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CONFU´SIO Under this head it will be convenient to group a number of the “naturales rerum singularum adquisitiones,” or titles to property based on the jus gentium or naturale, which the Roman lawyers (e.g. Inst. 2.1, 21 sq.; Dig. 41, 1, 7) usually treat in connexion with one another.

Confusio is the mixing together of things of the same kind, so that they become inseparable: e. g. by pouring together liquids (for instance, wines, Inst. 2.1, 27); mixing grain (Dig. 6, 1, 5, pr.); fusing metals together (Dig. ib. 4), or combining them in the forge (ferruminatio, Dig. ib. 23, 5). If the things had belonged to different owners, and the mixing had been accidental or made by mutual consent, they became joint owners by the new title of confusio. Commixtio is a non-classical term derived from commiscere, which occurs less frequently than confundere in the juristic texts: by the jurists themselves the two are not clearly distinguished (Dig. 41, 1, 7, 8; 6, 1, 3, 2 and 5), but commixtio is used by the moderns chiefly to denote the mixture of solid things, such as grain. Where the mixture was accidental and the two portions were separable, each of the owners retained his former property, and might separate it from the mass; but where it was made by consent, and in all cases where separation was impossible, they became joint owners by a new title; and the same held good if the mixing was done in good faith by one only without the other's consent. It is a case of commixtio, when a man's money is paid without his knowledge or consent, and [p. 1.528]then becomes so mixed with other money of the payee that it cannot be recognised and distinguished: otherwise it remained the property of the person to whom it originally belonged (Dig. 46, 3, 78).

Confusio is also used in an altogether different sense to express the union in one and the same person of a right and its corresponding duty, and the consequent extinction of both (merger): e. g. when a creditor becomes his debtor's heir or vice versâ: “confusione perinde extinguitur obligatio ac solutione” (Dig. 34, 3, 21, 1): but if the creditor becomes heir to his debtor's surety, or vice versâ, the accessory obligation of suretyship is extinguished, but not the principal debt (Dig. 46, 3, 43). So too in the case of servitudes and other jura in re aliena; if the person who has the right becomes dominus of the property over which it exists, the right is extinguished: “si fructuarius proprietatem assecutus fuerit, desinit usus fructus ad eum pertinere propter confusionem” (Dig. 7, 9, 4; cf. Inst. 2.4, 3). For praedial servitudes extinguished in this manner, see Dig. 8, 6, 1; 8, 2, 30, pr.

Specificatio is a non-classical term employed to denote the making of a new “species” or substance out of another man's material: e. g. wine out of his grapes, oil out of his olives, a ship or bench out of his timber (Gaius, 2.29; Inst. 2.1, 25). by the law as settled by Justinian the nova species belonged to him who made it, provided it could not be restored to its pristine character, and that he was acting on his own behalf (suo nomine) and (it would seem from Dig. 10, 4, 12, 3) in good faith; though of course he was bound to pay for the materials. If it could be restored to its original character, the ownership was not changed, though the specificator, if he had acted in good faith, had a right to retain the thing till he was paid the value of his labour. If the materials out of which the nova species was made belonged partly to the maker, partly to another person, the new product belonged (subject to the same conditions) to the former; but if it was made by consent of the owners of the diverse materials, or accidentally (as mead by the chance mixing of wine and honey), it belonged to them jointly (Inst. 2.1, 27. Cf. Seneca, Ep. 65; Pliny, Plin. Nat. 34.5 ff.; Ovid, Ov. Met. 2.5; Martial, 8.51, 7).

Where two things belonging to different persons became united or combined in the way of principal and accessory so as not to be separable without injury to one or both, the owner of the principal thing became owner of the accessory (accessio). Instances of this are the building by one man with his own bricks or timber on another man's land, for “superficies solo cedit” (Gaius, 2.73; Inst. 2.1, 29); the planting of shrubs and sowing of seed, when they have once taken root, in another's soil (Gaius, 2.74, 75; Inst. 2.1, 31, 32); the weaving by a man into his coat of another's purple (Inst. 2.1, 26); writing on another man's paper or parchment (Gaius, 2.77; Inst. 2.1, 33): though by an anomalous rule if one man painted a picture on another's canvas the canvas and picture both belonged to the painter (Gaius, 2.78; Inst. 2.1, 34), and similarly, if a piece of land were torn away by a stream from one man's land and became attached to that of another, it became the property of the latter so soon as the union was complete (Inst. 2.1, 21): but this is a different case from alluvio, which is described in the preceding paragraph of the Institutes. In all these cases, however, the losing party was entitled to compensation unless there had been mala fides on his part. (Vangerow, Pandekten, § § 310, 328-331; Puchta, Institutionen, § 242.)


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