Possession is nine-tenths of the law

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Possession is nine-tenths of the law is an expression meaning that ownership is easier to maintain if one has possession of something, or difficult to enforce if one does not. The expression is also stated as "possession is ten points of the law", which is credited as derived from the Scottish expression "possession is eleven points in the law, and they say there are but twelve." [1]

Contents

Although the principle is an oversimplification, it can be restated as: "In a property dispute (whether real or personal), in the absence of clear and compelling testimony or documentation to the contrary, the person in actual, custodial possession of the property is presumed to be the rightful owner. The rightful owner shall have their possession returned to them; if taken or used. The shirt or blouse you are currently wearing is presumed to be yours, unless someone can prove that it is not." [2]

Analysis

The adage is not literally true, that by law the person in possession is presumed to have a nine times stronger claim than anyone else, but that "it places in a strong light the legal truth that every claimant must succeed by the strength of his own title, and not by the weakness of his antagonist's." [3] The principle bears some similarity to uti possidetis ("as you possess, so may you continue to possess"), which currently refers to the doctrine that colonial administrative boundaries become international boundaries when a political subdivision or colony achieves independence. Under Roman law, it was an interdictum ordering the parties to maintain possession of property until it was determined who owned the property. [4]

Cases

In the Hatfield-McCoy feud, with testimony evenly divided, the doctrine that possession is nine-tenths of the law caused Floyd Hatfield to retain possession of the pig that the McCoys claimed was their property. [5] It has been argued that in some situations, possession is ten-tenths of the law. [6] While the concept is older, the phrase "Possession is nine-tenths of the law" is often claimed to date from the 16th century. [7] In some countries, possession is not nine-tenths of the law, but rather the onus is on the possessor to substantiate his ownership. [8]

This concept has been applied to both tangible and intangible products. [9] In particular, "knowledge management" presents problems with regard to this principle. [10] Google's possession of a large amount of content has been the cause of some wariness due to this principle. [11] It has been said[ by whom? ] that there was a time in which the attitude towards rights over genetic resources was that possession is nine tenths of the law, and for the other tenth reliance could be made on the principle that biological resources were the heritage of mankind. [12]

Indigenous peoples frequently encounter this principle. [13] There is some question as to whether the principle applies to Native American land claims. [14] [15] It has been said[ by whom? ] that "squatter's rights" and "possession is 9/10 of the law" were largely responsible for how the American West was taken. [16] [ dead link ]

See also

Related Research Articles

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In law, possession is the control a person intentionally exercises toward a thing. Like ownership, the possession of anything is commonly regulated by country under property law. In all cases, to possess something, a person must have an intention to possess it. A person may be in possession of some property.

The right of self-defense is the right for people to use reasonable or defensive force, for the purpose of defending one's own life (self-defense) or the lives of others, including, in certain circumstances, the use of deadly force.

The right of conquest is a right of ownership to land after immediate possession via force of arms. It was recognized as a principle of international law that gradually deteriorated in significance until its proscription in the aftermath of World War II following the concept of crimes against peace introduced in the Nuremberg Principles. The interdiction of territorial conquests was confirmed and broadened by the UN Charter, which provides in article 2, paragraph 4, that "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations." Although civil wars continued, wars between established states have been rare since 1945. Nations that have resorted to the use of force since the Charter came into effect have typically invoked self-defense or the right of collective defense.

Finders, keepers, sometimes extended as the children's rhyme finders, keepers; losers, weepers, is an English adage with the premise that when something is unowned or abandoned, whoever finds it first can claim it for themself permanently. The phrase relates to an ancient Roman law of similar meaning and has been expressed in various ways over the centuries. The 1982 English Court of Appeal case Parker v British Airways Board expanded the phrase, with the judgement of Donaldson L.J. declaring "Finders keepers, unless the true owner claims the article". Difficulties arise when exploring how best to define when exactly something is unowned or abandoned, which can lead to legal or ethical disputes, especially as jurisdictions often differ in their approach.

Adverse possession, sometimes colloquially described as "squatter's rights", is a legal principle in the Anglo-American common law under which a person who does not have legal title to a piece of property—usually land —may acquire legal ownership based on continuous possession or occupation of the property without the permission (licence) of its legal owner.

<span class="mw-page-title-main">Homestead principle</span> Legal principle regarding unclaimed natural resources

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<span class="mw-page-title-main">Self-ownership</span> Concept of property in ones own person

Self-ownership, is the concept of property in one's own body, expressed as the moral or natural right of a person to have bodily integrity meaning the exclusive right to control one's own body including one's life, where 'control' means exerting any physical interference and 'exclusive' means having the right to install and enforce a ban on other people doing this. Since the legal norm of property title claim incapacitates other people from claiming property title over the same resource at the same time, the right to control or interfere with one's own body in any arbitrary way is secured. Anarcho-capitalism defines self-ownership as the exclusive right to control one's body as long as the owner does not aggress upon others, leading to the concept of the sovereign individual. Minarchism considers self-ownership to mean the exclusive right to control one's body insofar considering action between inhabitants and not involving the state, making it roughly a pacifist morality only among inhabitants. Self-ownership is a central idea in several political philosophies that emphasize individualism, such as libertarianism and liberalism.

<i>Uti possidetis</i> Principle in Roman and international law

Uti possidetis is an expression that originated in Roman private law, where it was the name of a procedure used in litigation about land. It came from a praetorial edict that could be abbreviated "As you possess, so shall you possess". Later, by a misleading analogy, the phrase was transferred to international law, where it has had more than one meaning.

Unowned property includes tangible, physical things that are capable of being reduced to being property owned by a person but are not owned by anyone. Bona vacantia is a legal concept associated with the unowned property, which exists in various jurisdictions, with a consequently varying application, but with origins mostly in English law.

<span class="mw-page-title-main">Lost, mislaid, and abandoned property</span>

Lost, mislaid, and abandoned property are categories of the common law of property which deals with personal property or chattel which has left the possession of its rightful owner without having directly entered the possession of another person. Property can be considered lost, mislaid, or abandoned depending on the circumstances under which it is found by the next party who obtains its possession.

<span class="mw-page-title-main">Public trust doctrine</span>

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<i>Ratione soli</i>

Ratione soli or is a Latin phrase meaning "according to the soil" or "by reason of the ownership of the soil." In property law, it is a justification for assigning property rights to landowners over resources found on their own land. Traditionally, the doctrine of ratione soli provides landowners "constructive possession of natural resources on, over, and under the surface: cujus est solum, ejus est usque ad coelum ad infernos."

Uti possidetis juris or uti possidetis iuris is a principle of international law which provides that newly-formed sovereign states should retain the internal borders that their preceding dependent area had before their independence.

The Arbitration Commission of the Conference on Yugoslavia was an arbitration body set up by the Council of Ministers of the European Economic Community (EEC) on 27 August 1991 to provide the conference on Yugoslavia with legal advice. Robert Badinter was appointed to President of the five-member Commission consisting of presidents of Constitutional Courts in the EEC. The Arbitration Commission has handed down fifteen opinions on "major legal questions" raised by the conflict between several republics of the Socialist Federal Republic of Yugoslavia (SFRY).

In Jewish law, a chazakah is a legal presumption; it establishes burden of proof. There exist many such presumptions, for example regarding the ownership of property, a person's personal status, and presumptions about human behavior.

Non-possession is a religious tenet followed in Buddhist, Hindu, and Jain traditions in South Asia. In Jainism, aparigraha is the virtue of non-possessiveness, non-grasping, or non-greediness.

<i>Haslem v. Lockwood</i>

Thomas Haslem v. William A. Lockwood, Connecticut, (1871) is an important United States case in property, tort, conversion, trover and nuisance law.

<i>Popov v. Hayashi</i>

Popov v. Hayashi was a California Superior Court case involving scope of ownership between parties and conversion regarding a valuable baseball acquired at a Major League Baseball game. The question present in this case is who has ownership of an item when one acquired it legally, but lost it due to the criminal act of another third party, allowing the other person to, by all standards, acquire the item legally.

Property lawin the United States is the area of law that governs the various forms of ownership in real property and personal property, including intangible property such as intellectual property. Property refers to legally protected claims to resources, such as land and personal property. Property can be exchanged through contract law, and if property is violated, one could sue under tort law to protect it.

References

  1. Albert M. Martin (1882). "Answers". The Chautauquan. Chautauqua Literary and Scientific Circle. 3 (October 1882).
  2. S Rutledge (2000), Government's defense of the Status Quo: Advocating a shift in applying presumption theory in intercollegiate parliamentary debate (PDF), Parliamentary Debate, archived from the original (PDF) on 2011-07-24, retrieved 2011-01-23
  3. Horrell, Drew F.T. (1991), Telepossession in Nine-Tenths of the Law: The Emerging Industry of Deep Ocean Discovery, vol. 3, Pace Y.B. Int'l L., p. 309
  4. Duncan, John (2007), Uti Possidetis: Is Possession Really Nine-Tenths of the Law - The Acquisition of Territory by the United States: Why, How, and Should We, vol. 38, McGeorge L. Rev., p. 513
  5. Karen Grover Duffy; James W. Grosch; Paul V. Olczak (1991). Community Mediation: A Handbook for Practitioners and Researchers. p. 3. ISBN   9780898625615.
  6. E Bentley (1966), "An Un-American Chalk Circle?", The Tulane Drama Review, 10 (4): 64–77, doi:10.2307/1125210, JSTOR   1125210
  7. AL Erickson (2007), Possession—and the other one-tenth of the law: assessing women's ownership and economic roles in early modern England (PDF), Womenʼs History Review
  8. T Shaw (1997), "The contemporary plundering of Africa's past", African Archaeological Review, 14: 1–7, doi:10.1007/BF02968363, S2CID   162595596
  9. Eymard, Frank C (December 1, 2003), Possession is 9/10ths of the Law, Chemical Engineering Progress
  10. Boisot, M; Griffiths, D (1999), Possession is nine tenths of the law: managing a firm's knowledge base in a regime of weak appropriability (PDF), International Journal of Technology
  11. LS BeDell; D Greenstein; M Sandler; A Wise (2006), Scholarship and Libraries in Transition: Panel Session-Publishing (PDF)
  12. D Cunningham; B Tobin; K Watanabe (2004), Tracking genetic resources and international access and benefit sharing governance: The role of certificates of origin, United Nations University
  13. Henrietta Fourmile (1990), Possession is nine-tenths of the law — and don't Aboriginal people know it, Bulletin of the Conference of Museum Anthropologists
  14. I Starr (1993), Law in United States History: A Kaleidoscopic View, The, Update on L. Related Educ.
  15. JW Singer (2005), Nine-Tenths of the Law: Title, Possession & (and) Sacred Obligations, Conn. L. Rev.
  16. J Tanner, Running Head: The Power of Place