6. ORIGINAL NATURAL MODES

All the natural modes, with the exception of traditio, are original. These original natural modes form a characteristic feature of the Roman law and of all systems derived from it, though the prominence given to them in the Corpus luris and even in the French Civil Code is hardly proportionate to their practical importance.

Occupatio. This, the archetype of the original modes, is the acqui­sition of ownership of a thing which has no owner (res nullius') by taking possession of it. Its problems are therefore the problems of possession.

A res nullius may either never have had an owner or have been abandoned by its owner, but the only res nullius which are commonly encountered in everyday life are wild animals, and

it is in regard to them that occupatio is mainly discussed. They are, moreover, the only things of which ownership and posses­sion are always coextensive. If a new island appears in the sea (which, as every student of the Institutes knows, ‘rarely happens’) I can acquire ownership of it by taking possession of it, and I shall not lose ownership simply by losing possession.

The strict rule that ownership of wild animals was lost when possession was lost was relaxed in the case of animals which ‘have the habit of going away and returning’, such as homing pigeons. Or rather the strictness of the rule was mitigated by a stretching of the idea of possession. For they were subjected to the same rules as other wild animals, but principle was satisfied by saying, rather quaintly, that the physical control necessary to the owner’s possession of them is maintained by their ‘inten­tion to return’ (animus revertendi). Consequently, if a homing pigeon loses the animus revertendi it becomes a res nullius at that moment. Obviously the animus revertendi must in practice be the apparent habit of returning.

English law gives to the occupier of land rights in ‘game’ on his land, so that if without your consent I shoot a partridge on your land it belongs immediately to you. Roman law, however, has no such rules, and the partridge would belong to me by the ordinary principles of occupatio as soon as I had taken possession of it (unless it was in a pen and could therefore be said to be in your possession and consequently in your ownership). I may have committed the delict of iniuria* in entering on your land, but this will make no difference to my title to the partridge. In other respects, however, the rules of English law as to the owner­ship of wild animals are the same as and seem to be derived from those of Roman law.

The Roman doctrine of occupatio was adopted by the founders of modern international law as the basis of the acquisition of title by states to vacant territory (which was conveniently taken to include territory possessed by ‘savage’ tribes).

Increment by rivers.

(i)    Alluvio. In the course of time riparian land may be signifi­cantly extended by imperceptible increments of soil brought down by the river. Such additions are not res nullius but belong to the riparian owner. If the addition is not imperceptible, but a piece of land has been carried bodily down the river (what the commentators call avulsid), there is no change in its owner­ship until it has become permanently attached to the bank (the texts speak of trees on it striking root).

(ii)  Insula nata. There is much discussion of the ownership of islands which are thrown up by the movement of the river (as opposed both to those which are created when the river divides, thereby enclosing an existing piece of land the ownership of which remains unchanged, and to those which are laid bare by a fall in the level of the water and are treated as part of the bed). The rules are nevertheless not altogether clear. If the island is wholly on one side of the river, it belongs to the riparian owner on that side. If there is more than one riparian owner, the island is divided by drawing vertical lines from the limits of each holding to the island. If the island is not wholly on one side, apparently a line is drawn down the middle of the river and the island divided accordingly. This was the interpretation adopted by modern Roman law, but it leaves unanswered the mathe­matician’s objection that unless the banks are parallel it is impossible to define the middle line.

(iii)  Alveus derelictus.

Merger.lang=EN-US> Problems may arise when a thing belonging to one person is united to or mixed with that of another, as, for example, if I pour your oil into the same vat as my oil, or if I paint a picture on your canvas with my paints, or weld your silver handle on to my silver cup. If the union or mixture has been made by agreement between us, there is little difficulty: either we will have agreed as to our rights in the resulting whole, or, if we have not, the law will presume that we intended it to be jointly owned in proportion to our contributions. Again, if the union is dissoluble, the aggrieved owner can claim that it be dissolved. For example, if my pearl is set in your ring and you are in possession of the complete ring, I can claim that my pearl be detached; and I can do the same if my wheel is fixed to your cart. But if the union or mixture has not been made by agree­ment between us (i.e. it has been made by one of us without the consent of the other, or by a third party without the consent of either), and if it is indissoluble, there is more difficulty. The problems are those of ownership and compensation—of rights in rem and in personam—but the problem of ownership comes first.

The criterion applied is essentially one of identity. If the identity of one thing (the accessory) is merged and lost in the identity of the other (the principal) the owner of the principal is owner of the whole. In the example of the cup and the handle, the owner of the cup is owner of the cup-with-handle. There is said to be accession If there is no merger of identity, but the

¹ The term is used by some commentators (and, following them, by the French Civil Code) in a much wider sense to include all cases in which there has been an addition to my right, i.e. in which the object of my ownership has increased. The identity of the whole is the same as the identity of each of the component things, the ownership is joint. This will commonly only occur in the case of liquids or metals (as where my oil and your oil are mixed, or where my gold ingot and your gold ingot are melted together into a larger ingot) and the process is therefore termed by most commentators confusio (a pouring or melting together).

Here everything obviously turns on the meaning of‘identity’, and this, as philosophers have found, is an elusive concept. In particular, how is the principal thing to be distinguished from the accessory? The distinction will usually in practice be easy enough to draw (as in the case of the cup and the handle), but to formulate a test is difficult. The only simple one the texts offer is that of value, and this is inadequate. For though it is usually the less valuable thing which accedes to the more valuable, it is not always so: if I write on your paper, the letters will accede to the paper, even if they are gold letters.

owner of an animal therefore acquires ownership of the young of the animal at birth by accessio, though in physical terms there has been not an accession but a separation. In this sense accessio includes all the original natural modes except occupatio and thesauri inventio. And there are other, intermediate, meanings. Since accessio as an abstract word is not Roman and no clear classification emerges from the texts, no one meaning or classification can be said to be ‘right’, but those adopted by the French Civil Code are so wide as to be almost meaningless.

It can be argued that some of the cases of‘increment by rivers’fall within even the restricted meaning of accessio given above. Alluvio and avulsio can fairly easily be fitted in (except that there should be accessio to the bed rather than to the bank, and the bed is said to be public). But insula nata and alveus derelictus can only be included by a forced interpretation and it seems simpler to adopt a merely descrip­tive classification for all these cases.

¹ It is not to the paint that the canvas accedes, but to the painting, as is obvious if one envisages the case of A’s painting on B’s canvas with C’s paint. The problem would have been better dealt with as one of specificatio (see below, pp. 136 if.)—the result would have been the same.

We have so far been considering accessio only of movables to movables. There can also, however, be accessio of movables to land. If your seed is sown in my land it belongs to me; if your tree is planted in my land it becomes mine when it takes root. The important case, however, is that of building {inaedificatici). A builds on A’s land with B’s materials or A builds on B’s land with A’s (or with G’s) materials. The building accedes to the land. The union is in principle a dissoluble one,¹ but the owner of the materials is debarred from claiming them by a rule of primitive public policy, deriving from the Twelve Tables, that no one should be compelled to pull down a building. He must therefore wait until the house falls down or is voluntarily pulled down, and then he can bring a vindicatio. In the case, however, of A’s building on his own land with B’s materials, B is in the meantime given by the Twelve Tables an action {actio de tigno iuncto) against A for a penalty of twice the value of the materials (the same penalty as for theft) for his having wrongfully in­corporated B’s materials into the land or building.

This brings us to the problem of rights in personam. Where the union is indissoluble and the owner of the accessory has there­fore lost his ownership, can he claim any compensation? There are two situations in which the law is clear. The first occurs where the union has been made in bad faith by the owner of the principal thing, as when A has fixed B’s handle to his own cup, knowing it to be B’s handle. In this case A’s act constitutes the delict of theft, and B can claim not only compensation, but also a penalty.² The second situation occurs when B, the former owner of the handle, is in possession of the whole. In this case, A owns the whole and can therefore bring a vindicatio for it, but B is allowed to plead in defence (by exceptio dolt) that A, even if he acted in good faith, ought to pay compensation for what he has acquired. In other words, if A does not pay compensation he will fail in his vindicatio. So far the law is clear, but what if A was in good faith, and B is not in possession? It seems that, in the classical law at any rate, B has no remedy. The only ground on which he might base a claim is that A is unjustifiably enriched at his expense, and, as we shall see,³ the classical law allowed such claims only in a limited number of cases, of which this was not one. This may seem harsh, and sometimes it would be,

’ See above, p. 133.      ² See below, pp. 212 ff. ³ Below, pp. 231 ff. but by no means always. For how did it come about that A could in good faith fix B’s handle to his cup? Most probably he bought it from a third party, in which case, assuming he paid a good price for it, he can hardly be said to be enriched. We are once again faced with the problem of two innocent parties, one of whom must suffer. Moreover, as we have seen,¹ it would rarely happen that a man would lose possession of a movable without his consent unless there had been theft, and therefore A would usually have at least the possibility of an action against the thief. In short, the only clear case of hardship will be the unusual one in which A has come into possession of the handle without paying for it. This case could only be dealt with at the risk of so widening the doctrine of unjustified enrich­ment that it would become unmanageable. The classical lawyers preferred to allow an occasional hardship than to run this risk. In fact the surprising thing is not that they refused B an action, but that they allowed him to claim compensation by way of defence. For this left the decision as to which of the two should bear the loss to the chance of which was in possession. The explanation is probably that it was possible to allow the exceptio to be pleaded to the vindicatio without opening the door to wide claims for unjustified enrichment, and the lawyers were there­fore more willing to allow it. But the distinction is nevertheless arbitrary.

Specijicatio. There remains one other problem involving identity. Two things may be so united that the identity of the resulting thing is different from that of either of the original two. Or a single thing may be so worked upon that its identity is changed. There is, in short, a new thing (nova species). For example, A makes his own wine and B’s honey into mead, or his own gold and B’s silver into electrum; or he makes B’s bronze into a statue. As before, if this has been done by agreement there is no difficulty: either the agreement will have decided the question of ownership or, if it has not, the new thing will be owned by A and B jointly. But what if A has acted without B’s consent?

In the classical law there was a dispute between the schools. The Sabinians gave the ownership to the owner of the materials, or if, as in the case of the mead, there was more than one owner, ¹ Above, p. 124.

to the owners jointly in proportion to their contributions. The Proculians gave the ownership to the maker. He acquired by specificatio—by his act of making a nova species. There was yet a third doctrine, to which Justinian gave his approval, and which he describes as a compromise {media sententia}. This gave the nova species to the maker only if the materials could not be restored to their former state. The mead would therefore belong to A, but the bronze statue to B, whereas if the statue had been made out of marble it would have belonged to A. The mead would indeed belong to A for another reason. For Justinian introduced a further rule that if the maker had contributed any part of the material, the nova species should belong to him— apparently on the ground that he could claim support from both the Proculian and the Sabinian doctrines, since he had not only made the thing but had also contributed at any rate part of the material. If therefore A makes a statue partly out of B’s bronze and partly out of his own, the statue will be his. It seems that in all these cases, as in accessio, the good or bad faith of the maker is irrelevant to his title.

face="Times New Roman">The problems of compensation are the same in specificatio as in accessio, and what has been said above applies equally here.

Justinian’s media sententia has been criticized as taking no account of the relative importance of the materials and of the maker’s skill—i.e. of capital and labour—and has been aban­doned by most modern systems. The French Civil Code gives the thing to the owner of the materials unless the value of the work far exceeds the value of the materials; the German Civil Code strikes a different balance, giving the thing to the maker unless the value of the work is far below that of the materials.

What is a nova species? When is a thing so changed that it becomes a new thing? It is probable that the dispute between the Proculians and the Sabinians reflects a difference of philo­sophical doctrine, the Proculians following Aristotle in giving the primacy to form or essence and the Sabinians preferring the Stoic view which gave the primacy to matter. Such distinctions are unfashionable now, and ‘form’ or ‘essence’ is no easier to define precisely than ‘identity’; but there was a practical diffi­culty also. The plaintiff in a vindicatio must identify in words the thing to which he claims title. Is ‘marble’ a sufficient description of a marble statue, or can the defendant reply that the thing which he possesses is not the thing mentioned in the plaintiff’s claim? In short the question ‘is there a nova speciesP can be restated in the form ‘would the ordinary man give the thing as it is a name different from that of the thing as it was?’¹ This may be more acceptable to current ways of thinking, but it only shifts on to the ordinary man the burden of deciding when a thing has changed sufficiently to require a different name, and this is no other than the problem of form, essence, or identity.

Acquisition of fruits. The fruits or produce of a thing include both the natural increment of land or tame animals and also rents or similar profits. These are distinguished in modern terminology as natural and civil respectively (fructus naturales and fructus civiles).

The right to civil fruits is a matter not of the law of property but of the law of contract. If a man hires out land, his right to the rent depends on the validity of the contract, not on his title to the land. Indeed he need have no title: provided he maintains the lessee in enjoyment of the land he is entitled to the rent.

It is with natural fruits that we are here concerned. Prima facie they belong to the owner of the parent thing (which we shall assume to be land), but in some circumstances someone else may have a right to them. Obviously a tenant is usually entitled to the fruits, but since his right to the land is only in personam so also is his right to the fruits. He has a right that his landlord shall allow him to become owner of the fruits by gathering them (percept™). His gathering them with the consent of the landlord is construed as a traditio brevi manu^{[63] [64]} by the latter, the practical consequence being that if he withdraws his consent before the tenant has gathered, the tenant can acquire no title, though he may have an action for breach of the contract of hire.

Equally obviously a usufructuary³ is by the very nature of his right entitled to the fruits, and he too acquires them by perceptio, but since he has a right in rem his acquisition cannot depend on the consent of the owner, and there is therefore no idea of traditio.

The law is faced with a more difficult problem of policy in the case of the bona fide possessor. On the one hand, there is the principle of the inviolability of ownership. (English law applies the principle uncompromisingly and requires the bona fide pos­sessor to compensate the owner even for the fruits which he has innocently consumed.) On the other hand, the bona fide possessor has reasonable claims to consideration. He may well have spent money and labour on cultivation. This led to the view that he should be entitled to such fruits as need cultivation {fructus industriales as opposed to fructus naturales in a narrower sense), but the dominant opinion evidently took account of wider arguments—that the bona fide possessor will have conducted himself on the assumption that he was owner and that, if he is on the way to usucapion, he has what amounts to a relative ownership—and equated him, so long as he was in good faith, with the owner. He acquired all fruits as soon as they were separated from the parent thing (separation, provided he was still in good faith at that moment. Justinian was much more restrictive and, if the owner asserted his title, required the bona fide possessor to hand over or account for all fruits except those which he had in good faith consumed.¹

The difference between the bona fide possessor’s acquisition by separatio and the usufructuary’s or the hirer’s acquisition by ¹ The innovation was achieved by interpolation and provides a simple example of the compilers’ methods. In one text (Dig. 41.1. 40) the b.f. possessor is said to ‘become owner of the consumed fruits’. This is, strictly speaking, nonsense, and even if generously interpreted means that he becomes owner of fruits which he has gathered at the moment when he consumes them; and yet it is at that moment that they cease to be capable of being owned. Obviously the word ‘consumed’ has been added. By this simple, if clumsy, device a text which originally simply gave ownership to the b.f possessor has been made in effect to deny it and merely to protect him from a claim for compensation—a claim, more­over, from which, at least in the classical law, he needed no protection since it could rest only on unjustified enrichment, and that doctrine did not then extend so far. In another text (Dig. 41.1.48 pr.) the b.f. possessor is said to acquire interim ownership. Here the word ‘interim’ has been put in. To the classical lawyer tem­porary ownership would have been a contradiction in terms. In the Institutes (II. 1. 35) the text begins with a statement, taken no doubt from a classical author, that the b.f. possessor acquires title; this is then followed by ‘and therefore if later the owner appears and vindicates the land, he cannot claim for the fruits which have been consumed’. But if the b.f. possessor has acquired title it should follow that the owner cannot claim even the unconsumed fruits. Other texts are treated similarly.

We are in consequence quite uninformed as to what constituted consumption. Did it include sale, or did the b.f. possessor have to account for the price? Probably he did not, since it would then in turn have been necessary to decide whether the price had been consumed, and this would have led to intolerable difficulties.

t4o                              LAW OF PROPERTY

perceptio becomes of practical importance if the fruit is gathered by someone else. The usufructuary (or hirer) cannot claim them by vindicatio, since it was not he who gathered them (they belong to the owner), whereas the bona fide possessor can. The explanation of this restriction of the usufructuary’s right lies probably in the fact that he has no possession of, or right in, the land itself, but merely a right to use it and to take the fruits. Until therefore he has actually taken them he can have no right in them.

The child of a slave woman was not classed as a fruit, and therefore belonged to the owner. This is presented as a con­cession to the humanity of the slave, but a more cynical modern view is that the child was too valuable an asset to allow to the usufructuary.

Treasure trove. Treasure {thesaurus) consists of valuables which have been hidden so long that their owner can no longer be discovered. Precisely what was included is uncertain. One text speaks of ‘money’, which is clearly too narrow, and another simply of mobilia (movables), but this is clearly too wide and must be a scribe’s error for monilia (valuables), which occurs in a third text. There is certainly no evidence of the restriction to gold and silver which is found in English law. Hadrian provided that if a man found treasure on his own land he was entitled to it all, and if he found it on another man’s land, each was entitled to half, provided the finding was by chance. From a constitution of a.d. 474 we learn that if the finding was not by chance the owner of the land was entitled to the whole.

In feudal Europe treasure trove was reserved to the Crown as the ultimate owner of all land, and this prerogative right still survives in England. On the Continent it has for the most part been superseded by the Roman rules, but without the exception as to deliberate search.