Accession, Blending, and Mixing

a.       Accession of Movables to Land

CASE 105

D 41.1.7.13 (Gaius libro secundo rerum cottidianarum sive aureorum)

Si alienam plantam in meo solo posuero, mea erit: ex diverso si meam plantam in alieno solo posuero, illius erit: si modo utroque casu radices egerit: antequam enim radices ageret, illius permanet, cuius et fuit.

Translation: (Gaius in the second book of his Jurisprudence of Daily Life, also known as the Golden Rules)^[231]

If I plant another's plant in my ground, it becomes my property. Correspondingly, if I plant my plant in another's ground, it becomes the property of the other land­owner. In both cases it is understood that the plant has taken root; since, as long as it has not taken root, it belongs to the erstwhile owner. Likewise I acquire owner­ship of a neighbor's tree, if I cover it with earth in such a way that it drives its roots into my land. For logic will not tolerate treating as the tree's owner someone who is not the owner of the land into which the tree has put down its roots. If, therefore, a tree that is planted near a boundary should drive its roots into a neighbor's land too, it is co-owned.

Discussion Questions:

1)  Someone steals a tree and plants it on his land.

2)      A tree is transferred to another's land and drives down roots there. Does it fall back into the ownership of the original owner, if he later digs it out of the new ground?

Compare with this Case:

Gaius Inst. 2.73

Praeterea id quod in solo nostro ab aliquo aedificatum est, quamvis ille suo nomine aedi- fi caverit, iure naturali nostrum fi t, quia superfi cies solo cedit.

Translation: (Gaius in the second book of his Institutes)^[232]

Moreover, that which is built by another on our land becomes ours by ius naturale [“natural law”], even if he built it in his own name, because the building above yields to the ground below.

name=bookmark1870>Notes on the Text:

The rule superficies solo cedit (the building above shares the same legal status as the ground beneath it) applies to those structures that are firmly attached to the ground: a house erected on another's land passes into the ownership of the land­owner as part of the property. Compare with this the still more broadly framed principle accessio cedit principali (“an addition yields to the principal property”) under Case 110.

Compare with this Text:

§ 420 Austrian Civil Code:

What has been provided up to this point in regard to buildings that are erected with another's materials applies also to the cases when a field is sown with another's seed or occupied with another's plants.

Literature:

Daube, D. “Implantatio and satio,” in Collected Studies in Roman law, II, David Cohen and Simon Dieter, eds. Frankfurt/Main:Klostermann, 1991, 739-743, at 739 ff.

Knutel (Case 8) 556 ff.

D 41.1.60 (Scaevola libro primo responsorum)

Titius horreum frumentarium novum ex tabulis ligneis factum mobile in Seii praedio posuit: quaeritur, uter horrei dominus sit. Respondit secundum quae proponerentur non esse factum Seii.

Translation: (Scaevola in the first book of his Opinions)^[234]

Titius placed a new, movable grain-bin that was made with wooden panels on a field belonging to Seius. It was asked which of the two was the owner of the bin. Scaevola replied that according to the facts as presented Seius was not the owner.

Discussion Questions:

Justify Scaevola's opinion.

Compare with this Case:

§ 297 Austrian Civil Code:

Likewise there belong to immovable property those things that have been put on the ground or the surface with the intention that they should remain there always... ^[235]

§ 946 German Civil Code:

If a movable thing is attached to land in such a way that it becomes an essential part of the land, then the ownership of the land extends to this thing.^[236]

§ 93 German Civil Code:

Constituents of a thing that cannot be separated from each other without the one or the other being changed in its essential character (essential constituents) cannot in themselves be objects of rights.^[237]

name=bookmark1892>§ 94 German Civil Code:

I To the essential constituents of a piece of land belong the things which are firmly attached to the land or the surface, especially buildings, just as [do] the products of the land, as long as they are united with the ground.

II To the essential constituents of a building belong the things joined together for the creation of the building.^[238]

§ 95 German Civil Code:

To the constituents of a piece of land do not belong such things as are attached to the ground or surface only for a transitory purpose...^[239]

Literature:

Meincke J. P. “Superficies solo cedit,” ZRG 88 (1971) 136-183, at 144 ff.

D 6.1.38 (Celsus libro tertio digestorum)

In fundo alieno, quem imprudens emeras, aedificasti aut conseruisti, deinde evincitur: bonus iudex varie ex personis causisque constituet.finge et dominum eadem facturum fuisse: reddat impensam, ut fundum recipiat, usque eo dumtaxat, quo pretiosior factus est, et si plus pretio fundi accessit, solum quod impensum est. finge pauperem, qui si red­dere id cogatur, laribus sepulchris avitis carendum habeat: sufficit tibi permitti tollere ex his rebus quae possis, dum ita ne deterior sit fundus, quam si initio non foret aedificatum. constituimus vero, ut, si paratus est dominus tantum dare, quantum habiturus est posses­sor his rebus ablatis, fi at ei potestas: neque malitiis indulgendum est, si tectorium puta, quod induxeris, picturasque corradere velis, nihil laturus nisi ut offi cias. fi nge eam perso­nam esse domini, quae receptum fundum mox venditura sit: nisi reddit, quantum prima parte reddi oportere diximus, eo deducto tu condemnandus es.

Translation: (Celsus in the third book of his Digesta)^[240]

On another's farm that you imprudently purchased you built or sowed, then you were evicted from it.

Suppose the owner would have done the same thing [that you did]: if he wishes to regain his property, he should repay the cost [of your outlay], but only up to the value that has been added to the property; and if more value than the expenditure was added, then only the amount that was spent.

Suppose the owner is a poor man who, if he has to repay the cost, must give up his ancestors' graves and house-gods: in that case it is sufficient to permit you to take away what you can from your additions, provided that the farm does not become worse than if there had not been any building in the first place. But we decide that if the owner is prepared to give the possessor the value he would if the property were removed, he should have the power to do so. And there is to be no tolerance of malice—for example, if you wanted to scrape off stucco that you had brought in, or frescoes, which you would not take except to cause annoyance.

Suppose the owner had the intention of immediately selling the farm once it was recovered: in that case, unless he pays what we stated he had to pay in the first part [above], that sum will be deducted from the award against you.

Notes on the Text:

With the expression bonus iudex (“a good judge”) the adjective bonus expresses a behavioral standard of honesty and care that is exemplary and binding: cf. also the bonus paterfamilias [“good father of the family”], the bonus vir [“good man”]—Case 151), and the definition given by Celsus in Ulpian D.1.1 pr. ius est ars boni et aequi (“Law is the art of realizing the good and the fair”). Also the comparative melius [“better”] in Case 96 is used in this sense.

The principle style='font-style:italic'>malitiis non est indulgendum (“there is to be no tolerance of mal­ice”) is directed against abuse of legal process.

Discussion Questions:

1)      The worth of unimproved land is 100, the cost of a house that is built is 50. What amount must the landowner repay to the person who paid for the building, if this person has built it well or ill, and thereby the worth of the land with the building has increased to 130? to 170?

2)      To what extent is the person who built the building placed in a worse posi­tion by the ius tollendi [“right of removal”] than by compensation?

3)      Does the poor owner have a choice between granting a ius tollendi or paying the cost of the materials?

4)      How does the prohibition against chicanery fit in the sequence of thought in this case?

5)      Does the last opinion (owners' plan to sell the property) contemplate a well- off owner, or a poor one?

6)      Do you think that Celsus has drawn a distinction between a knowing and an unknowing act of building on another's land? Cf. on this point Julian/Ulpian at D 6.1.37 (Case 129).

7)      Titius in good faith builds a house with his own materials on land belonging to Seius. After he learns that Seius is the landowner, he pulls the house down and carries off the material. Can Seius sue?

Compare with this Case:

§ 331 Austrian Civil Code:

If the reasonable possessor of property has incurred an expense that either was nec­essary for the continuous possession of the substance or was useful for increasing its still enduring uses, then he is entitled to compensation according to its present worth, insofar as it does not exceed the expense actually incurred.^[241]

§ 332 Austrian Civil Code:

Of the expense that was incurred only for enjoyment or embellishment, compen­sation will be limited to the amount in general value that the property actually increased; however, the erstwhile possessor has the choice of taking away every­thing that can be removed without damage to the substance.^[242]

§ 1295 (2) Austrian Civil Code:

Additionally, whoever intentionally causes damage in a manner contrary to good behavior, is liable for it; although, if this occurs by means of using legal process, [there is liability] only if the use of process clearly had the goal of injuring the other party.^[243]

§ 226 German Civil Code:

The exercise of a right is not permissible, if it only has the goal of causing injury to another.^[244]

MacCormack G. “Ius tollendi.” BIDR 85 (1982) 77-99, at 78 ff.

Bürge A. Retentio im römischen Sachen- und Obligationenrecht, Zürich: Schulthess, 1979, 59 ff.

Frier, Bruce W. Landlords and Tenants in Imperial Rome. Princeton: Princeton University Press, 1980, 182 ff.

Liebs, Detlef. Römisches Recht: ein Studienbuch, 4th ed. Göttingen: Vandenhoeck & Ruprecht, 1993, 182 ff.

D 41.1.7.10 (Gaius libro secundo rerum cottidianarum sive aureorum)

Cum in suo loco aliquis aliena materia aedificaverit, ipse dominus intellegitur aedificii, quia omne quod inaedificatur solo cedit. nec tamen ideo is qui materiae dominus fuit desiit eius dominus esse: sed tantisper neque vindicare eam potest neque ad exhibendum de ea agere propter legem duodecim tabularum, qua cavetur, ne quis tignum alienum aedi­bus suis iunctum eximere cogatur, sed duplum pro eo praestet. appellatione autem tigni omnes materiae significantur, ex quibus aedificia fiunt. ergo si aliqua ex causa dirutum sit aedifi cium, poterit materiae dominus nunc eam vindicare et ad exhibendum agere.

Translation: (Gaius in the second book of his Jurisprudence of Daily Life, also known as the Golden Rules)^[245]

If someone builds on his land with another's materials, he is treated as the owner of the building, since everything that is built thereon goes with the land. However, the former owner of the materials does not lose his ownership: he merely, for the time being, can neither vindicate the property nor make use of the actio ad exhi­bendum.^[246] Indeed the Law of the Twelve Tables provides that someone who has joined another's timber to his property cannot be compelled to take it out, but he is liable for compensation [to the owner] of double its value. With the word “timber” is understood all forms of material used in buildings. Therefore, if for some reason the building should be torn down, the owner of the materials can vindicate them or bring the actio ad exhibendum.

Note on the Text:

On intellegitur (“he is treated”), see on Case 72.

Discussion Questions:

1)      Can the owner of the house usucapt roof-tiles that he used in good faith, though they belonged to someone else?

2)      Must the builder also pay double the value of another's materials, if he used them in good faith?

3)      Can someone, if he has brought the actio de tigno iuncto^[247] successfully, vindi­cate his materials upon disassembly of the house?

Literature:

Bürge (Case 107) 18 ff.

Hinker, Hannes. “Tignum iunctum.” ZRG 108 ( 1991) 94-122, at 115, 121 ff.

D 6.1.59 (lulianus libro sexto ex Minicio)

Habitator in aliena aedificia fenestras et ostia imposuit, eadem post annum dominus aedificiorum dempsit: quaero, is qui imposuerat possetne ea vindicare. respondit posse: nam quae alienis aedificiis conexa essent, ea quam diu iuncta manerent, eorundem aedi­ficiorum esse; simul atque inde dempta essent, continuo in pristinam causam reverti.

Translation: (Julian in the sixth book On Minicius)^[248]

The inhabitant of another's building installed windows and doors in it. After one year the building's owner took them out. I ask whether the person who installed them can vindicate them. He replied that he can, since what is joined to another's building remains a part of the building as long as it is joined to it. But as soon as it has been removed, it immediately returns to its previous legal condition.

Discussion Questions:

1)   Is the actio de tigno iuncto available in this case?

2)   Is the rule superficies solo cedit applicable?

3)      May the inhabitant who installed the door take it with him when he leaves the house?

Compare with this Case:

D 19.2.19.4 (Ulpianus libro trigensimo secundo ad edictum)

Si inquilinus ostium vel quaedam alia aedificio adiecerit, quae actio locum habeat? Et est verius quod Labeo scripsit competere ex conducto actionem, ut ei tollere liceat, sic tamen, ut damni infecti caveat, ne in aliquo dum aufert deteriorem causam aedium faceret, sed ut pristinam faciem aedibus reddat.

Translation: (Ulpian in the 32nd book of his Commentary on the Praetor’s Edict)^[249]

If a renter installs a door or other thing in the building, what is the action that lies? What Labeo wrote is correct: that an action on the rental contract lies; so [the renter] may remove the property, but, executing the cautio damni infecti [“guarantee that no damage will be caused”] he must do so only in a manner that the removal causes no damage to the building, but restores it to its original condition.

Literature:

Frier (Case 107) 158 ff.

Hinker (Case 108) 109 ff.

b.        Accession of Movables to Movables

CASE 110

D 41.1.9.1 (Gaius libro secundo rerum cottidianarum sive aureorum)

Litterae quoque licet aureae sint, perinde chartis membranisque cedunt, ac solo cedere solent ea quae aedificantur aut seruntur. ideoque si in chartis membranisve tuis carmen vel historiam vel orationem scripsero, huius corporis non ego, sed tu dominus esse intel­legeris. sed si a me petas tuos libros tuasve membranas nec impensas scripturae solvere velis, potero me defendere per exceptionem doli mali, utique si bona fide eorum posses­sionem nanctus sim.

Translation: (Gaius in the second book of his Jurisprudence of Daily Life, also known as the Golden Rules)^[250]

The ownership of written letters, even if they be of gold, follows the ownership of the papyrus or parchment, like the ownership of buildings or sown seed follows the land. If, therefore, I write a poem or a history or a speech on your papyrus or parchment, you, not I, count as the owner of the work. If you, however, ask me for your papyrus or parchment, and are not willing to pay the cost of the writing, I can defend the suit with the exceptio doli—provided that I have obtained the pos­session in good faith.

Note on the Text:

[The rule of] accessio cedit principali (“an addition yields to the main thing”—i.e., as regards its legal condition) [means]: when two movables are joined together, the owner of the subsidiary property loses his ownership to the owner of the main prop­erty. Compare the more narrowly formulated rule: superficies solo cedit (Case 105 ).

Discussion Questions:

1)      Gaius applies the principle of superficies solo cedit (cf. Case 105) to the joining of two pieces of movable property into a unified thing. Does consideration of the relative value of the two things play a role?

2)      Formulate the principal consideration that accounts for awarding to the owner of paper, wood, or wool the ownership of a new thing created by writ­ing on the paper, painting on the wood, or dyeing of the wool.

3)  What measures can be taken against the bad-faith possessor of the paper?

4)      Do you think the solution of Gaius would be practical in application? Can you propose other solutions?

Compare with this Text:

§§ 414-416 Austrian Civil Code (quoted under Case 120)

§ 947 German Civil Code:

I        If movable things are joined to each other in such a way that they become essential parts of a single unified thing, then the erstwhile owners become co-owners of this thing; their [respective] shares are determined according to the relationship of the values which the constituent things had at the time of the joining.^[251]

Antiqua">II      If one of the things is to be understood as the main thing, then its owner acquires the sole ownership.

Art. 727 Swiss Civil Code:

If movable things of different owners are mixed with or joined to each other such that they cannot be separated without essential damage or disproportionate work and expense, then co-ownership of the new thing by the persons concerned comes about [646/51], and it is proportional to the values that the individual parts had at the time of the joining.

If a movable thing is mixed or joined with another such that it appears as a subsidiary part of it, the whole thing belongs to the owner of the chief part.

Claims of compensation for damages [OR 41/61] and [unjust] enrichment [OR 42/9] remain available.^[252]

Gai. Inst. 2.78

Sed si in tabula mea aliquis pinxerit veluti imaginem, contra probatur: magis enim dicitur tabulam picturae cedere. cuius diversitatis vix idonea ratio redditur. certe secundum hanc regulam si me possidente petas imaginem tuam esse nec solvas pretium tabulae, poteris per exceptionem doli mali summoveri; at si tu possideas, consequens est, utilis mihi actio adversum te dari debeat; quo casu nisi solvam inpensam picturae, poteris me per excep­tionem doli mali repellere, utique si bonae fidei possessor fueris. illud palam est, quod sive tu subripueris tabulam sive alius, conpetit mihi furti actio.

Translation: (Gaius in the second book of his Institutes)^[253]

But if someone paints, for example, a picture on my panel, the opposite result is approved, for in that case the ownership of the panel yields to the painting. A satisfactory explanation of this difference is not given. If, according to this rule, you demand a painting of yours that I possess, but you are not willing to pay the price of the panel, I will certainly be able to block you with the exceptio doli. If, on the other hand, you are in possession of it, then logically an actio utilis [“anal­ogous action based on the same policy”] should be given to me against you. If in this case I do not pay the cost of the painting, provided you are a good-faith possessor, you can defend against me with the exceptio doli. This much is clear: I have an actio furti [“action for theft”], if you or someone else steals the painting [from me].

Note on the Text:

Observe the legal criticism that is expressed in the formulation vix idonea ratio red­ditur (“A satisfactory explanation of this difference is not given”). As an academic teacher without the ius respondendi^[254] Gaius could only present the applicable law, but he could not contribute to its development through his own decisions.

Discussion Questions:

1)      From what point of view does Gaius support treating a picture and a literary work in the same way?

2)  What justification(s) can be produced for making a distinction?

3)      Does Gaius preserve for the erstwhile owner of the panel a right of recovery of the picture in response to a style='font-style:italic'>rei vindicatio by the painter?

4)      To what extent can the erstwhile owner of the panel get compensation by means of the exceptio doli or the actio utilis?

5)    Do you think that the actio utilis mentioned here is an action in rem?^[255]

Literature:

Kaser M. “Tabula picta.” RHD 36 (1968) 31-56, at 31 ff.

Behrends, O. “Die Spezifikationslehre, ihre Gegner und die media sententia in der Geschichte der römischen Jurisprudenz.” ZRG 112 (1995) 195-238, at 207 ff.

D 6.1.23.3 (Paulus libro vicensimo primo ad edictum)

Sed et id, quod in charta mea scribitur aut in tabula pingitur, statim meum fit: licet de pictura quidam contra senserint propter pretium picturae: sed necesse est ei rei cedi, quod sine illa esse non potest.

Translation: (Paul in the 21st book of his Commentary on the Praetor’s Edict)^[256]

But that which is written on my paper or painted on my panel becomes mine at once. Granted that some feel differently on account of the value of the picture, but it must yield to the thing (i.e., the panel), since it cannot exist without it.

Discussion Questions:

Explain this text in relation to Gaius Inst. 2.78 (Case 111) and Inst. lust. 2.1.34 (quoted below).

Compare with this Text:

Inst. Iust. 2.3.34

Si quis in aliena tabula pinxerit, quidam putant tabulam picturae cedere: aliis videtur picturam, qualiscumque sit, tabulae cedere. Sed nobis videtur melius esse tabulam pictu­rae cedere: ridiculum est enim picturam Apellis vel Parrhasii in accessionem vilissimae tabulae cedere...

Translation:

If someone has painted a picture on another's panel, many [jurists] think the own­ership of the panel yields to the picture. Others think that the picture, whatever may be its quality, yields to the panel. But it seems better to us that the panel yields to the picture: for it is ridiculous that a painting by Apelles or Parrhasius should yield to an extremely cheap panel...

Note on the Text:

On videtur melius (“it seems better to us”), see on Case 107.

Literature:

Kaser (Case 111) 37.

Behrends (Casd 111) 207 ff.

D 6.1.23.5 (Paulus libro vicensimo primo ad edictum)

Item quaecumque aliis iuncta sive adiecta accessionis loco cedunt, ea quamdiu cohaerent dominus vindicare non potest, sed ad exhibendum agere potest, ut separentur et tunc vin­dicentur: scilicet excepto eo, quod Cassius de ferruminatione scribit. dicit enim, si statuae suae ferruminatione iunctum bracchium sit, unitate maioris partis consumi et quod semel alienum factum sit, etiamsi inde abruptum sit, redire ad priorem dominum non posse. non idem in eo quod adplumbatum sit, quia ferruminatio per eandem materiam facit confu­sionem, plumbatura non idem efficit. ideoque in omnibus his casibus, in quibus neque ad exhibendum neque in rem locum habet, in factum actio necessaria est. at in his coporibus, quae ex distantibus corporibus essent, constat singulas partes retinere suam propriam speciem, ut singuli homines, singulae oves: ideoque posse me gregem vindicare, quamvis aries tuus sit immixtus, sed et te arietem vindicare posse. quod non idem in cohaerentibus corporibus evenire: nam si statuae meae bracchium alienae statuae addideris, non posse dici bracchium tuum esse, quia tota statua uno spiritu continetur.

Translation: (Paul in the 21st book of his Commentary on the Praetor’s Edict)^[257]

Likewise in the case of things that are joined or added to other things and yield [their identity] in the accession, as long as they cohere, the owner cannot vindicate them, but he can bring an actio ad exhibendum, with a view to their separation and subsequent vindication—with the exception, however, of what Cassius writes in reference to welding. He says that if an arm is welded onto his statue, the owner­ship of it is lost because of its unity with the larger part, and what has once become something else cannot return to its former owner, even if it should be broken off. This does not, however, apply to things that are soldered, since welding creates a merger of the same material, but soldering does not do the same. Therefore in all these cases, in which neither the actio ad exhibendum nor the actio in rem is available, an actio in factum is possible. But in the case of collections of things that consist of separate parts it is clear that the individual parts retain their identity, like slaves or single sheep. Therefore I can vindicate my herd, even though a ram belonging to you is mixed in it, and you also can vindicate your ram. That does not apply, however, to entities that consist of cohering parts: for if you add the arm from another statue to my statue, it cannot be said that the arm is your property, since the entire statue is a unified whole.

Discussion Questions:

1)      How does Paul justify loss of ownership in the case of welding but preser­vation of ownership in the case of soldering?

2)      Paul distinguishes between unified things and collective things and, regard­ing the latter, between a totality of rerum cohaerentium [“cohering parts”] and rerum distantium [“separate parts”]. What is a house? How about a statue with an arm that is soldered on rather than welded on?

3)  How does the former owner of the welded arm make his claim effective?

4)      Can the actio ad exhibendum be used in reference to a tree that has been planted on another's property? On this, see Case 108.

D 41.1.27.2 (Pomponius libro trigensimo ad Sabinum)

Cum partes duorum dominorum ferrumine cohaereant, hae cum quaereretur utri cedant, Cassius ait pro portione rei aestimandum vel pro pretio cuiusque partis. sed si neutra alteri accessioni est, videamus, ne aut utriusque esse dicenda sit, sicuti massa confusa, aut eius, cuius nomine ferruminanta est. sed Proculus et Pegasus existimant suam cuiusque rem manere.

Translation: (Pomponius in the 30th book of his Commentary on the Ius Civile of Sabinus)^{color=black face="Book Antiqua">[258]}

If parts that belong to two owners are joined together by welding, and if it is asked to whom the ownership falls, Cassius says one must decide according to the respective shares of the property or according to the value of each part. But if neither part is an accession to the other, we must examine whether one should say that the ownership belongs to both, as in the case of a mass of metal that has melted together, or to that person in whose name the welding took place. But Proculus and Pegasus think that each retains the ownership of his property.

Discussion Questions:

What new viewpoint emerges from this text as compared with Paul D 6.1.23.5 (Case 113)?

Literature:

Schermaier, Martin Josef. “Teilvindikation oder Teilungsklage?” ZRG 110 (1993) 124-183, at 146 ff.

c.        Blending (confusio) and Mixing

CASE 115

D 6.1.5 pr. (Ulpianus libro sexto decimo ad edictum)

Idem Pomponius scribit: si frumentum duorum non voluntate eorum confusum sit, competit singulis in rem actio in id, in quantum paret in illo acervo suum cuiusque esse: quod si volun­tate eorum commixta sunt, tunc communicata videbuntur et erit communi dividundo actio.

Translation: (Ulpian in the 16th book of his Commentary on the Praetor’s Edict)^[259]

The same Pomponius writes: if grain belonging to two owners is mixed together without their consent, each has an actio in rem for that portion of the whole which appears to belong to him. If, however, the grain was mixed with their consent, then it is a matter of co-ownership and there will be an actio communi dividundo.^[260]

Discussion Questions:

Explain the decision of Pomponius.

Compare with this Case:

§§ 414-416 ABGB (quoted under Case 120); § 947 BGB (quoted under Case 110)

§ 948 German Civil Code:

I        If movable things are inseparably blended or mixed together, the provisions of §947 are correspondingly applicable.

II      The inseparability is the same, if the separation of the mixed or blended things would be accomplished at disproportionate cost.^{color=black face="Book Antiqua">[261]}

Literature:

Kaser (Case 70) 186 ff.

Cromme, Ingrid. Vindicatio incertae partis: ihre Bedeutung für die Erkenntnis der geschichtlichen Entwicklung des klassischen dinglichen Verfahrens, diss. University of Heidelberg (1971) 56 ff.

Schermaier, Martin J. Materia: Beiträge zur Frage der Naturphilosophie im klassischen römischen Recht. Wien: Böhlau, 1992, 164 ff.

Schermaier (Case 114) 170 f.

Behrends (Case 111) 229 ff.

D 6.1.3.2 (Ulpianus libro sexto decimo ad edictum)

Pomponius scribit, si quid quod eiusdem naturae est ita confusum est atque commixtum, ut deduci et separari non possint, non totum, sed pro parte esse vindicandum. ut puta meum et tuum argentum in massam redactum est: erit nobis commune, et unusquisque pro rata ponderis quod in massa habemus vindicabimus, etsi incertum sit, quantum quisque ponderis in massa habet.

Translation: (Ulpian in the 16th book of his Commentary on the Praetor’s Edict)^[262]

Pomponius writes: if quantities of the same nature are so blended or mixed together that they cannot be drawn apart or separated, the vindication must not be of the whole, but pro parte [“proportionally”]. If, for example, my silver and your silver are melted together into a clump, it belongs to us in common, and we will vindi­cate it in proportion to the weight of our shares, even if it is uncertain how much weight each of us has in the share.

Discussion Questions:

1)      Is Pomponius thinking here of a mixing with, or without, the consent of the owners? (cf. D 6.1.5 pr. [Case 115]).

2)      Do you think that Pomponius reached the same decision in the case of a blending of copper and gold, of lead and silver, or with a mixture of wine and honey (cf. D 6.1.5.1 [Case 118])?

Literature:

Kaser (Case 70) 186 ff.

Cromme (Case 115) 54 ff.

Schermaier (Case 115) 164 ff.

Schermaier (Case 114) 135 ff.

D 41.1.7.8 (Gaius libro secundo rerum cottidianarum sive aureorum)

Voluntas duorum dominorum miscentium materias commune totum corpus efficit, sive eiusdem generis sint materiae, veluti vina miscuerunt vel argentum conflaverunt, sive diversae, veluti si alius vinum contulerit alius mel, vel alius aurum alius argentum: quam­vis et mulsi et electri novi corporis sit species.

Translation: (Gaius in the second book of his Jurisprudence of Daily Life, also known as the Golden Rules)^[263]

The intent of two owners, who have mixed their materials, makes the whole object owned in common. [This is true] whether the materials are of the same kind—as when they have mixed wine or melted silver—or are of different kinds—as when one has contributed the wine and the other the honey; or one, the gold, and the other, silver. [And this is true] even though the honeyed wine and the electrum are forms of a new substance.

Discussion Questions:

Explain this text in connection with Pomponius/Ulpian at D 6.1.3.2 (Case 116).

Literature:

Kaser (Case 70) 186 ff.

Cromme (Case 115) 61 ff.

Schermaier (Case 115) 166 ff.

Schermaier (Case 114) 137 f.

D 6.1.5.1 (Ulpianus libro sexto decimo ad edictum)

Idem scribit, si ex meile meo, vino tuo factum sit mulsum, quosdam existimasse id quo­que communicari: sed puto verius, ut et ipse significat, eius potius esse qui fecit, quoniam suam speciem pristinam non continet. sed si plumbum cum argento mixtum sit, quia deduci possit, nec communicabitur nec communi dividundo agetur, quia separari potest: agetur autem in rem actio. sed si deduci, inquit, non possit, ut puta si aes et aurum mixtum fuerit, pro parte esse vindicandum: nec quaquam erit dicendum, quod in mulso dictum est, quia utraque materia etsi confusa manet tamen.

Translation: (Ulpian in the 16th book of his Commentary on the Praetor’s Edict)^[264]

The same (Pomponius) writes: if honeyed-wine is made out of my honey and your wine, some jurists think a joint ownership arises from that. I consider more accu­rate, however, what Pomponius himself also expresses: that the new thing belongs to the person who made it, since it does not retain its earlier identity (speciem). If, however, lead is mixed with silver, a joint ownership does not occur, since the result is separable, and therefore will be sued on not by means of the actio com­muni dividundo, but with the actio in rem. Yet if one cannot make the separation, for example in the case of copper and gold, he says one must vindicate pro parte [“proportionally”], and the decision would in no way be the same as with honeyed wine, since both substances remain separate, in spite of the mixture.

Notes on the Text:

Observe the melting points of the named metals: copper 1083° (Celsius), gold 1063°, silver 960.5°, lead 327.4°. On verius (“more accurate”), see on Case 8.

Discussion Questions:

1)      Does the example concern an agreed upon mixing (i.e., with the owners' mutual consent), or does the mixing take place without an agreement?

2)  Justify the decision as regards the ownership of the metal mixtures.

3)      What is the justification for a joint ownership arising from a mixture of wine and honey?

color=black face="Book Antiqua">Literature:

Thielmann, G. “Zum Eigentumserwerb durch Verarbeitung im römischen Recht,” in Sein und Werden im Recht : Festgabe für Ulrich von Lübtow zum 70. Geburtstag am 21. August 1970, Walter G. Becker and Manfred Herder eds. Berlin: Duncker & Humblot, 1970, 187­232, at 205 ff.

Cromme (Case 115) 57 ff.

Schermaier, Martin J. “D. 41,1,24 und 26 pr. Ein Versuch zur Verarbeitungslehre des Paulus,” ZRG 105 (1988) 436-487, 436 ff.

Schermaier (Case 115) 164 ff.

Schermaier (Case 114) 140 ff.

Behrends (Case 111) 229 ff.

d.        The Special Case of Money

CASE 119

D 46.3.78 (lavolenus libro undecimo ex Cassio)

Si alieni nummi inscio vel invito domino soluti sunt, manent eius cuius fuerunt: si mixti essent, ita ut discerni non possent, eius fieri qui accepit in libris Gaii scriptum est, ita ut actio domino cum eo, qui dedisset, furti competeret.

Translation: (Javolenus in the eleventh book of his Abridgement of Cassius)^[265]

If another's coins are spent without the knowledge or against the wishes of the owner, they remain the property of the person to whom they belonged. If they have been mixed with others, such that one can no longer distinguish them, it is written in the books of Gaius (Cassius) that they are the property of the person who received them, with the result that the erstwhile owner has an actio furti [i.e., “action for theft”] against the person who spent the coins.

Discussion Questions:

1)      Does the text presume the good faith of the payee who mixes the coins with his own? Are there different legal consequences depending upon his good or bad faith?

2)   Does the text presume the bad faith of the payor?

3)      In the case of inseparable mixing of other solid materials (e.g., grain) without the consent of both owners, according to Pomponius/Ulpian (D 6.1.3.5 pr.), the erstwhile ownership interests remain intact and can be made operative through a vindication of the respective amounts. What supports the use of this same rule also in the case of money?

4)   What arguments speak in favor of a special rule for money in property law?

5)      Jones, who is keeping money for Smith, mistakenly uses the money to pay a debt to Brown. Has Brown thereby become the owner of the money? Is Jones' debt satisfied? How does Smith get his money back?

6)   In the previous question are you assuming the bad faith of Jones?

size=1 color=black face="Book Antiqua">Compare with this Text:

§ 370 Austrian Civil Code:

A person who sues for the return of movable property must describe the property with characteristics by which it can be distinguished from all similar property of the same type.^[266]

§ 371 Austrian Civil Code:

Things which in this manner cannot be distinguished, such as cash mixed with

other cash,... are therefore generally not the objects of in rem lawsuits... ^[267]

Literature:

Manthe (Case 19) 45 ff.

Wacke A. “Die Zahlung mit fremden Geld. Zum Begriff des pecuniam consumere.”

BIDR 79 (1976) 49-144, at 114 ff.

Kaser (Case 70) 183 ff.

Bauer (Case 84) 153 ff.

Schermaier (Case 114) 149 ff.

Gamauf, Richard. “Eigentumserwerb an Geld durch Vermengung im römischen Recht

(D 46.3.78) und in § 371 ABGB,” Part 1 in JAP (1997/98) 154 ff.

H.