Du mélange de propriétés mobilières appartenant à différens maîtres.

CHAP. 50: On the mixture of movable properties belonging to different masters.

If the right of accession has thrown the jurists who imagined or adopted it into embarrassment when they applied it to immovable properties, it has given rise to much more serious difficulties when they have wished to apply it to movable properties.

When it is a question of immovables, it is easy to see which, between two things, is the one that is added to the other; if it is a matter, for example, of pronouncing on the property of a house built on the land of another, one cannot doubt whether it is the materials that have been placed on the land, or whether it is the land that has been placed under the materials. There is an evident fact there that the least intelligent man is capable of recognizing; this fact, it is true, should have only a very weak influence on the solution of questions of property; but one can conceive, however, that the jurists have given it a certain importance.

But, when movable things unite to form but a single whole, or when a person makes a new thing with a material that belongs to another person, which of the two proprietors is it in whose favor the right of accession will pronounce? If it is a matter, for example, of a knife, is it the property of the handle that will entail the property of the blade, or the property of the blade that will entail the property of the handle by right of accession? If, from a block of marble that does not belong to him, a sculptor makes a beautiful statue, to whom, the sculptor or the proprietor of the marble, will the new object produced belong? If my neighbor's wheat mixes with mine, to which of the two will the mixture belong? Questions of this kind greatly embarrassed the Roman jurists; and when the modern jurists have approached them, they have had much difficulty in discovering principles proper to give their solution.

It seems that no question appeared more difficult to resolve for the jurists of Rome than that of knowing to whom one must award a thing that a person has made with a material of which another had the property. Some thought that it should be awarded to the proprietor of the material, given that, without material, there can be no form; others esteemed that it should be awarded to him who had given the material a new form, given that there is no material without form.

Justinian, placing himself between the two sects, adopted the opinion of neither the one nor the other. If the material, he says, can be reduced to its first form, the thing must be awarded to the proprietor of the material; if it cannot be so reduced, the thing belongs to the author of the new form. As for the question of knowing what is the interest of the parties, or which of the two has the greater share in the value of the thing produced, Justinian concerns himself with it no more than the jurists between whom he comes to interpose his authority, and his decision is no less arbitrary, nor less absurd than theirs.

Is the new object manufactured composed of a fusible material, of gold, silver, bronze, iron, or steel? It belongs to the proprietor of the material, however great, moreover, the value that the artist has given it. Is it composed of wood, marble, or any other material that cannot be returned to its first form, it must be awarded to him who has manufactured it. An artist makes an equestrian statue of the greatest price with bronze of which he does not have the property; it is to the proprietor of the material that the work will be awarded. Another transforms a piece of wood into a pair of clogs, and he thus becomes proprietor of the material. What was the foundation of this decision? Justinian himself would not have known how to say.

The drafters of the Civil Code have rejected the subtle and puerile distinctions of the Roman jurists; but as they did not have, on the origin and nature of property, clearer ideas than those of their predecessors, it was not possible for them to discover general principles applicable to all the questions that could present themselves. The embarrassment into which the right of accession has thrown them, relative to movable things, manifests itself from the first article of the chapter.

"The right of accession," they say, "when it has for its object two movable things belonging to two different masters is entirely subordinate to the principles of natural equity. The following rules will serve as examples."

Why is the right of accession subordinate to the principles of natural equity when it has for its object movable things, rather than when it has for its object immovable things? Would these principles, good for resolving the questions to which certain properties can give rise, be bad when it is a matter of resolving the questions that properties of another kind give rise to? Would the proprietors of lands be above the principles of natural equity, and must the rules of justice be applicable only to the proprietors of movable objects?

The drafters of the Civil Code therefore wished that what they call the right of accession be subordinate to the principles of natural equity, only in cases where it has for its object two movable things belonging to two masters; they wished that it cease to be subordinate to these principles, every time that it would have for its object immovable things, or an immovable thing and a movable thing.

But, since they admitted, in certain cases, principles superior to the right of accession; since these principles must serve to resolve the questions to which the mixture of diverse properties belonging to different masters gives rise, why were they not clearly indicated? Were they less clear or more difficult to find than the right of accession, to which they are said to be superior? It is because they did not have very clear ideas, either on the origin, or on the nature of properties.

Not being able to state clearly the principles that the magistrates would have to apply, the drafters of the Code attempted to give them at least examples. The following rules, they said, will serve as an example for the judge to determine himself in unforeseen cases, according to the particular circumstances.

This manner of expressing oneself is far from exact. One can well say and one even often says that an example serves as a rule; but one cannot say, in law, that a rule will serve as an example for judging cases different from those it has determined. If the cases to be judged are the same as those foreseen, the rule is not an example, it is a law; if they are different, the rule no longer teaches anything; it is not even an example; one must have recourse to other principles.

By the rules that it gives as examples, the Civil Code decides that, when two things belonging to different masters, which have been united in such a way as to form a whole, are nevertheless separable, so that one can subsist without the other, the whole belongs to the master of the thing that forms the principal part, on the charge of paying to the other the value of the thing that has been united; and one understands by the principal part that to which the other has been united only for the use, ornament, and complement of the first. If nevertheless the united thing were much more precious than the principal, and if it had been employed without the knowledge of the proprietor, the latter could demand that the united thing be separated, to be returned to him, even when some degradations of the thing to which it had been joined could result from it.

If of two things united to form a single whole, one cannot be regarded as the accessory of the other, that one is reputed principal which is the most considerable in value, or in volume, if the values are nearly equal.

If an artisan or any person whatsoever has employed a material that did not belong to him, to form a thing of a new species, whether the material can or cannot resume its first form, he who was its proprietor has the right to claim what has been formed from it, upon reimbursing the price of the workmanship. However, if the workmanship were so important that it greatly surpassed the value of the material employed, industry would then be reputed the principal part, and the workman would have the right to retain the thing worked, upon reimbursing the price of the material to the proprietor.

When a person has employed in part the material that belonged to him, and in part that which did not belong to him, to form a thing of a new species, without either of the two materials being entirely destroyed, but in such a way that they cannot be separated without inconvenience, the thing is common to the two proprietors, in proportion, as to the one, to the material that belonged to him; as to the other, in proportion both to the material that belonged to him, and to the price of his workmanship.

When a thing has been formed by the mixture of several materials belonging to different proprietors, but of which none can be regarded as the principal material, if the materials can be separated, he without whose knowledge the materials were mixed, can demand their division. If the materials can no longer be separated without inconvenience, they acquire the property of it in common in proportion to the quantity, quality, and value of the materials belonging to each of them. If the material belonging to one of the proprietors was much superior to the other in quantity and price, the proprietor of the material superior in value could claim the thing resulting from the mixture, upon reimbursing to the other the value of his material. When the thing remains in common between the proprietors of the materials of which it has been formed, it must be sold by auction for the common profit.

In all cases, where the proprietor of the material that has been employed without his knowledge to form a thing of another species, can claim the property of this thing, he has the choice of demanding the restitution of his material in the same kind, quantity, weight, measure, and quality, or its value.

Those who have employed materials belonging to others, and without their knowledge, can also be condemned to damages, if there is cause, without prejudice to extraordinary proceedings, if they have made themselves guilty of some offense.We have seen, in the preceding chapter, that when it is a matter of immovable things, the Civil Code distinguishes the possessor in good faith from one who is not in good faith, in the legal sense. We do not find the same distinction here: the position of one who makes use of another's material to compose a new thing, knowing that this material does not belong to him, is no worse, if, moreover, he has committed no offense, than it would be if he had believed himself to be the proprietor of the material he used. In both cases, he must pay the value of the material he has used and pay for the damages he has caused; but he owes nothing beyond that. If he has committed an offense, he must be punished for it, either by a fine or otherwise; but his good faith cannot harm, nor his bad faith profit the proprietor of the material.

In the examination of the questions that can arise from the union of several things belonging to different masters, or from the labor performed by one person on a material that belongs to another, there are some principles that must never be lost from sight, if one does not wish to run the risk of going astray.

One must, for example, never forget that every person is proprietor of the value to which he gives birth, or which he has regularly received from the proprietor to enjoy and dispose of; that, if things belonging to different masters have been united to form but a single one, without the concurrence of their wills, and if they can be separated without any destruction of value resulting for anyone, one must render to each what belongs to him; that if they cannot be separated without a destruction of value resulting, one must, in general, award the thing to him who has formed it, as being the one to whom it is best suited, or at least to him who, to have the thing, has the least to pay to the other; that, in no case, must one order a destruction of value that is not followed by an at least equivalent advantage; that he who has committed an offense must bear the penalty for it, but that no one should enrich himself at the expense of another, or be impoverished by the act of another.

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