In the common law, possession is said to create entitlement. Modern authorities treat the facts of possession (generally understood as some function of physical control and intention) as a causative event, sufficient to generate for the possessor a general property right in the thing possessed. This general property right has the content of ownership, and exists alongside and notwithstanding the continuing general property right(s) of any person(s) better entitled (a loser of goods, an ousted proprietor of land). In this way, the common-law doctrine of “relativity of title” becomes a doctrine about the permissible existence of multiple, competing property claims to land and goods, and law functions to resolve binary disputes between rival claimants as and when they manifest. Possession stands in the front line as a sufficient foundation for any claim, since the person who proves the earlier possession necessarily proves the earlier (and therefore better) property right.

This paper traces the provenance and development of the rule that possession generates a general property right at common law, and presents a view that is slightly sceptical of the orthodoxy. It begins by examining leading (possibly iconic) cases often cited in support of the rule, including the seminal decisions in Armory v Delamirie, a case about goods; and Asher v Whitlock, a case about land. While in each of these cases a claimant possessor was permitted to maintain a standard property action against a defendant, neither discusses with great clarity the nature or content of the right acquired by possession. Moreover, when understood in a broader context of common-law development, a surprising level of doubt is introduced to the common law of possession. This paper sets the leading cases in this context, and makes two main claims as a result. First, no a priori rationale for the rule that possession causes entitlement can be found within the primary sources of the common law. Rather the rule depends for its existence and validity on ex post rationalisations of historical procedure. Second, rationalisations of these procedures may sometimes have been insensitive to their function, and have thereby obscured the common law's aims in protecting possession.