The Consequences of Possession

This is the introductory chapter of Eric Descheemaeker (ed.), The Consequences of Possession (Edinburgh: Edinburgh University Press, 2014), a book which comprises the papers that were presented at a namesake conference at Old College, University of Edinburgh, in 2012 by the following scholars: Craig Anderson (Robert Gordon), Raffaele Caterina (Turin), Simon Douglas (Oxford), Yaëll Emerich (McGill), Robin Hickey (Durham), Duard Kleyn (Pretoria), Lena Kunz (Heidelberg) and Thomas Rüfner (Trier). The subject-matter of the book is the consequences of possession, examined from a comparative and historical perspective. Leaving aside the question on what possession is, a question that has caused a considerable amount of ink to be spilled for centuries (at least in the civilian tradition), it concerns itself with the law's response to the recognition of a factual situation as amounting to 'possession' (or an equivalent concept like 'possessio', 'possession' or 'Besitz'). It is be the first attempt to look in a coherent fashion at the topic of possession in a comparative and historical perspective, bringing together scholars from the civilian tradition (Germany, Italy) as well as the common law (England) and mixed legal systems (Quebec, Scotland, South Africa). This introductory chapter examines four questions: 1) Why protect possession?; 2) How is possession protected?; 3) How does the fact of possession relate to any rights to or of possession?; 4) What is so-called "quasi-possession"? One theme that is highlighted throughout the chapter is that the distance between the two great western legal traditions in this field might not be as great as is commonly believed, English law and modern civilian systems having both emerged at the crossroads of Roman law, canon law and feudalism. In this, the two of them belong to a pan-European current of concepts and doctrines which has shaped the modern law in all the jurisdictions examined, if in markedly different ways.