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The Consequences of Possession$
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Eric Descheemaeker

Print publication date: 2014

Print ISBN-13: 9780748693641

Published to Edinburgh Scholarship Online: May 2015

DOI: 10.3366/edinburgh/9780748693641.001.0001

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Is Possession Factual or  Legal?

Is Possession Factual or  Legal?

(p.56) 3 Is Possession Factual or  Legal?
The Consequences of Possession

Descheemaeker Eric

Edinburgh University Press

Any attempt to define ‘possession’ has been called a ‘fruitless task’. This chapter explores the reason why an accepted definition of ‘possession’ has proved so elusive to common and civil lawyers alike. The argument developed is that the word ‘possession’ is frequently used by lawyers to denote different (albeit related) things. A clear example of these different usages can be found in the difference between using it to describe a physical relationship between a person and a thing and to describe a legal relationship between a person and a thing. These are fundamentally different types of relationship. However, lawyers experience a difficulty when they attempt to draw a clear distinction between these two different usages of ‘possession’: the reason for this is that the word is also used in a third sense. An example is the ‘fiction’ of possession, and the closely related concept of the ‘presumption’ of possession, both of which are frequently found in property law. When the word ‘possession’ is used to describe fictions and presumptions it is not being used to describe a physical relationship between a person and a thing, nor a legal relationship between persons and a thing, but something in between. The chapter explores this third sense of ‘possession’ and distinguishes it from the word’s other meanings.

Keywords:   English law, possession as right, possession as fact, fiction of possession, presumption of possession

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