Possession according to Savigny

Friedrich Carl von Savigny (1779–1861), a renowned German jurist and founder of the Historical School of Jurisprudence, made a profound contribution to the understanding of possession in legal theory. His explanation, known as the Savignian theory of possession, remains one of the most influential analyses in classical jurisprudence.
Savigny’s concept of possession is both psychological and factual, as he viewed possession not merely as physical control over a thing but as a combination of physical power and mental intention. His theory sought to determine when possession begins, how it is maintained, and under what conditions it is lost or protected by law.

Historical Background

Before Savigny, Roman law and subsequent jurists had used the term possessio loosely, often confusing it with ownership (dominium). Savigny, through his detailed study of Roman legal sources, sought to clarify possession as a distinct legal concept independent of ownership.
His theory, presented in his work Das Recht des Besitzes (The Law of Possession, 1803), established possession as a factual state protected by law because of its importance in maintaining social peace and order.

Definition of Possession

According to Savigny,

“Possession is the intention coupled with the physical power of dealing with a thing as one’s own.”

Thus, for Savigny, possession consists of two essential elements:

1. Corpus Possessionis – the physical element (actual control over the object).
2. Animus Possidendi – the mental element (intention to hold the object as one’s own).

Only when both elements coexist does legal possession arise.

Elements of Savigny’s Theory

1. Corpus Possessionis (Physical Element)

The term corpus refers to physical control or power over a thing. It is the external, objective element of possession.According to Savigny, physical contact (corpus) means the ability to deal with the thing according to one’s will and to exclude others from its use.

• Example: If A has the keys to his locked house, he has corpus because he has physical control and can exclude others, even if he is not inside.
• Counterexample: A passer-by touching someone’s car does not have corpus because there is no control or authority.

Savigny stressed that corpus need not mean constant physical contact; it suffices if the possessor can exercise control when desired.

2. Animus Possidendi (Mental Element)

Animus refers to the intention of possession — the mental attitude of holding the thing as one’s own (animus domini).
For Savigny, mere physical control is insufficient to establish possession unless accompanied by the intention to possess the thing for oneself and to exclude others.

• Example: A tenant possesses property with animus possidendi for himself during the term of lease.
• A servant, however, holds property on behalf of the master (animus rem alteri habendi) and thus lacks animus to possess; he merely has custody.

Hence, intention differentiates possession from mere detention or custody.

Distinction Between Possession and Detention

Savigny made a crucial distinction between possession and detention (or mere custody).

Thus, a servant does not possess his master’s goods even if he physically holds them, because he lacks the intention (animus possidendi) to treat them as his own.

Features of Savigny’s Theory

1. Dual Elements: Possession arises only when corpus and animus coexist.
2. Subjective Approach: Emphasis is placed on the possessor’s state of mind.
3. Possession as Fact, Not Right: It is a factual condition recognised by law, not a legal right in itself.
4. Social Function: Protection of possession maintains peace and prevents disputes over ownership.
5. Legal Protection: Possession is protected even against the true owner if disturbed unlawfully (possessory remedies).

Modes of Acquiring Possession

According to Savigny, possession can be acquired in the following ways:

1. Actual Seizure: Physical control and intention together.
2. Through Others: By an agent or servant acting under the possessor’s authority (though they themselves do not possess).
3. By Constructive Possession: When the possessor retains control through means such as keys or documents representing possession.

Possession continues until the possessor loses either corpus or animus.

Termination of Possession

Possession ends when either element ceases:

• Loss of Corpus: When physical control or the ability to exercise control is lost (e.g., losing an item).
• Loss of Animus: When the possessor gives up the intention to hold as owner (e.g., abandonment).

Once both are lost, possession legally ceases.

Illustrations of Savigny’s Theory

1. A owns a car but lends it to B to drive for a day.
   • A retains animus possidendi (intention to own), though he lacks immediate corpus.
   • B has corpus (physical control) but lacks animus since he acknowledges A’s ownership.
   • Hence, A remains the possessor in law; B is merely a custodian.
2. A tenant occupies a house and pays rent.
   • The tenant has both corpus and animus possidendi, so he is the legal possessor.
   • The landlord retains animus domini (intention of ownership) but not possession.

Criticism of Savigny’s Theory

While Savigny’s explanation is elegant and historically grounded, it has faced several criticisms:

1. Excessive Emphasis on Intention: Critics argue that possession is primarily a matter of fact rather than of mental state. It is often difficult to determine or prove animus possidendi.
2. Unsuitability for Movable Property: In cases involving movable goods (e.g., lost items), physical control may be sufficient to establish possession, regardless of intention.
3. Neglect of Social and Economic Realities: Savigny’s theory is individualistic and does not account for collective or institutional forms of possession.
4. Contrast with Ihering’s Theory: The later jurist Rudolf von Ihering criticised Savigny’s approach and proposed the objective theory, arguing that intention is inferred from acts of control and that law protects possession because of its social utility, not the possessor’s will.

Comparison Between Savigny and Ihering

Both theories influenced modern law, but many legal systems, including English and Indian law, tend to follow a balanced view combining both — recognising factual control (corpus) and presuming intention (animus) where appropriate.

Significance of Savigny’s Theory

Despite its criticisms, Savigny’s theory remains foundational because it:

• Provided the first systematic analysis of possession in jurisprudence.
• Distinguished possession from ownership and custody clearly.
• Influenced the development of civil and property law in Europe and beyond.
• Emphasised the psychological and moral dimensions of legal possession.