BOOK III.

Pt. I. Ch. I.

the principal thing (and to that perhaps alone), the fructus exstantes' along with such principal thing, whilst for 'fructus consumpti'-used up and alienated-he has not generally to offer any compensation.

In alieno fundo, quem Titius bona fide mercatus fuerat, frumentum sevi; an Titius bonae fidei emptor perceptos fructus suos faciat? . . . Respondi . . . in fructibus magis corporis ius, ex quo percipiuntur, quam seminis, ex quo oriuntur, adspicitur; et ideo nemo umquam dubitavit, quin, si in meo fundo frumentum tuum severim, segetes et quod ex messibus collectum fuerit meum fieret. Porro bonae fidei possessor in percipiendis fructibus id iuris habet, quod dominis praediorum tributum tributum est: . . . cum fructuarii quidem non fiant, antequam ab eo percipiantur, ad bonae fidei autem possessorem pertineant, quoque modo a solo separati fuerint ; sicut eius, qui vectigalem fundum habet, fructus fiunt, simul atque solo separati sunt.-Ibid. § 1.'

Paul. Bonae fidei emptor non dubie percipiendo fructus etiam ex aliena re suos interim facit non tantum eos, qui diligentia et opera eius pervenerunt, sed omnes, quia quod ad fructus

1 I have sown a crop in a field owned by another, which Tit. had purchased in good faith: does Tit. the bon. fid. purchaser make the fruit when gathered his own? The opinion I gave was: . .. in respect of fruits, regard must be had rather to the right of the body from which they are gathered than to the seed from which they spring; and therefore no one has ever doubted that if I have sown your crop in my field, the crop, and whatever should be gathered by the harvest, was mine. Moreover a bon. fid. possessor has the same title to the gathering of fruits as has been accorded to owners of estates . . . since they do not become the property of the fructuary until they are gathered by him, but belong to the bon. fid. possessor in whatever way they have heen separated from the ground; like as fruits become the property of him who possesses a stipendiary estate, as soon as they have been separated from the ground.

attinet, loco domini paene est.

Denique etiam priusquam percipiat, statim ubi a solo separati sunt, bonae fidei emptoris fiunt. Nec interest, ea res, quam bona fide emi longo tempore capi possit necne. In contrarium quaeritur, si eo tempore quo mihi res traditur putem vendentis esse, deinde cognovero alienam esse, quia perseverat per longum tempus capio, an fructus meos faciam? Pomponius, verendum, ne non sit bonae fidei possessor, quamvis capiat.-D. 41, 1, 48 pr., 1.1

Afr. simul haec fere cedere, ut quo casu fructus praediorum consumptos suos faciat bona fide possessor, eodem per servum ex opera et ex re ipsius ei adquiratur.-1. 40 eod.'

Certum est, malae fidei possessores omnes fructus solere cum ipsa re praestare; bonae fidei vero exstantes, post litis autem contestationem universos.-C. 3, 32, 22.3

1 A bon. fid. purchaser, by gathering the fruits even of property belonging to another, makes them his own for the meantime, not merely those which have accrued from his industry and toil, but all, because as concerns the fruits he is almost in the position of the owner. Accordingly, even before he gather them, immediately upon their separation from the ground they become the property of the bon. fid. purchaser. And it is immaterial whether the article which I have purchased in good faith can be acquired through length of time or not.-On the other hand, if at the time when the thing is delivered to me I believe that it is the property of the vendor, and afterwards learn that it belongs to another, the question arises whether I make the fruits my own, because usucapion is assured by lapse of time. Pompon. thinks that we must hesitate as to his being a bon. fid. possessor, though his usucapion attach.

2 that these cases are almost identical, in that whenever the bon. fid. possessor makes himself owner of the consumed fruits of land, he also acquires through the slave by his services and his own substance.

3 It is certain that possessors in bad faith generally offer all the fruits with the thing itself; but those in good faith only the existing fruits, but after lit. cont. the whole.

BOOK III. Pt. I. Ch. L.

BOOK III.

Pt. I. Ch. I.

a § 99.

* §§ 73, 131.

(3) By the Emphyteuta.' a

The fruits are acquired by the usufructuary and the lessee through PERCEPTION (taking possession), upon the ground of the independent right to the thing which belongs to him, or of the privilege in respect of the produce assured to him by the owner-by a sort of delivery.

Is ad quem ususfructus fundi pertinet non aliter fructuum dominus efficitur, quam si eos perceperit; et ideo licet maturis fructibus, nondum tamen perceptis decesserit, ad heredem eius non pertinent, sed domino proprietatis adquiruntur. Eadem fere et de colono dicuntur.-§ 36, I. de R. D.1

Afric. colonum, quia voluntate domini eos percipere videatur, suos fructus facere.-D. 47, 2, 61, 8.2

$86. SPECIFICATION.

By so-called Specification, that is, work done or recast upon another's material, by which a new object of property (nova species) or artificial production is created, ownership (according to the intermediate view of the Roman Jurists, approved by Justinian), is acquired in such work by its maker, provided that the material so worked up cannot again be restored to its original form, and that the maker have done it 'suo nomine,' .., for himself, and 'bona fide,' i.e., not Otherwise, the new thing devolves upon

But this last fraudulently.

is questionable. -As to compensation in such cases, sce

$ 84.

the owner of the material.

He that possesses the usufruct of an estate is only made owner of the fruits if he has gathered them in; and therefore should he have died whilst the fruits indeed are ripe, but not 4 For English gathered, they do not belong to his heir, but are appropriated by the ground owner. The like is generally affirmed of the tenant-farmer."

law as to

Emblements,

see Blackst. ii. 122-3, 146,

403-4 (Steph.

2 that the tenant-farmer makes the fruits his own, because ii. 258-9, 288-9). he is considered to gather them with the consent of the owner.

Gai. Cum quis ex aliena materia speciem aliquam suo nomine fecerit, Nerva et Proculus putant hunc dominum esse, qui fecerit: quia quod factum est, ante 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 potest; veluti si ex auro vel argento tuo vel aere vas aliquod fecero, vel ex tabulis tuis navem aut armarium aut subsellia fecero, vel ex lana tua vestimentum, vel ex vino et melle tuo mulsum, vel ex medicamentis tuis emplastrum aut collyrium, vel ex uvis aut olivis aut spicis tuis vinum vel oleum aut frumentum. Est tamen etiam [Et post multas Sabinianorum et Proculianorum ambiguitates placuit.-§ 25, I. de R. D. 2, 1] media sententia recte existimantium, si species ad materiam reverti possit, verius esse quod 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.-1. 7, § 7, D. de A. R. D.

41, I.'

1 If a man have converted material belonging to another into a new species on his own account, Nerva and Procul. are of

BOOK III. Pt. I. Ch. J.

BOOK III.

Pt. I. Ch. I.

Quodsi partim ex sua materia partim ex aliena speciem aliquam fecerit, . . . dubitandum non est hoc casu eum esse dominum qui fecerit : cum non solum operam suam dedit, sed et partem eiusdem materiae praestavit.—§ 25, I. cit.'

Call.: : -propter consensum domini tota res eius fit, cuius nomine facta est.-1. 25, D. de A. R. D.2

Paul. Si quis ex uvis meis mustum fecerit, vel ex olivis oleum vel ex lana vestimenta, cum sciret haec aliena esse, utriusque nomine

opinion that the manufacturer is owner, because that which has been made belonged previously to no one. But Sab. and Cass. are of opinion that natural principle rather dictates that he who was owner of the material should also be of that which has been made from it, because nothing could be made without existing material; for example, if from your gold, or silver, or copper I have made a vessel, or from boards belonging to you a ship, or a closet, or benches, or from your wool a garment, or mead from your wine and honey, or from your drugs a plaister or a salve, or from your grapes, olives or ears, wine, oil or corn. There is, however, also [and after many controversies of the Sabinians and Proculians, it has prevailed] an intermediate opinion of those who are right in supposing that if the new species can again be reconverted into its material, the opinion of Sab. and Cass. is the more correct, but if not, that of Nerva and Proculus; thus, for instance, if a molten vessel can again be converted into the raw material of gold, or silver, or copper; but wine, oil or corn cannot again become grapes, olives or ears, and not even mead can be converted into honey and wine, or a plaister or salve into drugs. I think, however, some were right who have stated that there can be no doubt but that corn thrashed out of ears owned by another belongs to the owner of the ears, for since the grains contained in the ears have their perfect form, he that thrashes out the ears makes no new species, but he discloses the existing species.

1 But if a man have made a new species partly from material of his own and partly from that belonging to another, . . . we cannot doubt that in this case the manufacturer is the owner; since he has devoted to it not only his labour, but also a portion of the same material.

-by reason of the owner's consent the article becomes entirely the property of him on whose behalf it was made.