Possession And Bad Faith

Possession and bad faith

Introduction

Possessing etymologically have the possibility of taking a seat in one thing, in order to occupy it and have it. The Escrache Legislation Dictionary describes the separate possession of the property, since over time confusions have been given and controversies have existed with respect to this and property. This thanks to the fact that at the beginning of the times, the human being acquired things through property and retained them by possession confusing possession with the property.

Developing

The ways of acquiring possession could be classified into two categories: those that coincide with the ways of acquiring property (occupation, accession, and tradition) and that of those who do not coincide (legal provision, and recovery).

Possession as fact or as a right

With respect to whether it is a fact or a right, there is still a controversy in the doctrine, since at first glance classical doctrine considers it as a right and objective doctrine classifies it as a mere fact. However, Juan Larrea Holguín, trying to solve this, says that it depends on the solution given to him the unknown of what is the reason why possession is legally protected? 

If it is considered that possession (and its other ways of acquiring this right) is granted as an indirect means of guaranteeing property and other real rights, then possession should be classified as a mere fact; If, on the other hand, the other reasons are accepted by which possession deserves to be protected, then it is more logical to classify it as a true right.

Taking this into account, in our positive legal system, according to Larrea Holguín, possession should be considered as a fact that founds rights.

However, for Don Andrés Bello, this is not so, stating that possession is protected to guarantee property and in a secondary aspect takes into account other considerations developed by the doctrine; In other words, he affirms that possession should be classified as a mere fact in our legal system.

Possession and mere possession

Mera possession is simply a fact, it is the material basis that produces possession only linked to the mood of Lord and owner. Then this cannot lead to possessory action; And if all the requirements to meet possession are not met, the law goes on to call this person simply holder and mere tenure cannot transform themselves into possession by itself, or for the course of time, or by the pure will of the holder , since no one can, to improve their own title without someone’s help, this characteristic of mere possession is called immutability.

Andrés Bello emphasizes that possession and possession are terms that are in contrast, since as mentioned before, the holders use the thing instead of the owner as if they were and the holders are those who really have the mood of the Lord and owner. The Lord and Owner can claim what is his to a simple fork.

Possession of good faith and possession of bad faith

The good or bad faith of the holder of the thing are elements that will determine whether or not the possession is regular, this means if there is any vice when possessing the thing. Good faith is necessary for regular possession although the concept of this is discussed, since for some it simply means the absence of bad faith and for others it is more than this. 

However, something in which the majority coincides with respect to good faith is the fact that it must be a conviction or belief that the person who spent the domain of the thing, owned this and had all the faculties to convey the mastery of him; In other words, the thing was achieved under legitimate means.  On the other hand, the doctrine considers that any error could vitiate good faith and transform it into bad faith.

The error or ignorance can refer to facts that are given by an inadequate application of the law, in case this is so, the error can be ratified. If on the other hand the error was spontaneous, the error incurs it; If it was not so and the error was caused by a third person and there is deception and it induces the procedure to be fraudulent, the intent occurs and whoever has worked with intent, definitely does not have good faith.

Vitiated possessions

As mentioned, good faith should not be vitiated by fraud or any other vice. Next, the vices referred to in the Ecuadorian law will be explained:

• Violence: Violence is the use of force through any aggressive attitude: words, facts, threats. Violence, although normally used as a resource to defend oneself, no one can do justice by their own hand, since regardless of the end for which it is used, this is bad, and creates damage at the social level, by this Reason the right rejects and sanctions it.
• Clandestinity: something that does not want to become public is clandestine, something that is hidden with the purpose of staying like this. Who acquires a thing in a clandestine way and has knowledge of this situation, and yet does nothing to return it, it is a clandestine holder.
• Discontinuity: possession is discontinuous when it has been acquired in a certain time that has been interrupted and then acquired again. This, unlike hiding or violence, does not affect the regularity of possession.  

conclusion

Making it clear that both terms are complete owner, even when the thing was not in his hand) between the thing and the owner. 

In this way, it can be owned without having the thing and can be owned without being owner; A clear example of this occurs when: while someone has registered the title of a right and possesses one thing, another can occupy it and then it acquires the possession of the thing, but not the right, that is, it does not own. In this case, who has the possession of the thing, but not the law, may not do anything in case the owner initiates legal actions to claim his thing.