PVL3701 Summary of Property law
Summary of Property law
Study Unit 1: Introduction to property law
1. Introduction
In its broad sense property law can also be described as patrimonial law – the law dealing with a
person’s patrimony (all his/her assets). Patrimonial law is divided into the law of things, the law of
succession, the law of obligations and intellectual property law.
economics, entrepreneurship, and international business.1.2. Structure of Business ExamsBusiness exams are often a mix of theoretical knowledge and practical application. Depending
on the subject area, these exams can vary significantly in format. Common types of business
Patrimonial law regulates all rights of which the objects are assets in a person’s estate. In this broad
sense everything that forms part of a person’s estate can be described as ‘‘property’’. Property
therefore includes a variety of assets, such as:
• Things (for example, land, a car, a computer and a mobile phone),
• Personal rights (creditor’s rights/claims) (for example, the right to one’s salary, the right to
the proceeds of an insurance policy or the right to claim the purchase price in terms of a
contract of sale) and
• Immaterial property rights (for example, copyright and patent rights).
To sum up: in a broad sense the word ‘‘property’’ in the law of property refers to everything that
forms part of a person’s estate. In a narrow sense and for the purposes of this module, property law
refers to the law of things, which is the system of legal rules that regulates legal relationships
between legal subjects in regard to a particular legal object, namely a thing.
Definition of law of things:
Therefore, the law of things can be defined as a branch of private law which consists of a number of
legal rules that determine the nature, content, vesting, protection, transfer and termination of
various real relationships between a legal subject and a thing, as well as the rights and duties ensuing
from these relationships.
2. Definitions
2.1 Legal subject
A legal subject can be defined as any person (whether a natural or a legal person) capable of acting
as a subject in legal relationships and of acquiring rights and incurring duties in the process.
Human beings (natural persons) are the most common and best-known legal subjects, but legal
persons such as the State, universities, companies, close corporations, and so on, are also legal
subjects, since they can act as legal subjects in legal relationships and can therefore acquire rights
and duties.
2.2 Legal object
A legal object can be defined as every object with which a legal subject has a legally recognised
relationship. These legal objects may be divided into:
• Things,
• Performances,
• Immaterial property and
• Personality property.
,Each of these legal objects has its own characteristics which distinguish it from other legal objects.
The rights and duties established by legal subjects in legal relationships pertain to one or more of the
various kinds of legal object.
The law of things is concerned primarily with rights to things, although other rights may be discussed
as well. In the law of things the distinction between things and performances (as legal objects) is very
important since it determines the equally important distinction between real rights and personal
rights (creditor’s rights/claims). In the law of things we are therefore concerned primarily with a
specific legal object, a thing, and the legal relationships pertaining to it.
economics, entrepreneurship, and international business.1.2. Structure of Business ExamsBusiness exams are often a mix of theoretical knowledge and practical application. Depending
on the subject area, these exams can vary significantly in format. Common types of business
2.2.1 Thing
Generally, a thing is a legal object characterised by its material (corporeal) nature. For a complete
picture of a thing in a legal sense, we define a thing as an independent part of the corporeal world,
which is external to humans and subject to human control, as well as useful and valuable to humans.
2.3 Law, right, real relationship, real rights and entitlements
2.3.1 Law and right
We define the law as: that body of rules and norms which regulates and harmonises society by
demarcating the rights and duties of legal subjects.
One must furthermore distinguish between ‘‘the law’’ and ‘‘a right’’. Rights deal with the lawful
relationships between legal subjects and the relationship between legal subjects and the objects of
their rights.
2.3.2 Real relationships and real rights
A legal relationship is a relationship to which the law attaches consequences. Where the object of a
legal relationship between legal subjects is a thing, we refer to a real relationship. A real relationship
is the particular legal relationship between one or more legal subjects and a thing. This relationship
has certain implications for the legal order.
Note, furthermore, that the concept ‘‘real relationship’’ is broader than the concept ‘‘real right’’,
since real relationships include both real rights and certain unlawful real relationships.
There are usually two sides to a real relationship (and therefore, if it is a lawful real relationship, to a
real right), namely:
i. The subject-object relationship between the particular legal subject and the particular thing
involved in the relationship
ii. The subject-subject relationship between the particular legal subject and all other legal
subjects
A real right is therefore always a dual relationship: the subject-object (thing) relationship and the
subject-subject relationship.
In certain cases, real relationships may take on distinctive characteristics, with the result that the
rights and duties ensuing from these relationships may vary. We therefore distinguish between
different kinds of real relationships on the basis of the ensuing rights and duties.
In principle, a legal subject may acquire rights from a real relationship only if it is lawful, that is, if it
complies with the legal rules. A legal subject will not acquire any rights from unlawful real
,relationships, although the relationship as such may still have consequences for the law of things (as
would be the case with the real relationship between a thief and the thing he/she has stolen).
economics, entrepreneurship, and international business.1.2. Structure of Business ExamsBusiness exams are often a mix of theoretical knowledge and practical application. Depending
on the subject area, these exams can vary significantly in format. Common types of business
The nature, content and consequences of a particular real relationship in a specific situation may be
influenced by the attitude of the legal subjects concerned, by the nature of the thing, as well as by a
variety of surrounding circumstances. The most important real relationships are usually divided into
three categories:
i. Ownership, which is always a lawful real relationship and therefore a real right.
ii. Possession (physical control of a thing with the intention of an owner ( animo domini)), which
is always unlawful and is therefore only a real relationship, not a real right
iii. Holdership (physical control of a thing with the intention to derive a benefit), which may be
lawful or unlawful. When it is lawful it could give rise to a real right
Make sure that you understand this distinction. See diagram 2 on page 21
Possession and holdership can be subdivided, in turn, into the various real relationships, which may
be lawful or unlawful, in good faith (bona fide) or bad faith (mala fide). The establishment, nature,
content, protection and termination of each of these relationships are governed by the rules of the
law of things.
The right which has its origin in a lawful real relationship is known as a real right. Only lawful real
relationships, namely ownership and lawful holdership, confer real rights.
Possession and unlawful holdership, on the other hand, are unlawful real relationships, which do not
confer any real rights, although the law attaches certain consequences to such relationships.
Therefore a real right can be defined as a lawful real relationship between a legal subject and a thing
which confers direct control over the thing on the legal subject, as well as the relationship between
the legal subject and all other legal subjects who must respect this relationship.
The object of a lawful relationship thus determines the nature of that right. Apart from real rights,
we also recognise personal rights (creditor’s rights/claims), immaterial property rights and
personality rights. The difference between the four classes of rights is illustrated by the following
diagram:
DIAGRAM 3: Categories of rights
Object Right Example
Thing Real right Ownership
Performance Personal right Right to purchase price
Personality Personality right Right to good name
Immaterial property Immaterial property right Copyright
2.3.2.1 Entitlements
A legal subject who acquires a real right from a lawful real relationship is usually entitled by the legal
order to perform certain acts in connection with the thing.
For example:
• An owner may sell the thing,
• A servitude holder may use the thing and
, • A pledgee may hold the thing as security.
The capacities conferred on the legal subject by virtue of a right, in this case a real right, are called
entitlements. The term ’’entitlement’’, therefore, refers to the content of a right. The entitlements of
a real right determine which acts a legal subject is entitled to perform in regard to a thing.
In the case of the real right of ownership, the most important entitlements are the legal subject’s
entitlements to: economics, entrepreneurship, and international business.1.2. Structure of Business ExamsBusiness exams are often a mix of theoretical knowledge and
practical application. Depending on the subject area, these exams can vary significantly in format. Common types of business
• Control,
• Use and enjoyment,
• Burden (encumber with limited real rights such as servitudes or real security rights,
• Enjoy the fruits,
• Consume,
• Alienate (sell and deliver) and
• Vindicate (claim from whoever is unlawfully in control) the thing.
2.4 Remedies
When the law recognises a particular real relationship or a particular real right, enforcement takes
place by means of a specific real remedy. A real remedy can be defined as a legal process with its
own purpose, for which certain requirements are set and which protects, maintains or restores a
particular real relationship in a specific way.
A real remedy, therefore, finds application in lawful and unlawful real relationships. Various remedies
are used in the law of things to fulfil different functions:
• In the case of real rights, remedies serve to maintain, protect or restore the real rights
concerned, but
• There are also remedies governing the legal consequences of unlawful real relationships , for
example, the spoliation remedy.
3. Function of law of things
The function of the law of things can be summarised as follows:
1. It strives to harmonise or regulate various competing ownership rights, especially between
neighbouring owners.
2. It strives to harmonise or regulate an owner’s rights in regard to his/her thing with the rights
of other limited real right holders to the same thing.
3. It controls the acquisition, protection and extinction of things and real rights.
4. Basis and sources of law of things
The sources of the modern law of things are to be found not only in the historic writings of
Romanists since the classical Roman period and the works of the Roman-Dutch writers, but also in
statute law (legislation) and in case law (precedents created by court decisions).
Since its adoption the Constitution of the Republic of South Africa, 1996, has played a major role in
the development of the law in general and, in particular, in the development of the law of things.
Furthermore, customary law greatly influences various aspects of the law. The sources of the modern
law of things can, therefore, be summarised as follows in order of priority:
Summary of Property law
Study Unit 1: Introduction to property law
1. Introduction
In its broad sense property law can also be described as patrimonial law – the law dealing with a
person’s patrimony (all his/her assets). Patrimonial law is divided into the law of things, the law of
succession, the law of obligations and intellectual property law.
economics, entrepreneurship, and international business.1.2. Structure of Business ExamsBusiness exams are often a mix of theoretical knowledge and practical application. Depending
on the subject area, these exams can vary significantly in format. Common types of business
Patrimonial law regulates all rights of which the objects are assets in a person’s estate. In this broad
sense everything that forms part of a person’s estate can be described as ‘‘property’’. Property
therefore includes a variety of assets, such as:
• Things (for example, land, a car, a computer and a mobile phone),
• Personal rights (creditor’s rights/claims) (for example, the right to one’s salary, the right to
the proceeds of an insurance policy or the right to claim the purchase price in terms of a
contract of sale) and
• Immaterial property rights (for example, copyright and patent rights).
To sum up: in a broad sense the word ‘‘property’’ in the law of property refers to everything that
forms part of a person’s estate. In a narrow sense and for the purposes of this module, property law
refers to the law of things, which is the system of legal rules that regulates legal relationships
between legal subjects in regard to a particular legal object, namely a thing.
Definition of law of things:
Therefore, the law of things can be defined as a branch of private law which consists of a number of
legal rules that determine the nature, content, vesting, protection, transfer and termination of
various real relationships between a legal subject and a thing, as well as the rights and duties ensuing
from these relationships.
2. Definitions
2.1 Legal subject
A legal subject can be defined as any person (whether a natural or a legal person) capable of acting
as a subject in legal relationships and of acquiring rights and incurring duties in the process.
Human beings (natural persons) are the most common and best-known legal subjects, but legal
persons such as the State, universities, companies, close corporations, and so on, are also legal
subjects, since they can act as legal subjects in legal relationships and can therefore acquire rights
and duties.
2.2 Legal object
A legal object can be defined as every object with which a legal subject has a legally recognised
relationship. These legal objects may be divided into:
• Things,
• Performances,
• Immaterial property and
• Personality property.
,Each of these legal objects has its own characteristics which distinguish it from other legal objects.
The rights and duties established by legal subjects in legal relationships pertain to one or more of the
various kinds of legal object.
The law of things is concerned primarily with rights to things, although other rights may be discussed
as well. In the law of things the distinction between things and performances (as legal objects) is very
important since it determines the equally important distinction between real rights and personal
rights (creditor’s rights/claims). In the law of things we are therefore concerned primarily with a
specific legal object, a thing, and the legal relationships pertaining to it.
economics, entrepreneurship, and international business.1.2. Structure of Business ExamsBusiness exams are often a mix of theoretical knowledge and practical application. Depending
on the subject area, these exams can vary significantly in format. Common types of business
2.2.1 Thing
Generally, a thing is a legal object characterised by its material (corporeal) nature. For a complete
picture of a thing in a legal sense, we define a thing as an independent part of the corporeal world,
which is external to humans and subject to human control, as well as useful and valuable to humans.
2.3 Law, right, real relationship, real rights and entitlements
2.3.1 Law and right
We define the law as: that body of rules and norms which regulates and harmonises society by
demarcating the rights and duties of legal subjects.
One must furthermore distinguish between ‘‘the law’’ and ‘‘a right’’. Rights deal with the lawful
relationships between legal subjects and the relationship between legal subjects and the objects of
their rights.
2.3.2 Real relationships and real rights
A legal relationship is a relationship to which the law attaches consequences. Where the object of a
legal relationship between legal subjects is a thing, we refer to a real relationship. A real relationship
is the particular legal relationship between one or more legal subjects and a thing. This relationship
has certain implications for the legal order.
Note, furthermore, that the concept ‘‘real relationship’’ is broader than the concept ‘‘real right’’,
since real relationships include both real rights and certain unlawful real relationships.
There are usually two sides to a real relationship (and therefore, if it is a lawful real relationship, to a
real right), namely:
i. The subject-object relationship between the particular legal subject and the particular thing
involved in the relationship
ii. The subject-subject relationship between the particular legal subject and all other legal
subjects
A real right is therefore always a dual relationship: the subject-object (thing) relationship and the
subject-subject relationship.
In certain cases, real relationships may take on distinctive characteristics, with the result that the
rights and duties ensuing from these relationships may vary. We therefore distinguish between
different kinds of real relationships on the basis of the ensuing rights and duties.
In principle, a legal subject may acquire rights from a real relationship only if it is lawful, that is, if it
complies with the legal rules. A legal subject will not acquire any rights from unlawful real
,relationships, although the relationship as such may still have consequences for the law of things (as
would be the case with the real relationship between a thief and the thing he/she has stolen).
economics, entrepreneurship, and international business.1.2. Structure of Business ExamsBusiness exams are often a mix of theoretical knowledge and practical application. Depending
on the subject area, these exams can vary significantly in format. Common types of business
The nature, content and consequences of a particular real relationship in a specific situation may be
influenced by the attitude of the legal subjects concerned, by the nature of the thing, as well as by a
variety of surrounding circumstances. The most important real relationships are usually divided into
three categories:
i. Ownership, which is always a lawful real relationship and therefore a real right.
ii. Possession (physical control of a thing with the intention of an owner ( animo domini)), which
is always unlawful and is therefore only a real relationship, not a real right
iii. Holdership (physical control of a thing with the intention to derive a benefit), which may be
lawful or unlawful. When it is lawful it could give rise to a real right
Make sure that you understand this distinction. See diagram 2 on page 21
Possession and holdership can be subdivided, in turn, into the various real relationships, which may
be lawful or unlawful, in good faith (bona fide) or bad faith (mala fide). The establishment, nature,
content, protection and termination of each of these relationships are governed by the rules of the
law of things.
The right which has its origin in a lawful real relationship is known as a real right. Only lawful real
relationships, namely ownership and lawful holdership, confer real rights.
Possession and unlawful holdership, on the other hand, are unlawful real relationships, which do not
confer any real rights, although the law attaches certain consequences to such relationships.
Therefore a real right can be defined as a lawful real relationship between a legal subject and a thing
which confers direct control over the thing on the legal subject, as well as the relationship between
the legal subject and all other legal subjects who must respect this relationship.
The object of a lawful relationship thus determines the nature of that right. Apart from real rights,
we also recognise personal rights (creditor’s rights/claims), immaterial property rights and
personality rights. The difference between the four classes of rights is illustrated by the following
diagram:
DIAGRAM 3: Categories of rights
Object Right Example
Thing Real right Ownership
Performance Personal right Right to purchase price
Personality Personality right Right to good name
Immaterial property Immaterial property right Copyright
2.3.2.1 Entitlements
A legal subject who acquires a real right from a lawful real relationship is usually entitled by the legal
order to perform certain acts in connection with the thing.
For example:
• An owner may sell the thing,
• A servitude holder may use the thing and
, • A pledgee may hold the thing as security.
The capacities conferred on the legal subject by virtue of a right, in this case a real right, are called
entitlements. The term ’’entitlement’’, therefore, refers to the content of a right. The entitlements of
a real right determine which acts a legal subject is entitled to perform in regard to a thing.
In the case of the real right of ownership, the most important entitlements are the legal subject’s
entitlements to: economics, entrepreneurship, and international business.1.2. Structure of Business ExamsBusiness exams are often a mix of theoretical knowledge and
practical application. Depending on the subject area, these exams can vary significantly in format. Common types of business
• Control,
• Use and enjoyment,
• Burden (encumber with limited real rights such as servitudes or real security rights,
• Enjoy the fruits,
• Consume,
• Alienate (sell and deliver) and
• Vindicate (claim from whoever is unlawfully in control) the thing.
2.4 Remedies
When the law recognises a particular real relationship or a particular real right, enforcement takes
place by means of a specific real remedy. A real remedy can be defined as a legal process with its
own purpose, for which certain requirements are set and which protects, maintains or restores a
particular real relationship in a specific way.
A real remedy, therefore, finds application in lawful and unlawful real relationships. Various remedies
are used in the law of things to fulfil different functions:
• In the case of real rights, remedies serve to maintain, protect or restore the real rights
concerned, but
• There are also remedies governing the legal consequences of unlawful real relationships , for
example, the spoliation remedy.
3. Function of law of things
The function of the law of things can be summarised as follows:
1. It strives to harmonise or regulate various competing ownership rights, especially between
neighbouring owners.
2. It strives to harmonise or regulate an owner’s rights in regard to his/her thing with the rights
of other limited real right holders to the same thing.
3. It controls the acquisition, protection and extinction of things and real rights.
4. Basis and sources of law of things
The sources of the modern law of things are to be found not only in the historic writings of
Romanists since the classical Roman period and the works of the Roman-Dutch writers, but also in
statute law (legislation) and in case law (precedents created by court decisions).
Since its adoption the Constitution of the Republic of South Africa, 1996, has played a major role in
the development of the law in general and, in particular, in the development of the law of things.
Furthermore, customary law greatly influences various aspects of the law. The sources of the modern
law of things can, therefore, be summarised as follows in order of priority:
