Head 13: Part C Flashcards
(17 cards)
(Specification) What is specification?
This is the manufacture, from materials belonging wholly or partly to others, of a new thing different in kind from the material of which it is composed.
(Specification) What is the main requirement for specification?
Only if the result is a new species from the thing it is made from.
One way of checking this is if the thing has a new name or a new use.
International Banking Corporation v Ferguson Shaw & Sons 1910
Started with cotton seed oil and manufactured it into lard. Specification was held to have operated because lard was different in kind from the oil.
Kinloch Damph Ltd v Nordvik Salmon Farms Ltd 1999
Alleged that specification had occurred in relation to baby salmon changing into adult salmon. Court rejected this argument on the ground that specification does not apply to animals.
(Specification) Who owns the finished product in specification?
The “middle opinion” is taken - if the thing can revert to the materials then it belongs to the owner of the materials, but if it is not reversible then it belongs to the maker of the thing.
(Specification) What happens if some of the materials belong to the workman?
Bankton argues that if you use your own materials then the thing belongs to you even if it is reversible
(Specification) What happens if the workman is in bad faith?
It has been suggested that if the workman is in bad faith (ie a thief) then the workman cannot benefit so cannot become owner. However there are other authorities which suggest that this is not the rule - that bad faith is irrelevant.
(Specification) What if there is agreement between the parties?
E.g. workers employed in a factory - the things the workers make don’t belong to the worker, they belong to you (this can be explained in the sense that the workers ware your agents so it is in effect you who is doing the work, in a sense vicariously).
Can you stop specification by contract?
No decided case, but since you cannot stop accession by contract KR thinks the rules for specification would be the same.
What are the rules of compensation for specification?
Analogous to the rules of accession:
- if the owner of the materials doesn’t become owner of the finished product then they are entitled to compensation for the value of the materials.
- If the workman doesn’t become owner of the new thing, he is not entitled to compensation. (As with accession, if you reasonably but mistakenly think the materials are yours then you are entitled to compensation, measured by the extent of the owners enrichment - the amount by which the value of the new product exceeds the value of the materials)
Commixtion is the…
Mixture of solids
Confusion is the…
Mixture of liquids
Who owns the resulting mixture in commixtion/confusion?
For confusion where similar objects are mixed, the whole becomes the common property of the former owners in accordance with the share of the original mixture (in pro indiviso shares)
For commixtion in e.g. two flocks of sheep - ownership remains with the original owners. However if the things are so intermingled (e.g. cornflakes being mixed) then the result is common property (like in confusion)
McDonald v Provan
Scottish court held that cut and shut car was a case of specification - the result is that the workman becomes the owner.
Khan v Minister of Law and Order
Sourth African court regarded cut and shut car as an example of accession - the smaller part acceded to the larger part.
When someone draws a painting on a canvas what is 1) the Roman law, 2) the law according to Erskine?
Roman law was that the canvas acceded to the painting so the painter became owner by accession.
However, Erskine regards this as an examples of specification rather than accession.
What happens if you start with gin and tonic and mix them together?
Since confusion only apples where things which are the same are mixed together, this is an example of specification. Therefore who owns it depends on whether it is reversible (so it depends on whether the G&T can be separated).
