Property, possession and holding

Earlier we discussed co-ownership and the theory of public property as a special case of co-ownership. Here we will have a closer look on the related concepts of property, possession and holding. These will help us to better understand the relationship between government and citizens regarding Mordan land law.

Property

Property is a complex right, i.e. it is not a single right but rather a bundle of rights. Put simply property consist of the rights of ususfructus and abusus. We will discuss these one by one.

Usus is the right to use one’s property to the exclusion of others. If I own a car I am allowed to use it, while others may only use it with my permission.

Fructus is best explained with an example. If I own an apple tree, then I also become the owner of the apples even after picking them. In legal context “fruits” is also used more prosaic, for instance for dividend from shares.

Abusus is the right to transfer ownership to another or to destroy one’s property.  This terminates one’s property rights.

Possession

In popular speech property and possession are often conflated. Nevertheless, these two concepts are quiet distinct. Property is a legal relation, whereas possession is a physical one. Property is about who is entitled to a particular good and possession is about who has actual control of that good.

An owner is often also the possessor of its property, though this is not always the case. If my car is stolen, I am still its owner though the thief is now its possessor. Technically I could still sell my stolen car to another. (However, its unlikely that I will be able to find a buyer, but this transfer of property is relevant in insurance law.)

A possessor keeps a good for himself. If the possessor is also the owner, this is no problem. Issues arise if the possessor is a different person than the owners. Often this is the result of theft, but also subsequent buyers of stolen goods are non-owner possessors.

However, a non-owner possessor is not always malevolent. It is possible that someone appropriates some good in the mistaken belief it is ownerless.

Even if a possessor is not a legal owner, it does not mean he is without legal protection. In practice it is often impossible for people to know who is the real owner of something and hence it makes sense to give the benefit of the doubt to its current possessor.

Holding

Holding is similar to possession, in that both refer to actual control. The difference between possession and holding, is that in the latter case the holder keeps a good for another rather than for himself.

Suppose that Alice brings her jewel box to Bob to put it in his safe, while she is on vacation, than Bob is holding her jewel box for Alice. Holding is a common practice. Almost every one has once given something to another for safekeeping. Other examples of holding are lending and renting goods.

An important question is what a holder may do with these goods. At first sight, one would state that the holder may only keep it safe and nothing else. But, for instance, the borrower of a library book has obviously the right to use this book.

Maybe a little surprising a holder may, sometimes, transfer the ownership of the goods in his care. Actually this is quite common. We can illustrate this with another example.

Suppose that Alice runs a gallery and Bob is artist who exhibits his works in her gallery. Legally Alice is holding Bobs works. However, the purpose of exhibition in a gallery, is to sell works to interest buyers. In this case it would be sensible if Alice would be able to sell Bob’s works on his behalf.

Of course, such action is only valid if the owner has authorized the holder to dispose his property. In other words a holder needs to have authority of disposal in order to alienate these goods.

Important to note is that authority of disposal does not necessarily entails alienation, but can also mean that the holder can borrow or lease out goods to others.

In another post we will use the concepts of co-ownership and holding to evaluate the relation between public property and the government.

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