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Summary 13 Acquisition of Possession and Holdership
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Complete summary of the elements of possession and holdership. Be able to compare these concepts.
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Chapter 13:Acquisition of possession and holdership
1. Elements of possession and holdership
1.1 Control
Control is derived is concerned with the physical holding of objects
It is devised with reference to corporeal things which can be held and controlled physically
Physical control is required in some form for all property relations relating to corporeal
things
All forms of control consist of two elements: physical and mental element
a) Physical/corporeal element (corpus)
Refers to the actual holding of a thing
Based upon actual, tangible and perceptible power over/holding a thing
The literal interpretation is too strict
It was made more flexible through the addition of a number of rules or guidelines
The following considerations have to be taken into account when determining whether
physical control is present:
i. Nature of the thing
The nature of the thing determines the kind of control is required and the measure of
physical control that is needed
The size of the thing is important
This aspect is distinguishable between immovable and moveable property
Movables – can be controlled easily and more directly as long as they are not too big
Immovables – like a house/farm is controlled differently because of its nature. A house is not
controlled in the same way as a farm. A house can be locked up but a farm cannot
The test for control must be flexible and must take the nature of the thing in account
Buildings and vehicles are controlled by keys
ii. Purpose of the thing
This is closely related to the nature and the size of the thing
A building and a car are used with the help of a key and therefore the key is important
Agricultural land – it unnecessary and impossible for the farmer to physically visit certain
parts of the farm but this does not mean that he does not control the farm because the use
and purpose of the farm does not require physical presence in certain areas of the farm
A suburban landowner does not have to maintain his lawnmower during winter months to
maintain control. Control during summer months are sufficient as long as he is able to
resume control
iii. Specific customs in certain fields
There are specific customs for certain commercial property such as merchant ships, building
sites and farms
Custom plays an important role in the type and degree of control
A building contractor can establish and maintain sufficient control by installing a watchman
or supervisor
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