Article 22, Chapter 2: Human Relations

Main Topic: Chapter 2: Human Relations
Sub-topic: Performance Acquiring a Possession of Something

Art. 22. Every person who through an act of performance by another, or any other means, acquires or comes into a possession of something at the expense of the latter without just or legal ground, shall return the same to him.

Discussion/Explanation:

1. Duty to Return What was Acquired Unjustly or Illegally

No person should unjustly enrich himself at the expense of another. It ought to be noted however that when a property is obtained by virtue of a final judgment of a Court Art. 22 cannot apply.

2. Example

a. A and B a sum of money evidence by a promissory note. At maturity, A paid, and a receipt was given him. When later on, he was again asked to pay, he could not find the receipt, so to void trouble he paid again. Subsequently, he found the missing receipt. Can he now get back what he had intentionally but unwillingly paid?

Answer: Yes, in view of Art. 22, which incidentally treats of an accion in rem verso.

b. Facts: A contract for the sale of land was declared null and void after the buyer had already paid the purchase price. May said buyer recover the price paid from the successors in interest of the seller?

Held: Yes, because if said successors could recover the land without being required to reimburse the buyer, they would be enriching themselves unjustly at the expense of the buyer.

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No person shall unjustly enrich himself at the expense of another. The government is not exempted from the application of this doctrine. Hence, if the government has already realized the revenue which is the object of the imposition of the subject stamp tax, it is not justified to require the payment of the same tax for the same documents.

3. Essential Requisites of an "Accion in Rem Verso"

a. One party must be enriched and the other made poorer.

b. There must be a casual relation between the two.

c. The enrichment must not be justifiable (so if the law itself allows the enrichment, or if the enrichment results from a contract or from the impoverished person's own negligence, there can be no recovery).

d. There must be no other way to recover (so if, fro example,a tort action or a quasi-contract action is proper, it is not necessary to file a claim in rem verso).

e. The indemnity cannot exceed the loss or enrichment, which ever is less.

Note: It should be noted that in an acciom in rem verso, as in the first example given, there was no mistake; in the quasi-contracts of solutio indebiti (under payment) it is essential there be a mistake.

In law, possession is the control a person intentionally exercises toward a thing. In all cases, to possess something, a person must have an intention to possess it. A person may be in possession of some property (although possession does not always imply ownership). Like ownership, the possession of things is commonly regulated by states under property law.

Intention to possess

An intention to possess (sometimes called animus possidendi) is the other component of possession. All that is required is an intention to possess something for the time being. In common law countries, the intention to possess a thing is a fact. Normally, it is proved by the acts of control and surrounding circumstances.

It is possible to intend to possess something without knowing that it exists. For example, if you intend to possess a suitcase, then you intend to possess its contents, even though you do not know what it contains. It is important to distinguish between the intention sufficient to obtain possession of a thing and the intention required to commit the crime of possessing something illegally, such as banned drugs, firearms or stolen goods. The intention to exclude others from the garage and its contents does not necessarily amount to the guilty mind of intending to possess stolen goods.

When people possess places to which the public has access, it may be difficult to know whether they intend to possess everything within those places. In such circumstances, some people make it clear that they do not want possession of the things brought there by the public. For example, it is not uncommon to see a sign above the coat rack in a restaurant which disclaims responsibility for items left there.

Importance of possession

Possession is one of the most important concepts in property law.

In common law countries, possession is itself a property right. Absent evidence to the contrary, it provides evidence of ownership. Possession of a thing for long enough can become ownership. In the same way, the passage of time can bring to an end the owner's right to recover possession of a thing.

In civil law countries, possession is not a right but a (legal) fact which enjoys certain protection by the law. It can provide evidence of ownership but it does not in itself satisfy the burden of proof. For example, ownership of a house is never proven by mere possession of a house. Possession is a factual state of exercising control over an object, whether owning the object or not. Only a legal (possessor has legal ground), bona fide (possessor does not know he has no right to possess) and regular possession (not acquired through force or by deceit) can become ownership over passage of time. A possessor enjoys certain judicial protection against third parties even if he is not the owner.

There may be varying degrees of rights to possession. For example, if you leave a book that belongs to you at a cafe and the waiter picks it up, you have lost possession. When you return to recover the book, even though the waiter has possession, you have a better right to possession and the book should be returned. This example demonstrates the distinction between ownership and possession: throughout the process you have not lost ownership of the book although you have lost possession at some point.

Obtaining possession

Possession requires both control and intention. It is obtained from the first moment that both those conditions exist simultaneously. Usually, intention precedes control, as when you see a coin on the ground and reach down to pick it up. Nevertheless, it is conceivable that a person might obtain control of a thing before forming the intention to possess it. If someone unknowingly sat on and therefore had control of a $10 note on the seat of a train, he or she could obtain possession by becoming aware of the note and forming the intention to possess it. People can also intend to possess things left, without their knowledge, in spaces they control.

Possession can be obtained by a one-sided act by which factual control is established. This can take the form of apprehension (taking an object not in someone's possession) or seizure (taking an object in someone's possession). It can also be obtained through a two-sided process of handing over the possession from one party to another. The party handing over possession must intend to do so.

Possession acquired by consent

Most property possessed is obtained with the consent of someone else who possessed it. They may have been purchased, received as gifts, leased, or borrowed. The transfer of possession of goods is called delivery. For land, it is common to speak of granting or giving possession.

A temporary transfer of possession is called a bailment. Bailment is often regarded as the separation of ownership and possession. For example, the library continues to own the book while you possess it and will have the right to possess it again when your right comes to an end. A common transaction involving bailment is a conditional sale or hire-purchase, in which the seller lets the buyer have possession of the thing before it is paid for. The buyer pays the purchase price in installments and, when it is fully paid, ownership of the thing is transferred from seller to buyer.

Possession acquired without consent

It is possible to obtain possession of a thing without anyone else's consent. First, you might take possession of something which has never been possessed before. This can occur when you catch a wild animal; or create a new thing, such as a loaf of bread. Secondly, you might find something which someone else has lost. Thirdly, you might take something from another person without their consent. Possession acquired without consent is a property right which the law protects. It gives rise to a right of possession which is enforceable against everyone except those with a better right to possession.

Forms of transferring possession

There are various forms of transferring possession. One can physically hand over the object (e.g. handing over a newspaper bought at the newsstand) but it is not always necessary for the party to literally grab the object for possession to be considered transferred. It is enough that the object is within the realm of factual control (e.g. leaving a letter in the letterbox). Sometimes it is enough for a symbol of the object which enables factual control to be handed over (e.g. handing over the keys to a car or a house). One may also choose to terminate possession, as one throws a letter in the trash. Possession includes having the opportunity to terminate possession.