Habtamu.

S, Institute of Land Administration (April, 2022)

i.PROPERTY LAW

Chapter one

Introductory remarks

What is your immediate conception when you heard of the word property?

In common English parlance, the term property refers to things or objects such as a house, a land,
a car, a table…etc. It also refers to the right of ownership of person. Hence, you may commonly
hear a person claiming that a certain thing or object is his property, that somebody took his
property…etc. However, the term, in its legal usage, refers to the rights a person may have in
relation to things or objects that have economic value. The things or objects in relation to which
property rights are exercised are called objects of property. Hence, property refers to rights such
as ownership, possession, usufruct, use, and rights of servitude, recovery, preemption and
promise of sale. The branch of law that specifies the objects or things in relation to which
property rights may be exercised and their classification, the types of rights which are considered
as property, how property rights are acquired, transferred, extinguished, the specific rights and
obligations of the property right holder, the obligations of other persons to wards the holder is
known as property law. In general, property law may be defined as a branch of private law
regulating relations between persons with respect to things or objects.

1. Nature and Concept of Property

1.1 Rights protected under the Civil Law

Rights of a person that are recognized and protected by the civil law may be patrimonial rights,
i.e., those that have a pecuniary value such as property rights over things and rights arising out of
contractual relations or those arising out of extra-contractual relations. They may also be extra
patrimonial rights, those that cannot be assessed in terms money such as family, political and
civil rights.
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Patrimonial rights that arise out of contractual or extra-contractual relations are generally
governed and protected by the law of obligations, i.e., by the law of contracts when they arise out
of contractual relations and by the law of torts when they arise out of extra-contractual relations
(details are discussed in module three). These categories of patrimonial rights are also referred to
as rights in-personam / personal rights/ because they can be exercised against a specific person
or persons. On the other hand, patrimonial rights over things/ property rights/ are governed by
the law of property and they are also called rights in-rem/ real rights/ since they can be exercised
against any person who may interfere with the right-holder’s enjoyment.

Extra-patrimonial rights, which are defined above, are governed and protected by family law,
penal/ criminal law and other branches of law based up on the particular type of right in question.
Similarly, the obligations or liabilities of a person which are governed and protected by the civil
law may be patrimonial or extra-patrimonial depending up on whether they can be valued in
terms of money or not.

The totality or unity of patrimonial rights and obligations of a person constitutes his patrimony.
Hence, the total assets and obligation encumbered on the person makes his patrimony. The
concept of patrimony is essential to explain the rules of universal succession. For instance, an
heir or legatee by universal title shall succeed all patrimonial rights and obligations of the
deceased person, in other words, such an heir or legatee cannot succeed the rights only since the
elements of patrimony are transferred to him as unit. /See Arts 826, 898 & 942 of the Civil
Code).

4.1.2 The Concept of Property

In its narrower and proper legal sense, property may be defined as an exclusive right to control,
use, transfer… an object or a thing of economic importance and its fruits, exclude all other
persons from its use and enjoyment and the right to follow the thing and its fruits in the hands of
any person who might have unlawfully taken it. It is a name for a concept that refers to the rights
and obligations, privileges and restrictions that govern the relations of persons with respect to
things having economic or financial value. It would be inaccurate and narrow to use the concept
of property to refer to ownership or title because the legal usage of the term includes other rights
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such as possession, usufruct, use, and servitude. The things in relation to which such property
rights are exercised are objects of property rather than property itself. Hence, the house, or the
car, or the table in relation to which an ownership right is exercised is properly called an object
of the right of ownership.

Art 40/1/ of the FDRE Constitution which guarantees the right to property provides that property
right includes, unless restricted by law for public purposes, the rights to acquire, use, and transfer
things/ tangible or intangible/ of financial value.

Property rights are rights in-rem in the sense that they create an obligation, on all other persons,
to refrain from any act of interference in the use and enjoyment of a thing one owns or possesses.
It also entitles a possessor or an owner of a thing to pursue such thing in the hands of any person
in to whose possession the thing might have come.
In this regard, Art 1206 of the Civil Code provides for the right of an owner to claim and recover
the thing owned from any person who, without his consent, possesses or holds it and to oppose
and repel any act of usurpation. See also Arts 1148 and 1149 of the Civil Code.

Let us assume you lend money to your friend X. This kind of right is emanating from contract
and known as personal right since you clam it from a particular person X. But if you own a car,
the kind of right you exercise is real right which is exercised against the whole world, means
everybody is under obligation not to take your car.

4.1.3 Definition and Scope of Property Law

What is the law of property? Could it be said that it is the law relating to physical objects such as
a house, land, car … etc? Or is it a branch of law dealing with or governing relations between a
person and things or objects?
Not every transaction, right, or liability relating to physical objects/ material things/ is regarded
as relevant to the law of property, for instance, a contract between an owner of a car and a garage
to service the car is part of law of contract rather than the law of property. Similarly, interference
in the enjoyment of or damage caused to physical objects is an ordinary tort and not subject to
property law. However, certain torts involving property claims /such as trespass and nuisance in
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relation to buildings and land/ have an effect that is more specific to property rights and are
governed by the law of property than the law of torts. However, nuisances committed by a
person with no proprietary claim are more part of torts than property law.

Like all law, property law seeks to articulate the principles, policies, and rules by which disputes
are to be resolved and by which transactions may be structured so that disputes may be avoided.
What distinguishes property law from other kinds of law is that the principles, policies, and rules
of property law deal with the relationships between and among members of a society with
respect to things.
Thus, property law may be defined as a branch of law which deals with and regulates the
property rights i.e. the real rights /rights in-rem/ a person exercises over a certain object which
include rights to use, to collect and enjoy the fruits of, to transfer (by sale, donation or
inheritance) and even abandon the object and exclude others.

4.1.4 Objects of Property

What is an object of a property?

The phrase objects of property may be defined as the goods or things over which a right of
property may be exercised.

In law an object of property may refer to;

1) A thing, which is corporeal and tangible matter, which has an organic or physical unity, for
example a horse, block of marble.
2) A thing, which is corporeal and tangible, but consists of specific things, for example, a flock
of sheep, a house.
3) A thing, which is neither material/ corporeal/, nor tangible but which is a source of wealth,
for example a copyright or a patent right, a claim for payment of sum of money, etc.
Hence, the phrase objects of property refer to things in the sense of any possible matter over
which legal right of property may be exercised.
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When we see Book III of the Ethiopian Civil Code, which is the law governing property, we find
that ‘objects of property’, i.e., ‘things’ are not properly defined. However, the various principles
found scattered in the provisions of Articles 1126_1139 help us to understand what things may
be considered as objects of property /things or objects/ in the Ethiopian property law.

Accordingly, under Ethiopian law, objects of property, herein after called thing /good may refer
to;
1. Things /goods which have material existence such as a car, an ox, a house/ corporeal things/
(Art 1127), as well as claims and rights contained in securities to bearer which are
incorporeal or intangible by nature but which are assimilated to corporeal things (Art 1128)
and
2. Things which have no physical or material nature but which are perceptible by senses for
example natural forces of economic value such as solar and wind powers which are mastered
and put to use by mankind (Art 1129).
Note that the terms goods and things are used interchangeably in the code to refer to the same
concept (Articles 1126_1140).
It may be concluded that the phrase object of property refers to the things/goods over which a
potential right of property may be exercised and it may be a thing which have material or
physical existence, i.e., a corporeal thing or a thing which does not have such material or
physical existence, i.e., an incorporeal thing. As to which things may be appropriated and which
are not, depends on the existing laws, for example land which was appropriable i.e., capable of
private ownership during the time of the enactment of the civil code is now the common property
of the peoples of the country. Art 40 of the FDRE Constitution provides that land belongs to the
people of Ethiopia and cannot be privately owned or appropriated and all Ethiopians have the
right to use land.

Intrinsic Elements of Things

Art 1132 of the Civil Code defines intrinsic elements of goods as things, movable or immovable,
which are regarded by custom as forming part of a thing, or which is materially united to a thing
and cannot be detached there from without destroying or damaging such thing. For instance, a
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hay-tucker attached to a tractor may be considered by farmers as forming part of the tractor
/custom of the farming community/. A house in a farm land may also be considered as forming
part of the land (custom).
A windshield of a vehicle is materially united with the latter and cannot be separated from it
without damaging the use of the car, as the vehicle is incomplete without a windshield. Water
pipes in a building cannot be detached from the building without damaging the floor in which
they are buried.

Trees and crops are considered as intrinsic elements of land until they are separated there from or
until a contract for their separation is concluded.
The treatment of things as intrinsic elements of another thing will have the following effects.
1. Rights on or dealings relating to the principal thing shall include the intrinsic elements unless
the parties have agreed expressly that such right or dealings shall not apply to them. For
instance, a contract of sale of a house includes the water pipes thereof unless the parties
agreed other wise.
2. A thing that becomes an intrinsic element of another thing ceases to exist as a distinct
movable thing. For instance, a water pipe fitted in a building or a windshield glass newly
bought and fitted to a vehicle ceases to exist as a separate thing or object of property. Hence,
the right, which third parties previously had on such thing, shall be extinguished. However,
such person may claim reimbursement of the value of such thing and compensation for
damages based on the rules of unlawful enrichment. See Arts 1134 and 2162-2163 of the
Civil Code.

Accessories of Things
Art 1136 of the Civil Code defines an accessory as anything, movable or immovable, which the
owner or the possessor of the thing has permanently destined for the use of another thing. For
instance, if an owner of a car puts a jack permanently for the use of his car the jack shall be
considered as the accessory of the car.
A tractor, or a pair of oxen, or a horse put by the owner/possessor of a land for the use of his land
is considered as accessory. Similarly, a plot of land adjacent to a certain farm that is intended for
the use of the farm or a private water well outside a certain farm and which the owner/possessor
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of the farm has destined for the use of such farm as a source of water is considered as an
accessory to the principal thing, the farm.

The treatment of things as accessories of another thing shall have the following effects.
1. In the absence of an express provision to the contrary, rights on and dealings relating to the
principal thing shall apply to the accessory. For examples, if you sale or rent your land, the
water well is also presumed as part of the rent and shall be used by the new person. See Art
1135 of the Civil Code.
2. Temporary separation of the thing shall not, in any way, terminate the character of
accessories. See Art 1137.
3. Rights of an owner or possessor of a thing, which is considered as an accessory of another
thing shall not be affected by its treatment as such. Hence, the owner of the principal may not
raise the treatment of a thing as an accessory to another thing against the owner or possessor
of the accessory. See Art 1138/1/.( Note that this provision governs the relationship between
the owner/possessor of the principal thing and the owner or other right holder of the thing
treated as an accessory).
4. However, the owner or possessor of the accessory may not claim it from third parties in good
faith who have acquired the principal together with the accessory unless his rights to the
accessory are evidenced by a deed dated prior to date when it is so destined. See Art 1138/2/.
5. Finally, the owner/possessor of a principal thing may terminate the character of accessory of
such thing at any time, but he cannot do so if a third party has already acquired a right in
relation to the principal thing with the belief that he will benefit from the accessory. See Art
1139 of the Civil Code.

4.1.5 Classification of Objects of Property

Purpose of Classification

Firstly, the economic and social values attached to things are not the same, i.e., certain things are
more important than others are. For instance, buildings or houses and land / immovable things/
have a much higher economic and social importance or value than most movable things such as
furniture, shoe or an ox. As a result, the rules governing the acquisition, transfer, proof and
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extinction of property rights over the various categories of objects are different. For instance,
contracts relating to immovable things have to be made in writing and must be registered with
the appropriate public organ, while contracts relating to most movable things are not subject to
these requirements. Furthermore, the existence of property rights in relation to immovable things
must be proven by producing special written document, while the possessor of most movable
things is presumed by law to be the lawful owner. / See Articles 1723, 1195 and 1193 of the
Civil Code/.

Secondly, the systematic classification of things in to various categories helps the legislator to
enact special rules governing the particular category of things which will in turn enable students,
judges and other legal professionals to easily understand the law and apply relevant rules to
resolve various disputes involving the particular object of property.

A. Corporeal and Incorporeal things

This classification is based on the physical or material nature of things or objects, i.e., it is a
classification of things in to those that can be perceived by the senses and those which cannot be
so perceived. Corporeal things are things that have material or physical existence and unity and
hence, can occupy space and can be seen or touched. Hence, things such as a house, a car, an ox,
and a watch are corporeal things. According to Art 1127 of the Civic Code, corporeal things are
things that have material or physical existence and that can be seen and touched.

Incorporeal things are things that do not have a material or physical existence, that cannot
occupy space and hence that cannot be perceived by the senses. This category primarily include
rights particularly those that have economic value and can be expressed in terms of money. For
example, copyrights and patents. Rights and claims arising from various contracts and contained
in negotiable instruments such as checks, promissory notes, bills of exchange, shares, bonds,
warehouse goods’ deposit certificates and bills of lading are also examples of this category of
things. See Arts 715, 325, 345, 429-444, 570, 610 of the Commercial Code, and Arts 2806-2824
of the Civil Code.
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The Ethiopian Civil Code under Art 1128 recognizes this classification by including claims and
other right incorporated in {securities} to bearer in the realm of objects of property or things. In
addition to these, natural forces of an economic value such as solar and wind powers used for
generation of electricity are considered as incorporeal things from the moment they are
controlled and put to his use. Though these things are incorporeal by nature, the law, for the sake
of convenience, regards them as corporeal things. / See Art 1129 of the Civil Code/

B. Movable and Immovable things

The basis of this classification is physical mobility or immobility and the value or importance
attached to various types of property.

Movable things
Movable things are things which can move by themselves or be moved by man without losing
their individual character. Hence, an ox, a car, table, a book …etc are movable because they can
move by themselves or be moved by man from place to place without being dismembered in to
several parts. Things that cannot move by themselves or cannot be moved by man unless they are
first dismantled or demolished are not movable things. See Art 1127 of the Civil Code
Special movable things: These are movable things by nature but to which the law attaches
characteristics of immovable things. The law does so mainly because of the importance attached
to these types of things. The rules governing the acquisition, transfer and proof of rights over
ordinary movable things/ also called chattels/ shall not apply to special movable things, because
they are governed by the rules applicable to immovable. For instance, a right of ownership over a
table is transferred by a simple delivery of the table, while ownership of a special movable thing,
such as a motor vehicle, is transferred in the same manner as a transfer of a building by
registration of the act transferring the right, registration of transferee in the register kept by the
relevant government organ and issuance of a title deed in the name of the transferee. /See Art
1185 and 1186 of the Civil Code. /
This classification includes things such as motor vehicles, ships, airplanes, televisions and
businesses. See Art 2267 (2) 3047 (2) of the Civil Code.
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Movables by anticipation: These are immovable things by nature but which the law considers as
movable things. According to Art 1133(2), trees and crops which are considered as intrinsic
elements of land, and hence immovable, will be considered as distinct movable things or chattels
where they are the subject to contracts for their separation. For instance, where a contract for the
sale of standing trees is concluded, the tress that are not yet cut are considered as movable
objects starting from the date of conclusion of such contract. They are called movables by
anticipation of their future removal from the land. Before the contract they were considered
immovable. The same is also true of component parts of a building which is going to be
demolished and its intrinsic elements such as the doors, windows, corrugated iron sheets, pipes
and electrical appliances are considered as separate movable objects even before the house is
demolished. Similarly, a contract for extraction and sale of products of quarry such as stone and
sand shall have the same effect in relation to such things. Refer to Art 1133/2/ and 2268 of the
Civil Code.

Immovable things

Though it classifies, under Art 1126, all things in to movables or immovable, our Civil Code
does not define the concept of immovable things. It rather enumerates, under Art 1130, the
things which are considered as immovable under Ethiopian law. Accordingly, land and
buildings are considered as immovable things. From this enumeration, one may ask as to why
other things that are attached to the ground such as trees and crops are not treated as
immovable things under the law. generally immovable things can also be classified as
immovable by nature and immovable by destination.

Immovable by nature: One may define immovable things as things that cannot be moved from
one place to another at all or that cannot be moved without being divided in to several parts.
From the acontrario reading of Art 1127 of the Civil Code, we may define immovable things as
things that cannot move by themselves or be moved by man without losing their individual
character. Articles 1130 and 1133(1) are dealing with immovable by nature.

Articles 1130 and 1133(1) seem to limit the category of things immovable by their nature to
those of lands, building and trees and crops before they are separated to the land. This is not the
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case however. There are a lot others which may be found scattered in the various parts of the
Civil Code and probably in any other specific statutory laws. For example, under the title of
“public domain” Art. 1446 C.C. lists the following under the specific title of “immovables”.
These are
(a) roads and streets, canals and rail ways,
(b) seashores, part installations and lighthouses, and
(c) buildings especially adapted for public services such as fortifications and
churches.

Besides, party-walls, ditches, water and gas pipes and electrical and other lines, and fences are
immovables by nature-see Arts. 1201-1203 C.C. Barns, gas tanks, and depots are also
immovables by nature.

The other obvious category of immovables by nature is what is referred to as buildings under
Art. 1130 C.C. But what is meant by “buildings”? Well, this appears simple to understand. This
is not always true however. Of course there are simple instances such as residence houses in the
urban and rural areas, offices of public institutions as such.

Immovables by destination: Immovables by destination are movable things that are placed
permanently with an immovable thing for the latter's economic exploitation. In other words,
these are accessories of things.
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Chapter two

Possession

Introduction

What do you imagine when you heard of “possession”? Who do you think is the
possessor of a thing? Owner, lessee, housekeeper? Possession signifies the exclusive use
and enjoyment of a thing. Possession consists in the actual control which a person
exercises over a thing (article 1140 CC.) Dear learner, this section on possession is
another important part in the study of law of property. In here, we shall discuss about
the concept of possession, its elements, the importance of possession, the rights of the
possessor, the protection provided to the possessor by the law, transfer and loss of
possession.

Objectives
After reading this section students are expected to:
• Know the concept of possession
• Identify the legal protection to possessor of a thing
• Identify modes of transfer of possession rights
• Differentiate between possessory action and action

4.2.1 Theoretical concepts of possession

Theoretical explanation of possession
Savigny, a German roman-law scholar and founder of the historical school of jurisprudence,
argued that possession consisted of two ingredients, corpus possessions, i.e., effective control
and animus domino, i.e., the intention to hold as an owner. The distinction between detention and
possession follows from a proper analysis of the latter concept. Possession is made up of two
elements
a. The corpus or element of physical control and
b. Animus or element of intent with which such control is exercised. Savigny thought that since
the detentor and possessor have the same physical control the difference between these terms
must be found in the mental element, the intent which distinguishes the possessor is the
animus domino, the desire to hold for one self and not on behalf of another.
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Definition of possession
The term possession may be defined as the detention and enjoyment of a thing by a person
himself or through another person in his name. It refers to the relation of person to a thing over
which he may, at his pleasure, exercise such control as the character of the thing permits to the
exclusion of other persons. Possession in the narrow legal sense is the holding of a thing in the
power of a person who intends to exercise, with regard to it, a property right. Refer to Art 1140
of the Civil Code.

The exercise of a right in relation to an object consists of either physical acts of use, enjoyment,
or transformation, or legal acts of administration and disposal. Possession is, in the broadest
sense, the state or relation of fact that gives a person the physical, actual and exclusive capacity
with regard to a thing to carry out acts of use, enjoyment or transformation. However, the
exercise of the legal acts of administration or disposal does not necessarily require the fact of
possession because an agent who is acting in the name of the actual possessor may perform such
acts. The owner of a thing can sell or lease it even if it is occupied by or is in the possession of a
third party.

Article 1140 of the Ethiopian civil code defines possession as “actual control a person exercises
over a thing”. This control over a thing has to be by a person. The actual control is referring to
that corpus element of possession as we tried to show.

From the readings of articles 1141, 1144, 1145, and 1147(1) we learn that actual control can be
direct (immediate) or indirect (mediate). Hence correspondingly, there are two types of
possession as expressly written in the very title of Art. 1141. These are direct possession and
indirect possession.

When a person exercises an actual control over a thing, depending on the mental element of this
person, he may be regarded as a possessor or a mere holder. Art.1141 reads “The possessor may
exercise his control over a thing directly or through a third party who holds such thing”
(emphasis added). Art. 1147(1) on its part proclaims that “…he who began to possess on behalf
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of another person shall be regarded as a mere holder.” From these two articles we can infer that
to be a possessor in Ethiopia, a person needs to have internal (mental) attachment to a thing for
otherwise one will be regarded as a mere holder. What distinguishes a possessor from a mere
holder is clearly his attitude towards that object of property. If one holds it for oneself, the holder
is at the same time a possessor, but if one holds it for another, the holder is simply treated as a
mere holder, a detentor.

Thus, it is possible for one to be accorded with a status of possessor in either of these two cases:
▪ When one exercises actual control over an object of property [a “thing’] on his own
▪ . account(corpus element) or
▪ When one exercises an actual control over an object of property on behalf of another
person (who retained the mental element of possession but put his thing under the
detention of another), animus element

4.2.2. Acquisition of possession

The acquisition of possession is realized if the two constitutive elements concur, i.e., where the
present and exclusive power to act physically with regard to the thing (corpus) and the
manifestations of an intention to keep the thing as owner (Animus) exist. The action by which a
person obtains the present and exclusive power to act physically with regard to thing is called
seizing (apprehension). Thus, it is possible to take possession of a land without physically
entering it or of a corporeal movable thing without touching it. However, acts which constitute
criminal violation of property rights or which would have been enjoined judicially as affecting
possession of a third party are not effective for acquiring possession.
The intention to control a thing for one’s own interest/ animus/ must be manifested by an
external act which is usually represented by the taking of possession itself or entering in to an
agreement or other legal transactions.

As distinguished from exercising physical control, which can be exercised through third party,
the intent to possess must internally exist in the person of the possessor himself and manifested
by him. However, it may be manifested through a mandate given in advance to a third party to
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take possession. In such cases, the principal acquires possession from the time when the agent
entered into a contract or other juridical act for his account.

In Ethiopia, possession may be acquired through different means, such as contract, inheritance,
by operation of the law and so on.

4.2.3 Defects of Possession

Possession may be affected by flaws either in the mental element/ the animus /or in the nature of
the physical acts / the corpus / through which possession has been acquired or continued. A
defective possession shall not produce the effects that are normally associated with possession.
Similarly, Art 1146/1/ of the Civil Code also provides that defective possession shall not give
rise to any right. The following are the grounds that can render a possession defective:
Art. 1146. - Secret or dubious possession
(1) Secret or dubious possession shall give rise to no right.
(2) Possession is secret where he who exerts actual control over the thing conceals his
status as possessor in circumstances which justify the assumption that he has no right in
respect thereof.
(3) Possession is dubious where in the circumstances it is doubtful whether it belongs to
him who alleges himself to be the possessor or whether he detains the thing on behalf of
another person.

Precarious Possession
Possession of a person is affected by the defect of precariousness if the person does not have a
right of ownership in relation to the object he holds. According to French terminology,
precarious possessions refer to the possession of those who hold a thing for another on basis of
an agreement or in such quality that, at the expiration of the agreement, or where they lose their
quality, they must return the thing. Hence, the possession of a usufructuary, a limited user
/usage/, a tenant farmer, leaseholder or a pledgee, a creditor secured by antichresis, a tutor with
regard to a minor's property is affected by the defect of precariousness.
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Simple occupants lack the animus element (intent to hold for themselves). This presumption is
tied to the origin of their possession and continues throughout its duration. Simple change of
intention, that is the intention to hold henceforth for their own account, is not capable to change
their occupancy in to a genuine possession. However, those simple occupants who hold a real
interest in the thing, such as a usufructuary, a holder of a use right, a lessee, and a pledgee are
considered as possessors in relation to all persons other than the person to whom they have the
obligation to return the thing.

The defect of precariousness can be healed only by change in the nature of the possession
resulting from a legal ground originating in a third person or from the owner, or from a formal
contest by the simple possessor against the person for whose account he has been holding.

Clandestine (dubious) Possession

Possession is clandestine, that means not open, if the acts by which it was acquired and
continued were not such as to be known to the outside, especially to those persons against whom
they are to be claimed. This defect can be healed as soon as it is revealed by material acts openly
carried out.

Violence
A possession acquired or continued by acts involving physical or psychological violence is
vitiated by a defect of violence It is not necessary that the object of possession be first returned to
the control of the person who was deprived of it, or that the possession is converted through the
change of cause. However, the benefits attaching to a possession are acquired only if the
peaceful enjoyment continues for at least one year.

Violence represents a purely relative defect that can be asserted only by the person against whom
it was exercised.

The Ethiopian law does not clearly declare violence as a cause for defectiveness of possession.
See Art 1146 of the Civil Code. However, we can deduce from the provisions of Art 1148, which
allows a possessor to use force to recover a thing which has been taken away from him through
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violence, that a person who used force to acquire possession is not protected by the law as his
action is unlawful and violates public interest for peace and order. Therefore, a possession that is
acquired through violence or force is defective and cannot produce the effects of a lawful
possession.

Ambiguity/ Dubiousness
Possession is said to be ambiguous where it is not clear whether the person is holding a thing in
his own name or in the name of another person. According to Art 1146/3/, a possession is said to
be ambiguous or dubious where, in the circumstances, it is doubtful whether the thing belongs to
the person who claims to be the possessor or whether he holds the thing on behalf of another
person. This type of defect is clearly related to the mental or animus element of possession. An
ambiguous possession shall not have the effects of possession. For instance, it cannot be the base
for acquisitive prescription. See Arts 1146/1/, 1168 and 1150 of the Civil Code.

4.2.4 Effects of Possession

1. Possession may create ownership either by occupation, i.e., by taking control of res-nullius/ a
thing with out an owner/ or through the expiration of a period of acquisitive prescription. See
Art 1151 and 1168 0f the Civil Code.
2. Possession is a prima facie evidence of ownership, and he who would disturb a possessor
must show either title/ownership or a better possessory right and defense of lack of legal title
by the possessor may not be set up by him. For example, a jeweler cannot claim the return of
a ring from a person who found it on the ground that the finder is not an owner, nor can a
person who is not an owner claim the return of a thing from a thief. Hence, even a wrongful
possession is good against all persons except the true owner or one claiming through him or
one claiming a prior possessory right. See Art 1193 of the Civil Code.
3. Possession is the basis for certain remedies because the law protects a possessor, as it does
not always know that a possession in question is unlawful. In times when proof of title was
difficult and transfer of property required intricate formalities, it would have been unjust to
cast on every man whose possession was disturbed the burden of proving a flawless title
Hence, the law protects, even a wrongful possessor, from dispossession by the owner without
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due process of law and the owner has to institute legal action by proving his ownership right
to recover the thing. See Art 1206 of the Civil Code.

4.2.5 Protection of possession

The civil code recognizes two measures to protect the possession of a person: use of force and
possessory action.

Possessory Actions
In the broadest sense, possessory actions are those that are based exclusively on possession with
out touching the basis of the title. In this broad sense, possessory actions include actions to retain
possession, actions in restraint of works by neighbors and actions to recover possession.
Compare Arts 1149 and 1206 of the Civil Code. In other words, possessory actions are legal
actions or suits instituted by a possessor who has been disposed of his possession or whose
possession is interfered with or whose possession is threatened by the actions of another person.

According to Art 1149/1/ of the Civil Code, a possessor [or even a holder] who is dispossessed
of his possession or whose possession is interfered with may institute an action for the
restoration of the thing or cessation of the interference and claim compensation for damages
resulting from the dispossession or interference. Hence, our law recognizes possessory actions
for the restoration of possession and cessation of interference in possession.
Finally, according to Art 1149/2/ a possessory action of any type shall be barred if not brought
within a period of one year/ the Amharic version provides two years/ from the day of the
usurpation or interference. This means that the possessor loses his right to require the restoration
of the thing or cessation of interference where he fails to institute legal action with in the period
of two years. However, he may still recover the thing by instituting action for restitution/
nugatory action/ under Art 1206 of the Civil Code provided that he can prove his right of
ownership and as long as he has not lost his ownership through extinctive prescription. See Art
1168 and 1189 of the code.
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Art 1149/3/ of the code provides that the court, provided that the plaintiff has proven his
possession and the interference in such possession, shall order the cessation of interference or the
restoration of the thing unless the defendant can prove forthwith and conclusively the existence
of a right in his favor justifying his conduct.

Use of Force
Use of force is the other means provided by the law for the protection of possession. Actually
this ‘self-help’ type of protection is considered as a protection provided for the person of the
possessor or holder and not merely for the protection of his property. It would also be unjust to
prohibit a person from using force to repel or resist usurpation or to recover a thing, which has
been taken away from him and require him to seek judicial remedy.

The law allows the possessor or holder to use force in order to repel violent actions of persons
aimed at taking the thing under his control. According to Art 1148 of the Civil Code, the
possessor or holder has the right to defend his possession by using a reasonable force to prevent
a person who intends to dispossess him or to retake possession of a thing which has been taken
away from him by force or which has been stolen from him provided that the usurper is caught in
the act or when running away.
The law, under Art 1148, entitles even a mere holder to this mode of protection of possession. As
mentioned above, this is because this mode of protection is more than a mere protection of
property interests of a person; it is rather intended to enable the person to take measures to
protect his/her personal security.

4.2.6 Transfer of possession

The transfer of possession may result from contracts such as sale, donation or operation of the
law.
Possession may be transferred by the delivery or handing over of the thing or documents
representing the thing such as a bill of lading, consignment note, a ware house goods deposit
certificate. It may also be transferred through delivery bravemanue, i.e., an agreement between
the holder and the person for the account of whom the former exercises possession and in which
the holder ceases to hold in the name of another and begins to possess in his own name.
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Alternatively, it may be transferred through constructive possession in which the possessor

agrees to cease to hold in his own name and to begin to hold for the account of another who is
considered as the actual possessor. See Arts 1143-1145 of the Civil Code.

Discussion questions
1. What are the defects of possession?
2. Under Ethiopian law possession consists of a mere physical control of the thing only. A.
True B. False
3. What are the two requirements of possession discussed by Savigny?
4. What are the two measures recognized by law to protect possession?
5. What are the ways by which possession may be transferred?
6. What are the two types of rights or reliefs a possessor may seek to protect through a
possessory action?