Dazed and Confused: Accidental Mixtures of Goods and the Theory of Acquisition of Title
| Date | 01 May 2003 |
| Published date | 01 May 2003 |
| Author | R.W.J. Hickey |
| DOI | http://doi.org/10.1111/1468-2230.6603003 |
Dazed and Confused: Accidental Mixtures of Goods
and the Theory of Acquisition of Title
R.W.J. Hickey*
This paper explores the law of accidental mixtures of goods. It traces the
development of the English rules on mixture from the seminal nineteenth century
case of Spence v Union Marine Insurance Co to the present day, and compares
their responses to those given by the Roman law, which always has been claimed as
an influence on our jurisprudence in this area. It is argued that the different
answers given by English and Roman law to essentially the same problems of title
result from the differing bases of these legal systems. Roman a priori theory is
contrasted with the more practical reasoning of the common law, and while both
sets of rules are judged to be coherent on their own terms, it is suggested that the
difference between them is reflective of a more general philosophical disagreement
about the proper functioning of a legal system, and the relative importance of
theoretical and pragmatic considerations.
Problems concerning title
1
to goods that have become mixed have occupied the
minds of lawyers for thousands of years. So the old Roman texts, known well to
previous generations, recount stories of grain mixed in barrels, and of different
olive oils becoming intermingled, and attempt to posit legal solutions as to who is
entitled to the resulting masses. But the antiquity of these texts, and of the
problems they purport to solve, ought not to cast doubt on their relevance to the
modern property lawyer, for least three reasons. In the first place, the rules about
admixture of goods recently have been discussed in the (very modern) Queen’s
Bench Commercial Court.
2
Secondly, they are often said to have some importance
in the growing debate on the law of substitutions.
3
Neither of these will be pursued
here in any great depth, purely for the sake of advancing the cause of the third.
This is that over the centuries, different legal systems have chosen to respond to
the same mixture problems in different ways. Philosophies of property have
varied, and with them ideas about how property rights are supposed to behave. So
(and this is the crux of this paper), when the responses of English and Irish law are
compared with those of different jurisdictions, the resulting analysis may have
n
Queen’s University of Belfast. An earlier draft of this paper was presented at the Irish
Association of Law Teachers Conference in Belfast in April 2002. I am grateful to the participants
for useful comments and suggestions. Similar thanks are due to Prof Norma Dawson and Dr
Lorna Fox, and thanks also to the Queen’s University, generous sponsor of my postgraduate
research.
1 Throughout this piece I use the phrase ‘acquisition of title to’ to mean ‘acquisition of property
rights in’. This is the second, and more modern use of ‘title’, as identified by Prof Honore
´in his
essay on ownership: A.G. Guest (ed), Oxford Essays in Jurisprudence (Oxford: Oxford University
Press, 1961) ch 5. In its earlier use, title ‘refers to the conditions of fact which must be fulfilled in
order that a person may acquire a claim to a thing. In this sense, delivery, registration, seizure and
succession on death may be titles’: ibid, 134.
2Glencore International AG and others vMetro Trading International Inc [2001] Lloyd’s LR 284;
noted by Janet Ulph, ‘Retaining property rights at common law through mixtures and changes’
[2001] LMLCQ 449. See also S. Worthington, ‘Sorting out ownership interests in a bulk: gifts,
sales and trusts’ (1999) Journal of Business Law 1, highlighting the commercial and practical
importance of defining interests which exist in a bulk.
3 See generally P.B.H. Birks, ‘Mixtures’ in Palmer and McKendrick (eds), Interests in Goods
(London: LLP, 2
nd
ed, 1998) ch 9; Ulph, n 2 above.
rThe Modern Law Review Limited 2003. (MLR 66:3, May). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
368
something more general to tell us about the idea of property in our law, and
about our theory of acquisition of title to goods. With this in mind, the paper
that follows compares the law of England and Wales with the law of Rome.
For all material purposes the law of Ireland seems to follow English law,
4
and so statements relating to England may be taken as inclusive of the position in
Ireland. Roman law is taken as comparative for two reasons. The first is
simply that in its terms it differs from the law of England. The second is that,
despite these differences, it is often claimed as an influence on English
jurisprudence.
5
It is worth clarifying at the beginning the province of this work. It is concerned
only with the proprietary response of the law upon the occurrence of an accidental
mixture of goods. That is, a mixture where there has been neither an agreement
that goods should be mixed, nor any wrongdoing or fraud on the part of any of
the contributors to the mix. The case of consensual mixture is relatively easy, the
allocation of property rights in the resulting mass being determined according to
the intentions of the contributors.
6
It is excluded here
7
for the purpose of making a
clear distinction between changes in property rights brought about by agreement
and those brought about by operation of law upon the occurrence of a mixture,
and without more. In the latter case, the mixing event itself can properly be
regarded as the sole cause of a change (if any) in the property rights of the
contributors, and so in the latter case we find out what the law has to say about
changes in property rights without the matter being complicated by another
causative event, viz the intention of the contributors to the mix. Wrongful mixing
is excluded because in neither Roman nor English law does it seem to be treated as
a causative event in its own right.
8
The Roman law of accidental admixture of goods
It is convenient to begin with an analysis of the Roman rules on accidental
mixtures, since these rules have been of some influence on our own. The most
common starting point for such analysis is the text of Justinian’s Institutes, 2.1.27–
28. Here we find a distinction between two different kinds of mixing event. The
Roman names for these events are confusio
9
and commixtio.
10
Often, it is said that
4 See A.P. Bell, Modern Law of Personal Property in England and Ireland (London: Butterworths,
1989) 71–73, where only one Irish case is cited, and that in a footnote.
5 It was so claimed by the Court of Common Pleas in Spence vUnion Marine Insurance Co. (1868)
LR 3 CP 427 (the case which gives the modern English law its structure): see below.
6 On the modern English position, see: W.J. Swadling in Birks (ed), English Private Law (Oxford:
Oxford University Press, 2000) para 4.471; and S. Worthington, Proprietary Interests in
Commercial Transactions (Oxford: Clarendon Press, 1996) 122 et seq. The rules in Rome could
equally depend on the will of the parties, as in J.Inst.2.1.28, where the presence or absence of
consent affects the ownership of a commixtio: see below.
7 Save for some very brief comments below on consensual commixtio in Roman law. There are
nonetheless some interesting modern cases on consensual mixture: see Re Stapylton Fletcher Ltd
8 The presence of wrongful conduct seems of no consequence in Rome. English law once knew of a
penal rule which awarded to the victim of a wrongful mixing the whole of the resultant mass (see
Sir William Blackstone, Commentaries on the Laws of England (London: Macmillan, 1756–1760),
Book 2, 404–405), but the better view is that this is a rule of evidence, the question of title in the
first instance being decided by the rules of accidental mix: Indian Oil Corp Ltd vGreenstone
Shipping SA, The Ypatianna [1988] 1 QB 345; and compare Armory vDelamirie (1722) 1 Stra 505.
9 J.Inst.2.1.27. References throughout are to the text used and translated by T.C. Sandars (London:
Longmans, 7
th
ed, 1948), unless the contrary is indicated.
10 J.Inst.2.1.28.
Dazed and ConfusedMay 2003]
369rThe Modern Law Review Limited 2003
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