FROM PRIVATE LAW BY FRIEDRICH JULIUS STAHL, PP. 83–93

☞ The distinction between possession and property is a crucial aspect of the process of differentiation by which societies develop. For a detailed explanation of this, follow this link.

Chapter Five: Possession

§. 45. The Nature of Possession

The factual situation of power over the thing, exercised with a view to property [in Eigenthumsabsicht] but without property having been constituted, definitely extends no right to the thing; nevertheless, like property it serves the general purpose of property*: human satisfaction through things by means of free power over them (by means of their subjection to the will). For that reason it is appropriate that legal protection be granted it, but only of another sort than property, namely not security in the thing itself and therefore against anyone who withholds the thing, but only security of the factual situation, and thus only against those who abrogate this situation (through their positive act). This is our institution of possession. Its intention is not to protect the person against violence but to conserve the factual situation towards things.

With its violation, possession therefore vouchsafes not mere claims for compensation [Genugthuungsklage] (actio injuriarum) but a claim to non-interference with or return of the thing. But it secures these only against those acts, the form and manner of which endanger the security of the factual situation towards the thing,[1] namely, against violent or clandestine re <84>moval or the attempt thereto. These are the specific violations of possession.[2] Possession therefore is only secured against certain forms of damage, namely those directly, physically caused by another (this alone is the disturbance of the factual situation), and thus always under the premise of a positive (active) injury (tort) on the other side (Book II, §. 49), and is only indirectly secured by means of a claim on this violator (actio in personam). For this reason it is by no means an in itself neutral fact – that injurious actions obtain legal significance merely as a natural precondition – but conversely, in accordance with the above it contains its legal significance within itself, and only for this reason do those actions count as injurious. Upon this basis, its existence (acquisition, loss) likewise is not merely a matter of factual judgement, but through legislation is joined to juristic criteria.

The institution of possession is therefore a provisional or subsidiary arrangement of the same life relations, the actual intended and definite arrangement of which is the institution of property, to wit, the relation of men to things; but just because of this, it is not an arrangement like property which takes the view of the right to the thing, but which takes the view of the mutual actions of men, that the one not intentionally injure the other in his factual situation.[3]

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§. 46. Possession First Recognized by Roman Law

The extension of protection to possession as a special institution beside property is therefore characteristic of the Roman law; because where a legal system recognizes the right to the thing not pure and simple but with regard to the actions of all participating persons and the events [Vorgänge] between them (see above, §. 36), there property and possession merge into each other. Thus, even the Germanic Gewehre in movable things is such a cross between property and possession in that in it, as in Roman possession, legal help is only vouchsafed against positive unlawful privation (not against every form of withholding) of the thing, but even against the third-party possessor, as with Roman property. By contrast, in Roman law, in which property is recognized as the unconditional right to the thing, a second sphere is set apart for the relation to things according to that viewpoint.

In Roman law, the protection of possession, at least in the more ancient period, also had a generically different character from that of property. The latter is based on recognition of unconditional subjective entitlement, the former, by contrast, on public provision [obrigkeitlichen Fürsorge] (by no means against violence and disturbance of the public peace, but for the maintenance of the factual situation to things as such), thus especially with the ager publicus, to which private entitlement was unthinkable. In the former case, the power of the ruling authorities serves private claims as superior force, so to speak; in the latter, the private claim first springs from the ruling authority.[4]

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§. 47. The Relation of Possession to Property

If the inner purpose of the protection of possession is as described – a provisional, subsidiary arrangement of the relation to things, the definitive and true arrangement of which is property – then possession must remain in a constant relation to property. Possession is to arrange these relations according to those factual considerations only in the case where legal considerations are lacking, and therefore must give way where such arise. Roman law (and even more, Roman theory) does not accord this relation its rightful importance.[5] It allows possession and property to run along [herlaufen] beside each other without connection, in that, without regard for the institution’s deeper origin and goal, it treats the claim to restitution on account of violent or secret removal merely as an independent obligatio ex delicto, by which the right to the thing is not even taken into account. Only in one respect did the deeper motive of the matter assert itself in Roman law: the interd. ret. poss. was used as preparation in the property suit [Eigenthumsprozess] to establish the role of the defendant.

<87>By contrast, German procedural practice, partially derived from the canon law, reconstituted this connection. This is expressed in particular in:

1.  Above all, that the incontrovertible defense [(liquide) Einrede] of property is sustained against the possessory action (interdict) [gegen die Besitzklage (Interdikt) Statt hat];
2.  That possessorium and petitorium are treated not as procedures concerning entirely different things, the former a delictual obligation, the latter concerning property, but as a procedure aiming at one final goal, thus that cumulation [Kumulirung] is sustained [Statt hat];
3.  That the entire institution was extended to legal relations of the character of real rights other than property and in fact partly to those concerning which a similar formal injury as a rule virtually never occurs, but the purpose of which merely is the conservation of a provisional situation until the definitive legal inquiry [Ermittelung des Rechts].[6]

These and similar determinations are therefore not to be considered as disfigurements and misunderstandings of the Roman law but rather as natural advances and improvements of it. In no way is the Roman, independent development of both institutions – property in its thing-oriented, absolute character, possession in its only indirect protection by means of the obligatio ex delicto – thereby to be forfeited, but only finally reoriented to their common higher goal. The Roman <88>shape of the institution [des Instituts], first clarified by Savigny, and its formation in German practice up until that point are entirely divergent in terms of technical structure, the former based upon the opposition of property and delictual obligation, the latter on the opposition between definitivum and provisorium. Our legal-philosophical principle – the purpose (τέλοϛ) of possession – demands that they nevertheless be united in such a manner that the motivating factor and the goal of this practice remain preserved, and the entire Roman technical apparatus be consciously inserted as medium, as the manner of achieving that goal, under the cited modifications which this goal entails.

§. 48. The Place of Possession in the Legal System

When classified according to the true systematic viewpoint, to wit, as legal institution, possession has its position in the system undoubtedly among real rights. Its purpose is the ordering of the relation to the thing. Should one however systematize in terms of that subordinate viewpoint of rights and the objects of those rights, then possession has no place in that system, or much rather that classification, since it is no right to an object. For “right” in the sense of our legal system involves an unconditional protection, that is, one independent of the continuity of a factual condition, and “object of right” is accordingly an object (thing, performance) which is to be the entitled’s pure and simple, all of which simply does not hold true for possession. For this reason, possession here only comes into consideration as factual precondition for obligationes ex delicto (interdicts).[7]

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§. 49. Theories of Possession: Savigny, Thibaut, Gans, Puchta

Savigny clarified the obscurity which until himself had reigned over this doctrine, and his “Law of Possession” is the model of a juristic monograph. The significance of possession originates in the fact that it is a factual relation which corresponds to property as legal relation, it is a protection against formal (i.e., positive) unlawful acts, it is therefore a juristically relevant and protected fact, not a right, etc.; these enlightening viewpoints were emphasized by him, and all of us therefore stand upon the basis he laid. That Savigny treated possession merely as the precondition for the obligationes ex delicto and not as an independent legal institution is the standpoint of the Roman law itself, which to elucidate faithfully in its own coherence was his task. The entire juristic formation of the Roman law of possession is thereby given, in classical, irreproachable completion. On the other hand, I cannot so unconditionally fall in with Savigny regarding the final motive of this formation. For the innermost relation of possession, that it is the same relation to the thing factually as property is legally, which precisely Savigny first clarified – he puts it at the pinnacle of his treatment only straightaway to give it up, in that he grants it no significance in itself but allows it to arise merely from the necessarily accompanying injury [Mitverletzung] of the person. He thereby makes the inviolability of the person himself rather than the inviolability of his position with regard to the thing to be the foundation of the institution of possession. In spite of this, in his course on civil law Savigny with sure legal-philo <90>sophical insight assigned possession its proper systematic position among real rights.

Thibaut rightly asserts that the maintenance of the provisional situation is the core of entire institution of possession, and that accordingly possession does not first gain significance through the interdict but vice versa, the latter only exists for the sake of the former. But firstly Thibaut hereby does not distinguish between the legislative or law-constructive motive and the juristic (technical) principle, and therefore rejects Savigny’s unassailable disclosure of that principle; furthermore, Thibaut conceives the former, true motive in an unsuitable generality as protection of the provisional situation in general, the exercise of rights in general, without regard for the entirely specific nature of factual power over things (the analogy to property), and thus arrives at his misconceived systematic classification of possession within the General Part. From this so very generally conceived motive, nothing indeed can be gained for possession than what in similar manner holds for the provisionally existing marital status, for the defendant against a claim [Forderung], etc., and precisely the characteristic effects of possession remain for him, as he himself admits, without explanation as something incidental, something positive.

It is exactly the truth of the Savignian doctrine which Gans combats, in that he asserts that possession is no less than “a decisive right,”[8] certainly unlawful with respect to property, but this relativity holds true for all rights. Gans finds support for this assertion in the face of the undeniable factual nature of possession in the fact that every right is based on a fact, thus possession, in that it also enjoys legal protection, of necessity is <91> of the same nature as all other rights.[9] This however is an obvious confusion of the fact as being a transitory versus an immanent cause of rights. Every right requires a fact for its origin, e.g., property requires delivery, usucapion, etc., but once this has occurred, the right continues its own independent existence, even when the fact ceases. By contrast, possession requires the fact for its continuance as well; should the fact cease, so would its protection. From this viewpoint, it is not a right but merely a legally protected factual situation. Just for this reason, possession is likewise not merely lesser in terms of strength or degree than property, not even a relative property (“inchoate property”); this would be appropriate to the bonae fidei possessio, but not to possessio, it rather being something entirely different in character. Just as untenable as this foundation of Gans’s argumentation – that all rights are based upon a fact in the same way as possession – is the other foundation, that all rights stand in a relation of relativity one to another, like possession and property: “the significance of rights is always to be understood only in the relationship, not absolutely.”[10] “In the way possession is unlawful against property, so is property against contract, contract against family, family against the state, the state against history.” For the latter is neither true, nor does it apply to the relation between possession and property. Much rather, property, contract, family, state are pure independent spheres, of which one cannot say that the one must yield to the other, must be “unlawful” against it, e.g., the family is just as holy as the state, and the state cannot dissolve family ties, etc.; by contrast, against property juristic possession is unlawful and void pure and simple. Beyond this, the <92> author’s argumentation is moved by the truth that possession is an institution aimed at the relation to the thing in the same way as property, that “the will of the person, in the way in which it expresses itself in things, is a right,” and thus the grounding of possession must be a direct and not an indirect one; but that is something entirely different from “inchoate property” in the sense in which he applies it. Moreover, the practical goal of this polemic cannot be discerned [ist… nicht zu erkennen].

Puchta’s concept that possession “derives” its legal nature from the “right of personality” (i.e., that each ouster injures the will of the person) discloses an essential aspect of the legal-philosophical rationale of possession, although it does not exhaust it. Not only possession but no less property stems from the rights of personality, the recognition of the will, in the manner of the natural law teachers who actually deduce them solely from this. No less so contract. But the protection of possession, just as that of property, does not yet have its complete rationale and its specific formation in these rights of personality. It is not the ungrounded will of the person in and of itself which the law is to protect and has the vocation to protect, but the advantage gained from others under the favor of circumstances, the factual position with respect to the thing. That will is only the necessary precondition for this, which is no less the case for property, for the acquisition of the inheritance, etc. The will and its importance – as Puchta stresses – is the one side of the law-constructing principle, the other however is the significance of life relations in which the will is operative (compare §§. 1, 29, 56), in this case the situations towards things.

Therefore Savigny finds the basis of the protection of possession in the inviolability of the body of the person, Puchta in the inviolability of the will, I by contrast directly in the invio <93>lability of their factually existing relations to the thing. Just as adverse possession and the gradual legitimacy of usurped thrones have one and the same principle (Savigny), just so do the protection of juristic possession and the esteem for de facto governments have one and the same principle, and if the latter did not exist, the former could not either. Juristic possession serves the same purpose (satisfaction through things) in unentitled fashion that property serves in entitled fashion; de facto government serves the same purpose (maintenance of public order) in unentitled fashion that legitimate governments serve in entitled fashion. In both cases, although the subjects have no title, the objective relation (the use of things, the maintenance of order) is justified and is something that should exist. Therefore subjects without title are protected or respected, as the case may be, as long as an entitled subject does not face them.

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^[1]This is what characterizes those actions as torts. Although their character as tort presupposes that they injure the person – not, as Puchta explained it, that the person is bodily harmed (this only being true in the case of violent removal [gewaltsamen Entziehung]), but that the will of the person to have the thing is violated – that character itself consists in the violation of the factual situation towards the thing acquired by the person. The former is the general basis of private tort, which therefore is also found in every other form of it, while the latter is the specific and positive basis for which reason they are torts.

^[2]That the withholding [Vorenthaltung] of precarium in Roman law falls under the viewpoint of violation of possession rather than violation of contract is of a purely positive character and had good historical grounds.

^[3]Compare above, §. 36. By the way, by no means does this explain the condition of the possessor (in subjective relation) to be provisional property (the possessory interdicts as provisional vindications), although the institution [Institut] of possession (objectively as legislative arrangement [Einrichtung]) contains a provisional regulation for the same situation, the definitive regulation of which is property. Even less so, of course, is possession then a presumptive property. Legislation protects the factual situation not because it has the presumption of the law in its favor, but because as factual situation it merits conservation.

^[4]As with all interdicts, the ones dealing with possession are based on the authority of the praetor: an accusation is made not because of the violation of a right but because something has been done contrary to the command of the praetor. The character of all judicia imperio continentia, to which they also belong, is no other than that their principle is the power of the ruling authorities [obrigkeitliche Gewalt] and not, as with the judicia legitima, recognized entitlement. Cf. my Ancient Roman Law of Accusation [“älteres römisches Klagenrecht”].

The protection of possession later was elevated [erstarkt] to a full-fledged private-legal institution. For this reason in our legal system protective measures regarding the factual situation in things have been added to the provisories [Provisorien – temporary rulings – RCA] which, as originally with possessio, are founded not on the right of the party but on the regard for and solicitude of the judge.

^[5]Nihil commune habet proprietas cum possessione, l. 12 §. 1 de adqu. vel amitt. poss. (41.2).

^[6]One could also count among these, that in accordance with practice a better possession can be asserted to be in possessorium, i.e., not in consideration of a better possession from formal consideration of disturbance (vi clam, etc.) but from material grounds (“possessor antiquior et titulata”), like the leading procedurists (Bayer, Linde et al.) still presume; but this  practice, as Savigny has shown, rests merely on a misunderstanding of canon law and should much rather be abandoned.

^[7]Nor can I agree with Puchta regarding this doctrine from a systematic viewpoint. To wit, he describes possession as a “right to one’s own will” or a “right to one’s own person.” The “rights to one’s own person” in that case would be twofold: 1) the right of personality, 2) the right of possession. But possession, in that it has an external object and presumes an act of acquisition, cannot possibly hold as a mere right to one’s own will or to one’s own person and form a class together with honor etc. Such would only be the general capacity to possess, not possession of a specific thing.

^[8]Gans, Foundation of Possession [Grundlage des Besitzes], p. 33.

^[9]“All legal concepts are however facts [Fakta]: I possess, have property, marry, inherit. These are facts, but there is a relation in them which one cannot deny the name of legal.”

^[10]ibid., p. 38.