derivative acquisition Flashcards
definition
- new owner derives title from previous owner
- bilateral transfer of ownership
difference to original acquisition
- unilateral act
- ownership created new and originally
what is needed for a transfer of ownership to occur
- real agreement
- delivery
what is the causal theory of transfer
- requires a iusta causa
- valid cause , usually a contract
- this underpins transfer
- favours original owner
what is the abstract system of transfer
- separates underlying cause from the transfer
- favours acquirer
- valid real agreement + delivery
- promotes legal certainty
what are the requirements for a valid transfer of ownership
- subjective mental element (real agreement)
- intention to transfer ownership/intention to receive
- objective physical element: delivery
- in accordance with publicity principle
general rule
transfer of ownership happens only once delivery or registration occurs
exceptions to the general rule
- marriage ICOP (joint estate)
- insolvency (transfer to trustee automatically)
preconditions for a valid real agreement
- res in commercio
- legal capacity
- must be owner or agent
- must intend to transfer
what is the nemo plus iuris rule
- no one can transfer more rights than they have
sales of cash
- ownership transfers on payment with delivery
- valid real agreement
credit sales
- ownership transfers on delivery alone
- payment made later
- valid real agreement
nemo dat quod non habet
nobody can give what he does not have
- if a non owner contracts to transfer ownership
- cannot do this without owners co operation
- must be a real agreement
what are the mental and physical elements of delivery
mental: intend to use method of delivery
physical: action that achieves handing over control of property to new owner
actual delivery
- thing is actually physically handed over and received
- an agent can do so for either party
when is constructive delivery used
- nature of the thing makes it difficult/impossible to deliver actually
constructive delivery
- no physical handing over of property
- required physical element still present
- parties ad idem to choose delivery mode
- numerous clausus of constructive delivery modes
clavium traditio (symbolic delivery)
- goods contained in a warehouse accessed by key
- key is physical element which allows physical control to transfer
- must be exclusively able to deal with property
- mental element: intend that handing over symbol delivers goods
traditio longa manu (long hand delivery)
- bulky/large goods , external factors prevent actual delivery
- physical element: pointing out goods in presence of new owner
- mental element: intention to remain in bare possession until new owner removes goods
- must be able to take goods without legal assistance
constitutum possessorium
- goods to be used in terms of a contract by transferor after transfer of ownership
- mental element: intention to transfer ownership but not possession
- physical element: transferor has pre existing possession
- causa detentionis
- factual evidence to prove bona fide
traditio brevi manu (short hand delivery)
- new owner already in possession of the property
- physical: pre existing possession
- mental: intend that ownership will transfer
- factual evidence for bona fide conduct
Attornment
- third party in possession of goods when ownership must transfer
- physical element: tripartite agreement, 3rd party has rights to control goods
- mental element: tripartite agreement 3rd party concurrence of ownership transfer
- simply notifying third party = not enough
transferee in position to exercise control
- symbolic delivery
- long hand delivery
transferee already in physical control i/e prior legal relationship
- delivery shorthand
someone else exercises physical control on behalf of the new owner
- constitutum possessorium
- attornment
what is the effect of registration
- new real rights created
- protection of real rights
- indicates delivery of land rights
- public record of all real rights in land
what happens if registration occurs erroneously
- must be invalidated by court order
what is another method of acquiring land rights
- acquisitive prescription
what is a positive system of registration
- guarantees accuracy of registration
- third parties in good faith who rely on the information will be protected
what is a positive system of registration
- guarantees accuracy of registration
- third parties in good faith who rely on the information will be protected
- greater legal certainty for third parties
- less certainty for original holders
what is an indefeasibility title
a bona fida acquirer of a flawed real right that has been registered, can enforce his registered claim against the actual entitled person
what is a negative registration system
- no guarantee of accuracy
- no protection for third parties who rely on it
- unless can be proved DR off was negligent
- position of original holders more certain than that if 3rd parties
SA registration system
- negative system of registration
- usually highly accurate
- responsibility for accuracy on conveyancing attorney
- positive system would not work with some modes of acquisition i.e prescription
