HABERE - The Law Mind Legal Dictionary

HABEREAuthored

The Law Mind • 823 words

Definition

Latin. "To have." A term from Roman and civil law denoting the right of ownership or legal entitlement to property, as distinguished from mere physical holding or factual possession. In classical legal usage, habere was one of three overlapping but technically distinct concepts describing a person's relationship to a thing: habere described the right, tenere described the physical fact of holding, and possidere described the combination of both right and fact.

The distinction carried practical significance in civil law analysis: a person could habere (have the right) without tenere (physically holding the thing), and could tenere without habere. Full possidere implied both elements together.

In old English law, habere also appeared in procedural formulas, most notably in the phrase habere ad rectum — to have a person forthcoming to answer an accusation — reflecting the term's extension into criminal procedure.

A related maxim drawn from the Digest captures the functional scope of the concept: habetur quod peti potest — "that is had, which can be demanded" — indicating that the right to demand something is itself a form of having it, even before physical delivery or transfer.

Common Confusion

Habere, tenere, and possidere are frequently collapsed into a single undifferentiated concept of "possession" in non-specialist reading of Roman and civil law texts. This conflation obscures significant analytical distinctions. Tenere is purely factual — it describes physical holding without regard to right. Habere is purely juridical — it describes entitlement without requiring physical control. Possidere is the compound concept. A researcher encountering disputes about ownership versus custody in civil law-influenced jurisdictions should be alert to which of these three terms the source is actually using, as the choice determines whether the author is making a claim about right, fact, or both.

Why It Matters in Research

Habere appears almost exclusively in Latin maxims, Roman law commentaries, civil law treatises, and older English legal texts where the author is drawing on civilian doctrine. Researchers working in the Law Mind corpus will encounter it most often in three contexts:

First, in property law discussions that engage Roman law sources, where the tripartite framework of habere/tenere/possidere underlies arguments about the nature of ownership and possession. Civil law jurisdictions (Louisiana, Quebec, and Scots law materials in particular) are more likely to preserve this terminology in operative legal analysis, not just historical exposition.

Second, in procedural history, where habere ad rectum and similar phrases appear in early English records relating to criminal accusation and the obligation to produce a person before a tribunal. These uses are formally distinct from the property law sense and should not be read as carrying proprietary implications.

Third, in maxim collections and legal Latin glossaries, where habetur quod peti potest and related formulations are cited in arguments about the nature of incorporeal rights — the idea that a right to demand performance or delivery is itself a species of having.

The term rarely appears in modern American common law materials except as learned ornament. When it does appear in 19th-century American cases or treatises, the author is typically invoking civilian authority to resolve a gap in common law doctrine. That context — civil law borrowing to fill a common law gap — is itself a research signal worth tracking.

Historical Dictionary Support

The historical dictionaries converge closely on the core definition. Black's (both editions) and Burrill agree on the tripartite distinction between habere, tenere, and possidere, attributing the formulation to Calvin's Lexicon Juridicum. This attribution is consistent across sources and reflects the standard early modern civilian synthesis.

Burrill adds useful depth by preserving the old English procedural sense (habere ad rectum) and the Digest maxim (habetur quod peti potest, citing Digest 50.16.143), giving the term a broader operational context than Black's entries provide. Researchers relying solely on Black's will miss both the procedural usage and the Digest citation.

The Anderson's entry as reproduced in the source material appears to contain text from a different entry (relating to murder and corpus delicti) and does not offer usable content on habere. This is a transcription or indexing artifact; researchers should not treat it as substantive authority on this term.

None of the historical dictionaries address the term's appearance in Louisiana or other American civil law contexts, which represents a gap for researchers working in mixed-jurisdiction materials.

Jurisdictional Note

The habere/tenere/possidere framework retains doctrinal relevance in civil law jurisdictions and mixed systems. Louisiana property law scholarship, in particular, draws on this tripartite structure when analyzing the distinction between ownership and possession. Common law jurisdictions generally do not employ the framework in operative legal analysis, though it may appear in scholarly commentary or in courts drawing on civilian analogies.

HABEREmain

Black's Law Dictionary • 1891

Lat. In the civil law. To have. Sometimes distinguished from tenere, (to hold,) and possidere, (to possess;) habere referring to the right, tenere to the fact, and possidere to both. Calvin.

HABEREmain

Anderson's Dictionary of Law • 1890

1 [Gulliver v. Roelle, 100 III. 147 (1881). 2 Memphis City v. Dean, 8 Wall. 73 (1868), cases; Davenport v. Downs, 18 id. 627 (1873), cases. To warrant a conviction for murder there must be direct proof either of the death, as by the finding and identification of the corpse, or of criminal violence adequate to produce death and exerted in such manas to account for the disappearance of the body. The corpus delicti in murder has two components: death as the result, and the criminal agency of another as the means. means. Where there is direct proof of the one, the other can be established by circumstantial evidence.3 The corpus delicti must be proved like any other fact, that is, beyond a reasonable doubt, and that doubt is for the jury. A confession alone is not regarded as sufficient proof. The State must first produce sufficient evidence to send the case to the jury, and the jury are first to be satisfied, from that evidence, that the crime has been committed.4 The doctrine applies to other crimes, as, larceny. The possession of the fruits of a crime may do away with direct proof of the corpus delicti.5 Corpus Juris Civilis. See PANDECTS. L. To grasp, lay hold of: to have, hold. Habeas corpus. That you have the body. The emphatic words of several common-law writs issued to bring persons into court for a designated purpose. See particularly, 6, below. 1. Habeas corpus ad faciendum et recipiendum. That you have the body for doing and receiving. Removes an action into a superior court: commands the judge of the inferior court to produce the body of the defendant, with a statement of the cause of his detention (whence called, also, habeas corpus cum causa), to do and to receive whatever the higher court shall decree. Applicable where the simpler writ of habeas corpus ad subjiciendum is inadequate; and grantable of right, without motion. Operates as a supersedeas. 2. Habeas corpus ad prosequendum. That you have the person for prosecuting. Removes a prisoner to the jurisdiction wherein it is alleged he committed a crime. 3. Habeas corpus ad respondendum. That you have the person for answering. Removes a prisoner that he may be charged with a new action in a higher court. 4. Habeas corpus ad satisfaciendum. That you have the person for satisfaction. Removes a prisoner into a superior court that he may there be charged with process of execution. 5. Habeas corpus ad testificandum. That you have the person for testifying. Removes a person from a place of detention that he may give testimony before a court.1 6. Habeas corpus ad subjiciendum. That 1 See generally Exp. Marmaduke, 91 Mo. 228, 251 (1886), cases.

HABEREmain

Burrill's Law Dictionary • 1870

Lat. In old English law. To have. Habere ad rectum; to have one [forthcoming] to [answer] an accusation. Bract. fol. 124 b. Lat. In the civil law. To have. Sometimes distinguished from tenere, (to hold,) and possidere, (to possess ;) habere referring to the right, tenere to the fact, and possidere to both. Calv. Lex. Habetur, quod peti potest; that is had, which can be demanded. Dig. 50. 16. 143. See Id. 50.16. 164.2. Id. 50. 16. 188. So habere was otherwise distinguished as referring to incorporeal things, tenere to corporeal, and possidere to both. Calv. Lex. Prateus. This term frequently occurs in the Year Books, as used by the court in granting any relief prayed. Habeant auxilium; let them have aid. M. 3 Edw. III. 37. Habeat etatem; let him have his age. Id. 38.

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