The concept of possession has been debated at least since the mid-19th century, but to date scholars still do not have a consensus on how to define it. Civil codes in the European Continent and East Asia are also divided over how possession is delineated. Some countries distinguish possession and detention, whereas others use the terms possessors and agents in possession. A few jurisdictions consider possession to be a right, while others treats it as a fact. Some civil codes simply define possession as actual control, but others also require specific intents.
Drawing on Henry Smith’s economy of concept theory, this book chapter argues that a simpler concept of possession (with actual control as the necessary and sufficient condition) economizes on information costs and makes the possession law much easier to understand. The confusion in the civil codes and the scholarly literature arises from conflation of three different concepts: possession as a fact; possession as a (subsidiary) right that is one stick in the ownership bundle; and possession as a basis for acquiring and relinquishing titles, as in adverse possession, first possession, and abandonment. Actual control is the least common denominator in all possession-related issues; thus, possession qua actual control is a fact. The subsidiary possessory right is implied in the property structure, but never spelled out. It can be transferred from owners to, e.g., holders of usufruct. Finally, intents only matter when possessors gain or lose titles, and the required intents differ across contexts; thus, a specific intent should not be embedded in the baseline definition of possession, but left to specific doctrines.
Chang, Yun-chien, The Economy of Concept and Possession (November 8, 2013). Law and Economics of Possession (edited by Yun-chien Chang), Cambridge University Press, 2014, Forthcoming.