Possession

Acquisition, Transfer & Extinction

In this Session:
o Acquisition of Possession
o Transfer of possession
o Defects of possession
o Extinction of possession
Acquisition of Possession
 How does one become possessor in the legal sense
of the term?
 There are three legally known methods of
acquisition of possession. Possession can be
acquired by:
a) Occupation (taking)
b) Delivery
c) Operation of the law
Acquisition of Possession …ctd.
a) Acquisition of possession by occupation
 This is the acquiring or taking possession of a thing
without a previous possessor or without the consent of a
previous possessor. This may be:
- Original: when the thing being taken control of had no
previous possessor. This relates to things without
master res nullies susceptible of appropriation & res
derelictae (abandoned things).
A person who occupies such things acquires possession
Acquisition of Possession …ctd.
a) Acquisition of possession by occupation …ctd.
- Derivative: when a person occupies an object which has
possessor but against the will of such possessor.
Such form occupation are normally wrongful and the
possession defective.
 No specific provision on possession expressly indicates the
possibility of acquiring possession by occupation.
 The possibility of original occupation (occupation of masterless
objects is implicitly indicated in Arts 1151-1157
 Arts 1146 & 1148 seem to suggest about the possibility of
acquiring possession by taking against the will of another. But,
the possession is defective.
Acquisition of Possession …ctd.
b) Acquisition of possession by delivery
- This form of acquisition of possession takes place when
a person acquires control of a thing which has a
possessor but with the consent and cooperation of such
possessor. This can be: Actual Delivery or Constructive
(Symbolic) Deliver
- Actual delivery – is transfer of direct (immediate)
possession. It involves the actual transfer of object from
one possessor to another. Eg. actual delivery on sale, loan
or on deposit.
This way of acquiring possession is recognized in Art
1143.
Acquisition of Possession …ctd.
b) Acquisition of possession by delivery ….ctd.
- Constructive (Symbolic) delivery – here there is no
change in the position of direct possession/possessor
there is only transfer (creation of ) indirect
possession. This may take any of the following
forms:
o Traditio brevi menu
o Constitutem possessorium, or
o Attornment
Acquisition of Possession …ctd.
b) Acquisition of possession by delivery ….ctd.
o Traditio brevi menu – refers to the surrender of indirect
possession to the one who is in direct possession of the thing.
Eg. If I sale a thing with whom I deposited
Art 1147(1) – recognizes this modality of transferring/acquiring possession
o Constitutem possessorium: this is the converse of traditio brevi
menu. It refers to the transfer of indirect possession while the
direct possession remains with the transferor. Art 1145(1)
Eg. If I buy a book, from a book store and leave it for the seller to
keep it for me. Or if I buy a house and allow the seller to
continue living in.
Eg. If A sales which he deposited with C to B, A is transferring
the indirect possession he has to B.
Acquisition of Possession …ctd.
b) Acquisition of possession by delivery ….ctd.

Attornment: refers to the transfer of indirect possession

(from A) to another person (to B) while the direct possession
is in the hand of a third person (with C). Art 2831
Eg. If A sales which he deposited with C to B, A is
transferring the indirect possession he has to B.
Acquisition of Possession …ctd.
c) Acquisition of possession by operation of the law
- Possession may also be acquired by law.
- This happens when possession changes hands as a result
operation of the law; not by the initiation of the parties.
Eg. In case of succession, Art 826
Transfer of Possession
 There are 4 main ways of transferring possession
1. Deliver of the thing;
2. Delivery of the document that represent the thing;
3. Constructive delivery; and,
4. Traditio brevi menu
1. Transfer of possession by delivery of the thing
- Transfer of possession from one person (transferor) to
another (transferee) by delivery of the thing. Art 1143
- This usually happens by contract
Transfer of Possession …ctd.
2. Transfer of possession by delivery of the document
representing the thing
- As provided in Art 1144 possession may be transferred to a new
possessor by delivery of the thing representing the thing.
- This is not referring to immovables and special movables which
are required to be registered and title document issued (eg libre).
- Art 1144 is rather referring to documents representing or
replacing the thing, eg.:-
- ዲክላራሲዮን (customs declaration)
- Bill of lading – Art 187(3), Maritime Code
- Warehouse deposit vouchers
Transfer of Possession …ctd.
3. Constructive delivery
- Here possession will be transferred to a new possessor without
actual transfer of the object. See Art 1145(1)
• ‘things certain’ – the thing must exist in advance; it should not relate to a
future thing.
• ‘things that are generic specie’ – should be non-fungible. It must be
easily identifiable with no possibility of substituting one with another
of equivalent value.
• ‘declaration to detain the thing for another person’ – The declaration
may be made in different ways: by written or oral declarator statement,
by putting on marks/sign posts on the object, or by putting separately.
• Art 1145(2) is intended to prevent fraudulent act of traders on their
creditors.
Transfer of Possession …ctd.
4. Traditio brevi menu
- Art 1147(1) shows that transfer of possession can also be
made by transferring indirect possession to the person who
has the direct possession of the thing, without actually
delivery of the thing.
- But this change must take place lawfully/validly – by
consent or court order. It will not result from the unilateral
will of the direct possessor.
Defects/Vices of Possessions
 These are facts or situations relating to the manner of
acquisition or exercise of control over a thing and which make
the possession an imperfect one.
 The known sources of defective possession are:
– Secrecy (clandestineness)
– Dubiousness (equivocal/ambiguousness/uncertainty)
– Violence
– Discontinuity
– Precariousness
Defects/Vices of Possessions …ctd.
 Secrecy (clandestineness)
• This arises when a person hides his status or his acts relating to the possession
from the public.
• A person may make his possession secrete either at the time of taking
possession or in the manner he uses the object. Art 1146(2)
• Gives no right to the possessor: Art 1146(1)
 Dubiousness (equivocal/ambiguousness/uncertainty)
• Possession is dubious when it is not clear as to the possessor or holder status
of the person controlling a thing; that is when the intention of the person
controlling the thing is not clear. Art 1146(3)
• Gives rise to no right to the possessor: Art 1146(1)
 Violence
 Discontinuity
 Precariousness
Defects/Vices of Possessions …ctd.
 Violence
• This relates to the manner the possession is acquired. If the possession is
acquired by violence (physical or psychological) or without consent of the
previous possessor.
 Discontinuity
• When a person claims to be a possessor, he has to continue the possession
without interruption. Obviously, reasonable interruption is tolerable.
• Once a person controls an object his control should not be erratic, i.e., control
the thing today, lose it tomorrow & regain it again.
• Art 1142
 Precariousness
• Possession is precarious when a person controls a thing on his own account/his
own interest but acknowledges the possession of another person
• Eg. Bailee, lessee, guardian, pledge, usufructuary
 Termination of Possession
 Possession may terminate on anyone of the following
circumstances:
o Loss of both animus & corpus elements of possession
o Loss of the corpus, preserving the animus
o Loss of the animus, while the object is preserved

o Loss of both animus & corpus elements of possession

– A person may lose both the animus & the corpus in one of the two ways:
• Alienation of corpus – though transfer of possession
• Abandoning the object (turning it into res derelictae)
 Termination of Possession …ctd.
o Loss of the corpus, preserving the animus
– This situation arises when an object is misplaced or lost; you
lose the object but the animus is there.
– This (loss of the corpus) doesn’t always result in loss of
possession. If the disruption or loss of corpus is for a short
time, it will not result in loss of possession. It has to be
prolonged loss of corpus that results in termination of
possession. See Art 1142.

o Loss of the animus, while the object is preserved

– This happens in case of constructive transfer of possession. Art
1145(1)