[244]. For examples of traditio brevi manu, see Winter v. Winter, 4 L. T. (N.S.) 639; Cain v. Moon, (1896) 2 Q. B. 283; Richer v. Voyer, L. R. 5 P. C. 461.
[245]. For examples of constitutum possessorium, see Elmore v. Stone, 1 Taunt. 458; 10 R. R. 578; Marvin v. Wallace, 6 El. & Bl. 726. See supra § 101.
[246]. Constitutum possessorium, also, may be termed attornment in a wide sense.
[247]. Delivery by attornment is provided for by the Sale of Goods Act, 1893, sect. 29 (3): “Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf.”
[248]. The theory here considered is that which has been made familiar by Savigny’s celebrated treatise on Possession (Recht des Besitzes, 1803). The influence of this work was long predominant on the Continent and considerable in England, and it still finds no small amount of acceptance. A forcible statement of the objections to Savigny’s doctrine is contained in Ihering’s Grund des Besitzesschutzes, pp. 160–193.
[249]. Bruns rejects the definition of possession as consisting in the continuing exercise of a right, and defines it as the continuous possibility of exercising a right at will. “Just as corporeal possession,” he says (Recht des Besitzes, p. 475) “consists not in actual dealing with the thing, but only in the power of dealing with it at will, so incorporeal possession consists not in the actual exercise of a right, but in the power of exercising it at will; and it is only because the existence of this power does not become visible as an objective fact until actual exercise of the right has taken place, that such actual exercise is recognised as an essential condition of the commencement of possession.” This however seems incorrect. Possession consists not in the power of exercising a claim in the future, but in the power of continuing to exercise it from now onwards.
[250]. 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.