Introduction

Many academics do not speak of ‘destruction’ of property rights at all but merely subsume these cases under the heading of transfer. We must ask whether what is happening in these cases can in fact be described purely as transfer of rights or whether something in the nature of destruction is occurring.

Remember that destruction need not be complete destruction. Sometimes title is destroyed as against only certain people but not others.

Destruction of Things

If a thing is destroyed, the right in relation to that thing must also by definition be destroyed. The destruction of the goods will sometimes create new rights (e.g. mixture) or no new rights may be created (e.g. accession).

Mixtures

When two separate goods are mixed (e.g. wine), the 2 existing goods will be destroyed and a new good will be created.

Consensual Mixing

The basic rule is that Ownership of the mixture will be held by both A and B. When mixing is done on a consensual basis, the intention of the parties will govern the proprietary consequences. However, that intention may be difficult to ascertain and the default inference will be that A and B will be ‘co-owners’ of the mixture (Buckley v Gross). Each will have a share to the extent of the proportion each contributed to the mixture. They will have a tenancy in common in proportion to their contributions (Spence).

Non-consensual mixing: what happens if A commits a wrong in mixing the oils?

Roman Law

Where the mixing was non-consensual, Roman law distinguished between situations in which there was merely a loss of identifiability (commixtio), as with a mixing of sheep, and that where there was not only a loss of identifiability but a loss of physical integrity (confusio), such as a mixing of wines.

• In cases of commixtio, so long as the constituent units retained their physical integrity, ownership remained unaltered. There was, in other words, a situation of ‘continuing separate ownership’.

• In cases of confusio, it was no longer possible to talk of ownership of anything other than the mass itself. Thus, the parties were treated as co-owners of the mass.

English Law

In English law, we do not distinguish between fluid and granular mixtures. The law is that A will still acquire a property right in the new mixture. However, following general evidentiary principles, if A is a deliberate or careless wrongdoer, any evidential doubt as to the proportion of each party’s contribution to the mixture will be decided in favour of B.

• Blackstone recommended a penal rule in such a case that would allocate Ownership of the mixture solely to B. This approach can be seen in FS Sandeman (Earl Loreburn)

• This harsh approach was rejected in Indian Oil in cases where it could be ascertained how much was contributed by the innocent party. Thus, Indian Oil confined Blackstone’s rule to one of resolving evidential difficulty.

McFarlane analysis: It is important to note the contrast between the rules applying to manufacturing and those applying to mixing.

• The manufacturing rules are consistent with the general principle that B1 acquires a property right through taking physical control of a thing.

• In contrast, in a mixing case, B2 acquires a property right in the new thing even though he does not have physical control of that new thing.

  • This rule could lead to a nasty shock to C, a bona fide purchaser, who is buying the mixture from B1 and may reasonably believe that B1 has Ownership of the mixture.

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