Concept of Possession

and Ownership

Dr Charvi Kumar, Symbiosis Law School, Nagpur

Definitions
Meaning of Possession

• (From: Cornell Law School’s Wex Definition Team):

• Possession means the ownership, control, or occupancy of any object, asset, or
property, by a person.

• The two most common types of possession are:

• Actual possession, also called possession in fact, is used to describe immediate
physical contact ... “actual possession is what most of us think of as
possession—that is, having physical custody or control of an object.”
• Constructive possession, also called possession in law, exists when a person
has knowledge of an object plus the ability to control the object, even when
the person has no physical contact with it.
Meaning of Ownership

• (From: Cornell Law School’s Wex Definition Team):

• Ownership is the legal right to use, possess, and give away a thing.
• Ownership can be tangible such as personal property and land, or it can
be of intangible things such as intellectual property rights.

• So what is the difference between ownership and possession?

o Can one possess property without owning it?
o Can one own property without possessing it?
o What is the definition of property?
Definition
of
Property
“Property, an object of legal rights, which
embraces possessions or wealth
collectively, frequently with strong
connotations of individual ownership. In
law the term refers to the complex of jural
relationships between and among
persons with respect to things.”–
-- Property, Legal Concept, Encyclopedia
Britannica
 Possession or Ownership
has to be with respect to
some sort of entity,

IN
which can be tangible or
intangible.

BRIEF, An individual (or group of

individuals) can have
some sort of rights over
that entity
JURISPRUDENCE OF OWNERSHIP AND
POSSESSION OF PROPERTY

“[P]roperty and contract are the two subjects

about which philosophy of law has had the most
to say” -- Roscoe Pound
 HISTORICAL JURISPRUDENCE
Evolution of the Concept – Historians document the rise of the
concepts of ownership and possession from tens of thousands
of years ago
Based on- Yuval Noah Harari, Sapiens: A
Brief History of Humankind 2011
(CONTD)

• + Animals, for a large part, do not understand concepts of ownership or

property.
• + Cognitive Revolution – Social/collective possession (but limited scope,
movable property)
• + Agricultural Revolution – Social/collective possession evolving into
collective ownership, especially of immovable property… slow rise of
individual property
• + Scientific Revolution – The rise of capitalism, consumerism, and, most
importantly, intellectual property changed notions of ownership and
possession yet again
(CONTD)

• + Henry Maine: Private ownership was chiefly formed by the

gradual disentanglement of the separate rights of individual from
the blended rights of the community.
• + Roscoe Pound (in his commentary): Earliest form of property
was group property. As society slowly fragmented into smaller
family units, ownership and possession over individual property
(along with other individual rights) came into existence.
A “CONCEPTION”/FIGMENT OF
IMAGINATION

Bentham: The very notion of

Pound (in his commentary)
property ownership came into
agrees. Adds, humans are
existence because of the
driven by not just the instinct of
“acquisitive instinct” of man.
acquiring things, but also
People desired owning things
asserting their ownership and
and that desire led to the
control over them.
creation of property.
 The concepts of possession and ownership
first arose thousands of years ago, although
possession precedes ownership.

QUICK RECAP Bentham: Because of the “acquisitive

SO FAR nature” of man.

Maine: Property was collectively possessed,

then collectively owned before turning to
private ownership by individuals.
Creation by State
(Social Contract)
Hobbes, Leviathan (1651)

"(T)here be no propriety, no Dominion, no Mine and Thine distinct; but

(only) that to be every man's that he can get; and for so long as he can
keep it…
“…Every man has indeed a Propriety that excludes the Right of
every other subject: And he has it (only) from the (sovereign
power); without the protection whereof every other man should
have right to the same. But the right of the sovereign also be
excluded, he cannot perform the office they have put him into,
which is to defend them both from foreign enemies and from the
injuries of one another; and consequently there is no longer a
Common-wealth."
Simply Put...
• Per Hobbes, in the state of nature, there was no
concept of ownership.
• People possessed whatever they could get, but
their possession was also precarious, as anyone
else could snatch away their property.
• Following the creation of state by way of social
contract, the sovereign now ensures everyone
has right of ownership and possession over
property. The sovereign protects others from
harming you or your property.
• But you do not have the right of property
against the sovereign, because the sovereign
needs access to your resources to do their job.
 • “Though the Earth…be common to all Men, yet
every Man has a Property in his own Person. This no
Body has any Right to but himself. The Labour of his
Body, and the Work of his Hands, we may say, are
properly his. Whatsoever then he removes out of the
JOHN LOCKE State that Nature hath provided, and left it in, he
hath mixed his Labour with, and joyned to it
ON something that is his own, and thereby makes it
his Property. It being by him removed from the
OWNERSHIP common state Nature placed it in, it hath by this
labour something annexed to it, that excludes the
AND LABOUR common right of other Men.”

• John Locke, Two

Treatises of Government
(1689)
IN SIMPLER TERMS
 • Columbus discovers a new continent
(America). The land is unowned.
• Columbus can only claim that part of
the land which he can farm by
himself or along with his family.
• If he has to hire extra labour, that
land cannot be his.
EXAMPLE • The rest of the land remains unused,
until another “first user” comes along.
• Similarly, A plucks an apple from a wild
apple tree that belongs to no one. The
apple comes under A’s ownership.
• But is it so cut and dried? Could A pluck
all the apples of all the trees in the
region and claim ownership over them
all?
 Locke asserted that you can What happens if someone
only take as much possession takes so much property that
of property as would ensure there is none left for anyone
that everyone else also has else? Can the state grab that
enough common property (not property and redistribute it?
just quantity but also quality). (Land Acquisition).

LOCKEAN PROVISIO- A term

coined by Robert Nozick.
Rousseau and why Ownership
and Possession are Evil Concepts
“It is here that the true corner-stone of civil society is to be sought.
It was to convert possession into property, an usurpation into a
right, that Law was founded and the State called into existence....
The first man who enclosed a plot of ground and bethought
himself of saying This is mine, and found others foolish enough to
believe him, was the true founder of civil society.”

--Jean Jacques Rousseau, Discourse on the Origin and Basis of

Inequality Among Men (Original: Discours sur l'origine et les
fondements de l'inégalité parmi les hommes) (1755).
Rousseau's Ideas
• Humans who lived in a state of nature were
peaceful and lived solitary, uncomplicated
lives.
• It was the creation of society and private
property which complicated things and
caused competition and conflict.
• He built upon Locke's work of enclosing a
piece of land, but he said: whoever the first
person was who enclosed a piece of land and
called it his own, and then convinced other
people to acknowledge his ownership, that
was the person who founded 'civilised
society' and caused all sorts of inequality and
strife to the human existence.
AMARTYA SEN, THE IDEA OF
JUSTICE (2009)

Three children are fighting over the possession of a flute.

• A made the flute
• B is the only one who can play it
• C is simply very poor and has no other toys
Exercise: Think of the concepts discussed up until now and
decide what you would do if you were the “judge” in this case.
What about applying the Lockean provisio?