Part Ⅲ Rights In Rem
Chapter 10 Possession
A possessor is a person who has a controlling power de facto over a thing.
If a person possesses a thing of another as a superficiary, agricultural right holder, dian-holder, lien creditor, lessee, or depositary, or by virtue of some other similar legal relationship, such other person is an indirect possessor.
If, by following the instructions of another person, a person has the controlling power over a thing as an employee, apprentice, or family member or by virtue of some other similar relation he is entitled to the said power, then only such other person is the possessor.
A possessor is presumed to have legally the right which he exercises in rem of thing possessed.
The presumption provided in the preceding paragraph shall not apply to the following circumstances:
1. Possess the registered real property and exercise its rights in rem.
2. Exercise the rights other than ownership to the person who has put it in his possession.
It is presumed that the possessor possesses a thing with the intent of being its owner, in good faith, peacefully, openly and not negligently.
If it is proved that possession existed at the beginning and at the end of a period, it is presumed that the possessor has been in continuous possession during the intermediate time.
When, according to the nature of the facts from which the possession of a thing originates, the possessor has no intent of being its owner, he takes the possession with the intention of being its owner from the time when he expresses such intent to the person who has put it in his possession. The same rules shall apply when the possession becomes one with the intent of being its owner through a new fact.
Where the person who has put it in his possession is not the owner, and the possessor already knows the exact owner of the thing possessed when he made the expression as specified in the preceding paragraph, the possessor shall also express his intent to the said owner.
The preceding two paragraphs shall apply mutatis mutandis to where the possessor with the intent of being its owner changes his intent of possession to that other than the intent of being an owner, and the possessor with one intent of possession changes his intent to another intent of possession.
The transfer of possession becomes effective by the delivery of the thing possessed.
The provisions of Article 761 shall apply mutatis mutandis to the transfer as specified in the preceding paragraph.
The successor or transferee in a possession may assert either his own possession or his possession together with that of his predecessor.
In case the possessor asserts the possession of the predecessor together with that of his own, he succeeds also to its defects.
If, with the purpose of transferring the ownership of, or creating other rights to a personal property, a person in good faith takes the possession of such personal property, such possession shall be protected by law, even though the transferor had no right to transfer it. Provided, however, this provision shall not apply, if the transferee knows, or does not know with gross negligence, that the transferor has no right to transfer it.
If a personal property’s possession is transferred according to the provisions of Paragraph Two, Article 761, the transferee shall only be protected by the preceding paragraph, if he receives delivery and is in good faith at the time of delivery.
If the thing possessed is a steal, lost property, or its original possessor has lost possession unintentionally, the original possessor is entitled to demand from the current possessor, who in a good faith takes the possession of such property, the restoration of the thing within two years from the time when he lost possession.
Once the thing is restored in accordance with the preceding paragraph, the rights on it have also been restored from the time the possession was lost.
If the steal or the lost property, or other thing which its original possessor unintentionally lost possession, is bought in good faith by the current possessor in an open trade market, or from traders selling things similar to the one possessed, the thing cannot be restored without returning the buyer with the price he paid for it.
In case the steal or the lost property or other thing which its original possessor unintentionally lost possession consists of moneys or securities for which no right holder is named, restoration of the same cannot be demanded from its bona fide current possessor.
The provisions of Article 949 and Article 950 shall not apply to the original possessor who is a mala fide possessor.
A bona fide possessor may use the thing possessed and collect the profits therefrom within the scope of his legally presumed right.
If, in consequence of circumstances for which the bona fide possessor is responsible the thing possessed is lost or destroyed, he is liable for the injury to the person demanding the restoration only to the extent of the interests which he, the said possessor, has received by reason of the destruction or damaged.
A bona fide possessor may demand from the person demanding restoration return of any necessary outlays incurred for the preservation of the thing possessed. However, he cannot demand to return the general necessary outlays, if he has collected the profits of the said thing.
A bona fide possessor may demand from the person demanding restoration return for any beneficial outlays incurred for the improvement of the thing possessed in so far as the existing value of the thing is increased thereby.
If, owing to circumstances for which a mala fide possessor or anyone possessing the thing without the intent of being its owner is responsible, the thing possessed is lost or destroyed, he is liable to the person demanding restoration for any injury arising therefrom.
A mala fide possessor may demand from the person demanding restoration return for any necessary outlays incurred for the preservation of the thing possessed in accordance with the provisions concerning management of affairs without mandate.
A mala fide possessor is liable for the return of profits. If the profits have been consumed, or have been destroyed through his negligence, or have not been collected through his neglect, he is bound to compensate for the value of such profits.
A bona fide possessor becomes a mala fide possessor since he is sure that he has no right to possess the thing.
A bona fide possessor, who loses in an action concerning his right which the possession originates, is deemed to be as a mala fide possessor from the date the notice of complaint is served.
A possessor may defend himself with his own force against any act which deprives him of or interferes with his possession.
If the thing possessed has been seized, the possessor may, if it is a real property, retrieve the same by expelling the tortfeasor immediately after the seizure; or, if it is a personal property, retrieve it from the tortfeasor in the very act or in a pursuit.
The person entitled to the controlling power as specified in Article 942 may also exercise the right of the possessor provided by the preceding article.
If possession has been deprived from a possessor, he may demand the return of the thing possessed; if it is interfered with, he may demand the removal of the interference; and if it is in danger of being interfered with, he may demand the prevention of such interference.
The claim as specified in the preceding article is extinguished by prescription, if it is not exercised within one year from the time of the deprivation or interference or from the existence of the danger of being interfered with.
If several persons possess a thing in common, each possessor may exercise the rights provided by Article 960 or Article 962 over the thing possessed as a whole.
The thing retrieved or returned in accordance with the preceding paragraph shall be possessed for all the possessors.
The possession of a thing is extinguished by the loss of the controlling power de facto, which the possessor exercises in rem of said thing, unless the loss of such controlling power is only temporary.
If several persons possess a thing in common, each possessor cannot demand for the protection of possession against other possessor in so far as the extent of using the said thing is concerned.
A quasi-possessor is a person who exercises such property rights over a thing as are established without having taken possession of the said thing.
The provisions of the present chapter concerning possession shall apply mutatis mutandis to the quasi-possession as specified in the preceding paragraph.