Possession is a two-thousand-year-old institution, and scholars have
debated the concept of possession since the mid-nineteenth century, but
modern scholars lack consensus on the definition of possession. Although
common-law countries appear to avoid exactly defining possession, civil
codes in the European Continent and East Asia take on the challenge. They
differ, however, over how possession is and should be delineated. Some
countries, such as France and the Netherlands, distinguish possession from
detention, whereas others, for example Germany and Taiwan, use the
terms “possessors” and “agents in possession.” A few jurisdictions, such
as Japan and Korea, consider possession to be a right while others, for
instance China, treat it as a fact. Some civil codes, such as those of
Germany and Taiwan, simply define possession as actual control, but
others, for instance France’s and the Netherlands’, also require specific
intents. In short, the concept of possession is either ambiguous or messy.
Law and economics has been the dominant legal analytical approach
for the past half-century, yet rarely have scholars applied economic
analysis to various possession issues. This timely book fills the gap.
Leading economic lawyers from both common law and civil law jurisdictions
offer their insightful treatment of possession, some at the abstract
level, and others toward a specific issue.
The book begins with Thomas Merrill’s “Ownership and Possession.”
Merrill analyzes the concepts and relations of possession and ownership
from the perspective of information costs. Possession imposes low information
costs in the world of “strangers,” whereas ownership, harder to
prove, requires more information costs in order to conduct impersonal
exchange. In the modern world where recording or registration of titles is
cheaply available, the reason to continue protecting possession independently
of ownership is to expand access to law as a means to enforce
property rights.