An economic and comparative analysis of specificatio (the accession doctrine)

The accession doctrine (specificatio in Roman law) in property law exists in both common law and civil law, but its specific content differs across the two: the common law disallows bad-faith improvers to gain title, while the civil law generally does not distinguish between good faith and bad faith. There are two tests in transferring title, the transformation test and the disparity-of-value test. France stipulates one test; the US requires either test to be satisfied; and Germany requires both. Furthermore, not all jurisdictions award compensation to unauthorized improvers who do not gain title. The prior literature has not explored, in detail, under what conditions the accession doctrine is most efficient, nor which version of the doctrine is economically superior. This article argues that the accession doctrine is most likely to be welfare-enhancing if designed in the following ways: improvers have to conduct cost-justified verification so that bad-faith and negligently good-faith improvers do not gain title to the chattel in question. Both the transformation test and the disparity-of-value test have to be satisfied. The original owner has no duty to compensate the improver for her labor. Copyright Springer Science+Business Media New York 2015