Chapter Three: Possession

3.1 Meaning of Possession

3.2. Acquisition and Transfer of Possession
3.3 Defects of Possession
3.4 Dispossession and Remedies
3.1 Meaning of Possession

Oxford Dictionary=

1. Something that someone possesses, but to which he doesn’t

necessarily have private property rights
2. Something that is owned
3. Ownership; taking, holding, keeping something as one’s own
4. A territory under the rule of another country
5. The condition or affliction of being possessed by a demon or
other supernatural entity.
6. In sports, the control of the ball; the opportunity to be on the
offensive
7. In linguistics, a syntactic relationship between two nouns or
nominals that may be used to indicate ownership.
The term ‘possession’ may be defined as the detention and
enjoyment of a thing by a person himself or through another person
in his name. It refers to the relation of person to a thing over which
he may, at his pleasure, exercise such control as the character of the
thing permits to the exclusion of other persons. Possession in the
narrow legal sense is the holding of a thing in the power of a person
who intends to exercise, with regard to it, a property right. (Art 1140
of the Civil Code).

The distinction between detention and possession follows from a

proper analysis of the latter concept, i.e., the fact that possession is
made up of two elements
•The Corpus or element of physical control
•The Animus or element of intent with which such control is
exercised.
Accordingly, though the holder and the
possessor have the same physical
control, the difference between them is
found in the mental element, i.e., the
intent of the possessor and what
distinguishes the possessor from the
mere holder is the animus domino or
the desire to hold for one self and not
on behalf of another.

On the other hand, the mere holder

holds the thing not for his own benefit
but for the benefit of another person
3.2. Acquisition and Transfer of Possession
Acquisition of possession: things or objects of
property can be acquired by:
•Physically controlling the thing
•Showing clear intention to use such thing for
himself.

The taking of possession can be executed not only by the

intended acquirer, but also through the offices of a third
party acting as an agent or representative. The intention to
control a thing for one’s own interest/ animus/ must be
manifested by an external act which is usually represented
by the taking of possession itself or entering in to an
agreement or other legal transactions.
Transfer of Possession
The transfer of possession may result from:
•Contracts such as sale, donation or
•Operation of the law.
Possession may be transferred by:
•the delivery or handing over the thing or
•Documents representing the thing such as a bill of lading,
consignment note, a ware house goods deposit certificate.
•Brave-manue, i.e., an agreement between the holder and the
person for the account of whom the former exercises possession and
in which the holder ceases to hold in the name of another and begins
to possess in his own name.
•Constructive possession in which the possessor agrees to cease to
hold in his own name and to begin to hold for the account of another
who is considered as the actual possessor. (Art. 1143-1145)
3.3 Defects of Possession
Art 1146/1/ of the Civil Code also provides that defective
possession shall not give rise to any right. The following are the
grounds that can render a possession defective.

1. Precarious Possession happens if the person does not

have a right of ownership in relation to the object he holds.
Hence, the possession of a usufructuary, a limited user /usage/,
a tenant farmer, leaseholder or a pledgee, a creditor secured by
antichresis, a tutor with regard to a minor's property.

2. Clandestine Possession
Possession is clandestine, that means not open, if the acts by which it was
acquired and continued were not such as to be known to the outside,
especially to those persons against whom they are to be claimed.
Clandestineness is purely a relative defect that can be subject to claim only
by those who could not have known about the possession.
3. Violence
a possession acquired or continued by physical or psychological violence is vitiated
by a defect of violence. The Ethiopian law does not clearly declare violence as a
cause for defectiveness of possession (Art 1146). However, we can deduce from the
provisions of Art 1148, which allows a possessor to use force to recover a thing
which has been taken away from him through violence, that a person who used
force to acquire possession is not protected by the law as his action is unlawful and
violates public interest for peace and order.

4. Ambiguous/ Dubious possession

According to Art 1146/3/, a possession is said to ambiguous or dubious
where, in the circumstances, it is doubtful whether the thing belongs
to the person who claims to be the possessor or whether he holds the
thing on behalf of another person. This type of defect clearly related to
the mental or animus element of possession. An ambiguous
possession shall not have the effects of possession. For instance, it
cannot be the base for acquisitive prescription (Arts 1146/1/ 1168 and
1150 ).
3.4 EFFECTS OF POSSESSION
Possession may create ownership either by occupation, i.e., by
taking control of res-nullius/ a thing without an owner/ or through the
expiration of a period of acquisitive prescription(Art 1151 and 1168).
Possession is a prima facie evidence of ownership, and he who
would disturb a possessor must show either title/ownership or a
better possessory right and defense of lack of legal title by the
possessor may not be set up him.

For example, a blacksmith cannot claim the return of a ring from a

person who found it on the ground that the finder is not an owner,
nor can a person who is not an owner claim the return of a thing from
a thief. Hence, even a wrongful possession is good against all persons
except the true owner or one claiming through him or one claiming a
prior possessory right(Art 1193 ).
Possession is the basis for certain remedies because the law
protects a possessor, as it does not always know that a possession
in question is unlawful. The doctrine that in most cases possessors
are the rightful owners may not be historically accurate, but it is
convenient for the law to reward possession as well- founded, at
least until a superior title is shown to exist.

3.4 Dispossession and Remedies

Dispossession is the act of taking away an object of property from

the person in whose control such a thing is situated. Hence, the law
protects possession by presuming the possessor to be the owner
until some one else proves a better right to the thing than the
possessor. Therefore, to ask why the law protects possession
amount to asking why the law protects ownership. There are
two types of remedies of dispossession:
 [Link] of force
According to Art 1148 of the Civil Code, the possessor or holder has the
right to defend his possession by using a reasonable force to prevent a
person who intends to dispossess him or to retake possession of a thing
which has been taken away from him by force or which has been stolen
from him provided that the usurper is caught in the act or when
running away.
2. Possessory action
possessory actions are legal actions or suits instituted by a possessor
who has been disposed of his possession or whose possession is
interfered with or whose possession is threatened by the actions of
another person.
A possessor [or even a holder] who is dispossessed of his possession or
whose possession is interfered with may institute an action for the
restoration of the thing or cessation of the interference and claim
compensation for damages resulting from the dispossession or
interference(Art 1149/1/).

Finally, according to Art 1149/2/, a possessory action of any type shall be

barred if not brought within a period of one year/ the Amharic version
provides two years/ from the day of the usurpation or interference.