Syscon Flashcards
1
Q
What is Private Law?
A
The law that deals with the relationships or disputes between citizens, excluding relationships with the state.
2
Q
What are the two types of relationships explored in the law of property?
A
Owning relationships & Owing relationships
3
Q
What is the focus of owning relationships?
A
It is concerned with the law of property.
4
Q
What is the focus of owing relationships?
A
It is concerned with the law of obligations.
5
Q
What does the law of property protect?
A
Claims in rem, dealing with ownership, possession, servitudes, and real security.
6
Q
Who are claims in rem enforceable against?
A
Claims in rem are enforceable against everyone in the world.
7
Q
What does the law of obligations concern?
A
Claims in personam, such as the law of contract, delict, and unjustified enrichment.
8
Q
Who are claims in personam enforceable against
A
A private party which has directly affected you.
9
Q
True or False: Ownership claims are more powerful than owing claims.
A
True
10
Q
What is the claim used to repossess an owned item?
A
Rei vindicatio
11
Q
What does a claim in rem provide the owner?
A
An absolute right of pursuit.
12
Q
What is required for a contract involving immovable property?
A
It must be written, specifically in the form of a title deed.
13
Q
What is the definition of ownership in law?
A
A comprehensive right protected by the Constitution, including the right to use, take fruits, abuse, and dispose of properties.
14
Q
What is a claim in personam used for?
A
To protect the rights of ownership.
15
Q
How can one become an owner?
A
Through Original acquisition or Derivative acquisition
16
Q
Ownership vs Possession: Which is more powerful?
A
Ownership trumps possession.
17
Q
What rights does a good faith possessor have against the owner?
A
Compensatory rights for costs spent on improvements.
18
Q
What is the difference between mere physical possession and legal possession?
A
- Mere physical possession is unprotected
- Legal possession is protected in rem
19
Q
What is required for the transfer of ownership?
A
Delivery of the item by the owner with the intention to give up ownership (owner) and receive ownership (new owner).
20
Q
What is informal delivery in law?
A
Ownership is transferred through simple delivery (traditio) of the thing.
21
Q
What are some methods of informal delivery?
A
Long-hand & short-hand delivery and an agreement on retaining possession.
22
Q
What is Long-hand delivery?
A
Delivery that is used for larger, bulkier items that may be difficult to move or to transfer control of.
23
Q
What is Shorthand Delivery (traditio brevi manu)?
A
Used when the new owner already has physical possession of the item.
24
Q
What does Agreement on Retaining Possession (Constitutum possessorium) involve?
A
The previous owner retains possession after ownership has been transferred.
25
What is Formal Delivery in law?
Required for res mancipi items, involving a formal transfer process.
26
What does registration of title in a public register signify?
A formal delivery required to transfer ownership of land and buildings.
27
What is the significance of Causa in delivery?
There must be a reason or cause that gives delivery its effect in law.
28
What is possession?
A factual state which is protected by claims in rem.
29
Which requirements need to be met in a 'two-fold test' for possession?
- Requisite Physical control over the item (corpus)
- Requisite Mental possession with intention to possess (animus)
30
Who is a good faith possessor?
Someone who has possession in law and is protected by the law. A person is considered a good faith possessor if they have physical possession of the item and believe that they are the owner.
31
What are corporeal things?
Physical and obtainable assets (tangible objects).
32
What are incorporeal things?
Non-tangible items, such as intellectual property.
33
Define movable property.
Objects that can be easily moved, like farm animals and fruits.
34
Define immovable objects.
Property such as land; contracts for immovable property must be written.
35
What are fungible things?
Objects that can be replaced or are interchangeable.
E.g. Money, grains, oil.
36
What are non-fungible things?
Items that cannot be replaced.
E.g., Unique paintings or very expensive jewellery (one of a kind).
37
Define divisible items.
Items that can be separated into individual objects.
38
Define indivisible items.
Items that cannot be separated without losing their value.
E.g. A car.
39
What are fruits in legal terms?
The product of a principal thing with separate legal properties after separation.
40
What cannot be owned?
People, publicly owned things, and illegal things.
41
What is original acquisition?
Ownership acquired through operation of law.
42
What is derivative acquisition?
Ownership transferred from the original owner to a new owner.
43
What is accession?
Acquiring ownership of something that belongs to another by incorporation of what already belongs to the owner.
44
What does the reducibility test assess?
1. If the object has undergone a loss of identity
2. The inseparability of the item in law
45
What is inseparable attachment?
Attaching an object to another of equal value to create an object of greater value.
46
What is the difference between fusion and mixing?
- Fusion: Mingling inseparably (e.g., jewellery or mixing two different wines into one glass)
- Mixing: Items remain separable (e.g., marbles)
47
What is specification?
The process of acquiring ownership by making a new thing from someone else's property.
48
What is the general rule for specification?
If the maker contributes some of the material, the maker is always the owner.
49
What happens if materials can be reduced back to their original state in specification?
The original owner retains ownership.
50
What is commixtio?
Mixing deposited money with other money, which ends up becoming property of the bank.
51
What is a treasure trove?
Valuable property hidden away and not abandoned (without a traceable owner).
52
What is the principle regarding the acquisition of fruits?
The owner of the principal thing owns its fruits, with exceptions.
53
What is the exception to the principle of acquiring fruits?
Good faith possessor of another’s property owns its fruits upon separation, subject to consumption rules.
54
What is real security?
It is a right that gives the creditor a guarantee that they will be paid back.
## Footnote
Real security allows the creditor to use the property to ensure their debt is satisfied.
55
How does real security benefit the creditor?
The creditor has a limited real right to insist that the property be sold and that the debt be repaid.
## Footnote
This provides the creditor with a strong preference over other creditors when the property is sold.
56
What is a servitude?
A servitude is a real right in rem that concerns the use and ownership of another person’s property.
57
What is a praedial servitude?
A praedial servitude runs with the land and is enforceable against a new owner of the servient land and transmits to the new owner of the dominant land.
58
Why are praedial servitudes protected in rem?
For permanent economic enhancement purposes.
59
What is an access servitude?
An access servitude allows a person to go across another's land to access their own land.
60
What are the rights associated with praedial servitudes?
They are rights exercised by virtue of ownership of land or a building on the land (dominant tenement) against another person who owns the servient property.
61
List the rules for praedial servitude.
i) Distinguish between the dominant and servient land
ii) The owner of the servient land cannot be required to do something
iii) The servitude benefits only the dominant land
iv) Each property must be adjacent
v) The servitude cannot become overly burdensome
vi) The nature of the servitude cannot change
vii) Praedial servitudes are perpetual
62
How is a praedial servitude created?
Through formal delivery or by reservation by the seller of a piece of land - it is always included in the title deed.
63
What is a personal servitude?
A personal servitude burdens the property of another in favour of a person.
64
What is usufruct?
The right to use and take the fruits from another’s property without impairing its substance.
65
Give an example of usufruct
A modern-day example of this would be leasing a property for someone to rent and generate an income from, but ultimately, they will not own the property.
66
How can personal servitudes be created?
Through legacy.
67
What are the termination conditions for a personal servitude?
Death of the owner of the servitude or if the period lapses.
68
What is the difference between rustic and urban servitudes?
Rustic servitudes serve a predominantly agricultural purpose, while urban servitudes do not.
69
Provide examples of urban praedial servitudes.
* Right to build higher than the opposite house
* Right not to have the opposite house built above a certain height
* Right to run rainwater from one house onto the roof of the neighbor’s house
* Right to support from a common wall.
70
What is a contract?
A free agreement between willing parties
OR
a legally enforceable agreement between parties.
71
What are the four principles of liability in Roman Law of Contracts?
* Real contract
* Verbal contract
* Literal contract
* Consensual contract
## Footnote
Modern law does not observe the idea of these principles.
72
What is a real contract?
Contracts that are created by conduct including agreement and handing over the object of the contract.
73
What is a verbal contract?
Creating an agreement orally.
74
What is a literal contract?
Contractual liability arises from writing; the action of writing creates the obligation.
75
What is a consensual contract?
Contracts where liability arises on the agreement alone.
76
What is the law of unjustified enrichment?
The remedy used when there is no valid contract; applicable if the contract is void.
77
What is considered in the formation of contract in modern law?
* The creation of an offer
* Acceptance
78
What impact does capacity have on contracts?
Capacity impacts the validity of a contract, e.g., being a minor or of unsound mind.
79
What is privity of contract?
The ability to be held liable by the party with whom you created the contract.
80
What constitutes a breach of contract?
When one party does not perform as intended in the contract, giving rise to a claim in personam.
OR
The failure to fulfill the obligations of a valid contract.
81
What is an invalid contract?
A contract that does not meet the requirements for validity; it is void.
82
What is an example of a voild (invalid) contract
- Illegal matters presented in the contract
- Misrepresentation of the objects that was agreed upon
- Lack of capacity
- Duresss (Coercion) or undue influence
- If the contract is does not meet the requirements for formation of a valid contract.
83
What is an illegal contract?
An agreement to engage in illegal activity, which cannot be protected by the law.
(It is void).
84
What are the consequences of a breach of contract?
* Claims for specific performance
* Claims for damages (full consequential loss)
85
What is the difference between breach and invalidity?
Breach gives rise to claims for performance or damages; invalidity is a void contract leading to a claim in unjustified enrichment.
86
What creates contractual liability in a literal contract?
The action of writing.
87
What is the conclusion of a contract?
The process that brings the contract into existence, governed by general principles.
88
What is perfection of a contract?
Makes a concluded contract fully enforceable and effects a transfer of risk in sale.
89
What occurs during the performance of a contract?
Parties do what they are bound to do under the contract.
90
What happens if a void contract is performed?
It gives rise to a claim of unjustified enrichment.
91
What defines a contract of sale?
An agreement on an object to be exchanged for a fixed definite money price.
92
What must exist at the time of the conclusion of a contract?
The object must be in existence.
93
What are exceptions to the rule that an object must exist at the time of the contract conclusion?
* Sale of an expected thing
* Sale of chance
94
What is necessary for engaging in a contract of sale?
A fixed price.
95
What must the object of a contract be capable of?
Being privately owned.
96
What types of error can invalidate a contract?
* Error as to nature of transaction
* Error as to object
* Error as to substance
97
Does error in quality invalidate a contract?
No, the contract remains valid.
98
What is meant by risk in a contract?
Risk concerns the question of who bears the loss if something is destroyed or deteriorated
99
How does the law generally allocate risk?
Generally, the law allocates risk to the owner of an object who will bear the risk of damages that occur to it (res perit domino)
100
What is the exception to who bears the risk?
In an executory contract, the **risk transfer upon perfection rule** applies unless the seller is at fault. The buyer will bear the risk.
101
What are the three cases of an imperfect contract?
The three cases of an imperfect contract are:
1. A suspensive condition exists (a clause that must be fulfilled before the contract becomes fully binding).
2. The object is definite but not sufficiently determined (e.g., buying oranges without knowing which specific ones).
3. The price is certain but not determined (e.g., R2/kg but the total quantity is unknown)
102
How would you determine who bares the risk in a contract?
- If the contract is** imperfect** and the object has **deteriorated** (lost value) the buyer bares the risk
- If the object has been **injured or damaged.**
- If the object in a contract that is imperfect is **destroyed/lost** through no fault of the owner - the buyer bares the risk. However, if the seller is at fault then the seller will bare the risk
