Cases such as this one from Missouri state that “possession is defined as the imprisonment and control, or manual or ideal custody, of anything that may be the object of property for its own use and pleasure, either as owner or as the holder of a qualified right in it, and personally or by another person exercising it in his place and on his behalf.” A key question is therefore the type of “title” acquired by the property. The book distills and evaluates three approaches: In civil matters, intention is rarely part of property. However, in criminal cases, possession usually requires conscious possession. In other words, the person must be aware that the object is illegal and that he possesses it. A person who has illegal drugs can avoid conviction if they believe the drugs are legal. In general, to be guilty of criminal possession, a person must either know that the item is illegal at the time of receipt, or retain possession of the item after learning that it is illegal. A temporary transfer of possession is called a deposit. Surety is often thought of as the separation of ownership and possession. For example, the library retains ownership of the book as long as you own it and has the right to take it back when your right is exhausted. A common transaction with a deposit is a conditional sale or hire purchase, where the seller leaves the buyer in possession of the item before it is paid. The buyer pays the purchase price in installments and when paid in full, ownership of the item passes from the seller to the buyer. The court found him guilty of theft (theft) because the buyer knew nothing about the existence of the money and the secret drawer, so it cannot be said that he was in possession of this money and did not intend to possess the contents of the secret drawer until he found it. Classical Roman jurists recognized two levels of authority over a possessed cause, the lesser of which was called imprisonment and the higher a possession, which was in fact called that.
Sometimes there is illegal possession such as profit mesne (the person must repay it with interest). Possession cannot be protected and recognized by law. In civil law countries, possession is not a right, but a (legal) fact that enjoys some protection by law. It may provide proof of ownership, but as such does not satisfy the burden of proof. For example, ownership of a house is never proven by mere possession of a house. Possession is a de facto state of exercising control over an object, whether it is the owner or not. Only legal (the owner has a legal basis), bona fide (the owner does not know that he does not have the right of possession) and regular (not acquired by force or deception) possessions can become property over time. An owner enjoys a certain judicial protection against third parties, even if he is not the owner. (c) The point of view of presumption of ownership: Possession gives rise to the presumption that C has an interest in ownership. According to Salmond, a corpus possessor has two types of relationships: possession, by law, acquisition of either a considerable degree of physical control over a physical thing, such as land or movable property, or the legal right to control intangible property, such as a loan – with the clear intention of ownership. In terms of land and chattel, possession may have started as a physical fact, but possession today is often an abstraction.
For example, an officer or employee may have custody of an object, but he or she has no possession; His employer does this, even if he is thousands of miles away from the object he owns. Moreover, except in the most abstract way, it is not possible to speak of possession of intangible assets. Possession requires both control and intent. It follows from the first moment that both conditions exist simultaneously. Usually, intent precedes control, such as when you see a coin on the bottom and stretch down to pick it up. Yet it is conceivable for a person to take control of something before intending to possess it. If he were unknowingly seated in the seat of a train and therefore in control of a $10 bill, he could take possession of it by taking cognizance of the ticket and intending to possess it. People may also intend to own things that have been left unknowingly in spaces they control. The court found that the company had first possession of the rings by owning the pond and that, therefore, the defendant had not acquired title. (a) The conception of the right of possession: The rights acquired by C, the owner, are calibrated to protect the possession of C as such, but do not go beyond.
Illegitimate property is rarely viewed positively in modern cultures, so respecting a legitimate claim prevents others from interfering with the owner`s rightful possession. My thoughts on this point have evolved over time. In some previous documents, I have argued that a compelling account of the law must address cases like The Winkfield, and not just marginally, where the court`s decision was clearly based on the perspective of presumed ownership. I still think that`s true, but of course that doesn`t mean we have to accept the point of view of presumed ownership as the best perspective. One strategy is to argue that cases that support this view are based on a conceptual error. Professor Swadling presented a powerful and influential version of this argument. According to Swadling, conjecture is, by its very nature, methods of proving facts, and whether a person has an interest in the property is not a question of fact. For the reasons given in chapter 2 of the book, I do not accept Swadling`s argument.
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