Specificatio in Baltic Private Law and Production (Verarbeitung) in the Baltic Private Law Act - Continuity or Change?

Author:Hesi Siimets-Gross
Position:Magister iuris, Lecturer of Legal History, University of Tartu

1. The private law of the 19th century: From the specification of Roman Law to modern production - 2. The problem of specification in Baltic provincial law before codification - 2.1. The draft of 1831 - retaining the solution of Roman Law - 2.2. Scientific treatments - 3. Production in the BES - 3.1. The general concept - 3.2. The new thing - 3.3. Production in an artistic way or by... (see full summary)


Hesi Siimets-Gross

Magister iuris, Lecturer of Legal History, University of Tartu

Specificatio in Baltic Private Law and Production (Verarbeitung) in the Baltic Private Law Act - Continuity or Change?

In the second half of the 19th century, the private law of the Baltic Sea provinces1 , which were a part of the Russian Empire, took an important turn - in 1864, the codification of Baltic private law2 entered into force in the Baltic Private Law Act (BES). Until then, different laws applied for the Baltic Sea provinces, which included in addition to medieval bylaws also chivalric and regional laws and the norms of Swedish, Russian, and Polish laws, with subsidiary application of Roman laws, and which generally can be called Baltic provincial law. Roman Law was recepted into the system to a greater extent from the 13th century. In 18th -19th -century court practice, Roman Law was allegedly preferred to the local law even if local laws should have been applied as primary sources; a contemporarywork3 states (in translation): "Roman Law - to that extent it is glossed - is recepted in its entirety in Germany and also in Livonia and Estonia and is used everywhere where the norms of Roman Law did not derive from the special Roman government or where the principles of Roman Law are not in direct opposition to the principles of the provincial law"4.

Unlike the laws adopted in Western Europe in the 19th century generally, the purpose of the BES was not to create a new, modern private law by means of a legislative reform. On the contrary, the general ideology of the Russian Empire's codification movement and the intention of Friedrich Georg von Bunge5 was to compile6 existing private law and create nova structura veterum legum7. Bunge claimed in his programmatic essay on the scientific treatment of Baltic private law and its handling in codification that, in drafting of the future law, the principles of Roman Law should be avoided as much as possible8. At the same time, he admitted that Roman Law is a common element of all provincial laws and excluding Roman Law from provincial law would mean an incomplete treatment of the local private law. This treatment of local laws had to be "trustworthy and complete"9. Therefore, the future code had to be a complete compilation of all laws that were to be in force in the various provinces, including Roman Law, where it was in force in a subsidiary role as ius commune.

In 1833, Bunge commented also on the earlier private law codification draft of 1831, which was in force in the Baltic provinces at the time. He criticised the fact that "single provisions do not derive from the sources of law in force in the Baltic Sea provinces but are copied word for word from the General National Law for the Prussian States, as has become evident after a closer investigation"10.

The aim of the present article is to analyse the birth of the norms of an institute in the Baltic provinces that ran counter to general modernisation in the 19th century, using one specific legal institution, specification, as an example. This is the institution whose importance was the greatest in pre-industrial society and in cases of production by artisans. The field of use of specification has decreased in modern society, and industrial production relations are not regulated by specification11. Nevertheless, it is an institution that still cannot be avoided in present-day society12. The turning point in the formation of this institution in the Baltic territories came during the period under investigation in this article.

First, the article gives a general overview of the institution of specification in 19th -century Europe. Then the regulation of specification in the Baltic provinces before and after the application of the BES is analysed. The second section addresses both the draft of 1831 and scientific treatments. Next, the article analyses the provisions of the BES on production, comparing both existing regulation and contemporary examples. The subheadings proceed from the especially important features of the concept of specification provided by the BES. Finally, the article analyses the origins of the BES provisions and the models for them, seeking an answer to the question of whether there was only legislative fixation of the earlier law or, by contrast, the codification caused changes in respect of this institution.

1. The private law of the 19th century: From the specification of Roman Law to modern production

Specification involves a situation wherein one person has made something from material belonging to another person and the question is who has ownership of the new thing - the owner of the material or the producer. This is an institution that derived from Roman Law and was regulated by the norms of ius commune in the whole of Europe before the creation of modern private law codification.

Roman lawyers did not agree on the issue of specification at all. The viewpoint of the Sabinians was that the owner of the material - not the producer of the new thing (i.e., of the nova species) - was also the owner of the new thing. The Proculians held that the person who had given a new form to the material should be the owner of the new thing, also in the case in which materials of several owners were used. Justinian's codification applied (later Corpus Iuris Civilis) media sententia.If the new thing could be changed back into different materials (e.g., melting of a golden vase to form gold bars), the Sabinians' point of view was applicable. If such conversion was impossible (e.g., olive oil cannot be changed back into olives), the Proculians' point of view was applicable13.

In the tradition of ius commune, attempts were made to expand the provisions of Roman Law on specification, by means of different principles that were needed in practice (e.g., bona fides). Still today, researchers of Roman Law debate questions related to whether, according to Roman Law, also bona fides and the producer's will to acquire the thing were important. There is no agreement on the issue of whether the owner of the material has to be paid compensation in the case of acquisition of the thing by the producer.

Until the 19th century, a general conception, 'specification' (specificatio14 ), was used to denote this institution. With the attempts to codify private law, also practical needs were considered in relation to specification. To a considerable extent, the regulation of Roman Law provided certain limits and possibilities for interpretation that did not respond to the problems arising in practice (e.g., printing and taking photographs) anymore. Therefore, the compilers of the new bodies of codification wanted to eliminate the Roman opposition between materia and species. It was claimed that the work done by the producer is more important than that earlier opposition. Thus the principle of work was created, meaning that if the work of the producer is more valuable than the material of the other person, the produced thing should belong to the producer.

August Paret, who studied the development of the specification system up to the genesis of the German Civil Code (BGB), differentiated between the specification theories according to whether the theories consist of the 'principle of substance' or the 'principle of work'. He considered the Sabinians to be the representatives of the former and the Proculians the representatives of the latter15. Harald Elbert claims that the 'principle of work' was fully acknowledged in the 19th century, at the latest, and the historical school aimed to search for and find this principle also in the sources of Roman Law. He states that "[m]any intellectual attempts" were made to pass the formal considerations of Roman media sententia forward by retaining the solution of the sources but at the same time interpreting the 'principle of work' as a part of them. Although the sources did not provide the possibility for such interpretation, it was found that Roman practitioners of jurisprudence worked according to this principle but had not yet perceived it as a principle16.

The codification work of the modern age adopted the principles of Roman Law to a certain extent. The French Code Civil (1804) proceeded from the viewpoint of the Sabinians, according to which the owner of the material has the right to the new thing in the event of remuneration (Article 570)17. The Austrian Civil Code (ABGB, 1911) joined the Sabinians' 'principle of substance', media sententia, and the 'principle of work' (§§ 414-415)18. From the first codification onward, the General National Law for the Prussian States (1794; ALR)19 applied the modern principles to production and withdrew from application of Roman principles most clearly. Here, in similarity to the conditions under Roman Law, the new thing has to have emerged in such a way that the material being used lost its current form and took a new one. If the producer has produced the thing in bona fides, the thing produced from the material belonging to another person remains in the ownership of the producer (Part 1, Chapter 9, § 304). The producer has to compensate the owner of the material for the material (Part 1, Chapter 9, § 302). Unlike in Roman Law, the new thing belonging to the producer does not depend on the ability for the new thing to be changed back into the materials used.

There was desire to communicate the new...

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