PVL3701 Law Of Property LATEST STUDY PACK 2021 (TYPICAL EXAMINATION QUESTIONS AND ANSWERS).

PVL3701 Law Of Property LATEST STUDY PACK 2021 (TYPICAL EXAMINATION QUESTIONS AND ANSWERS). STUDY UNIT 1 INTRODUCTION TO PROPERTY LAW THINGS AS LEGAL OBJECTS 1. Define (a) law of things (6) 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. (b) law (5) That body of rules and norms which regulates and harmonises society by demarcating the rights and duties of legal subjects. (c) right (5) Rights deal with the lawful relationships between legal subjects and the relationship between legal subjects and the objects of their rights. (d) legal subject (5) 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. (e) legal object (2) A legal object can be defined as every object with which a legal subject has a legally recognized relationship. These legal objects may be divided into things, performances, immaterial property and personality property. (f) thing (5) 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. (g) real remedy (5) A real remedy can be defined as a legal process with its own purpose, for which certain requirements are 2 “THE EXPERT IN ANYTHING WAS ONCE A BEGINNER” 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. (h) real right (5) 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. 2 Distinguish between (a) law of property and law of things (4) 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. 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). The law of things as a subdivision of patrimonial law falls under private law. The law of things deals with a specific legal object, namely a thing. (b) real right and entitlement (5) 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. 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. The capacities conferred on the legal subject by virtue of a right, in this case a real right, are called entitlements. (c) legal object and thing (4) 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 3 “THE EXPERT IN ANYTHING WAS ONCE A BEGINNER” and personality property. Each of these legal objects has its own characteristics which distinguish it from other legal objects. 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. (d) real relationship and real right (4) 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 subjectsubject 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. 3 Briefly mention the functions of the law of things. (6) 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 Name the sources of the current law of things in order of priority. (5) (i) the Constitution of the Republic of South Africa, 1996 (ii) statute law (iii) case law (iv) common law (Roman-Dutch law)/indigenous (customary) law 4 “THE EXPERT IN ANYTHING WAS ONCE A BEGINNER” It should be noted that, in a multicultural society such as South Africa, indigenous law rather than RomanDutch law may be the subsidiary legal system in certain instances. THINGS AS LEGAL OBJECTS After you have studied this section, you should be able to answer the following questions: 1 Rearrange the second column below so that the examples listed there correspond to the things in the first column. Things Examples (a) Negotiable thing (i) Picasso painting (b) Divisible thing (ii) Land (c) Composite thing (iii) Free air (d) Incorporeal thing (iv) Seashore (e) Non-fungible thing (v) Wild animal (f) Res communes omnium (vi) Brick (g) Singular thing (vii) Creditor’s right (h) Non-negotiable thing (viii) Roll of fabric (i) Res publica (ix) Corpse (j) Immovable thing (x) Radio (10) 2 Briefly distinguish between (a) fungible and non-fungible things and explain the relevance of this distinction (7) Things are fungible (replaceable) (res fungibiles) or non-fungible (irreplaceable) (res non fungibiles). This distinction depends on whether they have individual characteristics (or value), or whether they belong to a certain kind or genus. This distinction is significant in various areas of law: (i) In the law of obligations: The replaceability or otherwise of a specific thing is determined by agreement between the parties, and may affect the consequence of the agreement. For example, if X buys th racehorse ‘‘Lightning’’ and the seller delivers the farm horse ‘‘Lazy Boy’’, the seller has not performed in terms of the agreement. However, if X buys ‘‘a horse’’, the seller can deliver any horse. (ii) Pledge: A fungible cannot, in principle, be given in pledge with the intention that it can be replaced by a similar thing. It is a basic rule of the law of pledge that the pledgee may not use the pledged article (see SU 11 para 2.4.1). 5 “THE EXPERT IN ANYTHING WAS ONCE A BEGINNER” (iii) Transfer of ownership: In certain circumstances a fungible may change ownership by means of commixtio (mixing of solids) or confusio (mingling of liquids) (see SU 4 para 4). (iv) Replacement: It would seem that the courts are more inclined to authorise the repair and even the replacement of a damaged or destroyed fungible thing in a spoliation order, in certain cases, than would be the case with non-fungibles (b) singular and composite things (5) Things may be singular or composite, depending on whether the thing consists of a single piece or of a composition of constituent parts. A horse, a stone or a brick are examples of singular things. A composite thing is made up of constituent parts, or even of independent things that have been joined together to form a new entity, for example, a car or a bicycle. Here the constituent parts lose their individuality and the composite thing is regarded as one thing for the purpose of the law of things. (c) consumable and non-consumable things (5) Consumable things (res consumptibiles) are used up (consumed) (1) or their value is considerably diminished by ordinary use, (1) for example, pencils, foodstuffs and cigarettes. Non-consumable things (res non consumptibiles) are preserved (1) in spite of normal use, (1) for example, a motor car or a stove. A thing can be non-consumable despite the fact that it is subject to normal wear and tear. (1) (d) movables and immovables (4) Another classification according to the nature of things is that of movable and immovable things. In principle, immovable things consist of land and everything that is permanently attached to land, including natural attachments like plants and artificial fixtures like buildings and structures that are permanently attached to land. This distinction has significance in several fields of law. (e) divisible and indivisible things (4) A thing is divisible if it can be divided, without losing its essential characteristics, into smaller parts of which the nature and function are essentially the same as those of the original thing. Examples are: a bag of sugar, a roll of fabric, or a piece of land. Indivisible things, such as a car or a painting, cannot be divided without destroying or changing the nature of the thing. (f) composite things and a collection of things (4) A collection of things must be distinguished from composite things. Two forms of collections are relevant: In the one we deal with a collection of similar principal things and in the other the collection consists of different types of principal things. In both cases the collection is treated as a singular unit 6 “THE EXPERT IN ANYTHING WAS ONCE A BEGINNER” A composite thing usually consists of various constituent parts. In principle, we distinguish between three kinds of constituent parts: The principal thing, the accessory thing and the auxiliary thing 3 Define (a) principal thing (3) The principal thing is the independent thing made up of various parts, with an independent existence as a composite thing. It is not a constituent or supplementary part of another thing. (b) accessory thing (4) An accessory thing can have a separate existence apart from the composite thing, but has forfeited its independent existence in that it has been physically joined to the principal thing, for example, a brick cemented into a wall (c) auxiliary thing (4) An auxiliary thing can, like an accessory thing, have an independent existence apart from the composite thing. However, it forfeits its independent existence without being physically joined to the principal thing. The auxiliary thing is economically dependent on the principal thing 4 Give an example of each of the following: (a) principal thing (1) A car is an example of a principal thing in composite form. Land is always regarded as the principal thing, not the buildings attached to it. (b) accessory thing (1) A brick cemented into a wall (c) auxiliary thing (1) A key is a good example of an auxiliary thing, since it loses its independent character in that its economic value in terms of its purpose and use depends on the unity between the principal thing (the lock) and the key. Without the lock, the key is not functional.