Introduction to Real Law and Possession
Introduction to Law
Lesson 1: Introduction to Real Law
1. Concept of Real Law
1.1. Unitarian Theories
These theories deny the distinction between real rights and personal rights.
- Personalist Theory: Based on the existence of a taxable universal. Supporters argue that law reflects the relationship between a person and all others, not between a person and a thing.
- Realistic Theory: Seeks to unify material rights and property rights, proposing the absorption of personal rights by real rights. Argues that personal rights apply to a debtor’s heritage, not their person.
1.2. Dualistic Theory
Accepted by most of the doctrine, this theory posits an essential dichotomy between real rights (direct power over a thing) and personal rights (relationships between people involving provisions).
2. Rights Classification According to the Civil Code
- Personal Rights: Relationships between people, with an active subject (creditor) and a passive subject (debtor). Example: contracts.
- Real Rights: Relationships between a person and a thing, containing three elements: an active subject, a thing, and the relationship/power of the active subject over the thing (e.g., ownership).
3. Distinction Between Personal and Real Law
| Feature | Personal Law | Real Law |
|---|---|---|
| Subjects | Two: Active (creditor) and Passive (debtor) | One: Active |
| Object | Benefit to the debtor | Tangible or intangible thing |
| Enforcement | Action against the other party | Action against anyone holding the thing |
| Principle | Autonomy (inter partes effect) | Publicity (erga omnes effect) |
| Example | Contract | Property |
4. Concept of Real Law
Real law (rights in rem) governs legal relations between people and things. It covers the acquisition, exercise, conservation, and loss of power over appropriable property, both tangible and intangible (including intellectual property like copyrights, patents, and trademarks). Real law creates a link between a person and a thing, enforceable against all (erga omnes). The holder can claim the thing wherever it is (right to follow).
5. Classification of Real Rights
| Rights over One’s Own Thing (jus in re propria) | Rights over Another’s Thing (jus in re aliena) |
|---|---|
| Property | Rights of Enjoyment:
|
6. Real Obligations (Propter Rem)
Real obligations (propter rem) exist in an intermediate zone between real and personal rights. They appear as personal obligations of a debtor due to holding a real right, but they adhere to the thing’s owner (e.g., debts for taxes, fees, mortgage expenses).
Lesson 2: Possession
1. Theories of Possession
1.1. Subjective Theory (Savigny)
Possession requires direct physical control of a thing with the intention of owning it and defending it against others. It involves two elements: corpus (physical control) and animus domini (intention to own).
1.2. Objective Theory (Ihering)
Possession requires only physical control or the possibility of it, without needing the intention to own. It involves only corpus (physical control).
Note: The Civil Code adopts the objective theory.
2. Concept of Possession
Possession is the exercise of some or all powers of ownership (Article 1196 of the Civil Code). It is not dependent on ownership.
3. Detention (Possessio Famuli)
Detention is possession by servants or employees due to economic dependency or subordination (Article 1198 of the Civil Code). They are not considered possessors.
4. Elements of Possession
- Capable subject (natural or legal person)
- Lawful and possible object (corporeal or incorporeal)
- Free form
- Dominant relationship between subject and object
5. Object of Possession
Any object of property can be an object of possession, including tangible and intangible goods, movable and immovable property, etc.
6. Classification of Possession
- Direct Possession: Exercised by physically holding the thing (e.g., owner, tenant).
- Indirect Possession: Exercised through another person (e.g., owner through a tenant). Both direct and indirect possessors have legal protection.
- Just Possession: Acquired legitimately, without violence, illegality, or precarity.
- Unjust Possession: Obtained through violence, illegality, or precarity (clandestine, violent, or precarious).
- Good Faith Possession: Possessor is unaware of defects hindering acquisition. Presumed by law when there is a title (e.g., contract).
- Bad Faith Possession: Possessor is aware of defects. Never has a valid title.
- New Possession: Less than a year and a day old.
- Old Possession: At least a year and a day old.
- Possession ad interdicta: Can be defended by possessory actions but does not lead to prescription.
- Possession ad usucapionem: Can lead to acquisition of ownership through prescription (adverse possession).