REMEMBER: ask - who is the owner?

(use
tree chart to determine) THEN, who
possesses it? THEN, was it in good faith or
not? THEN, what actions adn compensation
rules might apply?
Remedies: similar rules applied to accessio
Existence of bad faith relevant to question of
compensation:
WHERE THE CREATOR WAS ALSO THE OWNER
(1) If creator acquired ownership, having acted in good
faith, and was in possession, it seems that the owner of
the materials had no remedy.
(2) If the creator was not in possession, could bring the
vindicatio, but met by an exceptio doli if he refused to
pay the other party for the value of the materials.
(3) If the creator had acted in bad faith, he could be
sued for theft (by actio furti) but entitled to the new thing.
WHERE THE CREATOR FAILED TO BECOME THE
OWNER
(4) Where the creator did not become the owner through
specificatio, but had acted in good faith and was in
possession, he was probably entitled to compensation
for his work when the owner brought a vindicatio.
(5) If he was out of possession it is unlikely that he had
any remedy.
(6) If the creator had acted in bad faith, he was deemed
to have made a gift of his work.

a. The owner of the new thing could recover it by

vindicatio.
b. Good faith appears to have been irrelevant to the
question of where ownership vested, though this is
controversial. Theft claims would lie if they had been
stolen.
c. The owner of the materials had no redress if the
maker was in good faith and in possession of the thing.
d. If the owner of the materials had possession of the
thing he would have an exceptio doli to the makers
vindicatio.
e. Note also that any usufruct or pledge of the original
material was destroyed, and there is no evidence of
the usufructuary having any right of compensation,
(D.7.4.10.5, 6; D.13.7.18.3).

REMEMBER: JUSTINIAN'S MIDDLE VIEW OF WHO

BECOMES THE OWNER

ORIGINAL MODES OF ACQUISITION ROMAN LAW (FOR TWO-OBJECTSCENARIO)

If the maker of the thing used material partly belonging to him, and material partly
belonging to another, the new thing belonged to the maker.
Where the maker uses property belonging wholly to another there was a dispute:
Proculians: The thing belonged to the maker, (G.2.79, J.2.1.25).
Sabinians: The thing belonged to the owner of the materials, (G.2.79, J.2.1.25).
Justinians middle view (media sententia): The new thing belonged to the
owner of the materials if it could be returned to its original materials.
Otherwise it belonged to the maker, (J.2.1.25).

YES: it is a SPECIFICATIO type

situation

IF YES: it is ACCESSIO type

situation (where A's property is
incorporated onto B's inseparably
MOVABLE TO IMMMOVABLEand loses it identity)
The basic rule was that anything attached to land
became part of it since land was regarded as the
principal thing.
BUILDINGS belonged to the owner of the land even if
they were separable from land, because the XII Tables
forbade demolition of buildings. Even if the house as a
house belonged to the owner of the land, the owner of
the materials which constituted it retained his dominium
of them, though he was not allowed to vindicate them so
long as the building was standing
Builder-possessor-landowner-materials from another:
1. used stolen materials for building
owner of materials
1) actio de tigno iniucto
2) recover 2x the value of materials - vindicatio for
materials when building falls
2. used other's materials in good faith

MOVABLE TO MOVABLE
PRINCIPAL SCENARIO
1) principal acting in bad faith, liable for theft BUT would
still be the owner of the overall, owner of accessory
could bring actio furti
2) principal in good faith, was in possession, probably
not entitled to compensate the accessory owner, until
Late Empire, when action allowed for value of accessory
thing.
3) Principal had vindicatio rights after paying for
accessory value. If refused to pay, vindcatio would fail
on grounds of exceptio doli by accessory

Subordination: the thing acquired should have been

incorporated in the other in so subordinate a manner
that it lost its identity (One master one subordinate, one
greater one lesser)
Inseparability: The thing acquired had to be inseparable
from the thing it had been incorporated into. (Must be
physically inseparable)

ACCESSORY SCENARIO
4) Accessory effected attachment, full knowledge,
deemed to have made a gift
5) Accessory acted in good faith but did not possess,
had no remedy
6) Accessory acted in good faith and was in possession,
could resist vindicatio with exceptio doli until
compensation.

Exceptions to inseparability requirement:

Thread (textura): If one persons thread were used in the
garment of another, it would accede to the garment.
This was so even though it was separable in
principle, and even if the thread were worth more than
the garment, (J 2.1.26)
Coins: if As coins were mixed w/ Bs, As ownership of
the coins was lost. A could recover the value of the coins
from B by bringing a condictio, but this was a personal
rather than a proprietary claim

NO: is it separable?

Planting and Sowing The general rule was that any

plants and trees belonging to one person which took
root in the land of another, whatever the manner of
planting or whoever the planter, became the property of
the landowner, even after they were uprooted (same
with seeds).
COMPENSATION:
(1) If A had in bad faith sowed in his own land seeds
belonging to B, he was liable for theft (i.e. B could
successfully bring the actio furti).
(2) If A had in good faith sowed in his own land seeds
belonging to B, he was probably liable to compensate B
for the value of the seeds or plants.
(3) If A had in bad faith sowed his own seeds in Bs land,
he was deemed to have made a gift of them.
(4) If A, currently in possession of the land, had in good
faith sowed his seeds in Bs land, he was entitled to the
value of the seeds.
(5) If A, currently out of possession of the land, had in
good faith sowed his seeds in Bs land, he was most
probably without a remedy.

YES: is it joined or attached in any

way?

NO: it is the case

of COMMIXTIO
(A's and B's
separable objects
are mixed - etc. A
and B's sheep in
the same field as
one flock)

NO: it is a CONFUSIO type

situation (inseparable objects
are mixed, but impossible to
tell which was the principal
and which was the
accessory)

If the landowner had possession of the house, then

unless the case was one of negototrium gestio, the
builder had no redress but the recovery of his materials
when the house came down.

YES: it is the case of

ADJUNCTIO
(separable attachment
of one object to
another)

E.g. Wine mixed with wine

A and B own the mixture in common. They could claim
their shares by the actio communi dividundo (value in
proportion)

If A and B did this by consent, they are owners of the

common flock. If not, each remain owners of their
property, which can be recovered by the actio ad
exhibidendum (for the production of the thing) and
vindicatio (pro parte)

owner of materials only vindicatio when building fell

Builder-possessor-BUT not landowner- materials
1. if builder knew that the land belonged to another, no
redress against vindicatio by landowner, regarded as
making a gift. Consider negotiorum gestio [The
dominus, is bound to indemnify the gestor for the
expenses and liabilities incurred under this concept].
2. Builder in good faith, would have exceptio doli against
vindicatio by landowner. If landowner paid expenses
under exceptio doli, he would get the house.
3. Some texts suggest that builder in good faith has the
right to remove materials if he could do so without
harm to the building. Conflict with XII Tables,
probable in classical law that you could only remove
additions to premises, etc. ornamental doors/gates
that would not damage structure.It seems that under
Justinian the ius tollendi was allowed to the builder in
possession if he could show that he had no intention
of conferring a benefit upon the landowner and could
effect the removal of his structure without injuring the
land. It seems that this was allowed irrespective of
good or bad faith on his part.

Writing (scriptura): writing acceded to the parchment

on which it was written, (G 2.77, J 2.1.33). The writer
possession would have an exception doli for expenses
to the parchment owners vindication
Painting (picture): If B painted a picture on As tablet,
then tablet would accede to Bs painting (G.2.78,
J.2.1.34)
Controversial distinction: Gaius (g 2.78) disapproved of
it, and Paul thought that both painting and writing would
accede to the tablet (D 41.6.23.3)
The separate rule governing painting was adopted and
justified by Justinian It would be ridiculous for a picture
by Appelles or Parrhasius to accede to a board worth
almost nothing (J 2.1.34) (this poses issues of its own)
Could be rationalised (but not mentioned in the
sources) different treatment of writing and painting
could be a different sense of relative value writing is
but a convenient method of communicating and could
have been communicated by a different way etc orally
and thus that the words were on parchment is just
incidental, but painting is aesthetic and ocular
gratification and thus it is the picture that matters.

Nova species: texts inconclusive, new thing had to have an identity, a name of its
one, could not simply be an altered or improved thing.It seems that some element of
skills and effort had to be involved in the creation of a nova species.

NO, NOW WE ASK: is there

merger/subordination/loss of identity?

Avulsio this occurred where an identifiable piece of

land was carried by the force of a river current and
was deposited against the land of another. If part of As
land was just brought by the river current down to Bs
land, it remained As. If it adhered to Bs land over a
period of time and trees grew then fomo that time it
became Bs land. (G.2.7.1, J.2.1.21)
Alluvio this was the imperceptible accretion or deposit
of soil on a persons land through the action of a
river. What the river added to As land by alluvio became
his. (G.2.70)
Rivers
Insula Nata: if an island arose in a river, the rule was
that the island was owned by the riparian owners up to
the middle line of the river. (G.2.72; J.2.1.22; D.41.1.7.3)
If a river dried up or changed course, the old river bed
was shared by the riparian owners up to the middle line
of the bed.
Flood: If land was flooded by the river, it became a river
bed; the previous owner lost ownership and no
compensation was awarded since this was the result of
natural phenomena. (if recedes, will become property of
person who owned it before - J.2.1.24)

DECIDE WHICH OBJECT IS THE PRINCIPAL

(i) One based on the relative size or the relative value of
each component largest in value or largest in
volume as the principal thing
(ii) One based on independence that thing was the
principal which could have an existence independently
of the other thing.
(iii) The test most widely applied focused on the
physical identity of the constituent elements: that thing
was the principal which most retained its identity, i.e.
which gave the resulting mix or attachment its essence,
name or overall character thus a jewel always
acceded to a ring (irrespective of the value of each)
[USE (III) WHEN IN DOUBT]

Nova species?
a. To determine whether an item had been transformed into a different turned on the
question of whether it was a nova species.
b. Thomas sees the question as whether the changed thing was in a different
commercial category, or whether the transformed material was recognisable as
what it had been.
c. He links this latter requirement to the fact the item had to be specifically identified
in the vindicatio. If the transformed thing were no longer recognisable, it made
sense to say that it had a new identity. It would have to be identified in the claim
using different words.

START BY: asking if it is a new thing (NOVA

SPECIES)

IMMOVABLE TO IMMOVABLE

COMPENSATION: depends on who effected the

attachment - owner of the accessory or the principal

NOTE: for differrent

scenarios, etc. treasure
trove, animals, abandoned
property, fruits, refer to other
resources

No change of ownership, recovery actio ad

exhibidendum and vindicatio. Etc fixing A's wheel onto
B's chariot. (everyone could still have a vindicatio claim
for each object)

NOTE: problems with the impensae (see above)

expression must mean value of the finished picture for,
otherwise, the owner of the tablet might be able to
acquire a masterpiece for the price of the materials used
by the artist, conceivably a minimal sum as compared
with value of the picture.
But above all, on the rule which found favour, by
principles of acessio, the picture belonged to the painter;
hence the fact that the action available to the owner was
only utilis. It may be the anomalous rules were adopted
to afford fair protection for one who painted unwittingly
on another's tablet, while yet allowing that person willing
to pay proper compensation to recover his tablet as
embellished.
BUT remain issue where: owner, the painter, could thus
be deprived unwillingly of his property. (Rules do not
comment on this)