Commixtio and Confusio
Specificatio must be distinguished from commixtio and confusio. Commixtio and confusio involved the mixing together of goods belonging to two or more people without the creation of a new species.
It appears that the Romans had difficulty determinÂing quite which processes resulted in specificatio and which commixtio or confusio. For example,Justinian states both that the mixing together of wine and honey to make mead is an example of specificatio18 and also that it is an example of confusio.''1'8' Ulpian argues that the former is correct, as the mixed ingredients in the case of mead do not retain their original character.185 The mead is therefore a new species.166 Commixtio and confusio must also be distinguished from accession. While all three involve a combination of two or more different things, commixtio and confusio do not require any physical attachment. In addition, the element of functional subordination is absent in commixtio and confusio.The difference between commixtio and confusio appears to have been the folÂlowing: ‘the distinction is between mixing events by which the contributions to the mix become irreversibly joined or united (confusio''), and mixing events where no such union occurs (commixtio)'.187 Thus, if you mixed your wine with mine, or our bars of gold were melted down and combined, confusio would occur, the result of which was that the end product would be common property between us in proportion to our contributions.188 This could also happen where things of different nature were combined, as long as separation was not possible, as with certain alloys.189 The end product of confusio was common property, regardless of whether the parties consented.190 Other mixes could be readily separated, howÂever, and so in those confusio would not occur.
For example, the jurist Callistratus tells us that an alloy of copper and silver belonging to different people will not become common property in this way, as they can usually be separated by craftsÂmen and reduced to the original materials.191181 C van der Merwe, Nova Species’ (2004) 2 Roman Legal Tradition 96, 113.
182 E Metzger, ‘Acquisition of Living Things by Specification' (2004) 8 Edin LR 115, 117-18. See also N R Whitty,
183
184
185
‘Rights of Personality, Property Rights and the Human Body in Scots Law' (2005) 9 Edin LR 194, 223-9. J.2.1.24.
J.2.1.27.
D.6.1.5.1.
186 Conceivably, it could also be considered as an example of accession, with the honey viewed as an accessory of the wine.
187 R W J Hickey, ‘Dazed and Confused: Accidental Mixtures of Goods and the Theory of Acquisition of Title' (2003) 66 MLR 368, 370.
188 D.41.1.7.8.
189
190
191
D.6.1.5.1. Compare though D.41.1.7.8-9.
J.2.1.27.
D.41.1.12.1.
Commixtio was the mixing of things that were capable of being separated. A distinction was made here depending on whether the parties consented to the mixing. If they both (or all) agreed, the resulting mix was common property in proportion to the parties' contributions. If the mix happened accidentally or withÂout the consent of at least one of the parties, there was no effect on ownership.[1364] This was the case even if the individual contributions could not be identified. The exampleJustinian gives is the mixing together of corn grains belonging to two people. Clearly, one grain looking very much like another, it is not possible to identify which grains came from which person.
It is difficult to see how this can possibly have been made to work, at least while retaining the distinction between commixtio and confusio. Accordingly, the case of grains being mixed together may be better seen as a case of confusio rather than one of commixtio.
As the Scots institutional writer Stair points out, where a mixture is made of things belonging to two or more people, this will ‘of necessity introduce a community' between the contributors, which can only be resolved by division in proportion to contributions.[1365] It may be suspected, therefore, that the difference between commixtio and confusio was often more theoretical than real. Indeed, Justinian tells us that, in the case of the mixture of grain, each owner was entitled to recover a share of the total.[1366] In Scots law, the terms commixtio and confusio are used. However, the meanings have altered. In Scots law, commixtio is a mixture of solids, confusio a mixture of liquids (or, it may be supposed, gases). The rules of the two are now essentially the same: where the contributions cannot be separated or separately identified, the mixture is common property. Otherwise, there is no effect on ownership.[1367] Other solutions are possible.[1368]F.
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