Mingling (law)
In property law, intermingling or amalgamation is understood as the technical intermingling of previously legally independent objects into essential components of a new, uniform main object .
General
Legal issues relating to the possession and ownership of legally independent things that permanently lose their independence through mixing or mixing with other independent things and originally belonged to different owners are to be assigned to property law. Constellation of this kind occur during quite common, such as the production , by the raw materials , consumables and supplies for a new product mixed with each other (and also simultaneously processed ) are. In the textile industry there is the mixture of threads , in which there is a mixing process.
history
Roman law already dealt with mixing, distinguishing between the mixing of liquids ( confusio ) and solid bodies ( commixtio ). Pouring two barrels of wine together was considered a "confusio" and two sacks of flour was a "commixtio". In the case of grain mixed through through no fault of the owner, the owner had the choice between surrendering an appropriate portion or monetary compensation. If the components belonged to different owners before they were mixed and if separation is no longer possible after they were mixed, joint ownership ( communio ) arose , which could be divided up with the action for division to dissolve joint ownership ( actio communi dividundo ). The mixing of money was specially regulated . Anyone who paid with his money without the knowledge or against the will of the owner transferred ownership of it to the payee by indistinguishably mixing it with his own money . However, the real owner was entitled to theft lawsuit ( actio furti ). As related to the mixing of the bank was right in which a plot bordered on a public river and through alluvial land (newly formed alluvio ) the property owner belonged.
A Freiburg guild order from 1524 mentioned a goldsmith who chose a wrong mix in his work. The Codex Maximilianeus Bavaricus Civilis of January 1756 spoke of the fact that if one in good faith brings partly one's own and partly foreign matter into such a new form, “that one can neither distinguish nor separate the two matter, then the property of the foreign matter becomes the property of the foreign matter, namely in liquid form Things obtained by cofusion, in dry by commixtion ”. The General Prussian Land Law (APL) of June 1794 assumed that the things mixed up without the knowledge and will of the owner would have to be restored to their previous status by the mixer at his own expense (I 11, § 298 APL). If their separation is no longer possible, the property belonged to the previous owner (I 11, § 299 APL). In the event of amicable mixing, the property belonged to the person who could prove the greatest share of the value (I 11, § 307 APL). The Civil Code (CC), which has been in force in France since March 1807, took over the amalgamation of Roman law, but did not differentiate between amalgamation and amalgamation, but according to whether things can be separated from one another or not. Whoever held the highest value in mixed things became the owner of the whole thing.
The Austrian General Civil Code , which came into force in January 1812, is based on the principle that all mixed up or mixed things are separated again in order to return them to their previous owners (Section 415 General Civil Code). The BGB, which came into force in January 1900, differentiates between the mixing of liquid or gaseous substances and the mixing of solid substances with one another. However, this distinction is irrelevant today because the legal consequences are identical. The Swiss Civil Code, which has been in force since January 1912 , also contains the basis of Roman law.
Legal issues
The mixing leads to an original acquisition of property . It is a real act , so the intermingling does not have to be legally competent . In § 948 para. 1 BGB is envisaged that in the inseparable mixing or blending of movables , the provisions of § 947 BGB on the connection shall apply. When mixing, it therefore also depends on whether one of the mixed or mixed raw materials is to be regarded as the main thing or not. Is one of the starting materials, the main thing, the blender the sole owner of the new object is created otherwise proportionate ownership of all the owners of the raw materials.
A new thing is created by mixing if the manufactured thing is given a new name, a significant change in form or character or a completely different or more extensive economic function . If processing is also to be seen in the connection or mixing, the processing instructions take precedence.
If the rights of third parties to the mixed items expire due to mixing (e.g. in the case of retention of title or security property ), the other rights to the item also expire ( Section 949 BGB). However, if your previous owner acquires co-ownership, his rights continue to exist proportionally. If the property is lost through mixing, the owners concerned receive a claim for damages for unjust enrichment against the new sole owner in accordance with Section 951 (1) BGB ( Section 812 BGB).
International
In Austria , § 414 ABGB focuses on traceability and wants to give everyone their property back. If, however, according to § 415 ABGB it is not possible to restore the previous status, the item belongs to the owners as co-ownership. If movable objects of different owners are mixed or combined with one another in Switzerland in such a way that they can no longer be separated without significant damage or disproportionate work and expenses, the parties involved will have joint ownership of the new object (Art. 727 ZGB ). According to Art. 726 ZGB, ownership of the new thing depends on the labor value of the processing. If the work is more valuable than the material, the new thing belongs to the processor, otherwise to the owner of the material.
In France , mixing or mingling ( mélange ) is regulated in Art. 573 CC. It stipulates that in the case of mixed and re-separable things their separation ( division ) may be requested. If they can no longer be separated, co-ownership arises in the proportionate proportion of quantity, quality and value that is to be auctioned (Art. 575 CC). Italy provides for co-ownership in the event of commodity in Art. 939 Para. 1 Codice civile . In England a distinction is made between the mixing of liquids ( confusion of liquids ) and the mixing of substances ( commixtion of solids ). If substances of the same kind are mixed with one another, co-ownership arises; if different substances are mixed together to form a new item, the rules of processing apply.
Individual evidence
- ↑ Muzio Pampaloni, Apunti sulla confusione e sulla commixtione , Bull. 37, 1929, p. 33 ff.
- ^ Gaius , Digest , 41, 1, 7, 8.
- ^ Baron Fritz von Schwind, Römisches Recht: I. History, Rechtsgang, System des Privatrechtes , 1950, p. 218
- ↑ Lucius Iavolenus Priscus , 11 ex Cass. , D 46, 3, 78.
- ↑ Codex Maximilianeus Bavaricus Civilis , 1756, Part 2, Chapter 3, § 15
- ↑ General Land Law for the Prussian States , Volume 1, 1794, p. 221
- ^ Burkard Wilhelm Pfeiffer / Franz Georg Pfeiffer, Napoleons Gesetzbuch , Volume 1, 1808, p. 263
- ^ Anton Haimberger, Reines Römisches Privat-Recht according to the sources and the interpretations of the most excellent legal scholars , 1835, p. 51 ff.
- ^ Harry Westermann / Karl-Heinz Gursky / Dieter Eickmann, Sachrecht , 1998, p. 427
- ↑ Jürgen F. Baur / Rolf Stürner, Property Law , 17th edition, 1999, § 53 Rn. 18th
- ↑ Otto Palandt / Peter Bassenge , BGB Commentary , 73rd edition, 2014, § 950 Rn. 1
- ^ David Walker, The Law of Delict The Law of Delict in Scotland , 1989, p. 370
