Private law 273
Chapter 1
Philip de Beer – Room 2012 Ouh– 0218083188
Assistant: Tina Kotzé –
Don’t have to know chapter 1 for the exams – can simply read for
background
1. Introduction
1.1 The nature of law
Law aids in the creation of social cohesion
Regulates human behaviour and other aspects of human personality
Does so through the use of rules
Must be able to create mechanisms through which to enforce those
rules
Can be described as both “backward-looking” and “forward-looking”
– Forward looking – prevents something from happening, i.e.
something that happens before the fact
– Backward looking – can be seen as a type of sanction, i.e.
something that happens after the fact
Objective-normative perspective on law
1.2 Rules
The law has to describe reality, thus rules require a description of
reality
Once the law has successfully described reality, it can create the
rule
In order for a law to be applied, it must describe what it is being
applied to
1.3 Structure of South African law
Constitution – nothing can be in conflict
Broadly divide law into three aspects
– Public law
– Private law
– Mercantile/ commercial law
2. Subjective Rights
2.1 Different types of rights
Broad sense
Narrow/ specific sense
– Subjective rights – any specific subjective right will only occur
between one legal subject and their specific legal object
1
,2.2 Legal Subjects and Legal Objects
Legal subject – invested with legal capacities, able to act in legal
intercourse (legal subjectivity)
Legal objects – anything to which a legal subject can acquire a right,
generally something with value or with potential value (but does not
have capacity)
2.3 Different Legal Objects
(1) Things
(2) Immaterial Property
(3) Aspects of personality/ self (internal or external)
(4) Performances (doing or not doing something, any human action
or non-action)
2.4 The Subjective Relationships
(A) Subject-Object relationship
(B) Subject-3rd party relationship
2.5 Subjective Rights
(1) Real Rights
(2) Immaterial Property Rights
(3) Personality Rights
(4) Personal Rights – the right to have an action performed by
someone else (the object of the right is never the thing to be
delivered)
2.6 Powers
If you have a personal right to performance, then you have the
power to make that person perform
With every relationship and right, comes certain powers
Examples:
– Power to use and enjoy
– Power to protect
– Power to dispose or alienate
– Power to enforce performance
3. Hohfeld
3.1 Hohfeld’s “jural relations”
(A) Rights v. duties
– e.g. if I have a car, I have rights in respect of that car,
everyone else in the world has a duty to not encroach on my
rights in respect of the car
(B) Powers v. liabilities
– X has the power to make Y deliver, therefore Y is liable to
deliver
– Liabilities are essentially the opposite of powers
2
,4. The estate
4.1 The notion of value
Personal value v. economic/ monetary value
Not all legal objects have monetary value (i.e. personality rights –
cannot put a price on emotional injury)
4.2 Legal objects with economic or monetary value
Things, immaterial property and performances have definite
monetary value – thus these are the only things that can be in your
estate, they are the only things that will survive you (your
personality rights do not live on after you)
Thus these three types of rights are patrimonial rights (personality
rights are non-patrimonial rights)
4.3 Patrimonial (Subjective) Rights
Real rights, immaterial property rights, performance
These are the assets
4.4 The Estate
The estate is the sum total of the assets minus the liabilities
5. Succession
5.1 Definition
The law of succession is about identifying those persons who are
qualified to inherit from someone (a beneficiary)
The law of succession controls the transfer of assets at the death of
a person
The law of succession is the totality of the legal rules which controls
the transfer of the legal assets of the deceased which are subject to
distribution among the beneficiaries, or of those assets of another
over which the deceased had the power of disposal.
I.e. Who inherits and what do they inherit
5.2 The Executor
Responsible for the administration of a deceased’s estate. Must use as
little assets of the deceased estate possible to pay off all liabilities. Then
he must use the remaining assets to cover the costs of the administration
and only then will the assets be divided according to the wishes of the
deceased in his or her testate estate.
5.3 Law of Succession in Societal Context
1. Private ownership – NB for the functioning of the law of succession,
succession can only function in a capitalist society, I.e. Where one is
able to privately own one’s assets
a. In some countries, such as Namibia, the state has the option
to by the property which the deceased has left behind, only if
they give up their right to the land can it be bequeathed and
inherited
3
, 2. Economic function – it regulates the destination of economic value
after the death of the holder of that value, and the rules around the
law are informed by this function
a. Freedom of testation, the testator is able to chose to whom
the economic benefits shall flow
3. Social function – the law recognizes the family unit. Succession
plays a role wherein it protects that unit by allowing the unit to
inherit and keep wealth through generations
a. The law also recognizes that people are related and by
varying degrees, therefore the law ensures that the
deceased's possessions go to those closest to him
b. Influenced by social trends (e.g. higher divorce rate, increase
in no. of cohabiting relationships, recognition of previously
unprotected relationships, and advanced techniques regarding
fertilisation and birth)
4. Freedom of testation
5. Also limitations on freedom – economic and social considerations
5.4 Testate and Intestate Succession
Two NB questions to ask:
1. Is there a will?
2. Is that will valid or not?
Testate succession (testator)
– Will: a unilateral declaration of the testator’s wishes
regarding which persons or organisations will be beneficiaries
and what they will receive. THERE MUST BE A WILL, cannot
give possessions away using any other instrument. Only
exception = anc. This is driven by freedom of testation –
freedom of testation in any other document other than a will
or anc is invalid (Wills Act no. 7 of 1953)
– If there is any circumstance or eventuality that the
Wills Act does not cover, we look at the common law
– Formalities of drafting a will
– Determination of contents
Intestate succession (deceased)
– If there is no will, or no provision in an anc, or for any reason
these documents are invalid, then the rules of intestate
succession apply
– This is the default position unless there is a will/ provision in
the anc
– Intestate Succession Act 81 of 1987
– There are strict rules that apply – who gets what is determined
by a very specific process, no one has any real say in who
gets what – obviously no application here of the principle of
“freedom of testation”
– The Law of Succession Amendment Act of 1992
For those persons who died before 1 October 1992, the
old rules apply, for those who died after 1 October 1992,
the new rules apply.
– Succession by contract
4
Chapter 1
Philip de Beer – Room 2012 Ouh– 0218083188
Assistant: Tina Kotzé –
Don’t have to know chapter 1 for the exams – can simply read for
background
1. Introduction
1.1 The nature of law
Law aids in the creation of social cohesion
Regulates human behaviour and other aspects of human personality
Does so through the use of rules
Must be able to create mechanisms through which to enforce those
rules
Can be described as both “backward-looking” and “forward-looking”
– Forward looking – prevents something from happening, i.e.
something that happens before the fact
– Backward looking – can be seen as a type of sanction, i.e.
something that happens after the fact
Objective-normative perspective on law
1.2 Rules
The law has to describe reality, thus rules require a description of
reality
Once the law has successfully described reality, it can create the
rule
In order for a law to be applied, it must describe what it is being
applied to
1.3 Structure of South African law
Constitution – nothing can be in conflict
Broadly divide law into three aspects
– Public law
– Private law
– Mercantile/ commercial law
2. Subjective Rights
2.1 Different types of rights
Broad sense
Narrow/ specific sense
– Subjective rights – any specific subjective right will only occur
between one legal subject and their specific legal object
1
,2.2 Legal Subjects and Legal Objects
Legal subject – invested with legal capacities, able to act in legal
intercourse (legal subjectivity)
Legal objects – anything to which a legal subject can acquire a right,
generally something with value or with potential value (but does not
have capacity)
2.3 Different Legal Objects
(1) Things
(2) Immaterial Property
(3) Aspects of personality/ self (internal or external)
(4) Performances (doing or not doing something, any human action
or non-action)
2.4 The Subjective Relationships
(A) Subject-Object relationship
(B) Subject-3rd party relationship
2.5 Subjective Rights
(1) Real Rights
(2) Immaterial Property Rights
(3) Personality Rights
(4) Personal Rights – the right to have an action performed by
someone else (the object of the right is never the thing to be
delivered)
2.6 Powers
If you have a personal right to performance, then you have the
power to make that person perform
With every relationship and right, comes certain powers
Examples:
– Power to use and enjoy
– Power to protect
– Power to dispose or alienate
– Power to enforce performance
3. Hohfeld
3.1 Hohfeld’s “jural relations”
(A) Rights v. duties
– e.g. if I have a car, I have rights in respect of that car,
everyone else in the world has a duty to not encroach on my
rights in respect of the car
(B) Powers v. liabilities
– X has the power to make Y deliver, therefore Y is liable to
deliver
– Liabilities are essentially the opposite of powers
2
,4. The estate
4.1 The notion of value
Personal value v. economic/ monetary value
Not all legal objects have monetary value (i.e. personality rights –
cannot put a price on emotional injury)
4.2 Legal objects with economic or monetary value
Things, immaterial property and performances have definite
monetary value – thus these are the only things that can be in your
estate, they are the only things that will survive you (your
personality rights do not live on after you)
Thus these three types of rights are patrimonial rights (personality
rights are non-patrimonial rights)
4.3 Patrimonial (Subjective) Rights
Real rights, immaterial property rights, performance
These are the assets
4.4 The Estate
The estate is the sum total of the assets minus the liabilities
5. Succession
5.1 Definition
The law of succession is about identifying those persons who are
qualified to inherit from someone (a beneficiary)
The law of succession controls the transfer of assets at the death of
a person
The law of succession is the totality of the legal rules which controls
the transfer of the legal assets of the deceased which are subject to
distribution among the beneficiaries, or of those assets of another
over which the deceased had the power of disposal.
I.e. Who inherits and what do they inherit
5.2 The Executor
Responsible for the administration of a deceased’s estate. Must use as
little assets of the deceased estate possible to pay off all liabilities. Then
he must use the remaining assets to cover the costs of the administration
and only then will the assets be divided according to the wishes of the
deceased in his or her testate estate.
5.3 Law of Succession in Societal Context
1. Private ownership – NB for the functioning of the law of succession,
succession can only function in a capitalist society, I.e. Where one is
able to privately own one’s assets
a. In some countries, such as Namibia, the state has the option
to by the property which the deceased has left behind, only if
they give up their right to the land can it be bequeathed and
inherited
3
, 2. Economic function – it regulates the destination of economic value
after the death of the holder of that value, and the rules around the
law are informed by this function
a. Freedom of testation, the testator is able to chose to whom
the economic benefits shall flow
3. Social function – the law recognizes the family unit. Succession
plays a role wherein it protects that unit by allowing the unit to
inherit and keep wealth through generations
a. The law also recognizes that people are related and by
varying degrees, therefore the law ensures that the
deceased's possessions go to those closest to him
b. Influenced by social trends (e.g. higher divorce rate, increase
in no. of cohabiting relationships, recognition of previously
unprotected relationships, and advanced techniques regarding
fertilisation and birth)
4. Freedom of testation
5. Also limitations on freedom – economic and social considerations
5.4 Testate and Intestate Succession
Two NB questions to ask:
1. Is there a will?
2. Is that will valid or not?
Testate succession (testator)
– Will: a unilateral declaration of the testator’s wishes
regarding which persons or organisations will be beneficiaries
and what they will receive. THERE MUST BE A WILL, cannot
give possessions away using any other instrument. Only
exception = anc. This is driven by freedom of testation –
freedom of testation in any other document other than a will
or anc is invalid (Wills Act no. 7 of 1953)
– If there is any circumstance or eventuality that the
Wills Act does not cover, we look at the common law
– Formalities of drafting a will
– Determination of contents
Intestate succession (deceased)
– If there is no will, or no provision in an anc, or for any reason
these documents are invalid, then the rules of intestate
succession apply
– This is the default position unless there is a will/ provision in
the anc
– Intestate Succession Act 81 of 1987
– There are strict rules that apply – who gets what is determined
by a very specific process, no one has any real say in who
gets what – obviously no application here of the principle of
“freedom of testation”
– The Law of Succession Amendment Act of 1992
For those persons who died before 1 October 1992, the
old rules apply, for those who died after 1 October 1992,
the new rules apply.
– Succession by contract
4
