derivative acquisition

Question 1

definition

Answer 1

• new owner derives title from previous owner

- bilateral transfer of ownership

Question 2

difference to original acquisition

Answer 2

• unilateral act

- ownership created new and originally

Question 3

what is needed for a transfer of ownership to occur

Answer 3

• real agreement

- delivery

Question 4

what is the causal theory of transfer

Answer 4

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

Question 5

what is the abstract system of transfer

Answer 5

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

Question 6

what are the requirements for a valid transfer of ownership

Answer 6

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

Question 7

general rule

Answer 7

transfer of ownership happens only once delivery or registration occurs

Question 8

exceptions to the general rule

Answer 8

• marriage ICOP (joint estate)

- insolvency (transfer to trustee automatically)

Question 9

preconditions for a valid real agreement

Answer 9

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

Question 10

what is the nemo plus iuris rule

Answer 10

• no one can transfer more rights than they have

Question 11

sales of cash

Answer 11

• ownership transfers on payment with delivery

- valid real agreement

Question 12

credit sales

Answer 12

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

Question 13

nemo dat quod non habet

Answer 13

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

Question 14

what are the mental and physical elements of delivery

Answer 14

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

Question 15

actual delivery

Answer 15

• thing is actually physically handed over and received

- an agent can do so for either party

Question 16

when is constructive delivery used

Answer 16

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

Question 17

constructive delivery

Answer 17

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

Question 18

clavium traditio (symbolic delivery)

Answer 18

• 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

Question 19

traditio longa manu (long hand delivery)

Answer 19

• 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

Question 20

constitutum possessorium

Answer 20

• 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

Question 21

traditio brevi manu (short hand delivery)

Answer 21

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

Question 22

Attornment

Answer 22

• 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

Question 23

transferee in position to exercise control

Answer 23

• symbolic delivery

- long hand delivery

Question 24

transferee already in physical control i/e prior legal relationship

Answer 24

• delivery shorthand

Question 25

someone else exercises physical control on behalf of the new owner

Answer 25

- constitutum possessorium | - attornment

Question 26

what is the effect of registration

Answer 26

- new real rights created - protection of real rights - indicates delivery of land rights - public record of all real rights in land

Question 27

what happens if registration occurs erroneously

Answer 27

- must be invalidated by court order

Question 28

what is another method of acquiring land rights

Answer 28

- acquisitive prescription

Question 29

what is a positive system of registration

Answer 29

- guarantees accuracy of registration | - third parties in good faith who rely on the information will be protected

Question 30

what is a positive system of registration

Answer 30

- 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

Question 31

what is an indefeasibility title

Answer 31

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

Question 32

what is a negative registration system

Answer 32

- 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

Question 33

SA registration system

Answer 33

- 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