Derivative acquisition of ownership

Question 1

What is the defintion of Derivative acquisition of ownership

Answer 1

Derivative acquisition of ownership is the passing of ownership to a new owner with the cooperation of the previous owner, where the acquired ownership is derived from that of the previous owner

Question 2

What is the difference between derivative and original ownership

Answer 2

Derivative
Ø Bilateral transaction
Ø Ownership is derived
(burdened)

Original
Ø Unilateral action
Ø Ownership is newly created
(unburdened)

Question 3

What is the definition of delivery

Answer 3

Transfer of physical control of a movable thing to the transferee to enable him/her to
exercise control of the relevant movable with the intention to be the owner (animus domini)

Question 4

What are the two recognized modes of delivery.

Answer 4

. Actual delivery (traditio vera)
§ Transferor literally hands over the legal and physical control of the movable to the transferee

2. Constructive delivery (traditio fictio)
   § Where actual delivery is impossible or impracticable, due to the nature of the thing or circumstances.
   § Must intend to use
   § Closed list of constructive modes of delivery - May only be used where appropriate (limited/particular
   circumstances)

Question 5

What is Attornment

Answer 5

Appropriate constructive delivery mode where the movable thing is held by a party other than
the transferor and transferee

Question 7

What are the requirments of Attornment

Answer 7

• Requirements? (Southern Tankers v Pescana)
  1. Tripartite agreement
  § Form:
• Instruction on the part of the transferor &
• Declaration on the part of the detentor
  § Content:
• That the detentor would henceforth hold the property on behalf of the transferee and not the
  transferor
• Notification of change of ownership is insufficient (Airkel v Bodenstein)
  2. Detentor must exercise direct physical control (detentio) over the movable at
  conclusion of tripartite agreement
  ØDirect physical control at conclusion of tripartite agreement?
• Giving up physical and legal control = Impossible to hold as detentor (Hearn &Co (Pty) Ltd v
  Bleiman)
• Loss of physical control: Retention of the right to retake should arguably be sufficient; but
  will depend on the factual scenario

Question 8

Constitutum possessorium

Answer 8

Physical control remains with the transferor in terms of an agreement (causa
detentionis) that enables the transferor to henceforth hold the thing on behalf of
the transferee

Question 9

What are the requirements of Constitutum possessorium

Answer 9

Requirements (Goldinger’s Trustee v Whitelaw & Son):
1) Transferor must be in physical control of the thing prior, during and after transfer;
2) Transferor’s intention must change from owner to mere holder (detentor): Transferee’s
intention must be animus domini: Valid and genuine causa detentionis (Vasco Drycleaners
v Twycross)
§ Question 1: Is there causa detentionis?
§ Refers to an agreement between the parties providing for the basis on which the transferor retains
control which reflects the changed intentions
§ Consider the factual scenario to ascertain this
§ Question 2: Is this causa detentionis genuine or simulated?
§ To prevent fraud: It must be genuine (true intentions must be scrutinized)
§ Vasco Drycleaners v Twycross
§ As per the case consider the factual scenario similar to what was done in the case
§ Apply a cautious approach (No presumption in favour of constitutum possessorium (Goldinger’s
Trustee v Whitelaw & Son); Give effect to substance over form