Possession, they say, is nine-tenths of the law. For a concept so central to property law, however, it has rarely been the sole focus of scholarly works, Pollock and Wright's Essay on Possession in the Common Law (Oxford 1888) being the notable exception proving the rule. Crawford's work is a welcome focus on this foundational concept.
Crawford's central argument is that possession is much simpler than lawyers are led to believe. Although possession, to the lawyer, is construed as a troublesome, incoherent concept without settled and exhaustive meaning, laymen apply the concept effortlessly, without entangling themselves in doctrinal debate. Possession, for Crawford, is expressive, in that possession is the means by which individuals can stake their claim to and signal their interest in tangible things.
Crawford introduces his expressive theory with an account of the nature of possession. Starting with what he terms “the possession puzzle”, Crawford notes that although possession is one of the most important concepts in property law, it is nevertheless “poorly understood” and a “perennial source of confusion” (p. 1). This doctrinal incongruence cuts to the core of possession itself, with little consensus as to whether possession is a fact that creates a property right, or whether possession is a distinct species of right, separate from ownership. Even if the exact nature of possession was settled, this does not explain why the act of possession creates duties in rem in the first place.
Chapter 1 defines the foundational concepts. Of note is that Crawford rejects the notion that the content of a property right is the right to exclusive possession. Rather, Crawford argues that the notion of property should be uncoupled from possession. This means that property, “the right to exclude others from an object of property” (p. 12), should be and is distinct from possession, a fact which creates this property right. Property rights do not protect the right to possess per se, instead they protect the right to exclude, which may encompass the former. The core of a property right is that non-right holders have the duty of non-interference. In sustaining this argument, Crawford, as might be expected, is critical of the bundle of rights theory of property, as a concept with no fixed content.
Chapter 2's central argument is that the “confusion surrounding possession cannot be explained on the basis that the concept is intrinsically complex” (p. 41). Crawford advances two reasons for this. The first is that rights are incorrectly conflated with facts. In arguing that possession is a physical fact which creates rights, Crawford notes that where the law is referring to the existence of something “more than mere fact” (p. 46), it uses different terminology. Within possession, this includes language such as custody or detention. The second argument is that ownership in a system of relative title is misunderstood. In part this is due to the legacy of the medieval action of seisin, which originally allowed possession to resist a claim based in ownership.
Crawford aims to dispense with the superfluous language describing possession. In his sights is possessory title. To Crawford, if possessory title only indicates that the relevant right is not the oldest, then it is not a distinct interest unless it correlates with a duty demanding something other than non-interference. It is not a distinct type of property right, rather it is evidence of the relativity of property rights.
In some situations, such as bailment, it is however demonstrable that possessory title is distinct. Crawford anticipates this criticism by arguing that the rights of a bailee are not substantially different from that of the true owner, meaning that the term should “nevertheless be avoided” (p. 58). While the use of tort to protect interests in property certainly blurs the conceptual distinction between an owner and a bailee, one wonders what substantial difference would be sufficient in Crawford's view to justify different terminology. One wonders if it ever would be satisfied, given that bailment, a new proprietary relationship which cannot exist independent of another's prior possession, does not satisfy this criterion. While this distinction reinforces Crawford's relativity argument, it also hints at the risk inherent in linguistic rollback, namely that some nuances between concepts are sacrificed.
Chapter 3 considers what factual relationships should attract the label of possession. The main argument is that the function of possession is expressive, acting as a signal to others, informing them that the thing belongs to the possessor. Neither actual nor complete control is strictly necessary; however, physical control still has relevance, but this is limited to demonstrating a clear signal that the thing belongs to the possessor and others should “keep off”.
The issue is that Crawford does not stipulate how clear the signal must be to attract possession. It need only be appropriate. We are none the wiser about the minimum level of physical control or claim-staking required to satisfy the possessory requirement, it need only be a “clear and accepted” signal (p. 85). The cases which Crawford cites when mapping the appropriateness of certain acts of claim-staking, such as The Tubantia No 2 [1924] P. 78 and Lord Advocate v Young [1887] 12 App. Cas. 544 (H.L.) give some guidance, but there is no indication as to why Crawford's expressive theory does or should follow the position in the case law.
Although the case law does not explicitly follow the expressive theory, Crawford uses two cases, JA Pye (Oxford) Ltd. v Graham [2002] UKHL 30 and Whittlesea City Council v Abbatangelo [2009] VSCA 188 to demonstrate the claim-staking nature of possession. Crawford does not attempt to use his expressive theory to explain all cases. Instead, his claim is more limited, namely that where property rights are routinely respected, possession's role is in signalling to others the existence of another's property right. These cases, both within adverse possession, do support his point. However, given that Crawford's theory purports to explain aspects of personal property, and this theory is the theme of the book, some discussion of relevant personal property cases would have been welcome in this section.
After considering the nature of possession, Crawford turns his attention to why possession is the means by which property rights in tangible things are created. His argument is that while there are obvious justifications for the possession rule, these are not explanations. This is because no such explanation exists. Possession was not consciously chosen as a means to allocate rights and duties, it arose “spontaneously and unconsciously” through continued use (p. 87).
To substantiate this point, Crawford adopts a multi-disciplinary approach, with insightful discussion of game theory. Game theory is used to reinforce his argument that possession arose as a convention to resolve disputes where resources are scarce. The scarcity of resources creates a coordination problem. A coordination problem is where there is “interdependent decision making in which there are two or more choices” (p. 96) and it is best for all participants to settle upon a common choice. Possession, according to Crawford, emerged as a convention to regulate the allocation of resources, resolving this coordination problem. Conventions create norms of behaviour and an expectation that the convention will be followed. Possession as a means of allocation of rights in things became the norm because the convention was simple. A convention that is too complex or indeterminate for the general population would never spread.
Crawford's application of game theory dovetails with his expressive theory. The simple, observable fact of possession as a claim-staking mechanism emerged and remained largely because of its simplicity. The layperson need not consult a lawyer to know what possession is. In the context of Crawford's overall theory however, this argument does not tell us much about possession. As he argued in Chapter 3, an act that sends an appropriate claim-staking signal in a particular society is an act that amounts to possession. In Chapter 4, he states that the ordinary person can tell what possession is. Taken together, Crawford appears to be advancing the argument that an act counts as possession in the eyes of an ordinary person because it conforms to what the ordinary person thinks possession should be. Ultimately however, the question of what possession is in a particular society is, as Crawford admits, outside the scope of his book (p. 4).
Although concluding that there is no moral reason for possession being the action that creates rights in tangible things, Crawford then argues in Chapter 5 that just because this possession convention is amoral, does not mean it is immoral. To Crawford, possession is a fair means of allocation, because no person is systematically excluded from being able to possess things. Given Crawford's possession convention is simple, designing qualifications into the system in the pursuit of a higher standard of fairness would undermine one of the benefits of the convention.
The final two chapters apply the expressive theory to several difficult issues. Chapter 6 considers possession in the context of finding property, while Chapter 7 discusses theft and good faith purchasers.
Chapter 6 argues that contrary to the orthodox position, determining who is entitled to property found on another's land cannot be explained by applying the possession rule. The entitlement is determined, in part by whether the occupier of the land is party to the claim. Where he or she is not, the possession rule applies, otherwise the answer is derived from several fact-specific rules, unrelated to possession. Indeed, an occupier can, in some cases, be entitled to property found by another, about which they have no knowledge. Thus, as Crawford concedes, the expressive theory does not explain the substantive law in its totality. Instead of finding fault with the expressive theory, the fault, according to Crawford, lies with the often arbitrary rules used to allocate rights to property that has been found. Indeed, even from a non-expressive conceptualisation of possession, one must question the merits of a rule that enables the acquisition of possession in the absence of knowledge or intention.
Chapter 7 considers the issue of property acquired by theft, as well as disputes between true owners and good faith purchasers. On the first, Crawford makes the point that the possession rule, as a spontaneously emerging convention, will not be wise to the nuances between a rightful and wrongful possessor. Further, even if the law did create an exception to the possession rule in cases of theft, it would be pointless, as people would still treat these individuals as legitimate right holders in the absence of evidence to the contrary.
The issue of good faith purchasers also demonstrates a limitation with the possession rule. Applying the possession rule can lead to two parties having a claim in the same piece of property. As it is the possession rule that causes the issue in the first place, the law must look beyond this basic convention to rule in favour of one of the innocent parties. Within the discussion of good faith purchasers, Crawford moots whether registration as a source of assurance of title would appropriately replace possession. To this, he notes that while this is workable for high value, low volume purchases, the costs outweigh the benefits in low value, everyday purchases. One wonders if in the future, the advance of blockchain technology will be such that it becomes a viable source of title registration in all goods.
In sum, Crawford's work is an excellent addition to property law scholarship. Not since Pollock and Wright has possession been so methodically and neatly systematised. His account is carefully crafted, nuanced and precise. There is a risk that the search for coherence in a spontaneous convention is a futile exercise. The book does well not to make overly bold claims about the features of possession; instead its careful reasoning creates a coherent and defensible conceptualisation. The theory of possession that was advanced is perhaps narrower than desirable, but this criticism, and all others, are minor, and are possibly symptomatic of the search for coherence in an area that for so long has held a reputation for being a tricky topic.
