Monday, July 6, 2009
I'm presently working on a paper on possession. What follows is my current thinking on the different roles that possession plays in property law and theory. Comments of any sort would be very welcome.
The idea of possession plays three important, but distinct, roles in property law and theory. First, possession is central to theories justifying individual ownership of objects that previously had been unowned. These theories seek to explain and defend the origin of a system of private ownership. In Locke’s theory of property, for example, people gain ownership of objects by possessing those objects and mixing labor with them. Initial ownership theories rest on an idea of first possession, in which the first possessor becomes the first owner of an object.
Second, the idea of prior possession lies at the heart of many property law doctrines. Under the rule of prior possession, a prior possessor will generally have a superior claim to an object as compared to a subsequent possessor. If formal ownership cannot be established between two claimants for the same object, the rule of prior possession states that the prior possessor will be given ownership of the object. There are many disputes in property law about what actually constitutes possession. For example, the famous case of Pierson v. Post involved a dispute about whether pursuit of an animal by a hunter was sufficient to establish possession, or whether the actual killing or grabbing of the animal was necessary to possess it. All cases agree, however, that once the issue of possession is resolved, a prior possessor typically will win over a subsequent possessor.
Prior possession bears a resemblance to first possession, in that both are consistent with the maxim “first in time, first in right” and give superior claim to an object to the earliest person to lay claim to it. First possession and prior possession, however, tend to do different types of work. First possession is concerned with the initial ownership of an object, and in a world where there are few unowned objects, first possession is largely relevant to theoretical debates about the idea of ownership itself. Prior possession, in contrast, is a working doctrine reflected in the operation of property law. It assumes the big-picture normative justification of a system of private ownership, and addresses the competing claims of ownership of two possessors, neither of whom in the typical case was the first to own the object in question. This is not to say that the rule of prior possession is without normative content – it reflects a normative position that prior possessors should have superior rights to current possessors.
Third, possession plays an evidentiary role in disputes about ownership. Absent other evidence about ownership, current possession may create a presumption of ownership. This evidentiary role of possession is reflected in Lord Mansfield’s famous observation that “Possession is very strong; rather more than nine points of the law.” Despite its evidentiary significance, however, current possession plays little substantive role in property law. If person B has current possession, and person A can demonstrate prior possession, then the rules of property law will generally operate to vindicate A’s ownership of the object.
The difference between prior possession and current possession is reflected in the basic operation of property law. The essential function of property law is to vindicate prior rights in an object. If B has current possession and A had prior possession or other evidence of ownership, the law will force B to return the object to A. We could imagine an alternative set of ownership rules that protects current possession over prior possession. This alternative ownership law would be consistent with the playground maxim “finders keepers, losers weepers.” (Despite its popularity with the six-to-ten-year-old set, this maxim is not reflected in the actual law of finding, and the original owner or possessor does not lose ownership to the finder.). Under this alternate ownership regime, whoever currently possesses the object would own the object. If B has current possession and A had prior possession, the alternate approach would protect B’s possession and would not force a return to A. This approach is exactly the opposite of the current law of property.
[Comments are held for approval, so there will be some delay in posting]