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When two things belonging to different owners are mixed but neither produce a new species (confusio), nor the relation of principal and accessory, e. g. when two similar wines or metals are mixed; or when a new species is produced with the consent of both owners, as when mead is produced by mixing honey and wine, electrum by mixing gold and silver; then each owner loses his separate ownership of a part, and becomes joint owner of the whole.

When a new species is produced by one owner without the consent of the other, then the exclusive ownership is vested in the producer, and the other can only obtain redress for the expropriation or loss of his ownership.

Further, when the mixture establishes the relation of principal and accessory, that is, when one thing loses its independent existence and becomes a part of the other (accessio), then the property in the whole is vested in the proprietor of the dominant part ; e. g. the property in the ship follows the property in the keel, proprietas totius navis carinae causam sequitur, Dig. 6, 1, 61. It will sometimes be a question which part is to be regarded as principal and which as accessory, and the solution does not always depend on their comparative value. Sometimes the relation of substance and accident prevails, for instance, in a tapestry the property in the embroidery follows the property in the wool. Sometimes the comparative value decides; for instance, the property in the canvas follows the property in the painting: and this seems more rational, though Gaius appears to think that a picture ought to be governed by the analogy of a manuscript, where the property in the writing follows the property in the paper.

§ 78. The remedy of the ex-proprietor of the accessory is an in factum actio (4 § 46), Dig. 6, 1, 33, 5. Ulpian, Dig. 6, 1, 5, 3, speaks of a real action (utilis in rem actio), which, as a real action implies that the plaintiff is proprietor, seems to mean a Fictitious action, 4 § 34, i. e. one whose formula feigns that the property was never devested by Accession. This may be what Gaius means by utilis actio.

§ 79. Specification or labour is a title which cannot without violence be brought under either Occupatio or Accessio. Here one person contributes only his labour, whereby he transforms the material or materials belonging to another into a new product (nova species). The Sabinians held that the product belonged (by

Accessio?) to the owner of the matter, the Proculeians (by Occupatio?) to the producer of the form. Justinian adopts an intermediate opinion, which Gaius mentions, Dig. 41, 1, 7, 7, that the product belongs to the producer, provided that it cannot be reduced to the original substance, in which case it belongs to the owner of that substance; e. g. a vessel belongs to the owner of the gold or silver out of which it was made: and provided further that the change is a genuine fabrication or manufacture; for instance, the mere thrashing out of corn is not sufficient to change the ownership, and therefore the corn belongs to the owner of the sheaves and the mere dying of wool operates no transfer of ownership to the dyer, D. 41, 1, 26, 3.

In the subjoined synopsis of the various titles to dominion which have been considered the proper position of Specification is open to controversy.

Acquisition is either Derivative (implying Succession) or Original.

Derivative acquisition is Alienation: which includes In jure cessio, Mancipatio, Traditio, Fructuum perceptio, Adjudicatio.

Original acquisition is either independent of Possession or depends on Possession.

Original acquisition independent of Possession is either the effect of Separation or of Conjunction.

Separation is a title to property in the case of Separatio fructuum, which confers property in the fruits on the bona fide possessor.

Conjunction is either the conjunction of equal with equal or the conjunction of accessory with principal.

The conjunction of equal with equal is seen in Confusio, which produces communio or co-proprietorship.

The conjunction of accessory with principal is either of immovable with immovable, instanced in Alluvio:

or of movable with immovable, instanced in Satio, Plantatio, Inaedificatio:

or of movable with movable, instanced in Scriptura, Pictura :

or of matter with form, seen in Specificatio. Original acquisition dependent on Possession is either further dependent on Time or is not dependent on Time. Original acquisition dependent on Possession and further dependent on Time is seen in Usucapio and Praescriptio.

Original acquisition dependent on Possession but independent of Time is seen in Occupatio, including Captio ferarum, Captio hostilis, Inventio derelicti, Inventio thesauri.

DE PUPILLIS AN ALIQUID A SE

ALIENARE POSSUNT.

§ 80. Nunc admonendi sumus neque feminam neque pupillum sine tutoris auctoritate rem mancipi alienare posse; nec mancipi vero feminam quidem posse, pupillum non posse.

§ 81. Ideoque si quando mulier mutuam pecuniam alicui sine tutoris auctoritate dederit, quia facit eam accipientis, cum scilicet ea pecunia res nec mancipi sit, contrahit obligationem.

§ 82. At si pupillus idem fecerit, quia eam pecuniam non facit accipientis, nullam contrahit obligationem. unde pupillus vindicare quidem nummos suos potest, sicubi extent, id est intendere suos ex iure Quiritium esse; mala fide consumtos vero ab eodem repetere potest quasi possideret. unde de pupillo quidem quaeritur, an nummos quoque quos mutuos dedit, ab eo qui accepit bona fide alienatos petere possit, quoniam is scilicet accipientis eos nummos facere videtur.

§83. At ex contrario res tam

WHETHER WARDS CAN
ALIENE.

$80. We must next observe, that neither a woman nor a ward can aliene a mancipable thing without their guardian's authority: a ward cannot aliene a non-mancipable thing without the guardian's authority, a woman can.

§ 81. Thus a woman lending money without the guardian's authority passes the property therein to the borrower, money being a non-mancipable thing, and imposes a contractual obligation.

§ 82. But a ward lending money without his guardian's authority does not pass the property, and does not impose a contractual obligation, and therefore he can recover back the money, if it exists, by real action, that is, by claiming it as quiritary proprietor; if it has been fraudulently consumed, he can claim it as if it were still in the possession of the borrower; whether he can if it has been innocently aliened by the borrower, who thus has passed the property to the alienee, is a contro

versy.

§ 83. On the contrary, both man

mancipi quam nec mancipi mulieribus et pupillis sine tutoris auctoritate solvi possunt, quoniam meliorem condicionem suam facere iis etiam sine tutoris auctoritate concessum est.

§ 84. Itaque si debitor pecuniam pupillo solvat, facit quidem pecuniam pupilli, sed ipse non liberatur, quia nullam obligationem pupillus sine tutoris auctoritate dissolvere potest, quia nullius rei alienatio ei sine tutoris auctoritate concessa est. set tamen si ex ea pecunia locupletior factus sit, et adhuc petat, per exceptionem doli mali summoveri potest.

§ 85. Mulieri vero etiam sine tutoris auctoritate recte solvi potest: nam qui solvit, liberatur obligatione, quia res nec mancipi, ut proxume diximus, a se dimittere mulier et sine tutoris auctoritate potest: quamquam hoc ita est, si accipiat pecuniam; at si non accipiat, sed habere se dicat, et per acceptilationem velit debitorem sine tutoris auctoritate liberare, non potest.

cipable and non-mancipable things can be conveyed to women and wards without their guardian's authority, because they do not require his authority to better their position.

§ 84. Accordingly, a debtor who pays money to a ward passes the property therein to the ward, but is not discharged of his obligation, because a ward cannot release from any liability without his guardian's authority, as without such authority he cannot aliene any right: if, however, he profits by the money, and yet demands further payment, he may be barred by plea of fraud.

§ 85. A woman may be lawfully paid without her guardian's authority, and the payer is discharged of liability, because, as we lately mentioned, a woman does not need her guardian's authority for the alienation of a non-mancipable right, provided always that she receives actual payment: for if she is not actually paid, she cannot feign receipt and release her debtor by fictitious acknowledgment (3 § 169) without her guardian's authority.

§ 82. For mutuum, see 3 § 90. If the money delivered by a ward could be traced it was recoverable by real action (vindicatio): if it had been consumed in bona fides a personal action, condictio certi, would lie to recover an equivalent sum: if it had been consumed in mala fides a personal action, ad exhibendum, would lie to recover an equivalent sum and damages, Inst. 2, 8, 2.

§ 85. The pupilage of women after attaining the age of twelve, i.e. the age of puberty, had become obsolete before the time of Justinian, and with it their incapacities of alienation.

PER QUAS PERSONAS NOBIS ADQUIRATUR.

§ 86. Adquiritur autem nobis non solum per nosmet ipsos, sed etiam per eos quos in potestate manu mancipiove habemus; item per eos servos in quibus usumfruc

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$86. We may acquire property not only by our own acts but also by the acts of persons in our power, hand, or mancipation; further, by slaves in whom we have a usufruct;

tum habemus; item per homines liberos et servos alienos quos bona fide possidemus. de quibus singulis diligenter dispiciamus.

§ 87. Igitur quod liberi nostri quos in potestate habemus, item quod servi nostri mancipio accipiunt, vel ex traditione nanciscuntur, sive quid stipulentur, vel ex aliqualibet causa adquirunt, id nobis adquiritur: ipse enim qui in potestate nostra est nihil suum habere potest, et ideo si heres institutus sit, nisi nostro iussu, hereditatem adire non potest; et si iubentibus nobis adierit, hereditatem nobis adquirit proinde atque si nos ipsi heredes instituti essemus. et convenienter scilicet legatum per eos nobis adquiritur.

§ 88. Dum tamen sciamus, si alterius in bonis sit servus, alterius ex iure Quiritium, ex omnibus causis ei soli per eum adquiri cuius in bonis est.

§ 89. Non solum autem proprietas per eos quos in potestate habemus adquiritur nobis, sed etiam possessio: cuius enim rei possessionem adepti fuerint, id nos possidere videmur: unde etiam per eos usucapio procedit.

§ 90. Per eas vero personas quas in manu mancipiove habemus, proprietas quidem adquiritur nobis ex omnibus causis, sicut per eos qui in potestate nostra sunt: an autem possessio adquiratur, quaeri solet, quia ipsas non possidemus.

§ 91. De his autem servis in quibus tantum usumfructum habemus ita placuit, ut quidquid ex re nostra vel ex operis suis adquirunt, id nobis adquiratur; quod vero extra eas causas, id ad dominum proprietatis pertineat. itaque si iste servusheres institutus sit legatumve quod ei datum fuerit, non mihi,

further, by freemen or slaves belonging to another if we are innocent possessors: and let us now examine these cases in detail.

$87. The rights of property which children under power or slaves acquire by mancipation or tradition, the rights to a service they acquire by stipulation, and all rights they acquire by any other title, are acquired for their superior; for an inferior is incapable of holding property, and if instituted heir he must have the command of his superior to be capable of accepting the inheritance, and if he has the command of the superior and accepts the inheritance, it is acquired for the superior just as if he himself had been instituted heir: and the same occurs in the case of a legacy.

§ 88. When one man is bonitary proprietor of a slave and another quiritary proprietor, whatever the mode of acquisition, it enures exclusively to the bonitary proprietor.

§ 89. Not only property is acquired for the superior but also possession, for the detention of the inferior is deemed to be the possession of the superior, and thus the former is to the latter an instrument of usucapion.

§ 90. Persons in the hand or mancipation of a superior acquire dominion for him just as persons in his power; whether they acquire possession for him, is a controversy, not being themselves in his posses

sion.

§ 91. Respecting slaves in whom a person has only a usufruct, the rule is, that what they acquire by administering the property of the usufructuary or by their own labour is acquired for the usufructuary; but what they acquire by any other means belongs to their proprietor (the reversioner). Accordingly, if

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