Roman Law in the Commercial Court

Editorial Committee of the Cambridge Law Journal

Roman Law in the Commercial CourtAuthor(s): Peter SteinSource: The Cambridge Law Journal, Vol. 46, No. 3 (Nov., 1987), pp. 369-371Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4507056 .

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THE

CAMBRIDGE LAW JOURNAL

VOLUME 46, PART 3 NOVEMBER 1987

CASE AND COMMENT

ROMAN LAW IN THE COMMERCIAL COURT

IN Roman law if goods belonging to different owners are mixed together, so that they cannot be separated, the whole is owned in common in proportion to the value of the component parts. This rule was known as confusio (sometimes rendered in English as confusion) and applied whether common ownership was intended or not. If the goods mixed together can be separated, there is no change of owner-

ship unless the parties intended it. This was known as commixtio. An example of confusio would be the mixing of A's wine with B's wine. An

example of commixtio would be the mixing of A's sheep with B's sheep. In the first case A and B would have an action for division of common property; in the second either party could vindicate to recover his own sheep, even though in practice it might be difficult to distinguish which sheep belonged to A and which to B, so that compensation for the beasts lost might have to be substituted. The reason for the difference between confusio and commixtio was that in the former the components had lost their separate identity. The Roman jurists, with their passion for precision, pressed the notion of separate identity to the limit. If A's corn was mixed with B's corn, they held that since each grain was still distinct from every other grain, this was a case of commixtio rather than of confusio, although in practice what either party would get would be a portion of the mixed grain or compensation for the value of the part that belonged to him (Inst. 2.1.27-28; D.6.1.3.2,5pr.). Roman law considered these issues wholly in terms of property rights, and they assumed that reasonable estimates could be made of the value of the respective contributions. If the mixing were caused by the wrongdoing of either party, that might ground a separate claim against that party for damages in delict, but it did not affect the parties' property rights.

Such issues have been raised in a number of English cases going

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The Cambridge Law Journal

back to a judgment of Popham C.J. in 1594 (Anon, Popham 38). Their

tendency is summarised by Goff and Jones as follows:

"Where A's property has become inseparably mixed with B's, the resultant mass will belong, in proportion to their contributions, to A and B as tenants in common. But if the mixing has been due to the wrongful act of either A or B, then English law appears to make a significant and punitive departure from the Roman doctrine and to give the property in the whole mass to the innocent party" (Law of Restitution, 3rd ed., p. 65).

In Indian Oil Corporation Ltd. v. Greenstone Shipping Co. SA (Panama),* the owners of a vessel, on which the receivers' cargo of Soviet crude oil was shipped, had mixed that cargo with other oil belonging to the owners already on the vessel. It was possible to work out with considerable precision the amounts of oil originally belonging to the two parties. The receivers claimed all the pumpable oil in the vessel when it reached Madras, its destination. It was agreed that English law must be applied. The arbitrators quoted the above passage from Goff and Jones, and commented that it "exemplifies some uncertainty about the English law on the topic, thus allowing us to take our own course." They then, in Staughton J.'s words, "expressed a preference for the Roman law in plain terms." The learned judge refused to disturb their award and held that the mixed oil was held in common by the owners and receivers. It was agreed that the judge was not actually bound by any of the authorities, which he exhaustively reviewed and in which he discerned two principles. The first is that in such cases decisions "have been little more than instances of cutting the Gordian knot-reasonable adjustments of the rights of the parties in cases where complete justice was impracticable of attainment" (per Lord Moulton in F. S. Sandeman v. Tyzack [1913] A.C. 680,694). The second principle is that "if the wrongdoer has destroyed or impaired the evidence by which the innocent party could show how much he has lost, the wrongdoer must suffer from the resulting uncertainty." Thus in the well-known case of Armorie v. Delamirie (1722) 1 Strange 419, the plaintiff was entitled to the finest jewel which the socket would hold but not the finest jewel that had ever been known. The principle of that case was sufficient to deal with the need to guard against fraud. Staughton J. continued:

"The combined effect of those principles would justify and require that where it is totally unknown how much of the innocent party's goods went into the mixture, the whole should belong to him. But I do not see that they require or justify the same result where it is known how much was contributed by the innocent

* So far reported only in The Times, 23 April 1987. Mr. R. W. M. Dias kindly supplied a copy of Staughton J.'s judgment.

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C.L.J. Case and Comment 371

party, or even what the maximum quantity is that he can have contributed, being something less than the whole. That would not be the only justice that could be done; it would be injustice." It is not "the function of civil justice to punish or discourage crime by awarding the victim more than he has lost, unless it be the special case of an award of exemplary damages."

In this case the owners did not appear to have mixed the cargo for

some commercial motive, although there was a definite hint in the

arbitrators' findings that they were engaged in wrongdoing. However

the judge stressed that

"the rule cannot. . . be altered to suit the circumstanees of each

particular case. It must be one rule for all cases. These may vary between one where the shipowner deliberately mixes property with a view to stealing it, to another where he does so purely for convenience of carriage without any intention to harm

anybody. . . . In the days when corn and hay were to be found in

heaps which could not be measured accurately, when such

disputes were tried by jury and witnesses might be illiterate or

ignorant, a rough and ready rule, which Goff and Jones described as punitive, may have been the best they could find. But a

primitive rule is no longer appropriate when modern and

sophisticated methods of measurement are available."

Having demonstrated the unsuitability to modern conditions ofthe

English departure from the Roman rule, the judge felt himself

"free to apply the rule which justice requires. This is that where B

wrongfully mixes the goods of A with goods of his own, which are

substantially of the same nature and quality, and they cannot in

practice be separated, the mixture is held in common and A is entitled to receive out of it a quantity equal to that of his goods which went into the mixture, any doubt as to that quantity being resolved in favour of A. He is also entitled to claim damages from B in respect of any loss he may have suffered, in respect of quality or otherwise, by reason of the admixture."

The "rule which justice requires" is, of course, essentially the Roman rule. It separates the issue of property rights from that of

wrongdoing, while providing proper protection for the innocent party; it also accords with the rules applied in the modern civil law {cf. French civil code, articles 573, 574), a relevant consideration in commercial

cases. The judge rightly left undecided the case where the goods mixed are not substantially of the same nature and quality. When that case comes to be decided, there are cognate Roman ideas, such as accessio and specificatio, by which it can be analysed. It is to be hoped that such a case will be treated in as sensible and rational a manner as was this case.

Peter Stein.



Roman Law in the Commercial Court

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