Possession versus Custody

At a wedding the caterer's waiter carries a silver tray through the crowd. He holds it and could walk out of the gate with it, yet nobody would say it is in his possession: his hands are, for the evening, the caterer's hands. The next day the caterer hires the same tray to a family for their own function. The family holds it for itself and would resist anyone who tried to take it, including the caterer until the day is over. The waiter has custody; the family has possession. The grip is the same; what differs is on whose account the thing is held. This note explains that difference, introduced in Note 30, and why it matters most in criminal law.

1. The Distinction Stated

Possession needs corpus (effective control) and animus possidendi (the intent to exclude others). Custody has the first without the second on the holder's own account. The custodian holds the thing as the instrument of another, subject to his directions, with no claim of his own, so the law treats the other as possessor. Two tests help. First, whose claim is being exercised? Second, does the holder have an interest the law will protect against the person for whom he holds, even for a time? A hirer does, since the owner cannot take the car back before the hire ends; a servant does not, since the master may take his tools back at any moment. The first test looks at the animus, the second at legal consequences, and in the hard cases, as Jhering saw, the second decides.

2. Roman Roots: Possessio Civilis, Naturalis and Detentio

Roman law distinguished possessio civilis, which with a lawful cause and good faith could ripen into ownership by usucapio, from possessio naturalis, mere physical holding. The possessor was protected by the praetor's interdicts without inquiry into title. Many who held for others, such as a tenant, borrower or depositary, had only detentio: the interdicts belonged to the person for whom they held. Yet the texts protected some holders who did not claim to own, notably the pledge creditor. Those exceptions framed the nineteenth-century debate.

3. Savigny and Jhering

Savigny, in Das Recht des Besitzes (1803), built a subjective theory: possession requires corpus plus animus domini, the intention to hold as owner. A tenant or borrower, who acknowledges another's ownership, has only detention; the protected exceptions such as the pledge creditor Savigny explained as derivative possession.

Jhering objected that an inner intention cannot be seen or proved, and that the Roman line was not drawn by anyone's state of mind: the tenant intends to exclude strangers as much as the pledge creditor, yet one was a detentor and the other a possessor. The line was drawn by law, on practical grounds. On his objective theory, whoever stands to a thing as an owner ordinarily does is a possessor, and mere detention exists only where a rule of law denies possession; whoever asserts detention must point to that rule. The German Civil Code (1900) follows this approach: a tenant is a direct possessor, but a person who exercises control for another in his household or business, bound to follow his instructions, is not a possessor; only the other is (section 855). That is the servant's custody expressed as a rule of law.

4. Salmond, Pollock and Wright: Servant and Bailee

Salmond reduces the animus to the intent to exclude, so tenants, bailees and pledgees possess. But a servant holding his master's goods has no possession of his own: the master possesses through him, in the first of Salmond's forms of mediate possession, where the holder claims nothing for himself (Note 30). The servant has custody only.

A bailee is different. Under s.148 of the Contract Act a bailment is the delivery of goods for some purpose on a contract that they be returned or disposed of as the bailor directs. A borrower, hirer, carrier or repairer holds for himself for the time being, so he has immediate possession and the bailor mediate possession. The law gives him possessory remedies of his own: under s.180, if a third person wrongfully deprives the bailee of the goods or injures them, the bailee may use the remedies the owner could have used. In The Winkfield (Court of Appeal, 1902) the Postmaster-General, as bailee of mail lost in a collision at sea, recovered its full value from the wrongdoer. A servant has no such action.

Pollock and Wright, in An Essay on Possession in the Common Law (1888), built the English doctrine on physical control and distinguished possession in fact, possession in law and the right to possess. A servant may have control in fact, but the law attributes possession to the master; the servant has only custody or charge. They noted that English law drew these lines largely for the law of larceny, which is why the distinction is sharpest in criminal cases.

5. Everyday Examples

6. The Criminal Consequences

Theft: the servant who makes off

Theft (Section 303 BNS, formerly Section 378 IPC) requires a dishonest taking out of the possession of another. The master's possession continues while the servant holds the goods, so a servant who runs off with them takes them out of the master's possession. The Code says so expressly: property in the possession of a person's wife, clerk or servant on his account is in that person's possession (formerly Section 27 IPC). Two illustrations to the theft section make the contrast. A, Z's servant, entrusted with the care of Z's plate, dishonestly runs away with it: theft. But where Z, going on a journey, entrusts his plate to A, a warehouse keeper, who sells it, the plate was not in Z's possession and could not be taken out of it; A has not committed theft, though he may have committed criminal breach of trust. The servant had custody; the warehouse keeper, a bailee, had possession.

Criminal breach of trust: the entrusted holder

Criminal breach of trust (Section 316 BNS, formerly Section 405 IPC) is committed by one who, being in any manner entrusted with property or with dominion over it, dishonestly misappropriates or converts it, or dishonestly uses or disposes of it in violation of the law or contract governing the trust. It fits the bailee, agent or trustee who already possesses with the owner's consent. A clerk or servant entrusted with dominion over property, such as a cashier receiving money for his employer, falls under the aggravated form (formerly Section 408 IPC). English law learned this the hard way: in R v Bazeley (1799) a bank clerk who pocketed a note paid in by a customer was not guilty of larceny, because the note had never reached the bank's possession, and Parliament created the offence of embezzlement.

Dishonest misappropriation: the innocent receiver

Dishonest misappropriation (Section 314 BNS, formerly Section 403 IPC) covers property that came into the accused's hands innocently, without taking and without entrustment, which he later dishonestly appropriates, typically the finder of lost property in nobody's possession. A finder who takes property to protect it for or restore it to the owner commits no offence; he commits this one if he appropriates it when he knows or has the means of discovering the owner, or before using reasonable means to find and notify him (Explanation 2 to the former Section 403 IPC).

7. Conscious Possession: The NDPS Act

Statutes that punish mere possession of narcotics or arms must decide whether bare physical custody is enough. Indian courts hold that possession here means conscious possession: control plus knowledge of the article. A porter carrying a sealed parcel without knowing its contents has physical custody but not conscious possession. Once possession is shown, the NDPS Act presumes a culpable mental state (s.35) and an offence from possession of illicit articles (s.54), which the accused must rebut.

8. The Two Compared

9. Evaluation

The distinction is indispensable in criminal law, where it separates theft, breach of trust and misappropriation, and useful in civil law, where it decides who may bring possessory remedies. Its difficulty is that the line is partly one of policy. Savigny's test fails because servant and tenant may both intend to exclude strangers; Jhering is more candid that the law chooses which holders it treats as possessors. Note also that custody has other senses, as in child custody or police custody; this note concerns custody of things.

10. Frequently Asked Questions

Q. What is the difference between possession and custody?
A. Custody is physical control held on another's account without any claim of one's own, as a servant holds his master's goods. Possession is control plus the intent to exclude others on one's own account, as a hirer holds a car. The person for whom a custodian holds is the possessor.

Q. Does a bailee have possession or custody?
A. Possession. A borrower, hirer, carrier or warehouse keeper holds for himself for the time being and can sue a wrongdoer as if he were owner (s.180 Contract Act). The bailor keeps mediate possession.

Q. Why does an absconding servant commit theft rather than criminal breach of trust?
A. Because the goods stayed in the master's possession, the servant having only custody (formerly Section 27 IPC), so he takes them out of the master's possession. Had he been entrusted with dominion over them, as a cashier is, the offence would be breach of trust by a clerk or servant.

See also: Note 30 (possession), Note 79 (possession versus ownership), Note 68 (Savigny versus Jhering), Note 31 (ownership).