Property law: June Exam Notes
**These are key points taken from Amanda Barratt’s notes and based on text from “The Principles of the Law of
Property in South Africa”. SOME parts are directly quoted, others have been simplified by me. I do not take credit
for any knowledge expressed in this document, only the summary of notes and easy access to key points that I found
important**
DISTRIBUTION OF THIS DOCUMENT IS ILLEGAL
Bibliography
- Barratt, Amanda. “Property Law [1-8]” 22 May 2022.
- Pope, A., Du Plessis, E. & Badenhorst, P. n.d. The principles of the law of property in South
Africa.
Latin Terms
Res, rem,rei re: things
Res nullius: thing that belong to nobody
Ius in re aliena: right in the thing/property of another
Utilitas: utility
servitutes perpetuas causas habere debent: Servitude must promote the
use and enjoyment of the dominant tenement permanently
Delivery longa manu: This form of delivery is effected by the seller
pointing out the object that will be sold to the buyer (say if the size or
physical delivery of the object is too difficult)
facta probanda: facts that need to be proved
Locus standi: the right or ability to bring a legal action to a court of law
Quasi: almost
spoliatus ante omnia restituendus est: possession must be restored
before anything else
status quo ante: the way things were before
Ius possessionis: Right against dispossession that arises from the mere
fact of possession
Ius possidendi: Right of possession
Ante omnia: before all else
Lecture 2: real rights, personal rights and servitudes
Real rights
either ownership
or limited real rights (servitudes or real security rights)
, A person is a legal subject
Means that they can hold rights and duties
Rights and duties can only be held by legal subjects
Other rights to property are derived from ownership and have a more
limited content. If they are real by nature, and are held by someone other
than the owner of the property, they are typified as limited real rights
(i.e. iura in re aliena)
Real Rights and Personal Rights
real rights establish a direct relationship between the person and the
property
Physical things are the ‘objects’
E.g. a house
real rights are dealt with in property law
Real rights are therefore protected by proprietary remedies
real rights are transferred either by way of registration (in the case of
immovable property) or delivery (in the case of movables)
personal rights establish a relationship between one person and another in
respect of a delictual or contractual obligation, called a ‘performance’
In personam
Performances are the ‘objects’
E.g. baby sitting
governed by the law of obligations (i.e. contract, delict and unjustified
enrichment)
personal rights are protected by the availability of contractual and
delictual remedies
Contractual remedies egg: specific performance, action for breach of
contract and full consequential loss
Personal rights are a weaker claim because you may not be able to find
person you have the claim against/ they may not be able to
pay/compensate
transferred by way of cession
Personalist theory
**These are key points taken from Amanda Barratt’s notes and based on text from “The Principles of the Law of
Property in South Africa”. SOME parts are directly quoted, others have been simplified by me. I do not take credit
for any knowledge expressed in this document, only the summary of notes and easy access to key points that I found
important**
DISTRIBUTION OF THIS DOCUMENT IS ILLEGAL
Bibliography
- Barratt, Amanda. “Property Law [1-8]” 22 May 2022.
- Pope, A., Du Plessis, E. & Badenhorst, P. n.d. The principles of the law of property in South
Africa.
Latin Terms
Res, rem,rei re: things
Res nullius: thing that belong to nobody
Ius in re aliena: right in the thing/property of another
Utilitas: utility
servitutes perpetuas causas habere debent: Servitude must promote the
use and enjoyment of the dominant tenement permanently
Delivery longa manu: This form of delivery is effected by the seller
pointing out the object that will be sold to the buyer (say if the size or
physical delivery of the object is too difficult)
facta probanda: facts that need to be proved
Locus standi: the right or ability to bring a legal action to a court of law
Quasi: almost
spoliatus ante omnia restituendus est: possession must be restored
before anything else
status quo ante: the way things were before
Ius possessionis: Right against dispossession that arises from the mere
fact of possession
Ius possidendi: Right of possession
Ante omnia: before all else
Lecture 2: real rights, personal rights and servitudes
Real rights
either ownership
or limited real rights (servitudes or real security rights)
, A person is a legal subject
Means that they can hold rights and duties
Rights and duties can only be held by legal subjects
Other rights to property are derived from ownership and have a more
limited content. If they are real by nature, and are held by someone other
than the owner of the property, they are typified as limited real rights
(i.e. iura in re aliena)
Real Rights and Personal Rights
real rights establish a direct relationship between the person and the
property
Physical things are the ‘objects’
E.g. a house
real rights are dealt with in property law
Real rights are therefore protected by proprietary remedies
real rights are transferred either by way of registration (in the case of
immovable property) or delivery (in the case of movables)
personal rights establish a relationship between one person and another in
respect of a delictual or contractual obligation, called a ‘performance’
In personam
Performances are the ‘objects’
E.g. baby sitting
governed by the law of obligations (i.e. contract, delict and unjustified
enrichment)
personal rights are protected by the availability of contractual and
delictual remedies
Contractual remedies egg: specific performance, action for breach of
contract and full consequential loss
Personal rights are a weaker claim because you may not be able to find
person you have the claim against/ they may not be able to
pay/compensate
transferred by way of cession
Personalist theory
