Confusio
Properly the mixing of liquids, or the fusing of metals into one mass. If things of the
same or of different kind were confused, either by the consent of both owners or by accident,
the compound was the property of both. If the
confusio was caused by one
without the consent of the other, the compound was only joint property in case the things were
of the same kind and perhaps of the same quality—as, for instance, wines of the same
quality. If the things were different, so that the compound was a new thing, this was a case
of what, by modern writers, is called
specificatio, which the Roman
writers expressed by the term
novam speciem facere, as if a man made
mulsum out of his own wine and his neighbour's honey. In such a case the
person who caused the
confusio became the owner of the compound, but he
was bound to make good to the other the value of his property.
Commixtio applies to cases such as mixing together two heaps of corn; but
this is not an instance in which either party acquires property by the
commixtio. For if the mixture takes place, either accidentally or with mutual consent,
or by the act of one alone, in all these cases the property of each person continues as
before, for in all these cases it is capable of separation. A case of
commixtio arises when a man's money is paid without his knowledge and consent, and the
money, when paid, is so mixed with other money that it cannot be recognized; otherwise it
remains the property of the person to whom it belonged.
Two things, the property of two persons, might become so united as not to be separable
without injury to one or both; in this case, the owner of the principal thing became the owner
of the accessory. Thus, in the case of a man building on another man's
ground, the building belonged to the owner of the ground (
superficies solo
cedit); or in the case of a tree planted, or seed sown on another man's ground, the
rule was the same. If a man wrote, even in letters of gold, on another man's parchment or
paper, the whole belonged to the owner of the parchment or paper; in the case of a picture
painted on another man's canvas, the canvas became the property of the owner of the picture.
But in all these cases the losing party was entitled to compensation, with some exceptions
as to cases of
mala fides.
