The premise of this series of articles is an exploration into certain myths regarding the relationship between the civil and common law families. The first myth that I am attempting to bust is the premise that the two families have extremely different understandings of possession and ownership of “personal property” (i.e. things that are not land (“real property”). In civil systems this divide roughly (but not entirely accurately) translates to the law of movables and immovables. My intention is to look at the laws of Scotland, South Africa and Quebec and distinguish which elements are more like one family or the other.
Before investigating the three chosen mixed jurisdictions, it necessary to pinpoint how the two families understand ownership and possession. These characteristics are the yardstick by which we can compare the mixed jurisdictions. However, this is complicated for many reasons. First, these legal families and the systems that spring from them have not developed in isolation. They have been connected and exchanged ideas and concepts for centuries; thanks to the exchange of students training abroad and the influence of canon law. As such there are many similarities which may be hard to disentangle. Second, the nature of possession and ownership is greatly debated within the jurisprudence of these legal families themselves. Third, this is a vast area of study. Both possession and ownership are multi-faceted. Many authors have written hundreds of pages on only one component. Therefore, an attempt to distil these ideas down to their core inevitably leads to simplification. There is much more debate, research and information beyond the scope of this article.
In early Roman law possession was merely the factual state of affairs. Ulpian famously wrote that “ownership has nothing in common with possession”.1 Paul explained that animus (intention) and corpus (factual possession) were both required for to make use of ownership.2 Unfortunately, these general statements are insufficient to reflect the reality of Roman law. For example, in certain cases , possession by corpus or animus alone was enough.3 As Roman law became more complex it became more attractive to look to protect possession. At first, this protection came in the form of Praetorian possessory interdicts. They were deployed to determine who would be the defendant in a vindicatio (i.e. who retained possession). It transformed a factual relationship into a legal relationship. However, this protection was only ever relative between the two disputing parties and always inferior to dominium.
Dominium was the term for full title over property beyond and above which there was no other.4 Thomas described it as: “Roman ownership of a Roman thing acquired by a Roman”. Property had to be in commercio (capable of being owned and not res furtiva) and the acquirer had to have commercium (capable of utilising the ius civile). Dominium in Roman law was “absolute” and the dominus was entitled to full power and total appropriation the thing.5 Fox explains that this absolute ownership was an “inherent incident of Quiritary ownership”. In a strict sense, there was only one Quiritary owner to a single piece of property. It was impossible to have concurrent Quiritary rights but the dominus could grant away lesser rights to the property. It “excludes the possibility of any equivalent proprietary interest conferring a competing title on a different claimant.”6 As such it is absolute in the sense that there is no remedy to protect the “tertium quid” – someone who has a right to possession but not ownership. 7
The vindicatio was an extremely important action in Roman law which sought to restore property to or compensate the claimant if it appears that the property is theirs by Quiritary right. It helped to propagate the idea that the Roman understanding of dominium was indivisiable.
Later Roman law introduced the concepts of the bona fide possessor (BFP) and the bonitary owner (BO) were introduced. The BFP was someone who received the property in good faith from someone who was supposed to be able to transfer ownership but was, in fact, incapable. The BO was someone who received the property in good faith from someone who was able to transfer property, but the mode of transfer was incorrect. It should be stressed that the term “owner” was used to describe the BO during the Byzantine period and was not classically Roman. Both the BFP and the BO could make use of the Actio Publiciana, a fictious vindicatio.8
The BFP could use the Actio Publiciana against third parties and, theoretically, the dominus; though the latter had the exceptio iusti dominii. This defence of the true owner was based in the absolute ownership of the dominus., the BO had a defence (exceptio rei venditae et traditae) enforceable against the dominus’ vindicatio and replicatio rei venditae et traditae against the dominus’ exceptio iusti dominii. The BO had these procedural protections as they would have been the dominus but for the fault in the modality of transfer. Therefore, the Actio Publiciana belies the myth that ownership was absolute.
Possession in the English common law definition is complicated, unclear and very context dependent.9 Lord Parker CJ once stated: “The term ‘possession’ is always giving rise to trouble.”10 According to Sweet & Maxwell, possession is a legal interest. It encompasses all proprietary interests short of outright ownership and is a means of creating secondary interests. It is relative and enforceable against the world except the rightful owner. 11
In Tubantia v Admiralty (No.2), Sir Henry Duke cited Fredrick Pollock’s multifactorial approach to establishing possession (Pollock and Wright, Possession in Common law). He summarises this position as: “A thing taken by a person of his own motion and for himself, and subject in his hands, or under his control, to the uses of which it is capable, is in that person's possession.”12 Whilst this is a useful boilerplate, it depends wholly on context.
The common law myth is that there is a system of relativity of title rather than absolute ownership. This can be explained as follows: a title to property is capable of being compared with titles belonging to other people in respect to the same property. In that sense, title can be better or worse than one to which it is compared (if their claim is stronger or weaker). If one title (X) is better than another title (Y), X is ‘good against’ the holder of Y but it does not mean that Y cannot be good against another third party. A theory of relativity of title looks at who has the “best” title, who’s title is superior to the other. This is not the same as who has an “absolute” title. 13 Gordley explains that the common law does not clearly distinguish between ownership and possession. Instead, as a result of the doctrine of relativity of title, “ownership is not a single category of legal “right” but a complex bundle of rights”14. Ownership is not unlimited and instead carries the limitations and responsibilities that these rights create.15
However, there is debate as to whether relativity of title applies to goods in the same way that it does to land. Sweet and Maxwell propose that it does not and use Armory v Delamirie (1772) as evidence. The case held that the finder of property acquires rights enforceable against the world except the “rightful owner” but recognised that this rightful owner would have absolute ownership. 16. This position is contrary to the long-repeated myth.
OBG Ltd v Allan Baroness Hale said: “The common law, as is well known, lacked any general proprietary remedy equivalent to the Roman law vindicatio.”17 As Nicholas explains it, there is no action asserting ownership. The owner only had an action when they were asserting an immediate right to possession.18 Sweet and Maxwell suggests that the introduction of the Tort (Interference with Goods) Act 1977 s7 and s8 “emasculate” Baroness Hales’ traditional proposition as they require an investigation into who is best entitled to the goods. For example, s7 may require an unjustly enriched finder to be accountable to the true owner and s8 permits a defendant to show that a third party has a better right than the claimant to the property. This indicates a recognition of a true owner that is stereotypically Roman.19
Our myth busting investigation has highlighted that the two legal families are more similar than sophisms would suggest. Roman was not absolute in the indivisible sense and recognised to a certain extent relativity of title. Nicholas considers the BFP and BO to be clear exceptions to the principle of indivisible title. He argues that Roman lawyers “never came to terms with their own creations”. He suggests that Roman absoluteness could be consider “inviolable”. Ownership cannot be lost without consent and you cannot pass a better title than you have. 20 This is similar to the common law position. Moreover, the common law seems to recognise both relativity of title but some vague concept of a true owner. Nicholas states that the Roman law claimants in attempting to prove ownership “could hardly have been required to do more than his English law counterpart”, to prove an immediate right of possession. On a purposeful approach this position is understandable. It is interesting to note the similar steps taken by both families in an attempt to resolve the eternal dilemma of tertium quid. To an extent relativity of title is inevitable. For law to be effective, particularly in a complex, commercial society, it must look for acceptable substantive outcomes. Often this goal has the effect of obscuring the underlying theory.
How do these ideas look in practice?
Modern scholarship considers Scots law to be a construct of “civilian principle tempered by common law pragmatism.” By this it is meant that, in practice, Scots lawyers no long use Roman or other civilian sources. Instead civilian principles are found within case law and the law develops in a common law style.21
In Scots law possession is protected without regard to who has the right to possession. There is interim protection in the form of possessory interdicts, given without determining who has the right to possess and the fact of possession alone confers no rights except that of ‘spuilzie’ which creates an obligation upon a thief to return property that they should not have taken. 22This is very similar to the civil possession and it can lead to substantive differences in outcomes. For example, in the English case of Costello v Chief Constable of Derbyshire Constabulary (2001)23 the possessor of a stolen car was found to have good title. This would not be possible in Scotland. 24
However, possession is not entirely separate from ownership in Scots law. There is a rebuttable presumption that the possessor of corporeal movables is the owner. There is a two-stage rebuttal; first the claimant must prove a pre-existing title stage and second, they must but prove the loss of possession in circumstances consistent with a right to recover the property.25
Scots law seems to uphold the civilian idea of an absolute owner. Carey Miller explains that "a possessor in good faith can never acquire a title if it is shown that in fact the property belongs to another". 26 This view is supported by the “institutional writer” Erskine who has described ownership in Scots law as “sovereign or primary real right’27. Therefore, in Scots law goods are either “owned or not and there is no scope for degrees or stages in the right.”28 It is a unititutar conception of ownership, in line with Roman tradition.
When the British Government assumed rule in South Africa, they agreed to leave the private law regulation of property untouched. Fagan states that “[t]he law of property has remained the most unassailable stronghold of civilian jurisprudence”29.
Like the Scots, South Africans relied heavily on Roman law and its subsequent interpretation by Roman-Dutch authorities. As such it retains the strict “dichotomy” between possession and ownership.30 However, many South African scholars31 have attempted provide a general and “all-embracing” definition. A widely accepted version is “the physical control of a thing accompanied by the intention to hold for oneself as owner or as one’s own” (animus domini).32 This intention to possess must be proven independently of the physical control itself. Unlike in common law jurisdictions where the intention is presumed from physical control. The traditional Roman law idea of possession as a factual relationship giving rise to certain consequences has also been supported by modern South African authorities. 33
In 1806 Johannes van der Linden drafted a seminal definition of ownership in South African law. It stated that: ‘Ownership is that right by which something belongs to a person to the exclusion of all others’.34 More recent scholars, such as Van de Merwe, repeat this: ‘ownership is potentially the most extensive private right which a person can have with regard to a corporeal thing’.35 This academic opinion has been upheld in case law. In Johannesburg Municipal Council v. Rand Townships Registrar (1910), Wessels J cited Savigny:
“Dominium is the unrestricted and exclusive control which a person has over a thing.”’. Inasmuch as the owner has the full control, he also has the power to part with so much of his control as he pleases. Once the owner, however, he remains such until he has parted with all his rights of ownership over the thing.36
South African law also permits an owner to recover the lost possession by ius vindicandi. This is a characteristically Roman hallmark. No title can be given to a possessor without the owner’s consent. In a strict sense there is little protection of BFP however South African law has made certain inroads on this position. For example, there is no vindication for certain types of property (such as stolen money).37
Quebecois private law has retained its French characteristics and civilian character; uninfluenced by British rule over the province. 38 Unlike the previous mixed jurisdictions, Quebec appears more superficially civilian as its law of possession and ownership is found in the civil code. Codification is unfamiliar to the common law tradition and more in-keeping with the Digests, Insitutes and Edicts of Roman law.
Book IV Chapter IV of the Civil Code of Quebec contains the provisions relating to possession. Article 921 explains the nature of possession as “the exercise in fact, by a person himself or by another person having detention of the property, of a real right, with the intention of acting as the holder of that right. The intention is presumed. Where it is lacking, there is merely detention.”39 To better understand what “exercise” constitutes possession, it is explained that the possession must be “peaceful, continuous, public and unequivocal” in order to be effective at and “merely facultative acts or acts of sufferance” are not sufficient.40 Like in Scots law, there is a rebuttable presumption that a possessor holds the right they are exercising. However, Article 928 makes it clear that possession itself is not title.41
Ownership in Quebec is defined as “right to use, enjoy and dispose of property fully and freely, subject to the limits and conditions for doing so determined by law.”42 This is widely accepted as the traditional conception of absolute ownership since it was the “prevailing” idea at the time of 1866 codification43. However, there is an attempt to temper its power as an owner is not entitled to enjoy his land in a “most absolute manner”. However, possession is, therefore, a means of acquiring ownership in property as long as there is no vindicatory action brought within three years.44
When discussing the myths surrounding the alleged differences in ownership and possession between the two legal families, it is easy to focus on ownership. Before looking deeper, it would seem that absolute ownership and relativity of title present the greatest contrast. However both families seems to have both an understanding of relative title and true ownership. This is understandable as all legal systems are trying to find outcomes that will be accepted as good and mitigate the tension between the true owner and the possessor in good faith. When it comes to personal property these goals tend to be the same; certainty and security of property to help support commerce and economic growth. However, it is the difference in the conception of possession which presents the more interesting comparison. As demonstrated concretely in the discussion of Costello, possession as a fact (and not an interest) will lead to different outcomes in common law and civil jurisdictions. As possession is not an interest, it is not protected at law and so property can be taken from good faith possessors. However, as was evident in South Africa similar policies regarding the fair and effective use of property apply. The two legal families are not the same and their differences can lead to different outcomes. Yet, they are driven by the same forces which brings them closer than the original myths suggest.