Who gets the mead? Who would want it (yuk)?

There’s a reason everyone in Beowulf is so cranky. All that mead. As for my color commentary in this post’s title, I’ve actually had mead. Once was quite enough. When I had just arrived to do my second classics degree at Oxford, I wandered into a chaming pub down New College Lane. Charming because it was nestled up against the medieval wall of Oxford, which is shared with New College (on the other side). One sip and my judgment was sure: this is a perfectably acceptable means of suicide.

But as the Romans would say, de gustibus non disputandum. There was a law for that.

“When someone makes something for himself out of another’s materials, Nerva and Proculus are of opinion that the maker owns that thing because what has just been made previ- ously belonged to no one. Sabinus and Cassius, on the other hand, take the view that natural reason requires that the owner of the materials should be owner of what is made from them, since a thing cannot exist without that of which it is made. Let us say, by way of example, that I make some vase from your gold, silver or copper or a ship, cupboard or benches from your timber, a garment from your wool, mead from your wine and honey, a plaster or eye-salve from your drugs, wine, oil, or flour from your grapes, olives, or ears of corn. There is, however, thz intermediate view of those who correctly hold that if the thing can be returned to its original components, the better view is that propounded by Sabinus and Cassius but that if it cannot be so re- constituted, Nerva and Proculus are sounder. Thus, a finished vase can be again re- duced to a simple mass of gold, silver, or copper; but wine, oil, or flour cannot again become grapes, olives, or ears of corn; no more can mead be reconstituted as wine and honey or the plaster or salve as the original drugs. In my view, however, there are those who rightly say that corn threshed from someone’s ears of corn remains the property of the owner of the ears; for since the corn already has its perfect form while in the ears, the thresher does not make something new, but merely uncovers what already exists.”
Justinian Digest

Cum quis ex aliena materia speciem aliquam suo nomine fecerit, nerva et proculus putant hunc dominum esse qui fecerit, quia quod factum est, antea nullius fuerat. sabinus et cassius magis naturalem rationem efficere putant, ut qui materiae dominus fuerit, idem eius quoque, quod ex eadem materia factum sit, dominus esset, quia sine materia nulla species effici possit: veluti si ex auro vel argento vel aere vas aliquod fecero, vel ex tabulis tuis navem aut armarium aut subsellia fecero, vel ex lana tua vestimentum, vel ex vino et melle tuo mulsum, vel ex medicamentis tuis emplastrum aut collyrium, vel ex uvis aut olivis aut spicis tuis vinum vel oleum vel frumentum. est tamen etiam media sententia recte existimantium, si species ad materiam reverti possit, verius esse, quod et sabinus et cassius senserunt, si non possit reverti, verius esse, quod nervae et proculo placuit. ut ecce vas conflatum ad rudem massam auri vel argenti vel aeris reverti potest, vinum vero vel oleum vel frumentum ad uvas et olivas et spicas reverti non potest: ac ne mulsum quidem ad mel et vinum vel emplastrum aut collyria ad medicamenta reverti possunt. videntur tamen mihi recte quidam dixisse non debere dubitari, quin alienis spicis excussum frumentum eius sit, cuius et spicae fuerunt: cum enim grana, quae spicis continentur, perfectam habeant suam speciem, qui excussit spicas, non novam speciem facit, sed eam quae est detegit.

[I have used unaltered the translation by Alan Watson, unlike the other posts where the translation is mine. Apart from being a great classical friend, Alan has been not just the leading USA-based specialist in Roman law, but internationally as well. So it’s pietas combined with reality = nobody is going to translate this better, or even as well. Period.]

The issues are fascinating. The Roman law of property, in determining ownership, has a special category when two things in some way ae combined to make one property:

  1. Accessio. I build a house on your land.The house accedes to the land, considered the principal thing, and you own the house. [Why would I be so dumb?]
  2. Commixtio. I mix my diamonds with your gravel. Joint ownership if we agree, If we don’t, the parts are separated and returned. [Again: why would I be so dumb?]
  3. 3. Confusio. Like #2, the things aren’t readily separable. This is a subcategory of specificatio, where someone creates a new thing out of another’s materials, such as if I take your wine and honey and make mead. But I’ve only taken your wine and used my honey. [Geez, I really am a clod. Is a warm day; my IQ ought to have risen to double digits.]

The legal scholars went to town with this last one. In our quote, Proculus would say I own the result. Sabinus says you would. But it’s a new thing nova species. So Justinian found a middle way media sententia. Since the mead can’t be separated out, I, the creator get it because I have contributed one of he materials.

Whew! My glosses about dumbness and IQ have a serious point. How often would this sort of thing happen in reality? Not so much, one would think. And yet the Digest is brimming with a whole collection of just such possibilities. Now some scholars think law reflects reality. This would mean the Romans ran around mixing up their materials with others’. Not likely. The other view is that it some laws represent the lawyers going all philosophical, discussing in the abstract. I’m personally of two minds about this, and have my own media sententia.

Newvertheless, it’s not all useless. Modern property law has a category Admixture, which relies heavily on the Roman theorizing. The owners of an oil tanker were chartered to transport a quantity of Russian crude belonging to the Indian Oil Corporation.  They mixed the Russian crude with their own crude on board. Tilt! Confusio!

The court allowed damages, but nobody got the resultant oil.

Read all about it in: High Court, Queen’s Bench Division, 18 March 1987

Had enough? How about relaxing with a good book and a glass of mead? With a little scholaly reading:

Stein, Peter. 1987. “Roman Law in the Commercial Court”. The Cambridge Law Journal 46 (3). Cambridge University Press: 369–7

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