Note 250 — Chapter XIV · POSSESSION (Continued).
Reading edition
Thus in the Civil Code of France it is said (sect. 2228): La possession est la détention ou la jouissance d’une chose ou d’un droit que nous tenons ou que nous exerçons par nous-mêmes ou par un autre qui la tient ou qui l’exerce en notre nom.
The definition of the Italian Civil Code is similar (sect. 685): “Possession is the detention of a thing or the enjoyment of a right by any person either personally or through another who detains the thing or exercises the right in his name.”
A good analysis of the generic conception of possession, and of the relation between its two varieties, is to be found in Baudry-Lacantinerie’s Traité de Droit Civil (De la Prescription, sect. 199): “Possession is nothing else than the exercise or enjoyment, whether by ourselves or through the agency of another, of a real right which we have or claim to have over a thing. It makes no difference whether this right is one of ownership or one of some other description, such as ususfructus, usus, habitatio, or servitus. The old distinction between possession and quasi-possession, which was recognised by Roman law and is still to be found in the doctrine of Pothier, has been rejected, and rightly so. It was in our opinion nothing more than a result of that confusion between the right of ownership and the object of that right, which has been at all times prevalent. Possession is merely the exercise of a right; in reality it is not the thing which we possess, but the right which we have or claim to have over the thing. This is as true of the right of ownership as of the right of servitude and usufruct; and consequently the distinction between the possession of a thing and the quasi-possession of a right is destitute of foundation.
See to the same effect Ihering, Grund des Besitz, p. 159: “Both forms of possession consist in the exercise of a right (die Ausübung eines Rechts).” Bruns, also, recognises the figure of speech on which the distinction between corporeal and incorporeal possession is based. Recht des Besitzes, p. 477.