Physical element of possession of corporeal moveable property in Scots law
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Possession is a legal concept applying in a variety of legal contexts. In Scottish legal literature, however, there is little in-depth writing on the law of possession, and much of the law is uncertain. This thesis is intended to be a contribution to remedying this deficiency as far as one aspect of the law of possession is concerned, the physical element of possession of corporeal moveable property. As part of this, in the hope that this comparative and historical consideration would shed some light on the issues raised, the law of Rome is considered, along with the law of France, Germany and South Africa, as examples of the Civil Law tradition of legal systems drawing on Roman law. English law is also considered. The thesis is thus able to draw on both of the major traditions influencing the development of Scots law, namely the Civil Law and the Common Law. In this way, the thesis is able to consider the extent to which the Scots law on possession has been influenced by these two traditions. The thesis begins giving an outline of the law of possession and the place of the physical element within it. The remainder of the thesis considers in detail the physical element and its role in both the acquisition and the loss of possession of corporeal moveable property. One of the difficulties with this is that many different areas of law use a concept called 'possession', and views differ as to the extent to which it is appropriate to talk of a general concept of possession. It is argued in the thesis that a general test can be developed for the physical element of possession, based on control of the property in a manner consistent with the assertion of a right to the property. This test is then developed through consideration of how it applies in a number of specific factual contexts.