Definitions Flashcards
(128 cards)
1
Q
Legal Subject
A
Any person capable of acting as a subject in legal relationships and of acquiring rights and incurring duties in the process.
2
Q
Legal Object
A
Every object with which a legal subject has a legally recognized relationship. Divided into things, performances, immaterial property and personal property.
3
Q
Thing
A
An independent part of the corporeal world which is external to humans and subject to human control as well as useful and valuable to humans.
4
Q
Law
A
Body of rules and norms which regulates and harmonizes society by demarcating the rights and duties of legal subjects.
5
Q
Real Relationship
A
The particular legal relationship between one or more legal subjects and a thing. Broader than ‘real right’ since it includes real rights and certain unlawful real relationships.
6
Q
Real Right
A
A lawful real relationship between a legal subject and a thing which confers direct control over the thing as well as relationship between legal subject and all other legal subjects who must respect such a relationship.
7
Q
Entitlements
A
Capacities conferred on a legal subject by virtue of the right. Refers to content of the right and determines which acts the legal subject is entitled to perform in regard to a thing.
8
Q
Functions of Law of Things
A
Strives to harmonize/regulate competing ownership rights.
Strives to harmonize/regulate owners right to thing with rights of other limited real right holders to same thing.
Controls acquisition, protection and extinctions of things and real rights.
9
Q
Sources of current Law of Things
A
- Constitution
- Statute Law
- Case Law
- Common/Indigenous Law
10
Q
Characteristics of a Thing
A
Corporeality External to Humans Independence Subject to Human Control Useful and Valuable to Humans
11
Q
Property
A
Everything that forms as part of a persons estate can be described as property. Includes a variety of assets such as things, personal rights and immaterial property rights.
12
Q
Fungible and Non- Fungible Things
A
Fungible - Res Fungibiles - REPLACEABLE
Non-Fungible - Res Non Fungibiles - IRREPLACEABLE
Depends on whether they have individual characteristics or belong to a certain kind or genus.
13
Q
Singular/Composite Things
A
Depends on whether consists of a single piece or a composition of constituent parts. Composite thing regarded as one thing.
14
Q
Consumable/Non-Consumable Things
A
Consumable - Res Consumptibiles - used up or value considerably diminished by ordinary use.
Non-Consumable - Res Non Consumptibiles - preserved in spite of normal use.
15
Q
Movables/Immovables
A
Immovables - consist of land and everything that is permanently attached including natural attachments like plants and artificial fixtures like buildings and structures.
16
Q
Divisible/Indivisible
A
Thing is divisible if it can be divided without losing its essential characteristics into smaller parts which can function essentially the same as the original thing.
Indivisible cannot be divided without destroying or changing nature of thing.
17
Q
Principal Thing
A
The independent thing made up of various parts with an independent existence as a composite thing. Not a constituent or supplementary part of another thing.
18
Q
Accessory Thing
A
Can have a separate existence apart from the composite thing but has forfeited its independent existence in that it has been physically joined to the principal thing.
19
Q
Auxiliary Thing
A
Can have independent existence apart from the composite thing. However it forfeits its independent existence won’t out being physically joined to the principal thing, it is economically dependent on the principal thing.
20
Q
Personal Right/Creditors Right
A
Concern a relationship between persons. Entitled creditor to claim performance from a particular person only. Relative operation and can only be enforced against person obliged to perform.
21
Q
Ownership
A
The most comprehensive real right a person can have with regard to a thing. In principle a person can act upon and with this thing as he/she pleases. This apparent freedom is restricted by the law and the rights of others.
22
Q
Entitlements of Ownership
A
Uses the thing or the fruits. Control(possess) the thing. Consume or destroy the thing. Alienate the thing. Burden the thing. Vindicate the thing.
23
Q
Limitations on Ownership
A
Imposed by law -
Statutory limitations
Neigbour law principles
Imposed by rights of other legal subjects-
Limited real rights
Personal rights
24
Q
Original Methods of Acquisition of Ownership
A
- Appropriation
- Accession
- Mixing of Solids/Mingling of Liquids
- Manufacturing
- Acquisition of Fruits
- Treasure Trove
- Expropriation
- Prescription
25
Original/ Derivative Methods
Original - no cooperation from a predecessor in title. No transfer in ownership.
Derivative- cooperation from predecessor in title. Right which transferee obtains is derived from the former owner.
26
Appropriation
Appropriation or occupation (occupatio) is defined as the unilateral taking of physical control of a thing which does not belong to anyone (res nullius) but which is wishing the sphere of law (res commercio) with the intention of becoming owner.
27
Requirements of Appropriation
Control
Thing which does not belong to anyone
Intention of becoming owner
28
Instances of the Application of Neighbour Law
```
Nuisance
Lateral and Surface Support
Encroachments
Surface Water
Party Walls and Fences
Elimination of Dangers
```
29
Sowing and Planting
An original method of acquiring ownership in terms of which growing things accede to land and become the property of the land. Takes place as soon as plants take root in soil.
30
Accession (Accessio)
Original method of acquiring ownership which takes place when an accessory thing becomes merged with a principal thing, result that the two things become one entity. Accessory thing loses independence and becomes part of the principal thing. Owner of principal thing is owner of composite thing.
31
Building
Original method of acquiring ownership in terms of which a movable thing (accessory thing) becomes attached to land (principal thing) in such a manner that it loses its independence and forms and entity with the land becoming part of the land owner's land.
32
Law of Things
A branch of private law which consists of a number of legal rules that determine the nature, content, beating, protection, transfer and termination of various real relationships between a legal subject and a thing, as well as rights and duties ensuing from these relationships.
33
Criteria Applied to Determine If Movable Has Become Attached to Immovable
Nature and purpose of attached thing.
Manner and degree of attachment.
Intention of the person attaching it or the intention of the owner of the movable.
34
Mixing
Original method of acquiring ownership in terms of which movable things belonging to different persons are mixed together without consent of owners in such a manner that movable a cannot be separated. Joint ownership in proportion of value.
35
Manufacture (Specification/Specificatio)
Original method of acquiring ownership in terms of which ownership acquired by unauthorized production of a completely new things, using thing belonging to another. Manufacturer becomes owner but bound to compensate. If can be reduced to form of material, owner still owner.
36
Acquisition of Fruits
Original method of ownership which takes place when a person who is entitled to separate or father fruits does so. Upon separation fruits become independent and susceptible to acquisition of ownership.
37
Expropriation
Original method of acquiring ownership in terms of which the state acquired ownership of a movable or immovable without the consent of owner against payment or compensation. s25 of the Constitution empowers state to expropriate property for public purposes and against payment of compensation.
38
Prescription
Original method of acquiring ownership in terms of which a person who controls a thing openly and as if were owner for an uninterrupted period of 30 years becomes its owner.
39
Interruption
Period of prescription that has already run is terminated and the period of prescription must begin to run anew (de nova.)
40
Suspension
Temporary suspension of a period of prescription. Period which has already run does not lapse but the running of prescription is suspended and can recommence at a later date.
41
Delivery
Ownership of movable things is transferred by means of delivery. Consists of two elements, physical (corpus) and mental (animus) both must be present at the transfer.
42
Constructive/Fictitious Delivery (traditio ficta)
Not a physical or actual handing over.
3 situations:
Placed in position to exercise physical control.
Already in physical control.
Position where someone else exercises physical control on their behalf.
43
Delivery with the Long Hand
| Traditio longa Manu
Transfer of the thing not possible because of the size or weight. The thing to be transferred is pointed out to the transferee in the presence of the thing. Placed in position enabling him/her to exercise physical control to the exclusion of others.
44
Delivery with the Short Hand
| Traditio brevi Manu
No transfer of physical control takes place as the transferee is already in control of the thing although not as owner. Clear indication of intention requirement.
45
Constitutum Possessorium
Certain sense opposite of delivery with the short hand. Transferor retains physical control over the thing which he has agreed to transfer ownership to the transferee. Only the intention toward the thing undergoes change.
46
Attornment
Derivative method of ownership where transferor, transferee and a third party ( who is in control of the thing and will continue to control it) agree that the third party will control the thing on behalf of the transferee as owner.
47
Requirements for Attornment
1. Tripartite Agreement - all three parties must consent.
| 2. Holder should exercise physical control.
48
Rei Vindicatio
A real action with which the owner can claim his or her thing from whoever is in control of it unlawfully (without owner's permission or consent.) may be instituted in regard to movables or Immovables.
49
Requirements for Rei Vindicatio
1. He/she is the owner
2. The thing exists and is identifiable
3. The defendant is in control
50
Estoppel
A defense which can be raised against an owner's Rei Vindicatio where the owner of a certain thing, through his or her conduct, culpably leads third parties to believe that someone else is the owner of the thing or is authorized to alienate said thing and the third party, relying on this representation, obtains control of the thing and in doing so acts to his/her detriment.
51
Requirements for Estoppel
1. Representation
2. Fault
3. Detriment
4. Causal Connection
52
Interdict
A summary court order applied for on an urgent basis. Applicant may apply for an order forcing a person to do something or refrain from doing something. It is a speedy remedy where rights have been infringed or are about to be infringed.
53
Requirements for Interdict
A clear right
An actual or reasonably apprehended violation of right
No similar protection by other ordinary remedy
54
Condictio Furtiva
A personal action arising from the delict theft. Means it may only be instituted against the thief or after death, the thief's heirs.
55
Requirements for Condictio Furtiva
1. Ownership or retention of a lawful interest from the date of theft to the date of institution of the action.
2. Theft or removal of the thing with deceitful intent.
3. If action is not instituted against the thief or deceitful remover that the defendant is the heir of the former.
56
Actio Ad Exhibendum
Owner can claim market value of the thing from a person who destroyed or alienated the thing with mala fide intention.
57
Requirements for Actio Ad Exibendum
1. Ownership of the thing
2. Wrongful and intentional destruction or alienation of the thing
3. Mala fide intention of the person who alienated or destroyed the thing.
4. Loss by the owner of the thing.
58
Aqulian Action
Damages can be claimed with this action from any person who through his unlawful conduct caused loss to an owner's thing in a culpable (intentional or negligent) manner.
59
Requirements for Aquilian Action
1. Unlawful conduct by defendant
2. Culpability on part of defendant
3. Propriety right/interest of the plaintiff in the thing.
4. Patrimonial Loss by the plaintiff
5. Causal connection between the patrimonial loss and the conduct of defendant.
60
How Ownership Is Terminated
1. Death of Owner
2. Destruction of Thing
3. Termination of Legal Relationship
A) Transfer of ownership
B) Loss of Physical Control (res nullius)
C) Operation of Law
- Accession - Prescription - Expropriation - Manufacture - Forfeiture - Confiscation
61
Co - Ownership
The situation where two or more persons own the same thing at the same time in undivided shares. The abstract concept of ownership is divided, not the thing itself.
62
Free Co-Ownership
The co-ownership is the only relationship between the co-owner's.
63
Bound Co-Ownership
Underlying legal relationship between co-owner's which determines basis of their co-ownership.
64
Bona Fide Unlawful Holder
A person who physically controls the thing unlawfully (for the sake of the benefit derived from it) but is unaware of the fact since he or she is under the incorrect impression that he or she has the necessary permission or legal ground to control it.
65
Mala Fide Unlawful Holder
A person who knows he does not have the owners consent to control the thing but still exercises physical control over it for the sake of the benefit he can derive from it.
66
Possession (in its broad sense)
Described as a real relationship between a legal subject and a thing, characterized by two elements:
1. Physical element (corpus)
2. Mental element (animus)
67
Bona Fide Possessor
A person who is not recognized as the owner of the thing because he/she does not comply with the requirements for establishing ownership but who has the intention of an owner on the incorrect assumption that he or she is in fact the owner.
68
Mala Fide Possessor
A person who is aware of the fact that he or she is not legally recognized as the owner of a thing but who nonetheless has the intention of an owner.
69
Right of Rentention (Lien)
A limited real right to secure the claim of a person who has spent money or done work on another person's thing. Entitled the lien holder to keep the thing until he or she has been pause
70
Servitude
A limited real right to another persons thing. It confers special entitlements and use of enjoyment on the holder who enjoys these entitlements as either the owner of a particular piece of land (land servitude) or in a personal capacity (personal servitude).
71
Personal Servitude
A limited real right granting the servitude holder specific entitlements and use of enjoyment with regard to the movable or immovable thing of another, in his or her personal capacity for a specific period of time or for his lifetime or in the case of a legal person for a max of 100 years.
72
Restrictive Conditions
A category of limitations on ownership which are either recognized against the title deed of property or not so registered and imposed in terms of a statue or based on a contract and we in the interests of land use planning.
73
Pledge
A limited real right over the pledgor's thing, delivered to the pledger as security for repayment of the principal debt that the pledgor or third party owes to the pledgee.
74
Mortgage
A limited real right over a thing belonging to the mortgagor in order to secure repayment of a debt owed by the mortgagor or a third party to the mortgagee.
75
Labour Tenant in terms of Land Reform Act
A person who has the right to reside on a farm and also to use the land for cropping or grazing in return for his or her labour.
76
How Servitude is Terminated
1. Expiry of period for which it was established
2. Agreement
3. Prescription
4. Merger
5. Abandonment
6. Expropriation
77
Circumstances considered I.t.o S25(3) of Constitution when amount of compensation for expropriation must be paid.
1. Purpose of expropriation
2. History of acquisition and use of property.
3. Current use of property
4. Market value of property
5. Extent of direct state investment in acquisition of the property
78
Reasons why it is important to distinguish between movable and immovable.
1. Affects formalities/requirements for transfer of ownership.
2. Execution of judgement debt/insolvency, movables sold first.
3. Several statutes distinguish between them.
4. Private international law distinguishes between them.
5. Criminal law - theft movables, arson Immovables.
6. Alienation of minor's immovable assets.
79
Requirement for Spoliation Remedy
1. Applicant must have enjoyed peaceful and undisturbed control of the thing.
2. Respondent must have disturbed the applicants control in an unlawful manner.
80
How Mortgage is Extinguished
1. Merger
2. Prescription
3. Extinction of principal debt
4. Destruction of mortgaged thing
5. Express or tacit renunciation of the mortgage by the mortgagee.
6. Court order
81
Valid Defenses Against a Spoliation Remedy
1. Applicant did not have peaceful and undisturbed control at time of spoliation.
2. Respondent did not disturb the applicant's control.
3. Disturbance was not unlawful.
4. Impossible to restore control.
5. Applicant waited too long to make application.
82
Defenses Against Rei Vindicatio
1. Estoppel
2. Purchaser in good faith of a sale of execution
3. Lien
83
Land vs Personal Servitudes
1. Land in favour of land, personal benefit someone in personal capacity.
2. Land last indefinitely. Personal only granted for specific period.
3. Land over immovable things, personal over both.
4. Land alienated together with land, personal inseparably attached to holders person and not transferable.
84
Conventional/Express Mortgages
Established by a mortgage agreement and registration. Eg. Notarial bond.
85
Tacit Mortgage
Not created by agreement and registration but by operation of law, independent of debtors and creditors will. Eg. Tacit hypothec, lien.
86
Personal Security
Where a person binds himself personally to the creditor for the performance of the debtors obligation. Security receiver only obtains personal right against surety.
87
Real Security
Security receiver obtains limited real right over a thing, as security for the fulfillment of the debtors obligation.
88
Lawful Holder
A person who physically controls the thing with the owner's permission or on another legal basis, in order to derive some benefit from it. Does not regard self as owner nor pretends to be owner.
Tenants, borrowers, purchasers on credit, pledgees.
89
Ius Possesionis
Right of possession. Anyone who is in possession has right of possession because law recognizes this real relationship and attaches certain consequences to the factual situation. Real relationship may not be disturbed unlawfully.
90
Ius Possidendi
Right to possession. If a third person wishes to claim a thing from person in control must prior right to possess. Legally recognized right to possess.
91
Remedies to Protect Possession and Holdership
1. Declaratory Order
2. Interdict
3. Spoliation Remedy
4. Possessory Action
5. Condictio Furtiva
6. Aquilian Action
7. Enrichment Action
92
Spoliation Remedy
A summary remedy usually issued upon urgent application aimed at restoring control of a thing to the applicant from whom it was taken by means of unlawful self-help, without investigating the merits of the parties original rights to control.
93
Possessory Action
Where person loses control under circumstances where spoliation does not apply, may use possessory action to recover control or damages resulting from loss of control or may claim both. Purpose is to claim thing or its value from anyone with weaker right to control.
94
Enrichment Action
Plaintiff can recover compensation for unjustified enrichment from owner of improved thing.
1) Essential - impensae necessariae
2) Useful - impensae utiles
3) Luxurious - impensae voluptuariae
Available to possessors/holders lawful or unlawful.
95
Methods of Termination of Possession and Holdership
1. Death of Possessor or Holder
2. Destruction of the thing
3. Termination of legal relationship through:
A) Loss of physical control
B) Loss of mental element
96
Real Security Rights
EXPRESS FORMS
1) Pledge
2) Security by means of claims
3) Mortgage - Notarial, Special, Kustingbrief, Covering, Participation
TACIT FORMS
1) Tacit Hypothetic
2) Liens - D/C, Enrichment
3) Judicial Pledge
97
Requirements for Vesting of Servitudes
Movables - on delivery
Immovables - registration in deeds registry of a:
A) reservation in grant by state
B) reservation by transferor in a deed of transfer
C) Notarial deed
Registration endorsed against title deeds.
Exceptions: by prescription, legislation or court order.
98
Doctrine of Notice
Buyer who has knowledge of unregistered servitude obliged to acknowledge and register.
99
Common Characteristics of Land/Personal Servitudes
1. Both limited real rights
2. No one can establish servitude over his own thing
3. Servitude cannot be established over servitude
100
Land (Praedial) Servitude
A limited real right to the land of another which confers on the owner of the dominant tenement in principle, permanent, definite entitlements of use and enjoyment with regard to service by tenement.
101
Requirements for Recognition of Land Servitude
1. Two or more properties
2. Benefit (utilitas)
3. Proximity (vincinitas)
4. Permanency (perpetua causa)
5. Passivity
6. Indivibility
102
Rural Servitudes
1) rights of way
2) rights to water
3) rights to grazing
4) outspan
103
Way of Necessity
Owner of a piece of land which is without access to a public road can obtain right of way over another's land so as to gain such access.
Temporary/emergency
Permanent
104
Guidelines for Successful Application of Permanent Way of Necessity
1. Particulars of claim must allege particular necessity.
2. Nature of the way of necessity must be stated.
3. Nature of terrain over which will run must be determined.
4. Most suitable route determined
5. Width of road stated
6. Amount of compensation offered.
105
Usufruct
A personal servitude conferring limited real right on a person to use another person's thing and to reap its fruits with the duty to return the thing to the owner with the preservation of its substance.
106
Rights/Duties of Usufructury
Usufructury entitled to control, use and enjoy the service by thing and may also enjoy the fruits, both natural and civil.
Obliged to use the service by thing in a reasonable manner for the purposes for which it was intended with attitude of reasonable man.
107
Use/Usus
A less comprehensive personal servitude than Usufruct. It is a personal servitude conferring on the holder a limited real right to use the property of another for his or her own needs and those of his or her household provided character of thing is preserved.
108
Dwelling (habatio)
Less comprehensive than use. It is a personal servitude conferring a limited real right on the holder to occupy another's house with retention of the character of the thing.
109
Remedies Available to Servitude Holder
1) Actio Confessoria - prohibit limitation of reasonable exercise
2) Interdict
3) Declatory Order
4) Spoliation Order
5) Aquilian Action
110
Conditions of Title
Limited real rights inserted into title deeds of property either in terms of legislation or as result of contract to regulate land use.
Remedies- interdict, aquilian damages
Removed - court order, statutes
111
How Pledge is Terminated
1. Discharge of debt
2. Destruction of pledged article
3. Effluxion of time
4. Pledgees renunciation
5. Novation of principle debt
6. Merger
7. Extinction of pledgors title
8. Prescription
9. Voluntary loss of control
10. Court order
11. Sale in execution
112
Notarial Bond
Special - Burdens specified movable things.
General- All movable things of mortgager.
113
Special Mortgage
Can only be established with regard to particular immovable thing and not over Immovables in general. Endorse existence of bond over title deed.
114
Kustingbrief
A special mortgage over an immovable thing to secure a principal debt that has been incurred in respect of the purchase of that thing where the deed of hypothecation is registered simultaneously with the deed of transfer of the particular thing.
115
Covering Bond
A special mortgage over an immovable thing securing a future debt. Must be expressly declared to secure a future debt and maximum amount must be stipulated. Preference concurred by this bond determined by date of registration. Object of security determines type of bond.
116
Cession
An act of transfer in terms of which a creditor transfers his or her personal right against a debtor to the cession art in such a way that the cessionsry steps into the shoes of the cedent as creditor.
117
Tacit Hypothec
To secure arrear in rent landlord has tacit hypothec over all the movables which are brought into the premises by the tenant. Anything belonging to third parties which is brought into the rented premises by the tenant is also subject to the landlords hypothec is third parties know and intend to let tenant have use of it.
118
Four Requirements for Third Party Movables in Tacit Hypothec
1) Be on premises with knowledge of owner
2) Degree of permanence
3) For use and enjoyment of lessee.
4) Landlord must not be aware that property does not belong to tenant
119
Tacit Hypothec of Credit Grantor
Credit agreement which reserves ownership, seller retains ownership of the property until last installment has been paid. Limited real right in event of credit grantee's insolvency.
120
Two Important Requirements for Availability of Enrichment Lien
1) Accessory to principal debt, no lien if no proof of unjustified enrichment.
2) Unjustified enrichment must be at the expense of the person who claims to exercise lien.
121
Salvage Lien
If expenses were essential the lien is termed an salvage lien. May keep thing until compensated for amount owner enriched or he was impoverished whatever is less.
122
Improvement Lien
When expenses are useful expenses. May retain thing until compensated for amount by which market value of thing has increased.
123
Judicial Pledge
Arises officially, by the attachment by the sheriff in terms of a court order of the judgement of the debtors movable or immovable things in execution of a judgement. Movables has same affect as pledge and Immovables same effect as a special mortgage.
124
Mineral
Any substance whether solid, liquid or gaseous form, occurring naturally in or on the earth or in or under water and which was formed by or subjected to a geological process. Includes sand, stone, rock, gravel. excludes water as carrier of minerals, petroleum, peat.
125
Mineral and Petroleum Resources Development Act 28 of 2002
S3- vests all mineral resources in State to be held as custodian for benefit of all the people of SA. Common law owner is owner abolished.
Prospecting rights and mineral rights are real rights but may only be transferred by written consent of minister.
126
Water Act 54 of 1956
Distinguished between public and private water. Water could not be owned by anyone. Private water owner of land was owner of water.
127
National Water Act 36 of 1998
No longer distinction between public and private water. State is trustee of water and water belongs to all the people of SA.
128
Three Main Categories of Land Reform in terms of Constitution
Redistribution of Land s25(5)
Land Tenure Reform s25(6)
Restitution of Land Rights s25(7)
