Friedrich Carl von Savigny o wyłączności posiadania i zakazie (com)possessio plurium in solidum na podstawie D. 41,2,3,5 (Paul. 54 ad ed.)
Friedrich Carl von Savigny on exclusivity of possession and the prohibition of (com)possessio plurium in solidum based on D. 41,2,3,5 (Paul. 54 ad ed.)

Summary/Abstract: Background: Nineteenth century was the time of discussions in the German-language science of law about the possessio. The issue of community – compossessio have also found their way into the sphere of lawyers’ interest. In the scientific narrative of the time, the relationship of several people having the same thing simultaneously could take two forms: (com)possessio plurium in solidum or compossessio pro indiviso.Research purpose: The aim of the study is to present the dogmatic analysis of D. 41,2,3,5 (Paul. 54 ad ed.), which was made at the beginning of the 19th century by the founder of the historical school of law, an outstanding German lawyer Friedrich Carl von Savigny. On the one hand, it is an example of the practical use of ius Romanum to formulate the principle of “modern Roman law”, and on the other hand, it confirms to a large extent the post-Roman origin of the terminology used today by both civilians and romanists. The use of the nineteenth-century perspective of considerations will allow for a systematic presentation of such issues as the exclusivity of possession expressed by the prohibition (com)possessio plurium in solidum and the admissibility of co-possession – compossessio pro indiviso. Methods: Historical and dogmatic methods were used in the article. Conclusions: Based on the analysis of D. 41,2,3,5 (Paul. 54 ad ed.) by Savigny, the following view was formed in the 19th century. (Com)possessio plurium in solidum is unacceptable because of the nature of possessio being a man’s real power over a thing. The possessor who controls the thing physically, with the will to keep it for himself, exercises exclusive power over it. This means that if he has the thing, the other person cannot have it at the same time. If, by applying a forbidden willfulness, such a person deprives the current possessor, the co-possession will not arise due to the impossibility of (com)possessio plurium in solidum. The assessment of this situation is not changed by the fact that the possessor has the legal possibility to claim the return of the lost possession by means provided for by law. The simultaneous co-possession in solidum must be distinguished from the simultaneous co-possession pro indiviso. These are relations related only de nomine, therefore the impossibility (com)possessio plurium in solidum does not stand in the way of the admissibility of compossessio pro indiviso. In this sense, co-possession pro indiviso is, historically and legally, an exception to the rule of exclusivity of possession.

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