Summary
Summary Law of property notes and summaries
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- University Of South Africa (Unisa)
Law of property notes and summaries.
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Lees deurTerminology
• A legal object is anything with regard to which a person can acquire and hold a right. It has
economic value for people.
o There are different types of legal objects, namely corporeal things, immaterial
property, personality property and performances.
o These have corresponding rights, namely real rights, immaterial property rights,
personality rights and personal/creditor rights.
• Property is everything which can form part of a person’s estate, including corporeal things and
incorporeal interests and 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.
o 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.
Classification of “Things” [Possible Question]
1. *NEGOTIABLE THINGS (res in commerce): Things that can be the object of private
ownership, and be sold and transferred. Things that can form part of private commerce.
1.1. Res alicuius: things owned by a natural or legal person or things in a deceased or insolvent
estate. Example: car, house, laptop, etc
1.2. Res nullius: things capable of being owned but which, at a particular stage, are not owned
by anyone. Example: wild animals, birds, fish, insects, etc. Ownership of these things
may be acquired through appropriation. (Appropriation = unilateral exercising of
physical control over a corporeal thing that can be owned, but which is not yet owned by
anyone, with the intention of becoming the owner.
1.3. Res derelictae: Things no longer within the physical control of an owner and in respect of
which the owner no longer has the intention to be the owner. Example: abandoned
property. Can be acquired by another person through appropriation.
1.4. Res deperditae: things lost and no longer within the physical control of the owner but in
respect of which the owner has not lost the intention to be owner. Example: Something
lost/misplaced. Cannot be acquired by another person by appropriation.
2. *NON-NEGOTIABLE THINGS (res extra commercio): Things that cannot form part of
private commerce.
2.1. Res communes omnium: Natural resources falling outside legal commerce and which are
available to all people. Example: air and running water. (Note: these are subject to
limitations imposed by legislation, eg National Water Act, Air Quality Act.)
2.2. Res publicae: Things owned by the state and used directly for the public’s benefit,
Example: public roads, national parks, the sea, the beach. (Note: not all state property is
non-negotiable. Some can be the subject of legal commerce. Example: state land and
public buildings)
3. SINGULAR THINGS: Exist independently without being composed of particular
components. (Brick, cup, tennis ball)
4. COMPOSITE THINGS: Composition of different components, consisting of independent
things in a new unit. (House, Car)
4.1. Note: Distinction between components and the principal thing.
, 4.2. *ELEMENTS OF COMPOSITE THINGS:
4.2.1. Principal thing: thing which exists independently and which can be the object of real
rights. The component of a composite thing which provides the thing with its identity, is
the principal thing. Example: motor car, egg beater, electric drill
4.2.2. Accessory thing: thing which can exist independently of the principal thing but
which has merged with or been mixed with the principal thing to such an extent that it
has lost its independence. All attachments which do not help to determine the composite
thing’s identity, can be classified as accessory things. Example: A wooden beam built
into a ship, a brick built into a house. See JL Cohen Moters (SWA) v Alberts.
4.2.3. Auxilary thing: thing which exists separately and independently of the principal
thing, but which, because of its economic value, destination or use, is no longer
regarded as an independent thing for purposes of property law. Example: key to a door,
set of tools marketed with a motor car, bar stools made of the same wood which go with
a built-in bar (Senekal v Roodt) Note: The difference between an accessory thing and an
auxiliary thing is that the accessory thing is physically connected to the principal thing,
whereas there is no real physical connection between the principal and the auxiliary
thing.
4.2.4. Fruits: produced by the principal thing without that principal thing being consumed or
destroyed thereby. Before separation from the principal thing, fruits are accessory things
to the principal thing, but fruits are destined to be separated from the principal thing and
to exist separately and independently. Example: natural fruits = young of animals, birds
and insects, fruit of trees, plants or wheat, wool, milk, salt, etc. Civil fruits = rent,
interest on capital, profit from an undertaking, dividend on shares.
5. IMMOVABLE THINGS: Units of land and everything permanently attached to them by
means of attachment, including natural fixtures such as plants, and artificial fixtures such
as buildings and constructions that are fixed to the land.
5.1. Corporeal: House, land.
5.2. Incorporeal: Registered long-term lease in respect of land/mineral rights.
5.3. Distinction:
5.4. Transfer of ownership: Takes place by registration in the deeds office.
5.5. Contract of alienation: Subject to the Alienation of Land Act.
5.6. Security: Provided by means of registration.
5.7. Where debtor’s assets are sold in execution, his movables must be attached before his
immovable.
6. MOVABLE THINGS: Everything that is not immovable.
6.1. Corporeal: Car, horse, airplane.
6.2. Incorporeal: Shares in a company, goodwill of a business.
6.3. Distinction:
6.4. Transfer of ownership: Takes place by delivery.
6.5. Contract of alienation: Subject to nothing.
6.6. Security: Provided by means of pledge.
6.7. Where debtor’s assets are sold in execution, his movables must be attached before his
immovable.
7. FUNGIBLE THINGS: Belong to a certain class or kind and can, therefore, be replaced by
similar things. It does not have unique characteristics which make it irreplaceable.
8. NON-FUNGIBLE THINGS: Have unique characteristics or value which makes it
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