Physical control does not necessarily imply that control must be maintained continuously. Important consideration is whether the controller is able to regain physical control at any time. The degree of contact required for physical control is generally greater for movable things than for immovables because it is difficult to maintain comprehensive physical control with an immovable thing. Mental Element The intention of the controller must be firmly established before the nature of the legal relationship can be determined. Requirements: 1. Legal capacity to have intention required by law – mentally ill. Must be capable of forming a legally recognised intention. 2. Awareness of fact that physical control is exercised. Aware of the relationship between him/herself and the thing. 3. Direction of the will of controller towards exercising control – intention to derive personal benefit from the thing. Must form and maintain a specific intention with regard to his/her control over the thing. If one holds the thing solely for another person then one can’t establish that the physical control is for one’s own benefit because the mental attitude is inappropriate. Also one can’t change the nature of one’s factual possession simply by changing one’s mental attitude. Animus Domini (Intention of the owner): Intention should be to exercise control over a thing with the intention or disposition which would normally be found in an owner of a thing. One can construe that the possessor is the owner. Controller will not recognise any other person’s claim to ownership of the thing. Controller has the intention of an owner. Intention is found amongst the following 3 groups of persons – 1. Owners – they obviously regard and conduct themselves as owners. 2. Bona fide possessors – not recognised as owner but have the intention of an owner, on the incorrect assumption that he/she is the owner e.g.
a. Person who concludes a contract of sale with a non-owner who, after delivery uses the thing assuming that he is the owner. b. Person who accidentally picks up something believing that the thing is theirs. c. Person who encroaches on his/her neighbour’s land unaware that he is doing so. 3. Mala fide possessors – person who is aware that he/she is not legally recognised as the owner but who nevertheless has the intention of an owner e.g. thief. Intention to derive benefit: Person who simply intends to derive a benefit does not regard himself as owner. Such person usually exercises control on the basis of the owner’s permission. Intention to derive a benefit is found among 2 groups of persons – 1. Lawful holders – one who has the owner’s permission. a. S/he does not regard himself as the owner or pretend to be the owner. b. They exercise control while recognising and respecting the owner’s ownership e.g. tenants, borrowers, purchasers on credit 2. Unlawful holders – Anyone who does not regard or conduct himself as the owner, and who respects and recognises the owner’s ownership of the thing, but
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- Summer '16
- DR Sulaiman
- Thing, Possession