Elements and aspects of control, possession and holdership

Question 1

Two elements of CONTROL

Answer 1

physical element - entails the factual holding of a thing,

intention element - concerns the type of intention with which a thing is physically held.

Both elements must exist simultaneously for
control to be present.

Question 2

What does the physical (corpus) control entail and what does it refer to?

Answer 2

entails effective corporeal control over a
thing
It refers to the perceptible power or dominion a legal subject exercises over a
thing.

Question 3

Condition which object must fulfil before its controlled

Answer 3

It must be a thing for the purpose of property law

Question 4

Two considerations in which the factual question of whether person has effective custody of something depends on.

Answer 4

1. Who has the strongest physical relation with a thing at a specific time
2. Whether it is possible for
   such person to resume control without the assistance of another party

Question 5

Various factors that have been developed to help establish whether or not someone has effective physical control

Answer 5

-Nature and size of thing
-manner and degree of actual physical control necc to satisfy objective element
-distinguishing between portable movables , movables which cant be handled and immovables

Question 6

Distinguish between the types of control thatll be needed for portable movables, movables which cant be hanndled and immovables

Answer 6

Portable movables=extensive and literal control is needed

Wieldly moveables - literal control is difficult; effective control=being able to exclude others from the thing

Immovables
- one has to distinguish between different types of such
property.
A residential home is controlled differently from, say, a farm. Once you have
occupied a home, locking it with the only key will be sufficient to satisfy the physical
element of controlling it, along with all its contents
with a farm, eclusive and effective control is necc to satisy corpus element

Question 7

Meaning of “effective” and “exclusive” control

Answer 7

‘Effective’ = controller must be able, if he/she is not in direct physical control of the property, to regain control without the assistance of anyone else.

“exclusivity” = the controller must be able to exclude other persons from the property.

Question 8

Underwater Construction Salvage Co(Pty) Ltd v Bell
on effective physical control

Answer 8

employees
of the plaintiff blasted four propeller blades from a shipwreck located on the ocean floor.

They salvaged two of these blades and left the other two on the ocean floor with the
intention of recovering them later. They marked the spot with a floating rope that was
tied to a shaft.

Before the plaintiff could recover the blades, however, the defendant
salvaged them.

The court held that the acts of the plaintiff, performed by its employees,
regarding the disputed blades were sufficient to constitute effective control; removing
some of the blades from the wreck and marking the spot indicated to others that control
over the remaining blades had already been obtained

Question 9

Reck v Mills en ’n Ander

Answer 9

Facts
Mills wanted to salvage the condenser
by removing it from the wreck, which process he initiated. But the operation had to be
postponed due to bad weather. Mills attached a rope with a buoy, which floated on the
sea surface, to indicate his ‘control’ over the condenser. Before Mills could return to finish
salvaging the condenser, though, Reck salvaged it by severing it from the wreck.

Legal question
the Supreme Court of
Appeal had to decide whether Mills established control over part of a
shipwreck, namely a large and heavy condenser.

The court ruling:
Merely tying a rope with a buoy to the condenser did not constitute effective control by Mills.
It held that Mills would have obtained control over only parts of the wreck he physically removed from it. As he did not remove any components
from the wreck, he never established control over the condenser

Question 10

Flexibility ito nature and size of things

Answer 10

Nature = determines how it can be effectively controlled gives an indication of the type and scope of physical
control necessary to satisfy the corpus element

Question 11

Factors that determine existence of effective control over a thing

Answer 11

1. Nature and size
2. Control does not need to be continuous
3. Control does not need to be exercised personally
4. Acquisition and retention of control

Question 12

Relation between purpose/function of a thing to its nature and size factor

Answer 12

The purpose of the thing determines which kind of physical control is necessary to satisfy the objective element

The function of the thing, is such that it is viable only if it is of a sufficient size

As long as owner is able to exclude others from taking control over it, he’ll have physical control over the entire property.

Rural example= Owner of sheep farm where farms are too big and need not be be on every part of farm all the time to have effective physical control

Urban Example= Home owner who stores gas heater in garage when not needed; using it ony when needed establishes EFFECTIVE PHYSICAL CONTROL over it even when not used.
Owner doesn’t have to be in the presence of property all the time, as long as can resume control at anytime without assistance of others

Question 13

Special customs that have developed in special fields to determine presence of sufficient control

Answer 13

They developed over time and mainly derive from commercial practice.

Custom ito former=person who holds bill of lading

Special custom thats been developed = placing guard at construction site

Question 14

[General rule: Its not necc for control to be comprehensive for it to be effective]

Test for whether certain amount of control is sufficient to constitute effectiveness

Answer 14

Test: ‘whether the nature and use of the thing is
such that control over one part or piece is sufficient to justify the inference that control
extends over the whole’

Question 15

Explain the related factor that states that control need not be continuous

Answer 15

Once physical control has been established it may be interrupted, even for extended periods, provided that
the controller is able to resume control at any time without assistance from others

Question 16

Explain why control does not need to be exercised personally

Answer 16

a thing can be controlled through an
agent.
It is important to realise here that the agent intends to hold the thing on behalf
of the principal and does not intend to derive any benefit from such holding for himself

Question 17

how is control that’s not necc exercised personally described?
Provide Latin word

Answer 17

This type of intention is usually described as the intention not to hold for oneself
but to hold for another (animus non sibi sed alteri habendi)

Question 18

Function of the law ito agent in exercising control on behalf of principal

Answer 18

Law interested in #principal>agent

#Agent doesn’t have legal remedies in terms of either the protective element of the real function or the legal-political function.

Question 19

Explain the Factor pertaining to the acquisition and retention of control

Answer 19

The law requires
clear and unequivocal physical acts regarding the thing in order for a person to acquire
control over it unilaterally.
This is due to the publicity function control

Question 20

What does the publicity function control state?

Answer 20

it must
be clear to third parties (i.e. the world) that someone has taken control of something

Question 21

Effects of the publicity function control

Answer 21

It is more difficult to acquire control through appropriation (occupatio), which is an
original method for acquiring control, than it is to obtain control through transfer,
which requires the co-operation of the initial controller.

Once control has been obtained, the law requires a lesser degree of control from the controller to retain it

Question 22

Second element of control

Answer 22

Intention/Mental element

Question 23

Why is the intention element also known as the subjective element?

Answer 23

It refers to the subjective mindset with which a person holds a thing
Therefore making its presents a question of fact.

Question 24

why is the intention element a question of fact?

Answer 24

Intention with which thing is held is purely subjective and need not correspond with the actual legal position

Question 25

Two objective requirements set by law for the animus element

Answer 25

1. A person must
   have the mental capacity to realise that he/she is in control of a thing.
   For this reason,
   it is impossible for infants or persons of unsound mind to have the requisite intention,
   even if the thing is in their physical custody.
2. a person must be conscious or
   aware of the fact that he/she is in control of a thing.
   In other words, that person’s will
   must be directed towards the specific thing.

Question 26

Exceptions to principle of person having to be conscious of fact that their in control of a thing

Answer 26

Hunter a hunter who set traps for birds or wild animals acquires control over them as soon as they are caught,
even if the hunter is unaware of their capture.
This is because the will of the hunter is
directed or projected towards capturing the birds or animals as soon as they are caught

exceptions from statutes- specifically concerning that in which control over is prohibited
Under these statutes the mere factual holding of these items is usually sufficient to constitute control for the purposes of criminal liability, even though it might be insufficient to establish control in property law.

Question 27

Various mental attitudes/ animi that exist

Answer 27

1. the intention of an owner(animus domini)
2. The intention to possess or control (animus possidendi)
3. Intention to hold a thing for oneself (animus rem sibi habendi)
4. The intention to secure some benefit for oneself through the holding of a thing (animus ex re commondum acquirendi)

Question 28

Reason for debate about precise meaning of and diff between meanings of diff mental attitudes

Answer 28

This is probably
due to the fact that scholars and courts generally fail to distinguish between the real and
legal-political functions of control when identifying the type of intention at hand.

Question 29

Various mental attitudes under the control based approach

Answer 29

the various mental attitudes may be reduced to two, namely the intention to hold as an owner (animus domini)

The intention to hold for one’s own benefit (animus sibi
habendi).

These two mental attitudes are based on the controller’s perception of ownership of the thing: Controllers who regard themselves as owners of a thing HOLD WITH THE INTENTION OF AN OWNER. Controllers who acknowledge that the thing belongs to someone else but nevertheless hold it for a different interest of their own HOLD THE THING FOR THEIR OWN BENEFIT

Question 30

What do all relevant consequences ito the real function of control flow from?

Answer 30

They flow from mere presence of ownership itself and not from what the owner subjectively thinks about it

(its redundant to investigate SUBJECTIVE intention with which owner controls their property as there are not legal consequences that flow from that)

Question 31

Protection of owner’s control via the legal-political function

Answer 31

Protected by spoliation remedy because he has witting control of a thing not because has possession of it.

Question 32

Second type of controller who holds thing with intention of an owner

Answer 32

Unlawful possessor
How?
1. Act as if they own it even though they
do not.
2. they perform most acts regarding the thing that an owner would normally perform as well, such as using and enjoying the thing.

They HOWEVER
do not have the entitlement to dispose (ius disponendi),

Question 33

Why do unlawful possessors not have the right to ius disponendi?

Answer 33

Unlawful possessors are unable to transfer more rights than they have
[nemo plus iuris ad alium transferre potest quam ipse habet]

Question 34

Section 1 of the Prescription Act on illustration of intention to control

Answer 34

stipulates that ‘a person shall by prescription become the owner of a thing which he has POSSESSED OPENLY and AS IF HE WERE THE OWNER thereof for an UNINTTERUPTED PERIOD of 30 YEARS.

Question 35

Restriction to the requirement that the person must openly possess AS IF HE WERE THE OWNER

Answer 35

Controller must not in any way recognise the stronger right of the owner

Question 36

Diff between Lawful and unlawful holders according to the animus sibi habendi (hold thing for their own benefit)

Answer 36

LAWFUL HOLDERS
>Control a thing with permission of the owner
>Will usually control thing ito a limited real right (pledge)
>Recognise stronger right of owner and dont contest it

UNLAWFUL
>Control thing without permission of the owner
> May be in good/ bad faith depending on whether they know that their hold is i contravention with legal rules and principles

Question 37

Diff between holding thing for one’s own benefit and intention to hold for someone else (animus non sibi sed alteri habendi)

Answer 37

When an agent holds a thing on behalf of the principal, it is the principal – not the agent– who controls it.

> Agent can however chnage the nature of this control

BUT principle in this context states
that a person cannot change the nature or basis of his/her control by merely changing
the INTENTION with which the thing is held
(nemo sibi ipse causam possessionis mutare
potest)

Agent has PUBLICISE that he now holds thing with diff intentions

Question 38

What form of evidence is required by the law to show that person now has diff intentions to hold the thing?

Answer 38

acts will normally be adverse to the interests of the owner

Question 39

Exclusive nature as one of the aspects of control

Answer 39

Strictly applies where people with conflicting interests contend for control over a thing

Question 40

types of control people with diff interests in a thing may have over that thing

Answer 40

Direct(immediate) control
Indirect(mediate) control
Share control

Question 41

what does Direct (immediate) control entail?

Answer 41

Actual physical domination of a thing

Question 42

Indirect (mediate)control

Answer 42

when a controller does not have direct physical power over a thing but another person does.

The indirect controller has mediate control through the holding of the immediate controller

Answer 43

Shared or joint control allows more than one person to exercise control over a thing at
the same time.
The only way in which more than one person can control a thing simultaneously is in the form of abstract, undivided share

Question 44

How are joint controllers able to maintain shared control?

Answer 44

They do not compete for control.

The moment disagreement
arises among them, one of them can obtain exclusive control by excluding all other
sharing controllers from the thing

Question 45

Diff between shared control and physical control of defined portions of a thing at the same time

Answer 45

It is impossible for more than one person physically to control undefined portions of the same thing simultaneously.
Joint controllers, on the other hand, share control of an entire thing simultaneously and do not compete for it.