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p350 Confusio

Article by George Long, M.A., Fellow of Trinity College
on p350 of

William Smith, D.C.L., LL.D.:

CONFU′SIO properly signifies 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: but if the things were different, so that the compound was a new thing, this was a case of what, by modern writers, is called specification, 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 is used by modern writers to signify the mixture of solid things which belonged to different owners; but Commixtio and Confusio are used by the Roman writers to express the union of things either solid or fluid (Dig.41 tit. 1 s7 § 8; 6 tit. 1 s3 § 2 s5). Still, Commixtio is most generally applied to mixture of solids. If the mixture takes place with mutual consent, the compound is common property; if by chance, or by the act of one, each retains his former property, and may separate it from the mass. If separation is impossible, as if two heaps of cornº are mixed, each owner is entitled to a part, according to the proportion of his separate property to the whole mass. It is a case of commixtio when a man's money is paid, without his knowledge and consent, and the money, when paid, is so mixed with other money of the receiver that it cannot be recognised; otherwise, it remains the property of the person to whom it belonged (Dig.46 tit. 3 s78).

Specification (which is not a Roman word) took place when a man made a new thing (nova species) either out of his own and his neighbour's material, or out of his neighbour's only. In the former case such man acquired the ownership of the thing. In the latter case, if a thing could be brought back to the rough material (which is obviously possible in very few cases), it still belonged to the original owner, but the specificator had a right to retain the thing till he was paid the value of his labour, if he had acted bona fide. If the new species could not be brought back to its original form, the specificator in all cases became the owner, if he designed to make the new thing for himself; if he had acted bona fide he was liable to owner of the stuff for its value only; if mala fide, he was liable as a thief. The cases put by Gaius (II.29) are those of a man making wine of another man's grapes, oil of his olives, a ship or bench of his timber, and so on. Some jurists (Sabinus and Cassius) were of opinion that the ownership of the thing was not changed by such labour being bestowed on it; the opposite school were of opinion that the new thing belonged to him who had bestowed his labour on it, but they admitted that the original owner had a legal remedy for the value of his property.

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, when the tree or seed had taken root. 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 canvass, the canvass became the property of the owner of the picture (Gaius, II.73, &c.). If a piece of land was torn away by a stream (avulsio) from one man's land and attached to another's land, it became the property of the latter when it was firmly attached to it. This is a different case from that of Alluvio. But in all these cases the losing party was entitled to compensation, with some exceptions as to cases of mala fides.

Confusio occurs in the case of rights also. If the right and the duty of an obligatio become united in one person, there is a confusio by which the obligatio is extinguished (Dig.46 tit. 3 s75). If he who has pledged a thing becomes the heres of the pledgee, the rights and duties of two persons are united (confunduntur) in one. If a man who has a praedial servitus in another man's land, the servitus ceases: servitutes praediorum confunduntur, si idem utriusque praedii dominus esse coeperit (Dig. 8 tit. 6 s1).

The rules of Roman law on this subject are stated by Brinkman, Instit. Jur. Rom. § 398, &c.; Mackeldey, Lehrbuch, &c. §§246, 251, &c. 12th ed.; Inst. 2 1; Gaius, II.70, Rosshirt, Grundlinien, &c. § 62.

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Page updated: 7 Dec 06