3.1 Possession

在英美的财产法上,占有一词有两种不同的表述:"Seisin"和"Possession".

"Seisin"是指对不同产的的占有,"Possession"是对动产的占有,"Seisin"并非指单纯的占有,它是和权利相关联的概念,主要是指通过占有获得收益的权利；而"Possession"则不同,它不表明通过占有而获得收益的权利。占有（Possession）是指在事实上占据或控制财产的一种权利。占有权主要包括以下基本内容:（1）原始占有,A野生动物的占有（Wild

animals）,B优先占有（First possession）,C政府优先占有；（2）发现者占有权（Finder of

lost articles）；（3）时效占有（Adverse possession）；（4）委托占有（Bailment）。

美国财产上法的占有还可以根据不的属性划分为不同的种类:

实际占有（Actual possession）和推定占有（Constructive possession）

独自占有（Sole possession）和共同占有（Joint possession）

善意占有（Possession Bona Fide）和恶意占有（Possession Mala Fide）

英文注释:

Possession is difficult to define. A person is in possession

of object he physically controls （such as an apple held in his

hand）。 But he

may be in possession of objects not in his presence, such as

the chair

in his backyard when he left for work. A person may even be

in

possession of objects in his house, or under the soil of his

house

（i.e. minerals or oil）, of which he is unaware. Thus, like property,

possession is an elastic word； its meaning varies with the context

involved and the purposes in view.

B. Different than ownership: Possession is not

the same as ownership. Ownership is "title," and is

usually proved by showing documents signed by the previous

owner of first possessor transferring title to the present titleholder.

Possession is proved by showing physical control and the intent

to

exclude others.

NOTE: Possession is easier to prove than ownership.

EX:A buys a watch from a jeweler, who bought

it from the manufacturer. B steals the watch from A. To recover

the watch, A must prove ownership or prior possession of the

watch. To prove ownership, one must produce the sales slip from

the jeweler or other proof of title, which A has probably lost.

To prove prior possession, though, A has only to prove that

the watch was in A's physical possession before theft.

C. Constructive possession: A person is in "constructive

possession" when the law treats him as if he is in possession

although, in fact, he is unaware of it. Constructive means "in

the eyes of the law." A court can still find the find has

better claim than the private property owner.

EX: In South Staffordshire Water Co. v. Sharman,

P allowed D to

enter his property to clean the pool. D found some rings, and

claimed

he should own them. Ct. ruled that D was allowed on premises

for

the limited purpose of cleaning, under the direction of P, and

that

P is entitled to objects found, even if he is unaware they exist,

since he

is the owner of the property