ORIGINAL ACQUISITION

The remaining forms of acquisition to be considered are all forms of original acquisition.

Occupatio

In some cases, it was possible to acquire ownership of property merely by taking possession of it.

This doctrine applies in modern Scots law, although in restricted form. In modern law, only ownerless wild animals and things that have never been owned are open to acquisition by occupatio. Abandoned property and land that has no previous owner are excluded from acquisition by occupatio in modern Scots law as belonging to the Crown.

Most practical problems in occupatio arise in relation to the ownership of wild animals. There appears to have been a dispute in early law about how ownership of an animal was taken. Suppose that a hunter has wounded an animal and is pursuing it. Before he catches it, another hunter inter­cepts the animal and takes it. Which of the two obtained ownership? Some jurists thought that actual physical seizure was necessary, which would mean that the second hunter would acquire ownership. Others, though, thought that one acquired ownership of an animal by pursuing it, which would favour the first hunter. By Justinian’s time, however, it was settled that actual capture of the animal was necessary. The animal belonged, therefore, to the first person to lay hands on it or in some way to confine it (in a trap or snare, for example).

To maintain ownership of a wild animal, it was necessary to maintain control. If control was lost, ownership was lost. Control might be by keeping the animal confined. Alternatively, an animal might be kept un­confined if it was tamed or had a habit of returning (such as a homing pigeon). In such a case, ownership was maintained as long as the animal remained tame or retained its habit of returning. Ownership was lost only when the animal reverted to its wild state (unless it was confined) or lost the habit of returning. Where control was maintained only by confinement, and the animal escaped confinement, ownership was maintained as long as the owner was in pursuit with a reasonable prospect of recapture.

It should be noted that these rules applied only to wild species of animal. Tame species were treated in the same way as any other moveable property. Thus, an escaped cat or dog did not become ownerless.

Specificatio

Suppose that a person takes materials belonging to another and makes a new thing from it. This new thing is known as a nova species. The classic example is the transformation of grapes into wine. Who owns the wine in this case?

There was a dispute in classical law between the Sabinians and the Proculians over the correct answer to this question. The Sabinians took the view that the new thing belonged to the owner of the materials. The Proculians, on the other hand, would have given ownership to the manu­facturer. Justinian resolved the issue by taking a middle course. He made the answer to the question depend on whether the new thing could be restored to its original form. If so, it remained the property of its original owner.

If it could not be restored to its original form, it became the property of the maker, although he might be liable to compensate the owner of the materials. Thus, a gold statue would belong to the owner of the materials (because the gold could be melted down and put back into its original form), but a marble statue would belong to the maker.

This could, of course, be excluded by the parties’ agreement. Thus, if a new thing is manufactured by an employee on behalf of his employer, there is no doubt but that the new thing belongs to the employer.

Accessio

Where two things are permanently joined together, the lesser, or accessory, object becomes part of the greater, or principal, object. By the principle of accessio, the accessory is said to “accede” to the principal. The owner of the principal acquires ownership of the accessory, although in some circum­stances he will be bound to compensate the owner of the accessory. This is the modern Scots position, and was also law for the Romans.

There may sometimes be difficulty with accession in determining which item is the principal and which the accessory. In the case of land, however, the matter was simple enough. Where there was union between moveable property and land, the land was the principal. Thus, a building acceded to the land, as did a plant when it took root. In the case of the building, however, the perhaps surprising rule appears to have developed that the original owner retained ownership of the materials of which the building was made, though he could not retrieve them unless the building was demolished.

Where there was a union between moveables, there was greater diffi­culty in determining which was the principal. Unfortunately, no single, clear test appears in the Roman texts. One that was used was based on the relative value of the objects, but that was not conclusive. Thus, even gold lettering accedes to the page it is written on. A particular example that is difficult to account for under any principle was that, where a person painted on another’s canvas, the canvas acceded to the painting, even though the painting could not exist without the canvas.

Commixtio and confusio

Commixtio and confusio are both concerned with the situation where property belonging to two or more people is mixed together.

Confusio applies in the case where things are mixed together but cannot be separated, for example where wine belonging to two people is mixed together. Here the result is co-ownership in proportion to the parties’ re­spective contributions, unless agreed otherwise. It can be difficult sometimes to distinguish between this situation and specificatio, where the things mixed together are of different types. An example of a situation difficult to classify is the mixing together of honey and wine to make mead. Ulpian tells us (D.6.1.5.1) that this is an example of specificatio, on the basis that the mead is a new thing, but also indicates that there was disagreement among jurists on the point.

Usucapio

How does one prove ownership of the property in one’s possession? In practice, of course, it will readily be presumed that the possessor is the owner, but this takes the matter only so far. It does not eliminate the possi­bility that the property may in fact belong to someone else, who may emerge to claim the property from someone who has bought it in good faith from a non-owner. This is a problem that all legal systems must face. In modern Scots law, the problem is dealt with (for land at least) by means of positive prescription, now regulated by the Prescription and Limitation (Scotland) Act 1973. The 1973 Act, provided certain criteria are satisfied, gives ownership to a person who has possessed the land for a specified period of time, currently ten years.

Like mancipatio and in iure cessio, usucapio was a ius civile mode of acquisi­tion, and so was open only to Roman citizens. The purpose of usucapio was to reduce the possibility of doubt as to ownership by allowing a possessor of property to acquire ownership through the passage of time. In this case, the possessor has property belonging to another person. On the expiry of the relevant period of time for usucapio, that person loses ownership and the possessor gains ownership.

One of the most important cases to which usucapio was applied in the classical law was the acquisition of res mancipi. It will be remembered that this category of property, which included such things as slaves, livestock and land in Italy, required special formal methods of transfer. However, in practice this was often disregarded, no doubt on the basis that it was inconvenient to find a magistrate or the appropriate number of witnesses every time a horse or cow was sold. It would be common in such a sale merely to transfer by traditio, even though the buyer would not thereby become owner. We saw in Chapter 4 that the praetors introduced protec­tion for such holders, known as bonitary owners. However, such a holder was not owner according to the civil law. Usucapio allowed the situation to be tidied up by giving civil law ownership to the bonitary owner after he had possessed for the necessary time.

The length of time necessary depended on whether the property to be acquired was moveable property or land. Under the Twelve Tables, the required period of possession was one year for moveables and two years for land. These are remarkably short periods. However, it will be remembered that at the time of the Twelve Tables Rome's power extended only to a limited area of Italy.

In any case, the possession had to be continuous. If it was interrupted for any reason within the required period, usucapio would not operate. The possession would have to start over again. For these purposes, a court action challenging the possessor’s right to the property counted as interruption. Thus, if an action was raised challenging the possession just before the expiry of the time limit, the possessor would not acquire ownership even if he remained in possession until the outcome of the litigation was known. Equally, suppose that the possessor was dispossessed with only a month to go before the completion of the period of usucapio. Even if he recovered possession, the previous period of possession would not count. He would need to possess continuously for the full period of usucapio.

In addition to possession for the requisite period, there were several other requirements. The first was iusta causa. We saw that this “just cause”, a sufficient legal basis for the transfer, was required for the acquisition of ownership by traditio. The requirement of iusta causa was similar to that for traditio. There was one vital difference, however. In traditio, we saw that it was enough that the parties believed there to be sufficient causa. Ownership would still pass even if, say, one party thought the transfer was a gift and the other thought it was a sale. For usucapio, it was necessary that there was a real causa. There had to be an actual sale, or gift, or legacy, or whatever the causa might be. In other words, usucapio operated only where the problem was with the transferor’s title or with the mode of transfer used (i.e. res mancipi being transferred by traditio).

The second requirement was good faith on the part of the possessor. Good faith cannot mean here simply a belief on the part of the possessor in his right to the property, for otherwise the bonitary owner could never acquire by usucapio. Such a holder knows that he has taken the property by a method that does not give him ownership. Good faith required a belief that one acquired the property from someone with a right to give ownership. Good faith was required only on the taking of possession. Thus, a possessor who discovered the true facts during the period of usucapio could still acquire ownership.

The third requirement was that the property was not stolen. This require­ment applied only to the acquisition of moveables by usucapio, for land could not be stolen. However, in relation to moveables, this requirement imposed a severe restriction on acquisition by usucapio. No one could acquire by this method ownership of property that had been stolen. This was the case even if the possessor knew nothing of the theft (the thief would of course be barred from usucapio anyway on the basis of being in bad faith). Usucapio of moveables was therefore restricted to the limited number of cases where the property found its way into the possession of someone without a right to it without any party involved being aware of the true facts. An example might be property found among the possessions of a deceased person, and assumed by the heir to belong to the deceased. Anyone buying the property could acquire ownership by usucapio, even if it transpired that the goods had only been hired by the deceased.

Essential Facts

• There were different ways of acquiring ownership of property. They could be divided into original modes of acquisition and deriva­tive modes of acquisition. In original acquisition, ownership was acquired otherwise than from a previous owner. Derivative acquisi­tion was acquisition from a previous owner.

• Mancipatio was a derivative mode of acquisition used for res mancipi (see Chapter 4). It involved a ceremonial conveyance before witnesses.

• In iure cessio was another derivative mode of acquisition used for res mancipi. It required the involvement of a magistrate.

• Traditio, or delivery, was the normal mode of acquisition for res nec mancipi and, in later law, for all types of property. Ownership passed when the transferee took possession on a sufficient legal basis for transfer.

• Occupatio was an original mode of acquisition, applying to ownerless property, such as wild animals. Ownership was acquired on taking possession of the animal.

• Specificatio dealt with the situation where a new thing, called a nova species, was made from someone else’s materials. If the new thing could not be put back into its original form, Justinian settled the law to the effect that the manufacturer acquired ownership.

• Accessio arose when one thing was attached to another. The lesser object was called the accessory and the greater the principal. The accessory became part of the principal, and ownership was acquired by the owner of the principal.

• Commixtio and confusio were original modes of acquisition that applied when things belonging to more than one person were mixed together. Commixtio related to the mixing of solids and confusio to the mixing of liquids or gases, but otherwise the doctrines were to the same effect. The owners of the property mixed together shared ownership of the mixture in proportion to their contributions.

• Usucapio meant acquisition of ownership by possession for a specified period of time. Different time periods applied to land and to moveable property. At the end of the period of possession, the possessor acquired ownership as long as he took possession in good faith and the property was not stolen.

Essential Cases

Sutter v Aberdeen Arctic Co (1861) 23 D 465: the crew ofa ship severely injured a whale by harpooning it. The ship then followed the whale. However, before the whale could be taken, the crew from another ship caught and killed it. The court awarded the whale to the crew of the first ship, as they were pursuing with a reasonable prospect of capture. This represents, therefore, the opposite view of occupatio from that ofJustinian, who held that actual capture was necessary for the acquisition of ownership.

International Banking Corporation v Ferguson, Shaw & Sons 1909 2 SLT 377: oil belonging to the pursuers was sold to the defenders by a party who did not own it, and who could not therefore give the defenders any right to it. Unaware that they had acquired no right to the oil, the defenders used it to manufac­ture lard, which they then sold to various customers. On the basis that specificatio had occurred, the court held that the defenders had acquired ownership of the oil, but were liable to compensate the pursuers for their loss.

Zahnrad Fabrik Passau GmbH v Terex Limited 1985 SC 364: this case concerned the doctrine of accessio. It was held that certain axles would only have acceded to industrial machinery if they could not be removed without damage.

Milligan v Ross 1994 SCLR 430: the owner of property purported to transfer ownership of it to another, but reserving a liferent (the Scots equivalent of usufruct: see Chapter 4) to herself. She retained custody of the property throughout. It was held that delivery had occurred by constitutum possessorium.

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