Possession is a fundamental institute of Civil Law, specifically within the scope of Property Law, consisting of the factual exercise, whether full or partial, of some of the powers inherent to ownership. Its primary purpose lies in protecting the visibility of domain and ensuring social peace, guaranteeing that consolidated and productive factual situations receive legal protection regardless of immediate discussions regarding the title of ownership.
1. Concept, Definition, and Legal Nature
In the Brazilian legal system, the definition of possession is derived indirectly from the figure of the possessor. According to Article 1,196 of the 2002 Civil Code, a possessor is considered to be anyone who, in fact, exercises, fully or partially, any of the powers inherent to ownership (use, enjoyment, disposal, and claiming).
The legal nature of possession is one of the most debated topics in civil law dogmatics. There are three main schools of thought:
- Fact Theory: Argues that possession is a factual state that produces legal effects (Savigny).
- Right Theory: Maintains that possession is a subjective right, as it has legal protection and generates claims (Ihering).
- Eclectic or Special Nature Theory: Contemporary jurisprudence from the Superior Court of Justice (STJ) tends to consider possession as a legal factual situation protected by law, possessing autonomy in relation to ownership.
2. Historical Evolution and Fundamental Theories
The genesis of the institute dates back to Roman Law, where possessio (protected by interdicts) was distinguished from proprietas. Historically, two theories shaped the modern concept:
A. Subjective Theory (Friedrich Carl von Savigny)
For Savigny, possession requires two elements: corpus (physical detention of the thing) and animus domini (the intention to be the owner). Without the intention to hold the thing as one's own, there would be mere detention.
B. Objective Theory (Rudolf von Ihering)
Ihering refuted the need for animus domini. For him, the corpus is sufficient, understood as the conduct of an owner, that is, giving the thing an economic purpose. The Brazilian Civil Codes of 1916 and 2002 predominantly adopted the Objective Theory, although animus domini is still specifically required for the purposes of usucapio (adverse possession).
3. Legal Provisions and Classifications
The legal regime of possession is structured in Book III, Title I of the Civil Code (Arts. 1,196 to 1,224) and in the Code of Civil Procedure (Arts. 554 to 568), which regulates possessory actions.
Essential classifications include:
- Direct and Indirect Possession (Art. 1,197, CC): The owner who grants use (e.g., lessor) maintains indirect possession; the one who receives it (e.g., lessee) exercises direct possession.
- Just and Unjust Possession (Art. 1,200, CC): Possession is just if it is not violent, clandestine, or precarious.
- Good Faith and Bad Faith Possession (Art. 1,201, CC): It is in good faith if the possessor is unaware of the defect or obstacle preventing the acquisition of the thing.
- New and Old Possession: A procedural distinction regarding time (less or more than a year and a day), impacting the granting of inaudita altera parte injunctions.
4. Practical Application and Consolidated Jurisprudence
Current jurisprudence, especially from the STJ, has consolidated the understanding of the autonomy of possession. The most relevant practical application is observed in the prohibition of the exceptio proprietatis (exception of domain).
Understandings of the STJ and STF:
- STF Súmula 487: "Possession shall be granted to whoever evidently has the domain, if it is disputed based on the latter." This statement is applied restrictively today, with the separation between possessory and petitory judgments prevailing (Art. 1,210, § 2, CC).
- Possession of Public Assets: The STJ established the thesis that the occupation of public property does not constitute possession, but mere detention of a precarious nature, which precludes the right of retention for improvements (REsp 1,183,266/DF).
- Social Function of Possession: The Judiciary has recognized "labor-possession" as a basis for reducing the usucapio period and as a criterion for weighing collective land conflicts, in compliance with Art. 5, XXIII of the Federal Constitution.
5. Related Principles and Doctrinal Divergences
The principle of Fungibility of Possessory Actions (Art. 554, CPC) allows the magistrate to receive an action for repossession as an action for maintenance of possession, should the legal fact so require, prioritizing the effectiveness of jurisdictional protection.
A relevant divergence lies in the possession of incorporeal assets. While classical doctrine restricts possession to tangible assets, modern doctrine and part of the jurisprudence admit the possession of rights (such as copyright or trademarks), although the Civil Code is silent on this matter, treating them mostly under the aegis of intellectual property.
6. Contemporary Relevance and Practical Impacts
Contemporary possession is analyzed through the prism of the Constitutionalization of Civil Law. The institute has ceased to be merely an "annex" to property to become an instrument of human dignity (housing) and economic development.
Recent practical impacts include:
- Extrajudicial Usucapio: The de-judicialization of property acquisition based on prolonged possession (Art. 216-A of the Public Records Law).
- Land Regularization (REURB): Law 13,465/2017 uses possession as a basis for titling informal urban centers, providing legal certainty to millions of citizens.
- Possessory Interdicts in the Digital Environment: Discussions about the "possession" of social media profiles and digital assets, although technically treated as contractual relationships, are beginning to require analogies with classical possessory institutes.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Art. 5, clauses XXII, XXIII, and LIV.
- BRAZIL. Law No. 10,406, of January 10, 2002 (Civil Code). Arts. 1,196 to 1,224.
- BRAZIL. Law No. 13,105, of March 16, 2015 (Code of Civil Procedure). Arts. 554 to 568.
- SUPERIOR COURT OF JUSTICE. Súmula 619 (Inapplicability of self-defense on public assets).
- SUPERIOR COURT OF JUSTICE. REsp 1,838,162/SP (Recognition of possession as an autonomous legal asset of economic value).
- SUPREME FEDERAL COURT. Súmula 487 (Dispute of possession based on domain).
