbidden to obtain possession of the property of the estate by means of the slave.
I think that it makes a difference with what intention property is deposited in the hands of an arbiter; for if this is done for the purpose of relinquishing possession, and is clearly proved, the possession of the arbiter will be of no benefit to the parties for the purpose of usucaption. If, however, the property was deposited for safe-keeping, it is settled that he who gains the case can profit by the possession, in order to acquire the property by prescription.
If your slave ejects you from land, which I gave you in pledge while it was in my possession, it is held that you continue to be in possession of the same, as you still retain possession by this same slave. It should not be held that possession is immediately interrupted by the death of the latter, for this is not the case unless the owner neglects to take possession. A different opinion must be held, if the tenant voluntarily relinquishes possession. This, however, is only true where a stranger has not, in the meantime, been in possession, but it always remains as part of the estate of the tenant.
It is held that, on his account, I should not be considered to have possessed him clandestinely during this time. For, on the other hand, if I should knowingly purchase your slave from someone who is not his owner, and should then retain clandestine possession of him, even after I notified you, I would not, for that reason, cease to have clandestine possession of the slave. Paulus, Institutes, Book I. Anyone who enters upon a tract of land as a friend, by the right of familiarity, is not considered to possess it, because he did not enter upon it with the intention of doing so, although he may have actual possession of the land.
Ulpianus, Rules, Book IV. Where a slave owned in common is possessed by one of the joint-owners in the name of all, he is understood to be possessed by all. This is not true if he purchases it on his own responsibility, unless his principal ratifies the sale. Julianus says that if anyone buys a tract of land, a small part of which he knows to belong to another, and he was aware that the said small part has been divided; he can acquire the remainder of the land by prescription. If, however, the said part was undivided, he can also acquire the land by prescription, although he may not know where the part in question was situated; because what he thought belonged to the vendor passes by prescription to the purchaser, without any damage resulting.
Where a man, about to start upon a long journey, buried his money in the ground for safe-keeping, and, having returned, could not remember the place where the treasure was concealed, the question arose whether he had ceased to possess it, or if, afterwards, he should find the place, whether he would immediately begin to acquire possession. I gave it as my opinion that, as the money was not said to have been hidden for any other purpose than safe-keeping, he who concealed it should not be considered to have been deprived of the right of possession; nor did the failure of his memory prejudice that right, as no one else had appropriated the money.
On the other hand, it might be held that we lose possession of our slaves during the time when we no longer see them. Nor does it make any difference whether I hide the money on my own premises, or on those of another; for if anyone should hide his property on my premises, I would not obtain possession of it unless I did so where it was above ground. Hence, the fact that the land belongs to another does not deprive me of my own possession, as there is no difference whether I have possession above, or under ground.
I said that this rule had been adopted on the ground of public convenience, to prevent masters from inquiring constantly about property belonging to the peculium of their slaves, and the reason why it was found there; so that, in this instance, it could not be held that possession was acquired by intention alone. For if any property is obtained which does not form part of the peculium, the knowledge of the master is necessary, but possession is acquired by the mere act of the slave.
For, so far as the possession which we hold by our own act is concerned, it can be lost either by intention, or by our act, provided we relinquish it with the expectation of no longer holding it; but possession to property which is acquired by the act of a slave or a tenant is not lost, unless another has appropriated the property; and this can also occur even without our knowledge. There is still another distinction applicable to loss of possession, for the possession of winter and summer resorts is retained by mere intention,.
Although we do not leave a slave or a tenant there when we depart. Even if another may have been entered upon property with the intention of taking possession of the same, the former possessor is held to retain possession, as long as he is ignorant that it has been taken by another. For, as the bond of an obligation is released in the same way that it has been made, so, where possession is held by intention alone, it should not be taken away without anyone's knowledge.
If you decide not to return movable property which has been deposited with you, or of which you have been given possession as a loan, it has been held that the other party will lose possession immediately, even if he is not aware of your intention.
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The reason for this is, that where the care of movable property is neglected, or abandoned, even though no one else appropriates it, the former possession is usually prejudiced. This was stated by Nerva, the son, in his Books on Usucaption. He also says that the case is different, if proper care was not used, where a slave had been lent; for possession of him only will continue as long as no one else seizes him, that is to say, because a slave can retain possession for his master if he has the intention of returning to him; and we can likewise obtain possession of other property by his agency.
Therefore, possession of such objects as are destitute of reason, or life, is immediately lost, but that of slaves is retained, if they have the intention of returning. The Same, Opinions, Book X. A certain man donated a tract of land together with slaves attached to the same, and stated in a letter that he delivered possession of the property. If one of the slaves, who was donated, should come into the hands of him who received the house, and be afterwards sent back to the land, it has been decided that possession of the land and of the other slaves has been acquired by means of those above mentioned.
Possession can be acquired by me through a slave in whom I have the usufruct if this is done by means of my property, or the services of the slave; because the latter is naturally held by the usufructuary, and possession borrows many things from the law. Hermogenianus, Epitomes of Law, Book V. Neither possession nor ownership, nor anything else whatsoever, can be acquired through the use of my property by one whom I have been induced to erroneously consider my son under my control.
Labeo says that we can acquire possession of certain things by intention; as, for instance, if I purchase a pile of wood, and the vendor directs me to remove it, it will be considered to have been transferred to me, as soon as I place a guard over it. The same rule applies to a sale of wine where all the jars are together. But, he says, let us see whether this is an actual delivery, because it makes no difference whether I order the custody of the property to be delivered to me, or to someone else. I think that the question in this case is, that even if the pile of wood or the jars have not been actually handled, they should, nevertheless, be considered to have been delivered.
I do not see that it makes any difference whether I, myself, take charge of the pile of wood, or someone else does so by my direction. In both instances, whether or not possession was obtained must be determined by the character of the intention.
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Venuleius, Interdicts, Book I. The titles to the possession and usufruct of property must not be confused, just as possession and ownership should not be intermingled. For possession is prevented if another has the use and enjoyment, nor can the usufruct of one person be computed if another is in possession of the property. For the judge orders the adverse party immediately to surrender and relinquish possession, which is much more decisive than to order him merely to restore it. The Same, Interdicts, Book V. Possession which is defective is usually only advantageous as against strangers.
Concerning the interruption of prescription, and usucaption. Usucaption was introduced for the public welfare, and especially in order that the ownership of certain property might not remain for a long time, and almost forever, undetermined; as a sufficient time is granted to owners to make inquiry after their property.
Usurpation is the interruption of usucaption. Orators call usucaption frequent use. Modestinus, Pandects, Book V. Usucaption is the addition of ownership by means of continuous possession for a time prescribed by law. In the next place, we must speak of usucaption; and, in doing so, we must proceed in regular order, and examine who can acquire property by usucaption, what property can be acquired in this manner, and what time is necessary.
If he takes possession without the consent of his guardian, but still has the intention of doing so, we say that he can acquire the property by usucaption. Therefore, if property is stolen from a creditor to whom it was lent or pledged, it should be returned to the owner.
It is more accurate to say, provided I was aware that the property had been returned to me. For it is not sufficient for the slave merely to recover the property which he had lost without my knowledge, but I must also have intended it to form part of his peculium, for if I did not wish this to be done, it will then be necessary for me to obtain actual control of it.
In the case of an insane person, it will be sufficient if his curators know that the property has been returned.
The Moral Paradox of Adverse Possession: Sovere – McGill Law Journal – Érudit
This must be done just as if the property was his; for if I purchase an article, not knowing that it has been stolen from me, it will not be held to have been restored to my control. Sabinus and Cassius do not think that I can, because the illegal possession which is obtained by the slave would prejudice his master; and this is correct. The same rule will also apply if anyone gives me the said female slave in exchange, or by way of payment, or as a present.
If, however, he should learn that she belongs to someone else, when he had already begun to acquire the child by usucaption; we must take into consideration the beginning of the usucaption, as has been decided in the case of property that has been purchased. The rule is otherwise, however, in the case of a bona fide purchaser, as there is no need of usucaption, since the wool is a profit, the right to which immediately vests in the purchaser. The same rule can be said to apply to lambs, if they have been disposed of.
Hey— I wondered what the order would be for possessive apostrophes when there is another name in parenthesis. According to the Gregg Reference Manual, to form the possessive of a plural noun, you would add only an apostrophe. However, it seems like a word is missing. You might want to consider:.
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In an invite…. Minister for Health. The Regulations make it an offence for a person to be in possession of a substance scheduled in the Regulations, except in specified circumstances. Under Article 5 persons such as medical practitioners, dentists, veterinary surgeons, pharmaceutical chemists, etc. This Article also provides for the registration of manufacturers and dealers in bulk as persons entitled to possess the substances. Article 6 provides exemption for a person who receives a substance on prescription from a medical practitioner, dentist or veterinary surgeon for his own treatment or the treatment of another person or for an animal in his care.
Article 7 provides a defence for a person charged with a contravention of the Regulations where he had possession of the substance in certain circumstances, for example, for the purpose of preventing another person contravening the Regulations or of handing over the substance to a person lawfully entitled to have it in his possession.