2.1.90 to 2.1.93

an exception on the ground of fraud, that is to say, if he was a possessor in good faith. (77) It is settled by the same rule that whatever anyone has written on my paper or parchment, even in letters of gold, is mine, because the letters are merely accessory to the paper or parchment; but if I should bring an action to recover the books or parchments, and do not reimburse the party for the expense incurred in writing, I can be barred by an exception on the ground of fraud. (78) If, however, anyone paints anything on a tablet belonging to me, as for instance, a portrait, the contrary rule is adopted, for it is said that the tablet is accessory to the painting; but a good reason for this difference hardly exists. According to this rule it is certain that if you bring an action for the portrait as yours, while I am in possession of the same, and you do not pay me the value of the tablet, you can be barred by an exception on the ground of fraud. But, if, you are in possession, the result will be that I should be granted an equitable action against you, in which instance unless I pay the expenses of the painting, you can bar me by an exception on the ground of fraud, just as if you were a possessor in good faith. It is clear that if either you, or anyone else should steal the tablet, I will be entitled to an action of theft. (79) Where the nature of the article is changed recourse to natural law is also required. Hence, if you make wine, oil, or grain, out of my grapes, olives, or heads of wheat, the question arises whether the said wine, oil, or grain is mine or yours. Likewise, if you manufacture a vase out of my gold or silver, or build a ship, a chest, or a bench with my lumber, or you make a garment out of my wool, or mead out of my wine and honey; or a plaster or eye-wash out of drugs belonging to me, the question arises whether what you have made out of my property is yours or mine. Certain authorities hold that the material or substance should be taken into consideration, that is to say, that the article manufactured should be deemed to be the property of him to whom the material belongs, and this opinion was adopted by Sabinus and Cassius. Others, however, hold that the article belongs to him who manufactured it, and this doctrine was approved by authorities of the opposite school, who also agreed that the owner of the material and substance was entitled to an action of theft against the party who had appropriated the property; and also that a personal action would not lie against him because property which has been destroyed cannot be recovered; but, notwithstanding this, personal actions can be brought against thieves and certain other possessors.