Roman law provides us with no definition of possession. Paul,[18] following Labeo, merely points out that the term possessio is derived from 'seat' or 'position'. However, Ulpian[19] states that possession has nothing in common with ownership. This is quite a sweeping statement,[20] but the difference between ownership and possession is clearly illustrated by the protection of possession by means of the possessory remedies and the procedural aspects thereof. Special remedies, the interdicta, were created by the praetor to protect possession as such. There were three authentic possessory interdicts, the interdicta uti possidetis, utrubi and unde vi.[21] The interdictum undi vi can be considered as the earliest root of the mandament van spolie because it only concerned the restoration of possession (lost by means of violence). The remedy was not available in cases of mere disturbances of possession.[22] The reasoning behind the Roman approach to the protection of possession is explained by the remark of the emperor Marcus Aurelius[23] that violence (vis) not only implies physical violence, but that it is also present when someone dispossesses another without the intervention of the legal process. It concerns the situation where someone who professes to be entitled to the possession of a thing takes the law into his own hands (acts as his own judge)[24] by disturbing or dispossessing the possessor. Proceduraly, therefore, a distinction was made between the preceding possessory suit (iudicium possessorium) and the subsequent petitory suit (iudicium petitorium). Possession must first be restored. During the possessory suit, when the possessory remedy is applied, the judge does not consider the merits of the case and the rights of the parties. He merely deals with the de facto issue of possession and the disturbance or deprivation thereof. The unsuccessful party in the possessory suit can thereafter enforce his rights in the petitory suit. The successful party of the possessory suit would then be the defendant, who might in the end lose his possession. In this sense, the possessory remedy sometimes provides only temporary relief. During the petitory suit other remedies such as actions (for example the rei vindicatio) are instituted and the plaintiff had to prove his title, what we nowadays refer to as rights. In the case of the rei vindicatio, for instance, the plaintiff had to prove ownership and that he was entitled to the possession because the defendant's possession was unlawful.[25] The possessory remedies of Roman law were received into Western European law since the late eleventh century, but during the reception period before the codification movement in Europe, several other possessory remedies came into existence.[26]

In Roman-Dutch law three possessory remedies were in use during the seventeenth and eighteenth centuries. They were the mandament van complainte, the mandament van maintenue and the mandament van spolie. These remedies were received in the Netherlands from France.[27] The mandament van spolie emerged in Canon law with the creation of the so called 'condictio ex canone redintegranda' in the glosses of the Decretum Gratiani.[28] In later centuries this remedy was also received into secular law as the remedy of rintgrande in France[29] and as the actio spolii in Germany.[30] As far as the application of the possessory remedies in general is concerned, the Roman doctrine of the separation of the possessory and petitory suits was received in the law of civil procedure in Canon law and in the European ius commune. The underlying principle of the mandament van spolie was spoliatus ante omnia restituendus est: the spoliated person must be reinstated in possession before anything else (before an evaluation of the merits of the dispute) because the spoliator took the law into his own hands.[31]

In Roman-Dutch law three possessory remedies were in use during the seventeenth and eighteenth centuries. They were the mandament van complainte, the mandament van maintenue and the mandament van spolie. These remedies were received in the Netherlands from France.[27] The mandament van spolie emerged in Canon law with the creation of the so called 'condictio ex canone redintegranda' in the glosses of the Decretum Gratiani.[28] In later centuries this remedy was also received into secular law as the remedy of rintgrande in France[29] and as the actio spolii in Germany.[30] As far as the application of the possessory remedies in general is concerned, the Roman doctrine of the separation of the possessory and petitory suits was received in the law of civil procedure in Canon law and in the European ius commune. The underlying principle of the mandament van spolie was spoliatus ante omnia restituendus est: the spoliated person must be reinstated in possession before anything else (before an evaluation of the merits of the dispute) because the spoliator took the law into his own hands.[31]

In Roman-Dutch law three possessory remedies were in use during the seventeenth and eighteenth centuries. They were the mandament van complainte, the mandament van maintenue and the mandament van spolie. These remedies were received in the Netherlands from France.[27] The mandament van spolie emerged in Canon law with the creation of the so called 'condictio ex canone redintegranda' in the glosses of the Decretum Gratiani.[28] In later centuries this remedy was also received into secular law as the remedy of rintgrande in France[29] and as the actio spolii in Germany.[30] As far as the application of the possessory remedies in general is concerned, the Roman doctrine of the separation of the possessory and petitory suits was received in the law of civil procedure in Canon law and in the European ius commune. The underlying principle of the mandament van spolie was spoliatus ante omnia restituendus est: the spoliated person must be reinstated in possession before anything else (before an evaluation of the merits of the dispute) because the spoliator took the law into his own hands.[31]

1. Discuss the Roman categorization of incorporeals and whether it was susceptible to possessory interdicta