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1 2 2 0 6 7
Seat No. (In Figures)

Seat No. (In Words) :- ONE LAKH TWENTY TWO THOUSAND SIXTY SEVEN

PRN :- 19010421058

Programme :- BA-LLB Semester :- III

Course :- LEGAL THEORY

INSTRUCTIONS :

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Q 1 [B] Explain the concept of possession and comment on the Savigny’s remark that
‘Animus possidendi must be explained animus domini or animus sibi habendi’.

Ans:- First, we will understand the concept of possession. According to Salmond, “in the whole
range of legal theory, there is no conception more difficult than that of possession”. According to
Bentham, “to define possession is to recall the image which presents itself to the mind when it is
necessary to decide between two parties, which is in the possession of a thing and which is not.
Defining the concept of possession of law is like defining the geometric conception of
roundness. As absolute roundness cannot be found and it is nowhere to be found. Giving an
example: as a ping-pong ball is not totally round but for practical purposes we accept the fact
that it is round, in the same manner legal possession cannot be defined absolutely and perfectly,
but for practical purposes certain conditions and rules of legal possession can be laid down for
the guidance of courts.

Possession is one of the most important concepts in the whole range of legal theory. According
to Holland, “The ascertainment of the nature of legal possession is, in fact, indispensable in
every department of law. Possession is prima facie evidence of title of ownership. The first
possession of a thing which as yet belongs to no one, is a good title of right. Possession is so
important that a possessor may in many cases confer a good title on another even though he has
none himself.

Giving an example of case law:- In Hannah V. Peel,

The plaintiff was serving in a Royal Artillery. He was sanctioned in a house requisitioned by the
government and he accidently found a brooch in an upstairs room occupied by him. The brooch
was handed over to the police. The police was not able to find the true owner of the house and so
the police returned it to the defendant who was the owner of the house. The defendant sold the
jewel for $66. A suit was bought for recovery of the brooch or its jewel. The plaintiff claimed the
jewel as the finder. The contention of the defendant was that he was entitled to it as the owner of
the property on which it was found. The defendant was never in possession of the house and had
no knowledge of the brooch until it was brought to his notice. It was held that the defendant had
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neither de facto control nor the animus of excluding others and as such had no possession. The
plaintiff was entitled to the brooch or its value since his claim as finder prevailed over all over
but the rightful owner.

Savigny-
He in his theory of possession says, the pith of corporeal possession is to be found in the physical
power of exclusion.

There are two elements of possessions, namely corpus and animus. They can be discussed
as follows:

(a) Corpus of Possession (corpus possession is)- Corpus implies two things:
 Possessor’s physical relation to the res, that is, the object; and
 The relation of the possessor with the rest of the world

There must exist some physical contact or control of the possessor with the thing so as to give
rise to a reasonable assumption that other people will not interfere with, or simply, with the
possessor’s right of use, enjoyment of that thing.

(b) Animus Possidendi- Mere physical contact or control over a thing is not enough, but it must
be accompanied with a will or intention to exercise such control. This mental or subjective
element in possession is called animus possidendi. To define, it is the conscious intention of
the possessor to exclude others from interfering with his right of possession.

Savigny with other German thinkers argued that possession, in the eyes of the law, requires that
the person claiming possession intend to hold the property in question as an owner rather than
recognize the superior title of another person, so that in providing possessory remedies to lessees,
Bailees, and others who lack such intentions, modem law sacrifices principle to convenience.
The issue of will is also related to classification of specification — animus rem sibi habendi (the
will to keep the thing in one’s possession) tends to be important in the case of occupation. In the
case of accessio, the questions of will, its necessity and importance upon classification were
more problematic, although not impossible. It is still a general principle applying to all cases
of accessio. In specification, the problem generally was that reprocessed things had an owner.
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Puchta also refers to animus rem sibi habendi as regards specification: ‘if someone creates by
joining his and a strange thing a new thing that differs by nature from the old one by animus sibi
habendi.

Savigny remarks that: “Animus possidendi must be explained by animus domini or animus sibi
habendi, and he only is to be looked on as in possession who deals as owner with the subject of
which he has the detention. That is to say, he must contemplate dealing with it practically just as
an owner is accustomed to do it by virtue of his right and consequently not as one recognizing
anybody better entitled as himself.”

Savigny overlooks the shift in meaning of the word possession. He seems to have fallen into the
common fallacy that words must necessarily correspond to the facts and hence his desire to find
factual content for possession. Secondly, he based his statement of this factual content on the
utterness of Paul, the jurist. Academic speculation was never the strong point of the romans and
Paul was no exception to it. It the third place, it was erroneous to assume that corpus and animus
which were only conditions sometimes required for the acquisition and loss of possession,
constituted possession itself. Fourthly, Savigny’s idea of animus domim, the intention to hold as
owner, fails to explain the cases of the pledgee.

Basically, Savigny was of the view that law should not be found from deliberate legislation but
should be made and arises out of the general consciousness of the people. The concept of
Volksgeist was served as a warning against the hasty legislation and introduce the revolutionary
abstract ideas on the legal system. Unless they support the general will of the people.

Critics point out that there are some short comings in the theory of possession of Savigny.
Possession is one conception and there are no separate concepts of it with regard to its possession
and acquisition. But it can be pointed out that the acquisition of possession differs from its
continuance. Reasonable expectation of non-interference by others is essential for the acquisition
of possession and not for its continuance. For example: X snatches away the book of Y. X
doesnot acquire the possession of the book as Y or anybody else may snatch away the same from
him. He comes to have possession when there is expectation of non-interference. Thus the theory
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of Savigny does not apply to incorporal possession. A child or a weak person has not the power
to exclude others from possession as the other parties are physically stronger. Moreover the same
thing may be possessed by many persons at the same time. In the case of joint possession, the
possession by one party cannot be exclusive. The view of Savigny that the contemporary loss of
one ingredient of possession did not matter provided there was the ability to reproduce it at will,
is also inconsistent with the texts. It doesnot explain the continued possession of a fugitive slave
despite the owner’s disability to reproduce the corpus element at all. The only conclusion is that
the theory of Savigny completely misrepresents Roman Law.
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Q.2 [B] Examine the Hohfeld’s analysis of legal right with diagram.

Ans:- Wesley Newcomb Hohfeld was Professor of Law at Stanford University when he
published the first of his two famous articles under the title ‘Some fundamental legal conceptions
as applied in judicial reasoning’. They were published in volumes 23 (1913) and 26 (1917) of
The Yale Law Journal.

Hohfeld argued, was ‘the express or tacit assumption that all legal relations can be reduced to
“rights” and “duties” and that these latter categories are therefore adequate for the purpose of
analyzing even the most complex legal interests, such as trusts, options, escrows, “future”
interests, corporate interests, etc’ Hohfeld distinguished four different conceptions that lawyers
tend to lump under the term ‘right’. He aimed to disentangle and clarify the four conceptions.
The most effective way of doing this, Hohfeld concluded, was to construct a logical system
connecting the four conceptions to their correlatives and opposites. He thought that such a
system would display the sum total of the fundamental legal conceptions.

Hohfeld broke the term ‘right’ into four distinct basic conceptions:

● Claim right or right in the strict sense – I will be using the term right for simplicity.

● Privilege or liberty – Hohfeld preferred the term ‘privilege’ to ‘liberty’ because he felt that
‘liberty’ had wider connotations. In current usage, ‘liberty’is probably more precise than
‘privilege’. Hence, following Glanville Williams, I will be using the term liberty to refer to
Hohfeld’s privilege, noting that the two may be interchanged without violence to the system

● Power – Like Bentham, Hohfeld regarded power as a special case of liberty. He considered
this distinction to be critical for accurate legal thinking.

● Immunity – immunity is a special case of right and, again, it is important to distinguish the
two for clear understanding of the law.

Each of the conceptions ‘right’, ‘liberty’, ‘power’ and ‘immunity’ has an indispensable
correlative. The jural correlative can be technically defined as follows: In any legal relation
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between two parties concerning a single act or omission, the presence of one conception in one
party entails the presence of the correlative in the other party.

Thus, if A has a right that B pays him $10 under the contract, B has a duty to pay A $10.

In any legal relation between two parties concerning a single act or omission, the presence of one
conception in one party means the absence of the contradictory in the other party.
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Thus, if A has a right that B pays her $10, B cannot have a liberty not to pay A because B has a
duty to pay A. The jural contradictory follows logically from the jural opposite.

RIGHT LIBERTY POWER IMMUNITY

LIBERTY DISABILITY
DUTY NO-RIGHT

Hohfeld’s analysis shows that ‘right’, ‘duty’, ‘liberty’ and ‘no-right’ are connected in a
fundamental way with each other. The existence of one brings about the existence of the others.
The conceptions ‘power’, ‘liability’, ‘immunity’ and ‘disability’ are similarly connected.

Consider the box on the left. A has a right under the contract that B pays her $10:

Correlative: A has a right that B pays her $10 and B has a duty to pay $10 to A.

Opposite: Since A has a right to be paid $10, A cannot have no-right to be paid.

Contradictory: Since A has a right to be paid $10, B cannot have a liberty not to pay.

Now consider the box on the right. A has power to arrest B:

Correlative: A has power to arrest B and B is liable to be arrested by A.

Opposite: Since A has power to arrest, A cannot have disability to arrest.

Contradictory: Since A has power to arrest B, B has no immunity from arrest.

Hohfeld aimed to break down laws into their basic elements to see how the law actually works.
He found that the law works through legal relations between individuals in relation to single
actions or omissions. There are important implications of the basic premise of the Hohfeldian
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analysis. First, a jural relation exists between two individuals. It is never between a person and a
thing.

Example:- I have no jural relation with my motor car, although I claim to own it. I have jural
relations with A, B, C and every other individual in the world with respect to my motor car. No
person may take it without my permission.

Second, ownership of a thing is generally described as a bundle of entitlements over the thing.
Hohfeld’s system unbundles the entitlements. My right that A, B, C and all others not enter
Blackacre without my permission is one entitlement.

Third, it is important to keep in mind that the same set of facts may give rise to separate jural
relations. The failure to do so leads to common error. A is walking in the public park and is
obstructed by B, who physically restrains her. Two distinct jurally relations are at work
simultaneously:

● A has liberty to walk in the public park and B has no-right that A does not walk in the public
park.

● A has a right not to be physically restrained by B and B has a duty not to physically restrain
A.

Fourth, it is critical that we recognize that a dispute between two parties can give rise to distinct
and successive legal relations. This is a point that Finnis missed when he said that we need to ask
about remedies before we can say that a person has a right.

A Hohfeldian analysis of Birks’ example actually yields four levels of legal relations:

1. Each party to the contract has primary entitlements. For example, the buyer has a right that
the seller delivers the article and the seller has a right that the buyer pays the seller the agreed
price.

2. Assume that the seller fails to deliver the promised article, in breach of the contract. The
breach gives rise to new secondary entitlements. The buyer (depending on local law) may have a
power to rescind the contract and treat it as ended. If the buyer has suffered damages, she will
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gain a right that the seller pay the damages. Differences between the parties concerning the
secondary entitlements may be settled through negotiation or compromise. The terms of the
settlement (which amounts to a contract) may establish new rights and duties that replace the
pre-existing relations.

3. If the issues concerning secondary rights are not resolved, the aggrieved party usually has
some recourse to a court of law. We say that, in Hohfeldian terms, the plaintiff has a power to
sue the defendant. This may be regarded as a tertiary entitlement.

4. If the dispute is tried by a court and judgment is entered for the plaintiff, the plaintiff gains
new entitlements according to the terms of the judgment. It is usually in the form of the award of
a specific amount of damages, and exceptionally in the form of a right to specific performance
by the defendant. These rights represent quaternary entitlements.