SIMAD UNIVERSITY Faculty of law Course name: Law of Property Prepared by: Mohamed-wali Isse Ahmed Lecturer in Law March, 2016

Chapter two Possession This chapter covers the following: Definition of Possession Theories of Possession Acquisition of Possession Defects of Possession Effect of Possession Protection of Possession Transfer of Possession Loss of Possession

Definition of Possession In its general meaning, possession means the detention and enjoyment of a thing by a person himself or through another person in his name. It refers to the relation of person to a thing over which he may, at his pleasure, exercise such control as the character of the thing permits to the exclusion of other persons.

In its legal meaning, Article 758 (1 ) of Somali Civil Code of 1973 defines possession as holding of a thing in the power of a person who intends to exercise, with regard to it, a property right. The exercise of a right in relation to an object consists of either physical acts of use, enjoyment, or transformation, or legal acts of administration and disposal.

Elements of possession Actual physical control or detention over the thing. This is usually acquired by taking hold of the thing, or where this is not practicable, of exercising control over it. The type and degree of control will of course vary according to the nature of the thing. Small movable things can be possessed by holding them and immovable property, such as land, can be possessed by living on it.

The intention to control the thing to exercise a property right on it This is the intention to hold an exercise control over the thing possessed for one’s own benefit, not for the benefit of someone else. if the person who has detention of a thing has the intention of holding it for someone else, he or she does not have legal possession of it but becomes custodian, and the person on whose behalf he or she holds it is the true possessor.

Difference between detention and possession The concept of possession first emerged to refer to the physical control of a thing by a person and based on that, the law attached advantages to one who is possessor. However, a problem arises when the law attributes, to persons who are not actually in control, some or all of those advantages or deny them to persons who are actually in control the thing for the sake of convenience and policy.

As a result, distinction arose between actual control and possession. Hence, physical control (custody or detention) is distinguished from possession as possession requires the following elements: The Corpus or element of physical control The Animus or element of intent with which such control is exercised. Though the holder and the possessor have the same physical control, the difference between them is found in the mental element.

What distinguishes the possessor from the mere holder is the animus domino or the desire to hold for one self and not on behalf of another. On the other hand, the mere holder holds the thing not for his own benefit but for the benefit of another person. This analysis explains why the tenant, the borrower, and the agent are not possessors in Roman law, because they do not have the intention to hold in their own right..

Theories of Possession This classical theory argues that possession consists of two elements which are: Corpus possessions which means effective control and Animus domino which means the intention to hold as an owner. A possessor who has these two elements becomes a possessor unlike detentor who has physical control only..

Theories of Possession Classical theory of possession This classical theory argues that possession consists of two elements which are: Corpus possessions which means effective control and Animus domino which means the intention to hold as an owner. A possessor who have these two elements becomes a possessor and this is the reason of calling this theory “subjective theory”..

Jehring’s theory of possession Roman law protected possession by means of interdiction to benefit owners by protecting their holding of property and so placing them in the advantageous position of being defendants in any action as to title. According to this theory a possessor is a man, who in relation to a thing, is in a position in which an owner of such thing ordinarily is. Animus becomes an intelligent consciousness of the fact..

According to theory of Jehring, animus possidendi becomes an intelligent consciousness of the fact and its not necessary for possessor to have an intention to hold the thing for the benefit of himself. This theory is also called “objective theory” because it explains possession as the exercise of actual physical control on thing without considering the intention of the possessor..