90.
reduced back to its original material (blank paper that might be owned by the Commonwealth)[1].
235 With a dearth of modern authority, some judges have, like the submissions of the respondent, relied upon the rule adopted by Justinian's Institutes[2]. However, this rule: (i) was a forced compromise between two schools of thought[3]; (ii) was arguably intended to apply only where there was common ground between the schools[4]; (iii) has been powerfully criticised as taking "no account of the relative importance of the materials and of the maker's skill" and therefore leading to potentially bizarre consequences[5]; (iv) has not generally been adopted in English or Australian law[6]; and (v) is the subject of considerable variation in practice among Civilian jurisdictions[7] with dispute even in Scotland, where the dominant rule is closest to, but still not identical with, the Roman rule[8].
- ↑ Citing Inst II.1.25. See Justinian's Institutes, tr Birks and McLeod (1987) at 57: "if the thing can be turned back into its materials, its owner is the one who owned the materials; if not, the maker".
- ↑ International Banking Corporation v Ferguson, Shaw, & Sons 1910 SC 182; McDonald v Provan (of Scotland Street) Ltd 1960 SLT 231 at 232. See also Borden (UK) Ltd v Scottish Timber Products Ltd [1981] Ch 25 at 35, 44, 46; Associated Alloys Pty Ltd v Metropolitan Engineering and Fabrications Pty Ltd (1996) 20 ACSR 205 at 209–210.
- ↑ See D 41.1.7.7 (Gaius, Common Matters or Golden Things, bk 2): The Digest of Justinian, tr ed Watson, rev ed (1998), vol 4 at 3.
- ↑ Thomas, Textbook of Roman Law (1976) at 175, fn 4.
- ↑ Nicholas, An Introduction to Roman Law (1962) at 137.
- ↑ Glencore International AG v Metro Trading International Inc [2001] 1 All ER (Comm) 103 at 165 [178]. Compare Blackstone, Commentaries on the Laws of England (1766), bk II at 404; Associated Alloys Pty Ltd v Metropolitan Engineering and Fabrications Pty Ltd (1996) 20 ACSR 205 at 209–210.
- ↑ Compare, for instance, Code Civil, Arts 570, 571 (France); Bürgerliches Gesetzbuch, s 950 (Germany).
- ↑ McDonald v Provan (of Scotland Street) Ltd 1960 SLT 231. See Scottish Law Commission, Corporeal Moveables: Mixing Union and Creation, Memorandum No 28 (1976) at [19]–[20].
