Summary

Under classical Roman law not every detentor was entitled to interdict protection. Thus, not every situation of factual disposal of a thing was viewed as possession. Dogmatically, as it is present in the legal experience of modern civil codes of the continental law system, no restrictions to recognize every detention as possession and to protect it by appropriate means can be found.

The conflict becomes more acute in the condition when the detention of the stolen or robbed things is recognized as possession, as it was the case in classical Roman law. If these kinds of detention (iniusta possession) were protected with the aim to keep civil order, then the non-recognition of detention exercised in accordance to the owner’s will would still contradict the logic. Excluding several kinds of detentors from the category of possessors means ignoring the relevance of the owner’s decision to put the thing in the disposition of another person. This makes us deduce that the Roman concept of possession, actually, differed significantly from the modern concept (which is based on protection of every fact of detention) and did not reduce this real situation to a factual belonging of the thing to a person.

The problem of selectivity in the protection of possession in Roman law was addressed in three different ways. Savigny and his followers started from reconstructing the specific concept of possession in Roman legal science as opposed to detention. Jhering tried to find some practical reasons why in several situations the public power refused to grant administrative protection to detentors. Bonfante saw this selectivity of protection as the product of the institution’s historical evolution. The modern romanistics has come with a strange conceptual hybrid. Having adopted Savigny’s reconstruction of the concept of possession (corpus--animus rem sibi habendi) and agreed with Jhering in that the juridical consequences of the factual belonging of a thing (proper to possession) are the result of a positive legal interference, modern romanists started to search for the reasons why a hypothetical legislator introduced an interdict protection of so-called anomalous possessions, when animus domini is absent.

The non-recognition of every detention as possession seems to leave no space for a dogmatic explanation. Thus, the necessity of a genetic approach becomes obvious. Previous attempts to treat the problem from the evolutionary perspective failed to take into account the development of individual freedom which forms the most important side in the legal progress. At the same time, the legal ignoring by the law of the very fact of a person’s immediate linkage with the thing, as well as the denial to recognize the significance of the indi- vudual’s volition, calls for interpretation of this phenomenon as an institutional manifestation related to the low level in the development of the individualism.

If viewed through the evolutionary perspective, the selectivity of protection of possession in Roman law becomes an evidence for the development of the schemes of belonging and real bargaining in pre- classical epoch. Several situations of commerce deny the presence of individual’s volition as embodied in a thing.

The analysis of the development of the institution of possession in Roman law shows the selectivity of interdict protection as reflecting the conflict between the public organization of the society (which recognizes the significance of belonging of a thing to the individual) and the patriarchal familial structure (which denies individuality of its members). The previous monograph of the same author (Roman archaic law of family and succession. Moscow, 1993) attended to reconstruct the familial character of ancient Roman ownership and the related mentality. The latter was conceived as absorption of the individual’s interests by genealogical perception of the world. This world was limited by the boundaries of joint family.

Domination of the family form of property strongly conditions the forms of individual belonging by the state of constant inclusiveness of a thing into a family unit. This corresponds to the relative character of the real rights’ protection in the preclassical period (detected by M. Kaser) and is proper for Roman institution of possession, when in several cases the intention to possess for one’s individual benefit is ignored by the legal system. The public recognition is granted only to those situations of belonging when the individual’s linkage with the thing is not mediated through the thing’s belonging to another autonomous social unit, to the familiy. Contrary to that, in hypotheses of real bargains constructed as assumption of one’s juridical role, as related to the object, by the counterparty — the resulting linkage of the detentor to the thing is not viewed by the public power as significant. In such situations (all based on amicitia or ho~ spitium) the individual’s own social function is absorbed by other party’s family and, consequently, there was no socially relevant distance between the bargaining persons.

The archetype of the real contract is represented by fiducia — a bargain concluded through the application of per aes et Ubram ritual with various aims. The most caracteristic feature of the contract in the classical epoch was that both parties resulted somehow related to the object (res mancipi) unlike the case of usual mancipatio ven- ditionis causa. Hence the theft, if commited by one of them against another, was not recognized furtum (Gai., 3, 201). This structure corresponds to the stage when the institute of individual possession has not yet arizen. Among the functions (causae) of fiducia one finds all cases where in the classical period a mere detention of the party to the contract (non-owner) was recognized. All these contracts: commodatum, depositum, mandatum had fiducia cum amico as a formal antecedent. The classical form correspondent to fiducia cum cre- ditore was constituted by the real contract pignus datum where the link of the non-owner making party to the bargain (pledgee) was regarded as possession and was protected by interdicts.

This only case of possessio ad interdicta among the legal forms deriving from fiducia (or, better to say, having the same functions as fiducia) differs from others by the fact that the parties to the bargain are definitely distached from each other by the underlying debt. Such distance (which corresponds to distiction between amicus and creditor in classical systematics of fiducia contracts) determines juridical recognition of the detenlor’s real position as of single individual which linkage with res is of public relevance. The very substitution of fiducia cum creditore with pignus datum as a classical means of real guaranty reflects the same process of gradual individualization of the forms of civil interaction in Antiquity.

This vector of development is manifested as well in the recognition of possession of the precarist.

Interdict possession as a form of juridical recognition of the individual form of real belonging is, at the same time, not free from limitations. The real situation of possessor of ager vectigalis protected by the administrative means (interdicts) detects the public nature of the institute of possession (reflected in the name of this regime: ager publicus privatusque), proper to the public perception of the individual’s autonomy. Possessor is recognized individual as an object of administration rather than a free subject of social order and legal regulation. This institute, unlike the civil one of ownership, marks only the first stage in the establishment of liberty and civil society.

Si nummos meos tuo nomine dedero velut tuos, ab^ente te et ignorante, Aristo scribit adqui- ri tibi condictionem: Iulianus quoque de hoc interrogatus Hb- ro decirno scribit veram esse Aristonis sententiam nec dubi- tari quin, si meam pecuniam tuo