POSSESSO. — It is a state of fact protected by law—which attaches particular legal consequences to it—whereby a material object or the exercise of a right is bound to the person who intends to dispose of II.
I. NOTIONS, DIVISIONS, OBJECT
The essential elements of possession are: the relationship of the object to the person, in such a way that the latter may dispose of it, and the will to retain II. Roman law expressed the first by the terms: tenere, detinere, esse in possessione, possessio naturalis, possessio corporalis, possessio, possidere corpore; the second by the terms: animus, animus possidendi, affectus possidendi, animus rem sibi habendi; terms still commonly used by civil and canon lawyers. The distinction between possession and ownership (v.), although not original, nevertheless dates back to very remote times. Possession is also distinct from simple detention, which is protected by law but is not accompanied by the will to dispose independently of others. It also follows from the definition given that it is not indispensable for possession that the person have the thing in his own keeping or under his complete and autonomous control; he may continue to possess it even if the object is held by third parties in his name. This, however, cannot occur with regard to the second element, namely the animus, since intention cannot be substituted by the intentions or wills of others. Therefore, what in practice absolutely determines the difference between a possessor and a simple detainer, and consequently that between possession and detention, is precisely the animus, which must in every case and without interruption remain in the possessor, on pain of loss of possession. It remains to be recalled that even in the case of possession of incorporeal objects, which is more properly called quasi-possession, the possessor may have the object at his immediate disposal or may share it, in simple detention, with others.The classifications of possession are already found in Roman law, although they do not all have the same importance today.
a) Natural and civil possession. The distinction (currently without practical significance) indicates the difference between the purely material possession of the object, corresponding more or less to modern-day detention and consequently lacking the animus possidendi (a detention that in antiquity alone was not endowed with legal protection), and that possession endowed with an action and legally protected by law as genuine possession, comprising the animus possidendi and a just cause. b) Just and unjust possession. The terms refer to the moment when possession was acquired. In classical Roman law, possession was considered just when acquired without violent dispossession, not clandestinely, and not received by way of a precarious grant (nec vi, nec clam, nec precario); unjust, on the other hand, was every possession affected by one of the aforesaid defects. The epithets just and unjust, too, were not always, or to the same extent, based on the presence or absence of the three elements described; nevertheless, even today they are customarily used to indicate, much more vaguely, possession to which the possessor has a right or, conversely, possession to which he has no right. c) Possession ex iusta causa and ex causa iniusta. Very probably even before Justinian, that is, in the period of classical law itself, just possession came to be called possession ex iusta causa, and unjust possession ex causa iniusta. Today the terms are practically assimilated, although iusta and iniusta causa more precisely express, respectively, the lawful or unlawful reason for which possession is held, irrespective of the legal title that makes it just or unjust. d) Possession in good faith and possession in bad faith. Of fundamental importance with regard to consciousness, that is, the moral factor, possession in good faith indicates that the subject is convinced that the object is legitimately possessed by him, without prejudice, that is, to the rights of third parties. The Italian Civil Code expressly states: « è possessore di buona fede chi possiede ignorando di ledere l'altrui diritto » (art. 1147) and adds that: « la buona fede non giova se l'ignoranza dipende da colpa grave » (ibid., cpv. 2); which evidently, and all the more so, applies to canon law and Christian morality.
Generally, any good that in its category possesses its own distinct individuality may be the object of possession, whether corporeal or incorporeal. The latter possession is very often also called, more specifically, quasi-possession, the classic examples of which are usufruct, emphyteusis, active servitude, etc. In itself, every good so described could be the object of possession; nevertheless, society, both civil and ecclesiastical, has rightly placed limits on this, in reality very restricted ones, excluding from it those goods that it has declared to be outside commerce.
II. ACQUISITION AND LOSS OF P., EFFECTS, PRESUMPTIONS. - Since p. is not a right but a simple legal relationship founded on a fact, its acquisition requires only that the two essential factors constituting it come into existence, whatever the circumstances. When a person has brought about these two elements, whether through his own independent act of taking possession of the object, or through its delivery to him by third parties, with the intention of possessing it, whether this occurs through a lawful or an unlawful act—for example, theft, robbery, or violence—p. is acquired; this does not, however, entail that the person is a legitimate possessor. The rules governing the acquisition of p. are set forth in arts. 1141 ff. of the Italian Civil Code. Art. 1141 para. 2 establishes that the mere holder of an object does not become its possessor except by virtue of a different and new title originating from third parties, or through direct opposition made by him, even unlawfully, against the possessor. Secondly, it is expressly established that “acts performed with the tolerance of another cannot serve as the basis for the acquisition of p.” (art. 1144); this applies equally to acts performed upon an object made available through the possessor’s courtesy or through his desire to avoid disputes and live in peace. Finally, it should be borne in mind that, although p. is a fact, it is nevertheless permitted, solely in favor of heirs, that it continue in them without interruption exactly as it existed in the de cuius, including its defects (art. 1146, para. 1); likewise, it may pass under the same conditions to successors by particular title, if they so wish and have an interest in it (art. 1146 para. 2). Accordingly, the acquisition of p. is due either to an original cause, the taking of an object not possessed by another, or to a derivative title, that is, through contract, succession, acts of violence, or clandestine appropriation.
P. is lost when both essential elements, or even one of them, ceases to exist. As regards the corporeal element, however, it must be understood that maintaining p. does not require its material exercise by the possessor, nor that he personally hold it without any interruption, provided that, owing to a lasting obstacle, he does not find himself practically unable to dispose of it in accordance with the common social understanding and with what the nature of the object entails: the Romans already held that, although p. is not acquired solo animo, it may nevertheless be retained solo animo, provided that the object can be mastered.
The law protects p. indifferently, whether legitimate or illegitimate; such protection, however, in no way prejudices the rights of third parties over the object of p., which must therefore be established in another forum. The fact that a person is unquestionably an unjust possessor does not create in anyone a right to violate his p. except in accordance with the law. Secondly, p. is protected, at least under Italian legislation, even when its object is property outside commerce; this protection, however, is granted only against third parties, not against the authority governing such property (art. 1145 para. 2). P. is also of particular importance with regard to the fruits (v.) produced by the object possessed and to the expenses incurred for its maintenance. With regard to these, art. 1150 para. 3 provides—with reference to the general rule requiring the claimant-owner to reimburse the possessor for expenses, art. 1150 para. 1—that such compensation “must be paid in the amount of the increase in value acquired by the thing as a result of the improvements,” which does not occur, at least in the same proportion, in the case of a possessor in bad faith. In cases of additions made by a possessor in good faith to the thing (art. 936), if those additions constitute improvements, he is entitled to “compensation in the amount of the increase in value acquired by the thing” (art. 1150 para. 3). Moreover—and this is a rule particularly favorable to the possessor in good faith—art. 1152 para. 1 establishes that he “may retain the thing until the compensation due to him has been paid”; and also “until the guarantees ordered by the judicial authority have been provided” (ibid. para. 2). The possessor in bad faith (art. 1150 para. 3) is entitled to the expenses incurred for improvements made to the thing, provided that these still exist at the time of restitution (ibid., para. 2), but only in the amount of the “lesser sum between the amount of the expense and the increase in value.” All possessors are also owed any expenses they had to bear during the period corresponding to the fruits which they must now surrender to the third party, even if that party is the legitimate owner.
Certain presumptions must be borne in mind with regard to p. Thus, the person who exercises factual power over the object is unreservedly presumed also to have true p. Secondly, the law presumes intermediate p., in the sense that “the current possessor who possessed at an earlier time is presumed to have possessed during the intervening period as well” (art. 1142). This presumption, like the others, evidently yields to a contrary truth if the latter is proved; nevertheless, the current possessor is relieved by law of proving intermediate p. merely by having proved that he currently possesses and that he possessed at the beginning of a given period. There is, however, a presumption that counterbalances the preceding one: “current p. does not give rise to a presumption of prior p., unless the possessor has a title forming the basis of his p.; in this case he is presumed to have possessed from the date of the title” (art. 1143). Finally, there is a presumption concerning the possessor’s state of mind. Obviously, this is a presumption that in no way changes the state of affairs, nor does it release him, before his conscience, from returning the object of p. if it does not in fact correspond to the truth; nevertheless, before the law it confers the status of legitimate possessor. Art. 1147 para. 3 indeed states: “good faith is presumed, and it is sufficient that it existed at the time of acquisition”; and although it is established that good faith is of no benefit if ignorance of the violation of another’s right is due to gross negligence (ibid., para. 2), nevertheless, when such gravely culpable ignorance cannot be proved, good faith thereby remains presumed.
III. USUCAPION AND P
The Italian Civil Code clearly states that “p. acquired violently or clandestinely is of no avail for usucapion except from the moment when the violence or clandestinity has ceased” (Art. 1163); consequently, although this too is genuine p. protected as such by law, it is nevertheless insufficient to acquire ownership. Likewise, Art. 1164 establishes that “one who has p. corresponding to the exercise of a real right over another’s property cannot acquire ownership of the property itself by usucapion.” Nevertheless, he too may acquire the said property by usucapion if the title of the p. is changed through the intervention of third parties or through his own opposition to the owner, and only from the moment when that title arises. It is also expressly established that interruption of p. during the period required for usucapion occurs only if the possessor has been deprived of p. for more than a year, provided that he has not brought an action for recovery, if in fact he recovered it (Art. 1167).This being premised, p., whether in good or bad faith, depending on the longer or shorter period required by law, produces the effect of transferring the title of ownership to the possessor as well. Specifically: a) the possessor in good or bad faith acquires ownership of immovable property and the other real rights of enjoyment over it solely by the fact of continuous p. for 20 years. The rule is general and operates before the law without the possibility of objection by third parties, including the prior owner (Art. 1158). Nevertheless, both with regard to this rule and with regard to what will be said below concerning good and bad faith in their relation to conscience and morality, it is indispensable to bear in mind what is stated under the entry FEDE, BUONA (E CATTIVA); b) the possessor in good faith—or rather, one who in good faith has acquired from a non-owner an immovable property or another real right of enjoyment over immovable property by virtue of a title in itself capable of transferring ownership and duly transcribed—acquires ownership thereof ten years after the date of transcription (Art. 1159), even if, before this period has elapsed, a state of bad faith has arisen in the possessor; c) the two preceding rules apply equally to the acquisition of universality of movable property or of real rights of enjoyment over such property, respectively after 20 and 10 years of p., according to whether the possessor is in bad or good faith (Art. 1160); d) in the case of movable property, provided that suitable titles intrinsically capable of transferring ownership are lacking, Art. 1161 likewise establishes as sufficient p. for 20 years in the case of a possessor in bad faith and for ten years in the case of one in good faith; e) if, on the other hand, in the acquisition of movable property entered in public registers, a person receives, under a title suitable for transferring ownership, the duly transcribed object, he acquires ownership thereof within three years from the date of transcription if the acquisition took place in good faith from a non-owner, and within ten years if any one of these conditions is lacking (Art. 1162); f) nevertheless, “one who has p. corresponding to the exercise of a real right over another’s property cannot acquire ownership of the property itself by usucapion if the title of his p. has not been changed through a cause originating with a third party or by virtue of opposition made by him against the owner’s right. The period necessary for usucapion runs from the date on which the title of the p. was changed” (Art. 1164). Under the Italian Civil Code, therefore, good faith is not necessary, not even at the beginning of p., for the twenty-year usucapion of immovable property or real rights over it; whereas it is required, but only at the beginning, for the ten-year usucapion; the same applies to the usucapion of other property with the three-year or ten-year p.
IV. DEFENSE OF POSSESSION
It is not irrelevant to recall the reasons that first led Roman law, then canon law, and subsequently all legal systems in general, to protect a simple fact which not only does not necessarily entail a right, but is at times positively opposed to it: one need only think of possession in bad faith, which the law protects in its ultimate effects even against the owner himself. The reasons are matters of public and private order. It is evident that, since proof of ownership is often truly diabolical, as the jurists said, if there were no adequate means dispensing with such proof for one who in fact peacefully has mere possession of the thing, very often the owner himself would practically be unable to exercise his right unless it were sufficient to invoke the argument arising from the fact of possession. The social order requires this no less, since, for obvious reasons, it cannot permit a citizen to take justice into his own hands. The law has therefore sought, as far as possible, to reconcile the rights of the owner with those of the possessor. Moreover, it is logical that, in uncertainty, the legal rule should attribute to the person who in fact possesses the title of true possessor, until the contrary has been proved. In any event, by their nature possessory actions have an essentially provisional purpose and in reality favor both the holder or owner of the thing and the possessor or mere detentor (in the cases also contemplated, the latter as well). It goes without saying, however, that, in addition to the legal defense of possession, everyone retains intact the right of legitimate self-defense in the event of present violence against that which he in fact possesses.1. Action for reinstatement
Anyone who has been violently or clandestinely deprived of his possession may bring an action for reinstatement or dispossession. Canon law is responsible for the principle that became classical: spoliatus ante omnia restituendus. And so that there may be no occasion for insidious maneuvers, especially delaying ones, both the Italian Civil Code (art. 1168, final paragraph) and the CIC (canons 1699 § 2 and 1700) require an urgent procedure free of every formality, the mere notoriety of the fact being sufficient for restitution to be ordered without any delay of that of which the possessor was dispossessed. The action for reinstatement also belongs to the detentor, though not to the possessor, of an object, except in the case of a detentor by reason of service or hospitality (art. 1168, paragraph 2; CIC, canon 1694).In Italian law, unlike the rule established by the CIC, which allows the action against any detentor of the thing (canon 1698 § 1), the action is admissible only against the perpetrator of the dispossession or against one who, by particular title, succeeded to the possession with knowledge of the dispossession (art. 1169). Both codes, however, essentially agree in determining the period within which this action may be brought, namely, within one year of the dispossession or of the moment when the possessor became aware of it, especially in the case of clandestine dispossession (art. 1168, paragraphs 1 and 3; canon 1698 § 2); the CIC nevertheless admits the exception of dispossession which by its nature is perpetual. The action is also admissible against the owner of the thing, except in the case of an administrator or agent who holds the thing in the interest of his principal.
2. Action for maintenance
It is intended to guarantee and defend the possessor, against every kind of disturbance by third parties, in the enjoyment of his possession. In the Civil Code it has a narrower scope, in the sense that, unlike the preceding action, which is directed toward the protection of every kind of property, this action may be brought only in the case of possession of immovable property or of real rights over immovable property, or of universality of movable property (art. 1170, paragraph 1). The action is admissible against anyone, provided that the possession has continued for more than one continuous and uninterrupted year and was not acquired violently or clandestinely (ibid., paragraph 2); nevertheless, it is also admissible in favor of possession acquired violently or clandestinely, provided that the action is brought after one year from the day on which the violence or clandestinity in fact ceased (ibid., paragraph 2); whereas the CIC admits it against every disturber, with the exception of the person from whom the possessor violently or clandestinely appropriated it or from whom he received the thing precariously (canon 1696 § 1).For the other means of defense of possession, V. DENUNCIA DI NUOVA OPERA E DI DANNO TEMUTO.