By Angeliki – Myrsini Spyliopoulou,
Possessio is a legal phenomenon that resists time and any changes of the legal system. This can be claimed from its inception to the present day. Even though regulations and laws have changed, its fundamental content, as we will see, remained the same. As it seems, it is a concept developed in ancient Greece, passed to the Romans and until today is part of many legal systems. It would be strange not to be prompted by questions regarding its existence and development, since, in every period, issues emerge with particular significance concerning its importance.
Just like today in many legal systems, possessio in Roman Law was the physical control of a thing with the intention of ownership. Physical control, that is the corpus, refers to the ability of a person to exercise physical control over a thing, while the intention of ownership, animus, is the intention to possess it as if it were their own. As it is defined, it may appear similar to ownership and possession but they were not the same. Possessio is the actual state of ownership. Ownership was the exclusive right of property over a thing, which gave the owner the ability to use it freely, with only the limitations set by the law. Possessio was the physical ability of the Pater Familias to physically control (corpus) an object, while ownership is the capacity of disposing it, using it, and enjoying the benefits of the object that were recognized by the law.
On the other hand, possession is an integral part of possessio. The difference between the two concepts is that the possessor does not appropriate the thing. They have it under their physical control, but there is no intention of ownership. For instance the difference between possesio and ownership can be detected to the situation of theft, while the owner maintains the ownership, but because of the lack of corpus it can’t be claimed that they bear possessio. In possession, the one who possesses has no intention of considering themselves owners, thus they haven’t possessio: The tenant of an apartment uses it without believing that it is their own or acting like being the owner.
In modern law, there is controversy and intense debate regarding the nature of possessio in many legal systems. However, in ancient Rome, possessio was something more specific. Although there is no clear definition of it, possessio for the majority of the scientists was a fact, not a right. It has been argued by Dernburg that even if the legal system of Rome had disappeared, possessio would continue existing, due to its autonomy, because it is a factum (a fact). However, we can’t overlook the fact that it also effected the legal world. The possession under Roman law is a factual situation that had legal protection. This definition may lead to the conclusion that it is something more: A legal relationship, as defined in today’s law, since it represents the relationship regulated by law between a person and a thing. We can also reach this conclusion because by the pass of the time, ways that possessio was delivered was evolved and stopped including corpus or animus, like Constitutum Possessorium, which means that possessio was transformed into a theoretical concept.
The importance of possessio is undisputable: It is the reason in the most of the Europeans country’s to protect the situation created by the belief of the possessor that they own the thing they possess. Usucapio, an institution that was developed because of possessio, still remains in most countries: In Greece, Spain and Italy. After a certain time that one keeps a thing with the belief that it is theirs, they become owners.
References
- Γκόφα, Δ Χ. «Ιστορία και Εισηγήσεις του Ρωμαίικού Δικαίου». Eκδόσεις Σάκκουλας. Athens. 2016
- Δημοπούλου, Α. «Ρωμαϊκό Δίκαιο αναδρομή στις πηγές του σύγχρονου δικαίου, 1η έκδοση». Eκδόσεις Ευρασία. Αthens. 2019
- Κούσουλας, Χ, Λ. «Εμπράγματο Δίκαιο πανεπιστημιακές παραδόσεις, β έκδοση». Εκδόσεις Σάκκουλας. Αthens. 2017
