for themselves) and those who are not. (b)Bona fide and mala fide possession Possession is in good faith when the possessor reasonably thinks that he has some kind of ownership in the property; bad faith possession occurs when he does not. This distinction is important for the acquisition of fruits by a possessor. 4.2ACQUISITION AND LOSS OF POSSESSION(a)Acquisition of Possession: -Corpore et animo–Acquire control if you have animus and corpus.-Both elements must co-exist (both mental and physical element). -Therefore, if one or other ceases to exist then possession is lost. -For factual possession one must have effective and sufficient physical control –can be through an agent or representative. -Nemo sibi ipse causum possessionis mutare potester.-‘Nobody can for themselves change the reason for their possession’-Because it is determined on objective facts. -And there is a publicity element in relation to the respect of things. (b)Loss of Possession -This can happen when the object is destroyed, making it impossible to be controlled. -If it ceases to be res in commercio then one can not possess it (not a thing). -If the possessor dies, then possession ceases to exist –the heir does not automatically become possession, it must be acquired. -It is important to notice that when possession is lost (mental or physical), this does not necessarily lead to the loss of other rights.
-Here we notice the difference between the ius possidendi and the ius possessionus (right to and right of possession). -If you lose possession, you then lose the ius possessionus, but if you are the owner of the thing, then ownership does not necessarily disappear with the loss of possession (or if you have a limited real right) -Pledge is an exception –must be in possession of the thing for it to be a complete transaction. -The right of possession is often referred to as the ius possessionis and must be distinguished from the so-called ius possidendi, the entitlement to demand control over a thing. The former is available only to a person actually in possession of a thing, while the latter enables a person to demand that he or she be given possession of a thing. -e.g. The owner of a Ferrari who keeps it in his or her garage and drives it every day has a ius possidendi as owner and a ius possessionis as possessor. Finders Keepers, Losers Weepers: -If the person, who steals something, does that person have the ius possessionus? And the ius possedendi? -What rights does the owner have once it was stolen? The person has only lost the ius possessionus. -Loss of factual control in these circumstances does not lead to the loss of ownership of the right to possess. -Ius possedendi is a legal relationship between a persona and a thing. -Whoever has taken this item, can not become the owner because it is already owned (must wait 30 years). -Unless the owner decides to make it res derelictae (abandons ownership).
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- Fall '15
- Possession, drug possession