PVL1004 Private Law: Systems and Context (PVL1004F)
Notas de lectura
Notes for Part 3 of PVL1004F/Syscon
Grado
PVL1004 Private Law: Systems and Context (PVL1004F)
Institución
University Of Cape Town (UCT)
These are fully exhaustive and in-depth notes on the final section of the Syscon course: The Context of Modern South African Private Law, for which I achieved 87%. The notes cover intestate succession, contract and delict (negligent omissions), with the relevant case law interwoven.
PVL1004 Private Law: Systems and Context (PVL1004F)
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Part 3: The Context of Modern South African Private Law
Topic 1 – Succession – Intestate succession
What happens to your property after your death.
Made up of two parts:
Inheritance law - the transfer of your legal rights and obligations/assets and liabilities (estate)
and Succession proper – the transfer of status (over time the importance of one’s status has died out).
There is one notable exception…Monarchy is still used in modern law. Monarch is head of state and
is transferred upon death (Zulu and British).
Regulates what kinds of properties, rights and statuses can be translated. The law of succession also
regulates what freedoms you have in transferring these.
Many legal systems adopt a middle ground between absolute and no freedom (SA law). Absolute –
do with your property as you will. No freedom – have no choice in what you do with your estate –
law dictates.
A legal system that recognises the creation of a will (Legal document stipulating what will happen to
property on death) tends towards absolute freedom. However, this can cause damage and is thus
regulated. Regulations are placed on testators. Section 9 – you may not unfairly discriminate (cannot
dis-inherit because someone is gay). Doesn’t need to be express discrimination – can be implied.
Those systems which don’t recognise creations of wills at all – use forced succession, tend to more
restricted/no freedoms. People can adopt (adopted child is a legitimate descendent) to allow people
they want to, to inherit their things. Partners adopt their partner to allow them to inherit.
Expansions…
Media = middle ground. In SA we recognise testate (die with a valid will, and the testators wishes for
distribution will go to beneficiary) and intestate (die without a valid will, because you didn’t create
one, or the will is invalid) succession. You can create a will but if you don’t, the laws of intestate
succession will regulate what happens to your property.
Focus on Intestate succession
Better represents the legal convections of the communities (boni mores) they represent.
How does succession take place?
,Universal succession (Romans) – the deceased heir succeeds. Merge the two legal identities – get
the legal rights and obligations your father had. Imposes a massive benefit and duty on the heir.
(Liable for debt but also get the benefits). No gap between the succession – it is instantaneous.
Continuity of familial line.
Inheritance vesting – vesting of the estate is more, the deceased heir acquires only a personal right
to benefit from the deceased estate. Residue falls to the descendant once debts have been paid. You
have a personal right to claim benefits. Executors control the estate, and family must claim. There is
a gap. The estate is under the control of an executor and you have a personal right to claim your
inheritance. A bit of a weaker right. You are more protected under this system because the executor
pays off and you only benefit from what is left over, no obligations to worry about.
Who the intestate is, matters! The law tells us who it is.
Does the spouse have any claim to the deceased estate – what is a spouse?
If it doesn’t fall to the spouse, does it fall to their children – which children and in equal shares?
Do parents have a claim, or siblings? etc.
Intestate succession is tied to the socioeconomic system of the time!
Succession proper – the view of marriage in roman times is that it is an intimate relationship between
two parties. Marriage cannot be transferred on death. Other societies, do not recognise the legal
status of women at all (couldn’t own property), and so some societies recognise levirate marriage,
where the brother will inherit the wife.
Succession to property has changed as the notion of property has changed. There is a lot of value in
land but new forms of wealth are recognised (crypto and human capital – degrees).
However, the pace of change is quite slow. The law may not always immediately reflect the boni
mores of the time, because the pace is legal change lags behind. (Legal certainty)
Law of succession is quite conservative – only gradual change.
All of this is historical. The current low of intestate succession is different today.
, Roman Law
The romans saw the appointment of an heir as greatly important for succession, for religious (head of household
responsible for retaining religious duties) and social purposes because the heir becomes head of the paterfamilias).
Focus changed to be on the estate – land, wealth, liabilities and obligations
The romans made use of universal succession. Inherited the deceased assets (land and slaves) and take over the
deceased debts, immediately. The heir takes the benefits and burdens. If estate not large enough to cover debts, the
heir will become personally responsible for those debts.
In the time of the 12 tables, there was a clause about intestate succession…largely focused on testate (dedicated to
wills)
- If a man dies intestate
- To whom there is NO immediate heirs (so therefore we know immediate heirs inherit)
- Let the nearest agnate have the property.
- If there is no agnate, let the members of the clam have the property
Romans recognised both ends of the extreme, but we focus on death intestate. His estate must go to his immediate
relatives – cognates – blood relatives!!! First in line is the deceased un-emancipated children. If you were emancipated
(adult with own family) you don’t inherit. Young children still under father’s care have claims to inheritance. The
spouse would also inherit as a descendant (wife becomes family and treated as a minor who is a descendent). Where
there is more than one descendent, all children inherit equally regardless of their gender. If you don’t have descendants
or a spouse, the inheritance would go to your parents (Ascendents) and siblings (collaterals). If all those were
deceased Agnatic relatives are only along male lines. (grandfather on DADS side). Then aunt and uncle both
inherit. The inheritance is divided per capita. (no. of people)
Justinian – a move away from looking at agnatic, to including all cognates/blood relatives regardless of male or
female line. Now both grandfathers can inherit. Divide estate by 2.
Praetors commented on the law and started issuing possession orders to relatives closer to the deceased than the
agnatic relatives. Bonorum possession. They started to rather allow emancipated children to inherit because they are
closer to the parent than further relatives. Praetors granted the possession order – bonorum possession which granted
the relative the right to possess the deceased property and if possessed for more than a year they become the full
owner through prescription/usicapio.
When wife is married, she becomes part of a new paterfamilias. Cummano marriage – leave your dad and join
husband. Used to be default but then the roman changed and made it so that the wife stays part of father family and
can still inherit when her dad dies (sena manu), and not inherit as a descendant of your husband. The default rule
changed and spouse is now excluded from descednants – becomes an heir of last resort for the husband!
NONE OF THE ABOVE IS EXAMINABLE
GERMAN AND ENGLISH LAW ARE NOT BEING TAUGHT
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