CONFU´SIO
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.)
[
J.B.M]
