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Prelim B > derivative acquisition > Flashcards

derivative acquisition Flashcards

1
Q

definition

A
  • new owner derives title from previous owner

- bilateral transfer of ownership

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2
Q

difference to original acquisition

A
  • unilateral act

- ownership created new and originally

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3
Q

what is needed for a transfer of ownership to occur

A
  • real agreement

- delivery

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4
Q

what is the causal theory of transfer

A
  • requires a iusta causa
  • valid cause , usually a contract
  • this underpins transfer
  • favours original owner
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5
Q

what is the abstract system of transfer

A
  • separates underlying cause from the transfer
  • favours acquirer
  • valid real agreement + delivery
  • promotes legal certainty
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6
Q

what are the requirements for a valid transfer of ownership

A
  • subjective mental element (real agreement)
  • intention to transfer ownership/intention to receive
  • objective physical element: delivery
  • in accordance with publicity principle
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7
Q

general rule

A

transfer of ownership happens only once delivery or registration occurs

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8
Q

exceptions to the general rule

A
  • marriage ICOP (joint estate)

- insolvency (transfer to trustee automatically)

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9
Q

preconditions for a valid real agreement

A
  • res in commercio
  • legal capacity
  • must be owner or agent
  • must intend to transfer
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10
Q

what is the nemo plus iuris rule

A
  • no one can transfer more rights than they have
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11
Q

sales of cash

A
  • ownership transfers on payment with delivery

- valid real agreement

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12
Q

credit sales

A
  • ownership transfers on delivery alone
  • payment made later
  • valid real agreement
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13
Q

nemo dat quod non habet

A

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
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14
Q

what are the mental and physical elements of delivery

A

mental: intend to use method of delivery
physical: action that achieves handing over control of property to new owner

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15
Q

actual delivery

A
  • thing is actually physically handed over and received

- an agent can do so for either party

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16
Q

when is constructive delivery used

A
  • nature of the thing makes it difficult/impossible to deliver actually
17
Q

constructive delivery

A
  • no physical handing over of property
  • required physical element still present
  • parties ad idem to choose delivery mode
  • numerous clausus of constructive delivery modes
18
Q

clavium traditio (symbolic delivery)

A
  • 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
19
Q

traditio longa manu (long hand delivery)

A
  • 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
20
Q

constitutum possessorium

A
  • 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
21
Q

traditio brevi manu (short hand delivery)

A
  • new owner already in possession of the property
  • physical: pre existing possession
  • mental: intend that ownership will transfer
  • factual evidence for bona fide conduct
22
Q

Attornment

A
  • 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
23
Q

transferee in position to exercise control

A
  • symbolic delivery

- long hand delivery

24
Q

transferee already in physical control i/e prior legal relationship

A
  • delivery shorthand
25
Q

someone else exercises physical control on behalf of the new owner

A
  • constitutum possessorium

- attornment

26
Q

what is the effect of registration

A
  • new real rights created
  • protection of real rights
  • indicates delivery of land rights
  • public record of all real rights in land
27
Q

what happens if registration occurs erroneously

A
  • must be invalidated by court order
28
Q

what is another method of acquiring land rights

A
  • acquisitive prescription
29
Q

what is a positive system of registration

A
  • guarantees accuracy of registration

- third parties in good faith who rely on the information will be protected

30
Q

what is a positive system of registration

A
  • 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
31
Q

what is an indefeasibility title

A

a bona fida acquirer of a flawed real right that has been registered, can enforce his registered claim against the actual entitled person

32
Q

what is a negative registration system

A
  • 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
33
Q

SA registration system

A
  • 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

Prelim B (19 decks)

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