PVL3701 Property Notes Cases 2008. PROPERTY LAW
INTRODUCTION
Property Law Law of Things
Refers to the law of things which is the system of
legal rules that regulates legal relationships btw legal
subjects in regard to a particular legal object – a
thing.
Brach of private law which consists...
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PROPERTY LAW
INTRODUCTION
Property Law Law of Things
Refers to the law of things which is the system of Brach of private law which consists of a number of
legal rules that regulates legal relationships btw legal legal rules that determine the nature, content,
subjects in regard to a particular legal object – a vesting, protection, transfer & termination of various
thing. legal relationships btw a legal subject & a thing as
well as the rights & duties ensuing from these
relationships.
Property Thing
Everything that forms part of a person’s estate. A specific asset (legal object) in a person’s estate.
This includes assets such as:
1. Things (e.g. land / car / computer / cell And independent part of the corporeal world, which
phone) is:
2. Personal rights (creditor’s rights / claims – 1. External to humans;
e.g. = right to salary, proceeds of an 2. Subject to human control; and
insurance policy, right to claim purchase 3. Useful & valuable to humans
price in terms of a contract of sale)
3. Immaterial property rights (e.g. copyright &
patent rights)
Legal Subject Legal Object
Any person capable of acting as a subject in legal Every object with which a legal subject has a legally
relationships & of acquiring rights & incurring duties recognised relationship.
in the process.
Divided into:
Most common = natural persons (humans) 1. Things;
Can also be legal persons such as – the state / 2. Performance;
universities / companies / close corporations, etc. – 3. Immaterial Property; and
they act as legal subjects in legal relationships & can 4. Personality Property
acquire rights & duties.
1 & 2 = distinguishing btw these two is very NB
because it determines NB distinguishing btw real
& personal rights.
Each of above (1 – 4) has it’s own characteristics
& distinguishes it form other legal objects.
The Law Rights
Body of rules & norms which regulates & harmonises Deals with the lawful relationships btw legal subjects
the community by demarcating (making boundaries / among each other & in relation to the objects of their
limits) the rights & duties of legal subjects. rights.
Real relationship:
A particular legal relationship btw one / more legal subjects & a thing – to which the law attaches
consequences.
It is broader than the concept “real right” > real relationships INCLUDE real rights as well as certain unlawful
real relationships!
There are 2 sides to a real relationship:
Subject-object relationship Subject-subject relationship
Btw particular legal subjects & the particular thing Btw the particular legal subject & all other legal
involved in the relationship which may imply specific subjects, which may imply specific rights & duties
rights & duties for the legal subject in relation to that btw the various legal subjects.
thing.
Nature / content & consequences of a real relationship in a specific situation may be influenced by:
1. attitude of the legal subjects concerned;
2. nature of the thing; and
3. variety of surrounding circumstances.
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The 3 categories of the most NB legal relationships are:
Ownership Possession Holdership
Physical control of thing with Physical control of thing with
intention of an owner = amino intention to derive a benefit
domini
Always lawful – therefore – a real Always unlawful – only a real Lawful or unlawful – when lawful –
right relationship – not a real right gives rise to a real right (e.g.
pledge / usufruct)
These two can be subdivided into various legal relationships that can
be: lawful / unlawful / in good faith / in bad faith
Establishment / nature / content / protection & termination of each of these real relationships are governed by
the rules of the law of things.
Not all legal relationships confer rights on the legal subject since the content & consequences of legal
relationships vary according to the consequences of each case.
Real rights:
A lawful real relationship btw a legal subject & a thing which confers direct control over the thing on the legal
subject as well as the relationship btw the legal subject & all other legal subjects who must respect this
relationship.
Only lawful real relationships = ownership & lawful holdership can confer real rights.
Possession & unlawful holdership are unlawful real relationships & don’t confer any real rights – but law does
attach certain circumstances to such relationships!
Entitlements:
Refers to the CONTENT of a right.
Entitlements of a real right determine which acts a legal subject may perform in regard to a thing.
Real right of ownership = most NB entitlements = legal subjects entitlements to:
1. control;
2. use;
3. burden (encumber);
4. enjoy the fruits;
5. consume;
6. alienate; and
7. vindicate
a thing.
The various legal rules governing the establishment & exercise of these entitlements all form part of the law
of things.
Remedies:
When law recognises a real relationship / real right, enforcement takes place by real remedy.
A real remedy = legal process with its own purpose for which certain requirements are set and which
protects, maintains or restores a real relationship in a specific way.
A real remedy finds applications in lawful & unlawful real relationships.
Functions of the law of things:
1. Harmonise / regulate various competing ownership rights;
2. Harmonise / regulate an owner’s rights re his thing with the rights of other limited real rights holders
to the same thing; and
3. Controls the acquisition, transfer & extinction of things & real rights.
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Basis & Sources of the law of things:
Basis =
Roman L. Socio-economic & cultural environment influenced natural content & applications of legal
principles & institutions.
Sources – in order of priority:
1. Constitution of the Republic of South Africa, 1996
2. Statutory law
3. Case law
4. Common Law (RD-L) / Indigenous (customary) law
CHARACTERISTICS OF A THING:
1. Corporeality
Perceptible (able to become aware of / see / notice) by means of the senses.
Two specific problems created:
a. RD-L tradition:
Certain real rights are defined in such a way that the object of the right is described as an
incorporeal thing.
Can deal with institutions where the object of a right is an incorporeal thing as exceptions –
most NB exception = a pledge of claims.
b. Technological developments:
Given rise to questions as to whether a natural process (i.e. electrical / atomic energy) can /
should be regarded as a thing.
IE: can electricity be stolen?
2. External to humans
Not part of the human body.
In future – this may give rise to a debate due to advanced medical technology & shortage of human
body parts for transplants.
Human tissue parts Other
EG: Hair / blood / semen / ova EG: Kidneys / lungs
Can easily be separated from the body & Can be separated – but – such separation may be
replenish (renew) itself. harmful.
Significant because of it’s implications for Significant because there is a need for body parts
the provision of human procreation cells in for transplant purposes.
the growing industry made possible by
artificial procreation.
Both above involve objects belonging to a living persons. Q is = should persons be allowed in
law to deal with parts of their bodies / not?
Dealing with and in these objects are regulated by the Human Tissues Act.
Objects from the body which can no longer be related to a person since he is brain dead also poses
a problem > two issues:
a. Should the person have given his consent to such an organ donation before his death?
b. Can payment be levied by their relatives, or not?
Corpses are regarded as things BUT are outside the legal sphere (extra commercium).
3. Independence
Has it’s own, individual existence & can be recognised as a demarcated, distinct entity.
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