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THE PHYSICAL ELEMENT OF POSSESSION OF CORPOREAL MOVEABLE PROPERTY IN SCOTS LAW CRAIG ANDERSON Submitted for the degree of Ph.D. The University of Edinburgh 2014 1 ABSTRACT Possession is a legal concept applying in a variety of legal contexts. In Scottish legal literature, however, there is little in-depth writing on the law of possession, and much of the law is uncertain. This thesis is intended to be a contribution to remedying this deficiency as far as one aspect of the law of possession is concerned, the physical element of possession of corporeal moveable property. As part of this, in the hope that this comparative and historical consideration would shed some light on the issues raised, the law of Rome is considered, along with the law of France, Germany and South Africa, as examples of the Civil Law tradition of legal systems drawing on Roman law. English law is also considered. The thesis is thus able to draw on both of the major traditions influencing the development of Scots law, namely the Civil Law and the Common Law. In this way, the thesis is able to consider the extent to which the Scots law on possession has been influenced by these two traditions. The thesis begins giving an outline of the law of possession and the place of the physical element within it. The remainder of the thesis considers in detail the physical element and its role in both the acquisition and the loss of possession of corporeal moveable property. One of the difficulties with this is that many different areas of law use a concept called 'possession', and views differ as to the extent to which it is appropriate to talk of a general concept of possession. It is argued in the thesis that a general test can be developed for the physical element of possession, based on control of the property in a manner consistent with the assertion of a right to the property. This test is then developed through consideration of how it applies in a number of specific factual contexts. 2 I declare: (a) that this thesis has been composed by me; (b) that the work is my own; and (c) that the work has not been submitted for any other degree or professional qualification. ............................................... Craig Anderson 3 CONTENTS Acknowledgements 11 Abbreviations 12 Foreword 22 1 The meaning of possession 26 2 Historical and comparative approaches 57 3 Acquisition of possession 84 4 Loss of possession 138 5 Momentary control 154 6 Acquisition of possession through symbolical acts 175 7 Possession of animals 205 8 Conclusions 268 Bibliography 271 4 CONTENTS Acknowledgements 11 Abbreviations 12 Foreword 22 1 The meaning of possession 26 A. What is possession? 26 (1) Possession and ownership 26 (a) The Civilian tradition 26 (b) The Common Law tradition 27 (2) Possession and the right to possess 29 (3) The elements of possession 29 (a) Animus 30 (b) Corpus 31 (c) Relationship between corpus and animus 32 (d) Natural and civil possession 33 (4) Summary of requirements for possession 35 B. Is possession a unitary concept? 36 (1) Common Law concerns 36 (2) The Scots position 40 (3) Three difficult areas 45 (a) Pure economic loss 45 (b) Statutory offences 46 (c) Delivery 48 (4) Conclusion 55 2 Historical and comparative approaches 57 A. Introduction 57 B. The physical element in the acquisition of possession 57 5 (1) Roman law 57 (2) The French tradition 60 (a) Pre-codification 60 (b) Modern law 61 (3) Roman-Dutch and South African law 64 (4) Germany 67 (a) Pre-codification 67 (b) Modern law 68 (5) English law 70 (a) The general position 70 (b) Exclusivity 72 (c) Items on another's land 73 C. The physical element in the loss of possession 76 (1) Roman law 76 (2) The French tradition 77 (3) Roman-Dutch and South African law 78 (4) Germany 79 (5) English law 81 D. Conclusions 82 3 Acquisition of possession 84 A. Introduction 84 B. Institutional and other early writings 86 C. Later views 91 D. Control 93 (1) The need to take control 93 (2) Deprivation of another's control 97 (3) Items in buildings and on land 99 (a) Items in buildings and on land generally 99 (b) Buildings and land with limited access 100 (4) Criminal law 104 (5) Level of control required 107 6 (6) Conclusion 110 E. Susceptibility to control 111 (1) Large or unwieldy items 112 (2) Very small items 114 (3) Lack of necessary components 117 (4) External factors 119 (5) Items in the body 120 (6) Conclusions 122 F. Exclusivity 122 (1) The need for exclusivity 122 (2) Potential interference 123 (a) Potential interference generally 123 (b) Traditio clavium 124 (3) Actual interference with consent or right 127 (a) The general issue 127 (b) Shared possession 128 (c) Multiple users 131 (4) Actual interference without consent or right 132 (5) Conclusion 133 G. Conclusions 134 4 Loss of possession 138 A. Introduction 138 B. The potentially relevant factors 139 (1) Absence 139 (2) Ability to resume control where there is an obstacle to control of the thing itself 143 (3) Ability to resume control where the possessor is under some restraint 147 (4) Likelihood of interference 149 C. Conclusions 153 7 5 Momentary control 154 A. Introduction 154 B. Delivery 156 C. Criminal law 161 (1) Introduction 161 (2) Scottish cases concerning statutory offences 162 (3) Non-Scottish cases concerning statutory offences 163 (4) Reset 166 D. Popov v Hayashi 167 (1) Introduction 167 (2) Facts of the case 167 (3) The decision 168 (4) Popov and Scots law 170 E. Conclusion 173 6 Acquisition of possession through symbolical acts 175 A. Introduction: the scope of the chapter 175 B. Exclusions from the scope of the present chapter 177 (1) Delivery of keys 178 (2) Bills of lading 181 (3) Ships 184 (4) The Factors Acts 185 C. Historical and comparative approaches 186 D. Institutional and other early writings 188 E. Case law 190 (1) Rejection of symbolical acquisition of possession 191 (a) Possession by giving of sample 192 (b) Possession by marking item 192 (c) Possession by writing 193 (2) Cases apparently allowing symbolical acquisition of possession 197 (a) Possession by giving of sample 197 8 (b) Possession by marking 198 (c) Possession by writing 202 F. Conclusion 203 7 Possession of animals 205 A. Introduction 205 (1) Significance of possession of animals 205 (2) Occupatio 205 (3) Other applications of possession of animals 205 (4) Methods of possessing animals 206 B. Possession by physical restraint 206 (1) Historical and comparative approaches 206 (a) Roman law 206 (b) France 210 (c) Roman-Dutch law 212 (d) Germany 213 (e) England 217 (2) Scotland 218 (a) Institutional and other early writings 218 (b) Statutory intervention 221 (c) Modern consideration 222 (3) Discussion and conclusions 225 C. Possession through habit of returning 226 (1) Historical and comparative approaches 227 (a) Roman law 227 (b) France 228 (c) Roman-Dutch law 228 (d) Germany 229 (e) England 229 (2) Scotland 230 (3) Discussion and conclusions 230 D. Possession through distinctive markings 231 9 (1) Historical and comparative approaches 231 (a) Roman law 231 (b) France 232 (c) Roman-Dutch law 232 (d) Germany 233 (e) England 233 (2) Scotland 233 (3) Conclusions 237 E. Possession by pursuit 238 (1) Historical and comparative approaches 240 (a) Roman law 240 (b) France 242 (c) Roman-Dutch law 244 (d) Germany 246 (e) England 247 (2) Scotland 249 (a) Institutional and other early writings 249 (b) Adam Smith and exclusive privilege 252 (c) Whales 255 (d) Legislative intervention 257 (e) Acquisition of possession by pursuit 258 (f) Retention of possession by pursuit 262 (3) Discussion and conclusions 264 F. Conclusions 267 8 Conclusions 268 Bibliography 271 10 ACKNOWLEDGEMENTS I acknowledge first the assistance of my supervisors Dr Andrew Steven, and subsequently Professor George Gretton, and Scott Wortley. This thesis owes a great deal to their guidance and support. I am grateful also for the financial support generously provided by the Edinburgh Legal Education Trust and by my employer, Robert Gordon University, without which I could not have reached this point. The writing of this thesis would not have been possible at all without the constant support of my wife, Katherine. This thesis is dedicated to her, and to our children, Alexander, Lucy, Charlotte, Harriet and Robert. 11 ABBREVIATIONS Baker, Legal History Baker J H, An Introduction to English Legal History (4th edn, Oxford University Press 2007) Balfour, Practicks Balfour J, The Practicks of Sir James Balfour of Pittendreich (McNeill P G B (ed), Stair Society vols 21-22, 1962-1963) Bankton, Inst. M'Douall A, Lord Bankton, An Institute of the Laws of Scotland in Civil Rights: With Observations upon the Agreement or Diversity Between Them and the Laws