John In Possession

Stated by a Roman Juror in Ulpian, Digest of Justinian: "Ownership has nothing in common with possession". As Craig Anderson said in Property: A guide to Scots Law:
“One may both possess and own an item of property, or neither own nor possess it. Equally, one may own without possessing or possess without owning. Neither is determined by the other.” Possession is not clearly defined but rather has two clear elements; act of the mind and act of the body. John has recently separated with his partner Amanda and in doing so has left the house. He has since realised that he has left behind his bike which has later been taken by Lilian. To determine whether John was in possession of the bike before Lilian removed it. The legal issues need to be discussed.

The first important legal issue to be discussed is whether John was fulfilling the two requirements of possession; having an act of the body and the mind. An act of the body is a physical element which as stair says: “which is detention and holding” of the item in question, in this case the bike. Although, John does not have “detention or holding of the item”, it can be deemed that he is still in possession of the bike. This is due to the fact that possession is not lost by temporary absence. This is due to the rule of animo
As stair said it: “is the inclination or affection to make use of the thing detained”. To satisfy the requirements for the mental element there needs to be some intention to derive benefit from holding the property. In John’s case, he can be seen to have the mental element as the facts state that John while living at home used the bike every day to get to work. Presumably then, although details not given in the facts, it can be assumed that John wishes to carry on the same usage of the bike despite having moved out. Therefore, making this enough to satisfy the mental element of