Commixio In Business Rescue In South Africa: When Mixing Turns Ownership Into A Crowd

Some assets don't sit quietly on a shelf with a name tag: fuel decants into tanks; grain pours into silos; chemicals blend in vats; identical parts go into bulk bins. Roman-Dutch law has a word for what happens when identical, inseparable movables are mixed – commixio. Ownership of the mass becomes co-ownership in proportion to each contributor's share. In business rescue, that old principle decides whether a supplier has a proprietary claim to "its" goods or only a personal claim as an unsecured creditor.

The difference is stark. If your diesel is in your client's tank and topped up by others, or your maize is in a common silo, your right to vindicate a specific thing may be gone the moment it mixes. Instead of fetching "your" litres or kilos, you stand in line for a fraction of the pool's value – often at a discount under the plan. Likewise with commingled cash: if payments intended to be held separate wash through a general account and are mixed irreversibly, proprietary remedies weaken and personal claims rise.

Business rescue doesn't change the private-law rule; it magnifies its effects. A supplier who assumed retention-of-title would rescue them discovers that ROT has limits once identical goods are mixed beyond separation. A financier who relied on control over proceeds finds that funds have joined the river of general receipts.

There are practical ways to reduce that risk. Contract for segregation (dedicated tanks, bays or bins) and labelling, and audit compliance. Where the value justifies it, perfect real security, for example, a properly registered notarial bond – so that even if goods or proceeds are mixed, you still hold a preference over the debtor's estate rather than a bare, concurrent claim. Build reporting into your agreements so you can see when segregation slips before a rescue starts. And if rescue does happen, move early: identify the physical state of your goods, the accounting trail of your proceeds, and the plan language that will set your ranking.

Commixio sounds academic until you try to fetch your product from a common tank or "follow" your money through a mixed account. In rescue, those are the moments when labels become outcomes. Plan for mixing in your contracts; prove the mix, or the exception to it, when you're at the table.

Unsure whether you still have a proprietary claim? We examine how your goods or funds were handled, map commixio's effect on your rights, and position your claim correctly in the plan – proprietary if possible, preferential if not, and only concurrent as a last resort.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.