Jersey & Guernsey Law Review – October 2008

Dear Sir,

CELUI QUI BÂTIT SUR LA TERRE D’AUTRUI PERD SES MISES

1       The maxim celui qui bâtit sur la terre d’autrui perd ses mises expresses a reasonable position, namely that if a person builds upon a site in the ownership of another – impliedly without making an arrangement with that other person – then the structure vests in the owner of the fonds, and not the builder. A friend recently told me that it is a position that may be found to have been asserted in the 1838 Privy Council cross appeal in the matter of Le Retilley v Richards and de Lisle, and indeed it is there, at p. 11 of  Le Retilley’s case, which presumably was drafted by his lawyer, the écrivain Matthieu Gallienne (1789-1868). There the maxim is described as being ‘an old maxim of Norman law’. This did not ring any bells, and I could not find it contained in any of the works of the Norman commentators, let alone the coutume. Claude-Joseph de Ferrière does however refer to the concept in his Nouvelle Introduction de la Pratique (2 vols, Paris, 1764), stating, at pp. 168-69, that the principle that a building is always regarded as an appurtenance to the land upon which it is erected is observed throughout France, which necessarily would include Normandy. In fact the maxim comes almost directly from Justinian’s Institutes book ii, tit. i, sect. 30: ‘... si quis in alieno solo sua materia domum aedificaverit, illius fit domus, cuius et solum est.’ De Ferrière again comes to our aid, in this instance in his six-volume translation of the Institutes (Paris, 1773) at vol. ii, p. 61, rendering the passage like this: ‘... si quelqu’un bâtit avec ses matériaux sur un fonds qui ne lui appartient pas, le propriétaire du fonds le deviendra aussi de l’édifice.’ It is then ‘an old maxim of Norman law’ in the sense that the Roman law influenced the Norman, and that elements of the former have been absorbed into the customary law. An author who, like De Ferrière, is sometimes cited in our Courts is the seventeenth-century jurist Jean Domat, another expert in the Roman law as extending to the France of his day, and he also approves the maxim (see his Les Loix Civiles dans leur ordre naturel, new edn, 2 vols, Paris 1767, vol. i, p. 268). By such routes has the principle come down to the modern law. Something of its influence may still be detected in Article 555 of the French Code Civil.

Yours faithfully,

DARRYL OGIER