Summary
Summary Law of property PVL3701 summaries and notes
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- University Of South Africa (Unisa)
Summaries and notes for law of property
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MODULE 1: UNIT 1
Introducing the Concepts and Terminology of the Law of Property.
Learning Content
1. Introduction to the Law of Property
1.1 The meaning and scope of the Law of Property
The Law of Property deals with the legal relationship between a person and a thing. But it does
not only deal with the right that an owner has to his possession. It has a much wider meaning and
can be explained as that branch of the law, which is concerned with real rights in general.
This also includes unlawful property relationships. Although it does not deal with specialized
aspects of property (e.g. immaterial and commercial property), it refers to the constitutional
protection of property rights in a short fashion.
It deals with the nature, content, acquisition, protection, transfer or loss, and other implications of
the different property (real) relationships that may exist between a legal subject and a thing; and
the rights, entitlements, obligations and remedies that accompany it.
1.2. The sources of the Law of Property
Traditionally the main sources of South African Law of Property are common law, legislation and
case law. Since 1994, two more sources have to be added, namely Customary law and the
,Constitution. This is the result of recent socio-political and economic developments and changes
in South Africa.
1.3. Important Concepts
As all other fields of the law, this subject also has a distinctive terminology that needs to be
understood and memorised to enable you to understand the subject. Therefore this terminology
will be discussed below:
Property (real) relationship
A property relationship is the relationship between a legal subject and a thing (or other form
of property). This relationship has 2 aspects, namely:
(a) the subject-object relationship, being the direct relationship between the legal
subject (person) and the legal object (with the object being a thing or other form of
property). For example, one has a right to one’s motor vehicle. Norms of law
determine how far the power of the bearer of a right extend, iow the content and
limit of every right. For example, the owner of a vehicle may do whatever he
pleases with his vehicle but may not use it in such a way as to cause harm to
another person; and
(b) the subject-subject relationship (i.e. the relationship between the legal subject
and all other legal subjects). The content of this relationship is a right and a
corresponding duty, iow the bearer of the right is entitled t the right as against all
other legal subjects, who are obligated to respect that right.
A property relationship may be an abstract legal relationship, where the legal subject has some
form of right in relation to the object. On the other hand, the term can also refer to a factual or
physical relationship between a subject and the thing, e.g. where the subject is in physical control
of the thing. Such a physical relationship can be lawful (where there is a simultaneous legal
relationship in terms of which the legal subject has a right to the thing) or unlawful (where the
legal subject has no such right). An example of an unlawful physical relationship is the unlawful
control relationship - see the discussion and example on page 2 of the textbook.
Note that the Law of Property is not only concerned with lawful property relationships, but also
with unlawful property relationships, as the law attaches certain consequences to the merely
factual or physical relationship between the legal subject and the thing.
A legal object is anything with regard to which a person can acquire and hold a right. It has
economic value for people.
Property is everything which can form part of a person’s estate, including corporeal things and
incorporeal interests and rights.
There are different types of legal objects, namely corporeal things, immaterial property,
personality property and performances. These have corresponding rights, namely real rights,
immaterial property rights, personality rights and personal/creditor rights.
A person’s right to their property is also known as property rights/rights in property. Therefore, a
property right is any legally recognized claim to or interest in property.
A right is a legally recognized and valid claim by a subject to a certain object.
A claim or action is lawful when it is acknowledged and protected by existing legal principles;
unlawful when it is in conflict with or not acknowledged by the law.
A remedy is a legal procedure provided by the legal system to protect a right against infringement
or to control the effects of an unlawful act or situation. See example on p. 10 of textbook.
Identify the sources of the modern South African Law of Property and briefly illustrate
each with an example.
2. The Legal concept of a thing
2.1. Definition of a thing (res).
Traditionally a wide definition was give to the notion of a thing. In order for a proper definition to
be formed the characteristics of a thing should be referred to.
, A thing is defined as a corporeal or tangible object external to persons and which is, as an
independent entity, subject to juridical control by a legal subject, to whom it is useful and of value.
2.2 Characteristics of a thing.
Study the characteristics of a thing as set out in paragraph 2.3 on p. 13 of your prescribed text
book.
(a) Corporeality
- which means that it is perceptible by means of the senses, and that it
occupies space;
- examples: a horse, motor bike, pencil case, cell phone, etc
- forces of nature are excluded in SA lawnbecause they cannot be described
in terms of space. However, some foreign legal systems include it.
- Certain incorporeal objects have been recognized as things, since they can
be the object of real rights, example: intellectual property and shares
in a company.
- See examples on p. 14 of textbook
(b) External to humans
this means that an object can only qualify as a thing if it does not form part
of the human body.
There are interesting exceptions, such as human hair used to make a wig.
Therefore, parts of the body can be regarded as negotiable things, but
in certain cases this is subject to the Human Tissue s Act.
(c) Independence
- it must be recognised as a separate and distinct entity that exists
seperately;
- See examples on p. 15
(d) Subject to juridical control
- Juridical means “relating to the administration of the law”
- Therefore, juridical control refers to the control that a person can
exercise over a thing, subject to the law
- this means that something like the sun for example, which cannot be
controlled by a human being, will not qualify as a thing;
(e) Useful and valuable to humans
- value need not be purely economic; even sentimental value will suffice.
'
- No legal relationship can exist between a corporeal thing and a legal
subject if it is not useful and valuable to the legal subject.
- See example on p. 15
2.3. Classification of a thing.
2.3.1 Negotiable and non-negotiable things
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