In spite of its wide-ranging significance, possession in Scots law has been relatively neglected as a subject of academic study. Craig Anderson's recent monograph therefore casts some welcome light on the topic. It is the third volume in the Studies in Scots Law Series (after Ross Anderson's Assignation and Andrew Steven's Pledge and Lien, both published in 2008). Possession of Corporeal Moveables bears the hallmarks of the series; it is an adapted version of a PhD thesis, and features high-quality doctrinal scholarship informed by historical and comparative legal research.
The focus is the physical element (corpus) of possession of corporeal moveables. There is, however, some limited consideration of the mental element (animus). This is mainly found within the first chapter, which examines possession's meaning and unitariness. Dr Anderson considers possession to be sufficiently unitary to enable him (cautiously) to use possession cases from all areas of the law to analyse specific issues. With reference to prevailing taxonomy, possession is not confined to property law. As a result, the research extends boldly beyond the boundaries of property, and wider private law, to possession in a criminal law context. Nevertheless, the property field remains the monograph's principal habitat.
A number of other systems (primarily Roman law, France, Germany, South Africa, and England) are used to contextualise and better understand the law of possession in Scotland. On points of divergence between the Common Law and Civilian tradition, Scots law is generally found to be in the latter camp. Historical and comparative analysis appears throughout Possession of Corporeal Moveables, including in the book's core: the examination of the physical element in relation to the acquisition and loss of possession. In the main chapter dealing with the former, Anderson concludes that the physical element is satisfied where an intending possessor has “acquired control of the property”, if that control is “of such a nature that, in the circumstances, an objective bystander would consider [the intending possessor] to be asserting a right to the property” (3–103). The core material is supplemented by chapters on related matters: momentary control of property, acquisition of possession by symbolical acts (of which the author doubts the effectiveness), and an extensive chapter on an ever-colourful and distinct topic, the possession of animals.
The book is enlivened by discussion of...
