Possession in Scots law occurs when an individual physically holds property with the intent to use it.
[5] Nicholas illustrated the difference between possession and ownership in Roman law as:"There is an obvious distinction in ordinary language between having a thing and being entitled to have it.
[7] Therefore the term in possession in Scots law does not relate to the right of ownership but of the factual situation in which a possessor occupies, or holds, property.
[9] The Scottish Law Commission in its Report on Prescription and Title to Moveable Property (SLC Report No 228, 2012) have recommended the introduction of protections for possessors to allow them ownership of corporeal moveable property in certain circumstances:"The Commission recommends two new rules which would convert possession to ownership.
Under the new rule, the holder of the object would be able to claim ownership if the owner had not been in contact for 50 years and could not be traced using reasonable diligence.
However, the modern test for the act of the mind is now broader, allowing non-owners, including thieves, to acquire possession.
Instead, possession can be transferred by the longhand, in which the corpus (or physical act) is reduced to mere pointing or symbolic delivery alone.
As Nicholas describes:"If I wish to give you possession of a pile of logs, it is sufficient if I point them out to you; to require that you should touch them would simply be pedantic"[30]This rule allows property such as land or large moveable property to be easily passed by sufficient identification alone.
[33] In Scots law, symbolic delivery of possession commonly occurs by transfer of the bill of lading of shipped goods.
This follows the Roman law's principles that possession is a factual matter that gives rise to certain legal rights and remedies.
It is now generally viewed that the ius possidendi is a real right in Scots law, although there is little legal authority on the issue.
[38] This is commonly the case with ownership, where it is recognised that an owner has the derivative right to possession (ius possidendi) in the property he owns.
Corporeal moveables, ie: property which can be physically moved such as personal items, furniture, cars etc.
Viscount Stair, the institutional writer, describes a spuilzie as:"'the taking away of moveables without consent of the owner or order of law, obliging to restitution of the things taken away, with all possible profits, or to reparation therefor according to the estimation of the injured, made by his juramentum in litem [ie: 'oath in the action'] .
Where possession is held animo solo (ie: by the mind alone), which commonly occurs when the possessors stops having physical control (corpus) over the property, this form of an action of spuilzie is termed an intrusion.
[55] Spuilzie is one of the oldest legal remedies found in Scots law, and is of continued relevance in modern times.
[56] Its earliest origins in Scotland can be found in 1438, when the King's Council developed a legal remedy for robbery and spoliations, later coming to be known as the action of spuilzie.
[60] Lord Bankton, the institutional writer, views the action of spuilzie as a derivative of the Roman possessory interdicts.
The remedy was said to have developed because of the lawless nature and instability of the Kingdom of Scotland,[64] as Dr Gow describes:"[spuilzie] a remedy which appears to have been used for the protection of actual possession and maintenance of the public peace in a country more notable for civil unrest and military punitive expeditions than bourgeois placidity.
"[65]An early case can be identified in the 16th century in The Laird of Durie v Duddingstonn (1549) where the court noted that a tenant was dispossessed of corporeal heritable property (land) by being driven from the land by squatters, the landlord could raise an action of spuilzie against the squatters.
[67] However, over time the usage of actions of spuizlie declined, attributable to the increasing stability of Scottish civic society (leading to less high-value property being unlawful dispossessed).
[68] In order to bring an action of spuilzie against a dispossessor (ie: the person who has unlawfully acquired natural possession), two general requirements must be met: (1) The prior possessor had acquired possession (see above),[69] and (2) The prior possessor was unlawfully, also termed vitiously, dispossessed.
Pending further case law on the issue, it is a matter of academic debate if civil possession alone is sufficient to raise an action of spuilzie in relation to corporeal moveables.
These are: As the institutional writers above mention, the main remedy available under an action of spuilzie is the return (termed restitution) of the property from the dispossessor to the prior possessor.
[74] Special forms of violent profits are available in relation to ejections of unlawful possessors of land.
[79] However, as the action of spuilzie has not been expressly abolished it remains a valid legal remedy in Scots law.
[80] The Scottish Law Commission, in its memorandum on corporeal moveable remedies (SLC Memorandum No 31, 1976), expressed the following view on spuilzie:"We think that the action of spuilzie provided useful redress in promptly restoring a person who had been wrongfully deprived of or excluded from possession, and also in giving violent profits in appropriate cases.
However, the invocation of ancient remedies of uncertain scope is not necessarily the ideal solution for modern wrongs.
"[81]Other reforms have been called for regarding legislation on its usage or express abolition of the common-law remedy altogether.
The concept of possession extends beyond Scots property law and is applicable in a variety of legal settings.