Transformation (Specification)

CASE 120

D 41.1.7.7 (Gaius libro secundo rerum cottidianarum sive aureorum)

Cum quis ex aliena materia speciem aliquam suo nomine fecerit, Nerva et Proculus putant hunc dominum esse qui fecerit, qui quod factum est, antea nullius fuerat.

Sabinus et Cassius magis naturalem rationem efficere putant, ut qui materiae dominus fuerit, idem eius quoque, quod ex eadem materia factum sit, dominus esset, quia sine materia nulla species effici possit: veluti si ex auro vel argento vel aere vas aliquod fecero, vel ex tabulis tuis navem aut armarium aut subsellia fecero, vel ex lana tua vestimentum, vel ex vino et meile tuo mulsum, vel ex medicamentis tuis emplastrum aut collyrium, vel ex uvis aut olivis aut spicis tuis vinum vel oleum vel frumentum. est tamen etiam media sententia recte existimantium, si species ad materiam reverti possit, verius esse, quod et Sabinus et Cassius senserunt, si non possit reverti, verius esse, quod Nervae et Proculo placuit. ut ecce vas conflatum ad rudem massam auri vel argenti vel aeris reverti potest, vinum vero vel oleum vel frumentum ad uvas et olivas et spicas reverti non potest: ac ne mulsum quidem ad mel et vinum vel emplastrum aut collyria ad medicamenta reverti possunt. videntur tamen mihi recte quidam dixisse non debere dubitari, quin alienis spicis excussum frumentum eius sit, cuius et spicae fuerunt: cum enim grana, quae spicis continentur, perfectam habeant suam speciem, qui excussit spicas, non novam speciem facit, sed eam quae est detegit.

Translation: (Gaius in the second book of his Jurisprudence of Daily Life, also known as the Golden Ruleslang=EN-US style='font-size:8.5pt;line-height:115%;font-weight: bold'> )^{^[268]}

If someone makes something new in his own name out of another's materials, Nerva and Proculus think that the person who makes it is the owner, because the thing that is made previously belonged to no one.

Sabinus and Cassius think that natural reason leads to the conclusion that the owner of the materials is also the owner of the object that is made from them, since without the material no new thing could be created. So, for example, if I make a vase out of your gold or silver or copper, or I make a ship or a box or a chair with your lumber, or a garment from your wool, or honeyed wine with your wine and honey, or a plaster or salve from your medicaments, wine from your grapes, oil from your olives, or grain from your ears [of wheat]. But there is also the middle view of those who rightly think that if the manufactured thing can be returned to its original rough condition, the opinion of Sabinus and Cassius is more correct; but if that is not possible, then the opinion of Nerva and Proculus is. So, for example, a vase can be melted and made back into its original material of gold, silver or copper. The wine or the oil or the grain cannot be remade into grapes or olives or ears of wheat. Honeyed wine

too cannot become honey and wine again, or a plaster or salve cannot be brought back to the original medicaments. Still, those are correct who have said that one cannot doubt that grain winnowed from another's ears of wheat belongs to the owner of the ears: because the grain that is contained in the ears already has its finished form. The person who winnowed it has not created a new thing, but merely uncovered an existing one.

Discussion Questions:

1) How do “the Proculians” and “the Sabinians” justify their different viewpoints?

2) Gaius names six chief types of material-processing (metal, wood, textiles, brewing, medicine, and agriculture). To which of them is the media sententia [“middle view”] applicable?

3) Who acquires ownership if the reprocessing takes place at the order of the owner of the materials or a third party?

4) Applying the Proculian doctrine, what is the legal consequence, if a thief makes stolen gold into rings?

5) What claims does an owner of materials have, if he has lost his ownership according to the Proculian doctrine?

6) What claims does a producer have, if he must surrender the product to the owner of the materials according to the Sabinian doctrine?

Compare with this Case:

§ 414 Austrian Civil Code:

Whoever reprocesses the property of another; whoever unites, blends, or mixes it with his own, acquires thereby no claim to the other's property.^{^[269]}

§ 415 Austrian Civil Code:

If such reprocessed property can be brought back to its previous condition; if the united or blended or mixed property can be separated again, then to each owner his own is returned, and liability for damage is imposed on the person responsible. If a return to the previous condition or a separation is not possible, then the property is owned in common by those who have a share of it; although the person whose property was by the other wrongfully taken into the combination has the choice of whether he wishes to keep the object and pay the other party for its increase in value, or to receive compensation himself and let the other party have the object.

The share-holder who bears the fault will be treated according to the nature of his reasonable or unreasonable intent.

If, however, neither party is deemed to be at fault, the choice belongs to the person whose share is of greater worth.^{^[270]}

§ 416 Austrian Civil Code:

If another's materials are used to improve a property, the other's materials pass to the owner of the principal thing [that is improved], and he is required, according to nature of his reasonable or unreasonable behavior, to compensate the former owner for the value of the materials that were used.^{^[271]}

§ 950 I German Civil Code:

Whoever produces a new piece of movable property by means of processing or transforming one or multiple materials acquires the ownership of the new property, provided the worth of the processing or transformation is not substantially less than the worth of the material. Writings, signs, paintings, printings, engravings or similar reworkings of the surface count as processed products.^{^[272]}

§ 951 I German Civil Code:

Whoever suffers a loss of rights pursuant to the provisions of §§ 946 to 950 can... claim monetary compensation. The re-establishment of the earlier condition cannot be claimed. .. ^{^[273]}

Art. 726 Swiss Civil Code:

If someone has processed or transformed the property of another, the new product belongs to the producer, if the work is more valuable than the material, otherwise to the owner [of the material].

If the producer has not acted in good faith, the judge can award the new product to the owner of the materials, even if the work is valuable.

Claims for compensation of damage (OR 41/6) and [unjust] enrichment (OR 62/9) remain available.^{^[274]}

Literature:

Mayer-Maly, Th. “Spezifikation. Leitfälle, Begriffsbildung, Rechtsinstitut.” ZRG 73 (1956) 120-154, at 120 ff.

Schermaier (Case 115) 98 ff.

Stoop, B. C. “Non solet locatio dominium mutare. Some Remarks on specificatio in Classical Roman Law.” RHD 66 (1998) 3-24, at 5 ff.

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Source: Hausmaninger H., Gamauf R.. A Casebook on Roman Property Law. Oxford University Press,2013. — 371 p.. 2013

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