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Chapter 9 The Part and the Whole According to Roman law, the pars is considered that which, in relation to the whole, is an element whose subtraction would make the thing seem mutilated, diminished in its essence, in its integrity.1 Thus one regards the painted tabulae set into the walls and marble incrustations (D.19.1.17.3) as partes of the house, but not the wood panels that surround the walls or drapes (D.19.1.17.4). The mast is part of the boat, but not the prow’s sail (D.50.16.242). Similarly, the lead used in the roof of a house is pars, but not that used to cover an uncovered terrace (D.50.16.242.2). In the ordinary glosses, the pars permits one to ascertain the relations between things that are factae, as well as between things that are infectae. An arm that is attached to a statue is considered pars, and so is raw silver mixed into another and that is transformed into a mass made up of two parts that remain indivisible within the dominium of each original owner. Item loquitur hic quando factum facto argento iungitur: et fit eius pars. Vbi autem infectum infecto, quilibet suae partis dominus permanet. [One speaks similarly when raw silver is mixed with smithed silver: it becomes a part of it. However, when one mixes raw silver into raw silver, each remains the owner of his own part.] (D.6.1.23.2 Adiecerit) This is the first criterion and the only relevant one to think about the mix of two things that are infectae found in a common mass. On the contrary, the word pars appears to have two meanings when applied to things that are factae. It can connote a part endowed with a form, specificity, or name, such as an arm, a handle, or a foot; but it can also designate a part, one might say, without a name, to which only the categories of minor and maior can be applied. Sed vbi factum facto, ita quod neutrum alteri cedit vt pars: dic quod minus maiori cedit. si neutra maior, cedit pretiosiori. si autem nullum pretiosius, tunc nullum alteri. The Part and the Whole 85 [But when one joins one facta (substance) to another facta (substance), since thus neither is subordinate to the other as a part, you must say that the smaller appertains to the greater. If one is not greater than the other, the less valuable appertains to the other. And if neither is more valuable than the other, then neither appertains to the other.] In any case, the accessio will be irreversible only if the adjunction is performed through ferruminatio. The ordinary gloss of D.6.1.23 proposes a series of successive criteria to assess the accessio, which are organized in the following manner. The first opposition is between things that are infecta and those that are facta. If the relationship is between things that are factae, one decides based on the relationship between the part and the whole in its first form, the one that implies a definite form, or a name; otherwise, one judges based on the definition of the parts as maior and minor and the mode of adjunction: ferruminatio or adplumbatio. This series can be found in Azo’s Summa, and it is quite systematically applied. However, it is mostly in the fourteenth century that the rationale of the part and the whole becomes widely promoted through the categories of scholasticism . In his commentary to the Digest, Baldus affirms that the smaller part appertains to the greater,2 and refers to the three modes of interpretation of the part and the whole that Bartolo developed about D.32.89. The whole and the part, says Bartolo, can be understood in diverse ways, either as a universale whole and a subiectiva seu predicamentalis part—this is the relation of species to genus, such as that between the animal genus and the “partes subiectivae seu praedicamentales” which would be the human or cattle species.3 Or as an integrale whole and a pars integralis—just as an estate is an integral whole that can be divided into integral parts such as usufruct and ownership; and so, when a part is removed the whole is incomplete. Or, finally, as an integral whole and a share, such as a quarter, a third, and so on.4 Furthermore we know that, for Bartolo, the tabula appertained to the...

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