8. Acquiring Ownership Flashcards
Accessio
> Inseparable attachment of things belonging to different owners, one being incorporated into the other.
Accessory thing accedes to the principal thing.
Owner = owner of the principal thing irrespective of good or bad faith.
Test of separability - no undue effort, skill or cost in order to separate the materials.
Conmixtio
> Two things, belonging to different owners, are mixed but are readily separable.
Common ownership if agreed.
If not then actio ad exhibendum to separate them & vindicatio to recover material.
Confusio
> Two things which once mixed are indistinguishable (can’t tell which is accessory and which is principal thing) and unable to be separated.
Owned in common in proportion to the the value of their respective shares.
Accessio affecting land
> Land = principal thing.
- Buildings.
- Seeds/plants which are sown or planted.
- Alluvio.
- Avulsio.
- Rivers.
Accessio affecting land - buildings
> The building accedes to the land and so the owner of the land becomes owner of the building but the law did recognise the distinction between the building as a whole and the materials it was made from so the landowner didn’t necessarily own the materials.
If B builds on his own land with A’s materials then A had no remedy except recovery of materials on building’s collapse. However, if B had stolen the materials then A could sue him under the actio furti or under the 12Ts, B was liable for theft for double the materials’ value. Use of one remedy barred use of other.
If materials stolen but not by B, then A could sue the thief and retains right to reclaim
If B builds on A’s land with his own materials, then if he acted in bad faith it was viewed as a gift - Gaius, Common Matters or Golden Questions, book 2: “If he knew the site belonged to another, he would be treated as voluntarily parting with his materials so that even if the house should collapse, he would have no vindicatio for them.”
If in good faith and possesion, then he could recover expenditure if not in possession then no remedy except eventual reclaim of the materials on building’s collapse.
Under J, irrespective of bad or good faith, builder had ‘ius tollendi’/right to recover as much of his materials as he could without damaging the structure. Around in classical law too but only for builder in good faith.
No removal if sole purpose is to annoy, Celsus.
Accessio affecting land - Planting/sowing seeds/plants.
> Generally, if A plants/sows his own seeds on B’s land then B becomes owner.
Gaius, Common Matters or Golden Things, book 2: “For until it takes root, it remains the property of its former owner.” D. 41. 1. 7. 13.
A sowed B’s seeds, A = liable for theft if in BF. If in GF, then A compensates B for value of seeds/plant once it has been appropriated.
A sows his own seeds on B’s land. A in BF makes gift to B and if in GF and A possesses land then entitled to the seeds’ value but unlikely to have remedy if not in possession of the land.
Accessio affecting land - avulsio
> Gaius, CM or GT, book 2: “But if the force of the river should detach part of your land and bring it down to mine, it obviously remains yours. Of course, if it adheres to my land, over a period of time, and trees on it thrust their roots into my land, it is deemed from that time to have become part of my land.” D. 41. 1. 7. 2.
Accessio affecting land - alluvio
> Imperceptible accretions or deposits of soil on another person’s land through the action of the river.
Such deposits enlarge the land by acceding to it.
Confined to rivers in RL, but some suggest that the scope was larger than silting.
Accessio affecting land - rivers
> If island emerged in the river, it was owned up to the middle line by the riparian owners of the banks either side of the island. But if it was wholly on one wide of the river, it was owned by the riparian owner of the bank on that side of the river.
If the river dried up, the river bed was owned up to the middle line by the riparian owners either side of the river.
If the land flooded and then the flood waters receded, the previous owner retained possession of his land, but if the water didn’t recede then the ownership of the land was divided by the middle line of the new river’s course so the previous owner essentially lost land.
No remedies available for this nor alluvio nor avulsio as was a result of natural phenomena not human acts.
Accessio affecting movables
Some recognised individually:
1. Ferruminatio et plumbatura = welding/soldering an object belonging to one person to an object belonging to the principal item belonging to another person.
2. Scriptura = writing or decorating a parchment belonging to someone else.
3. Pictura = painting with one’s paint onto a canvas/tablet belonging to someone else.
4. Textura = inseparable weaving of costly thread by one party into a garment belonging to someone else.
>With land it was obvious that the land was always the principal but with movables it was sometimes harder to identify what was the accessory and which was the principal thing.
>Also was the accessory owner able to receive compensation?
Accessio affecting movables - accessory or principal?
> Different tests:
1. Thing of greatest value.
2. Thing of largest volume - if equal-ish then value.
3. Most widely applied = the identity test. Which element best retained its identity within the final product. (i.e. gave it its name, essence or overall character).
Decided on casuistic basis but clear rules for scriptura and pictura.
In pictura, the tablet acceded to the painting whereas in scriptura, the writing acceded to the parchment.
Unclear why distinction and it was subject to much juristic debate. Maybe as paintings are viewed as opposed to read so dominate in a visual sense.
Gaius: “Letters, even in gold, accede to the paper or parchment.”
Accessio affecting movables - compensation
> Principal owner made attachment:
-If owner of principal thing acted in BF then he was liable for theft.
-If in GF and possession then not entitled to compensate until later Empire when he had to pay accessory owner the value of the accessory item.
-If in GF and not in possession then could bring vindicatio to reclaim item but had to pay compensation for accessory’s value if not then his vindicatio would be defeated by P’s exceptio doli.
Accessory owner made attachment:
-No compensation unless in possession in which case he could get compensation for accessory item on returning the item to the principal owner.
Specificatio
> Specificatio is a method of acquiring ownership by creating a new thing from someone else’s materials.
Term not recognised until late classical but rules formulated in classical.
Proculian-Sabinian dispute.
Nova species.
Compensation.
Specificatio - proculian/sabinian debate
> Proculians = “the maker owns the thing because what has just been made previously belonged to no one”.
Sabinians = “natural reason requires that the owner of the materials should be owner of what is made from them, since a thing cannot exist without that of which it is made.”
Quotes taken from Gaius, CM or GT, book 2. D. 41. 1. 7. 7.
‘Intermediate’ view is that thing belonged to the creator unless it was reducible to its original form and this was adopted by J.
Specificatio - Compensation
> If creator in possession and GF = owner. No remedy for other party.
If creator not in possession and GF = vindicatio to reclaim but other party entitled to compensation for value of the materials.
If creator in possession but not entitled to ownership but entitled to compensation for his work.
If creator not in possession nor entitled to ownership then no remedy.
BF = his work is considered a gift.
