quantum quoquo momento temporis adjiciatur. § 21: Quod § 51. § 22 eod. Insula, quae in mari nata est (quod raro accidit) IV. Specification. 'Specification' is the working up of a thing into a new product. The baker, the carpenter, the wine-presser, the manufacturer, &c., convert the raw material into a product of labour which invariably possesses a higher economic value than the raw material. The labour results in the creation of a new form. This economic power of production is held to confer on the person who supplies the labour a right to claim the product as his own. That is to say, the manufacturer (specificans) who creates the new product-whether by his own labour, or, if he is an employer of labour, by that of others —becomes owner of the thing he has manufactured, his title being independent of that of any previous owner, and for that reason original, provided that he was acting bona fide and that (in accordance with a positive enactment of Justinian) the thing can no longer be restored to its previous shape. These limitations do not apply, if the specificans was owner of part of the materials. § 25 I. de rer. div. (2, 1): Cum ex aliena materia species aliqua § 51. multas Sabinianorum et Proculianorum ambiguitates placuit media sententia existimantium, si ea species ad materiam reduci possit, eum videri dominum esse, qui materiae dominus fuerit; si non possit reduci, eum potius intellegi dominum, qui fecerit. Ut ecce vas conflatum potest ad rudem massam aeris, vel argenti, vel auri reduci, vinum autem, aut oleum, aut frumentum ad uvas et olivas et spicas reverti non potest. . . . Quodsi partim ex sua materia, partim ex aliena speciem aliquam fecerit quisque, veluti ex suo vino et alieno melle mulsum, aut ex suis et alienis medicamentis emplastrum aut collyrium, aut ex sua et aliena lana vestimentum fecerit, dubitandum non est, hoc casu eum esse dominum, qui fecerit, cum non solum operam suam dedit, sed et partem ejusdem materiae praestavit. V. Fructus. 'Fructus' are the products which give to the thing that produces them its special value, e. g. the milk of a cow, the offspring of animals, the produce of fields and gardens. In certain cases a person other than the owner of the principal thing becomes owner of the fruits, for example, a tenant, a usufructuary, also a bonae fidei possessor. A person who possesses another man's property in good faith, nevertheless acquires ownership in the fruits of such property; and if subsequently the owner takes an action against him, he (the bonae fidei possessor) is not required to restore the fruits he has consumed in good faith, but is only bound to restore the principal thing, together with such fruits as were extant at the moment of the action being taken. But as soon as the action has commenced, he must know that, possibly, he is in possession of another man's property. From the moment of litis contestatio therefore, he is bound to apply the utmost care (omnis diligentia) in the cultivation of the fruits. If the plaintiff succeeds in proving his ownership, he can claim the restoration of all the fruits gathered during the action (fructus percepti), and can also claim damages for such fruits as the defendant could have gathered by the exercise of due care (fructus percipiendi). NOTE. The Different Unions of Things. THE union of two or more things into one-as when I mix the § 51. contents of two bottles of wine-is one of the processes which, by the necessary operation of the law, effect a change of ownership. The question arises, who shall be considered owner of the new thing? Different cases are determined by different rules of law. Some of these cases have already been discussed. The purpose of this note is to bring out clearly the broad principle which governs them all. The following rules supply an answer to the question concerning the legal effect of a union of things as such, quite apart from the intention of the owners. The union of several things into one is either (1) a union in the narrower sense of the term, or (2) an accession, or (3) a specification. A 'union,' in the narrower sense, occurs, when the new thing is the same in kind as both the pre-existing things, e. g. when water is mixed with water, wine with wine, or when silver is fused with silver or gold with gold. Both the former things continue, in this sense, to exist in the new thing. The rule applying to such cases is this: if the several things belonged to different owners, the effect of the union is to make the former owners joint owners of the new thing, in the proportion in which their things contributed to the production of the new thing. If however the new thing is identical in kind with only one of the pre-existing things, we have a case of 'accession.' This happens, e. g. when an arm is so joined to a statue by ferruminatio (cp. Dernburg, Pandekten, § 209, note 6) as to make the whole thing one; the new thing is a statue which the arm was not. The same thing occurs, e. g. when a new leg is put on a table, or when a rose is planted in my land. In the latter case, as soon as the rose has struck root, only one thing exists, viz. the land; the rose has ceased to exist as an independent thing. In all these instances one of the things maintains its identity in spite of the union. It determines the character of the new thing. It has, so to speak, absorbed and consumed the other. Hence it is called the principal thing in contradistinction to the accessory, i. e. the thing (in the above cases the arm, the rose) which continues to exist only as a modification or enlargement of the other by which it is absorbed. The rule of law here is that the owner of the principal becomes the owner of the accessory, which his thing has consumed. The owner of the accessory is limited to a claim for compensation. The owner of the principal thing therefore becomes the sole owner of the new thing. § 51. § 52. Specification, lastly, may very well occur without any union, as when a dress is made out of a piece of cloth, but it may frequently be the result of a union of several things, as in the case of a picture. A union amounts to a specification, if the new thing is different in kind from each of the former things; in other words if, economically speaking, none of the former things continue to exist in the new thing. In such cases the rule already set forth applies: the ownership in the materials is destroyed and the owners of the former things are, all of them, limited to a claim for compensation. The new thing becomes the property of the specificans, provided always that the conditions for acquiring ownership as stated above (under IV) are satisfied. If we keep the principle thus stated steadily in view, we shall find no difficulty in distinguishing between cases of specification and accession. If I paint a picture, using, for the purpose, in all good faith, another man's colours and canvas, whose is the picture? That will depend on circumstances. If the result of the painting is merely painted canvas, we have an instance of accession, because one of the things outlasts the union (this would apply e. g. to the case of a painted drop-curtain or a so-called painting which is really nothing more than a daub). The owner of the canvas (tabula) therefore becomes the owner of the colour. But if the result of the painting is a picture, we have a case of specification, because the product is a third thing which is neither colour nor canvas, the material being merged in the work of art. Fresco painting is necessarily a case of accession and not of specification, because the building continues as before and the immovable property outlasts the union. The same distinction may be applied to writing. If the result of the writing is merely paper that is written on, we have a case of accession, if it is a piece of writing (e. g. a deed), we have a case of specification. Even the Roman jurists show some uncertainty in deciding the several cases (e. g. in regard to pictura and scriptura, cp. l. 23 § 3 D. 6, 1, where the question is argued entirely as a case of accession). Nevertheless the fundamental idea is clear. The question will always be whether both the former things, or one of them, or none of them, can be regarded as, economically speaking, continuing to exist. The ownership of the thing follows the changes in its economic condition. § 52. The Protection of Ownership. There are two actions by which an owner may protect his ownership: the rei vindicatio and the actio negatoria. I. Rei Vindicatio. Rei vindicatio is the action employed by an owner when a third person is in possession of his property (ubi rem meam invenio, ibi § 52. vindico). It is therefore an action by which an owner who is not in possession sues a non-owner who is in possession. If the defendant has some right in regard to the thing which entitles him to withhold it from the owner (e. g. a right of pledge, a usufruct, a right as hirer), such right is protected by means of an exceptio. Failing this however, he must restore to the successful plaintiff (the owner) the thing itself with all the accessions that have accrued (cum omni causa)1. II. Actio Negatoria. The actio negatoria is the action by which an owner protects himself against a mere disturbance of his possession. It is therefore, as a rule, the action by which the owner who is in possession secures the integrity of his possession. The defendant is the person who has disturbed the possession of the owner. He is compelled to discontinue the disturbance and to pay the owner full compensation for damage. § 53. The Protection of Usucapio Possession. If a person is in usucapio possession of a thing belonging to § 53. another, and continues in such possession till the usucapio is complete, he acquires, of course, together with the ownership of the thing, the remedies which are incident to ownership, viz. the rei vindicatio and the actio negatoria. In certain cases, however, the praetor deems it desirable to protect a usucapiens even before his usucapio is complete. It was with a view to this purpose that he introduced the actio Publiciana in rem, an action of ownership which is granted on a fiction that the period of usucapio is already complete-granted, in other words, to a possessor who wants nothing but the lapse of a certain time to constitute him owner (sup. p. 181). 1 Hence the above-mentioned liability of the bonae fidei possessor to restore not only the principal thing, but also the fruits (sup. § 51 v.). The liability of the malae fidei possessor is still more rigorous; for since he knows he is in possession of another man's property, he n. 4. |