introduction and Original Acquisition Flashcards

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1
Q

define common law

A

laws developed from disputes i.e. a new rule is announced in the course of resolving a dispute.

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2
Q

define civil law

A

rules are formulated in advance in the authoritative text

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3
Q

what is foundations of private law

A

the rules built up from Roman Law

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4
Q

in rem

A

law of property. We claim that some corporeal thing is ours or that we are entitled to something. Enforceable against the whole world.

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5
Q

in personam

A

law of obligations. Someone owes us something. Personal rights. Rights against individual persons.

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6
Q

real rights

A

rights in things which are enforceable against anyone

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7
Q

name four types of real rights

A
  • ownership
  • usufruct
  • servitudes
  • real security
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8
Q

which of the real rights can the others not exist without

A

ownership

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9
Q

define ownership

A

is a right in a thing and it can be enforced against the world. The relevant action is the vidicatio.

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10
Q

difference between possession and ownership

A

possession is in essence a question of fact and by contrast ownership is question of right

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11
Q

animo et corpore

A

have possession by the mind and by the physical act

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12
Q

in order to possess something you must……..

A

have effective power of control over it

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13
Q

what is the good faith possessor

A

someone who possesses a thing in the honest belief that he is the owner, even though he is not

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14
Q

what are the two types of acquisition

A

derivative acquisition of ownership and original acquisition of ownership

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15
Q

what is derivative acquisition

A

when the previous owner conveys or transfers ownership to another

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16
Q

what is original acquisition

A

when a person acquires ownership of a thing without deriving the title from any previous owner

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17
Q

define corpus

A

the requisite physical control over a thing required to be a possessor

18
Q

animus

A

the requisite mental element for possession, which is the intention to hold and control the thing as an owner

19
Q

define occupatio

A

acquisition of ownership of property that has no owner (res nullius) by taking possession of it

20
Q

how do you retain ownership of a wild animal if you have lost possession of it?

A

it is possible for a wild animal to recover its natural state as an unowned thing. Retains natural state if person lost sight of animal or too difficult to pursue after losing possession

21
Q

Note the rules regarding animus revertendi

A

animal must have habit of returning

22
Q

can you take ownership of animal even if on other person’s land?

A

yes

23
Q

accessio (3)

A
  • a means of acquiring ownership of something that belongs to another by its incorporation. -Accession happens mechanically even if the parties do not want it
  • . the accessory always accedes to the principal, and the owner of the principal becomes the owner of the accessory
24
Q

If George builds a house on Sarah’s land who owns the house?

A

Sarah, land is always the principal

25
Q

what is the test of functional subordination

A

If two things (X & Y) are attached and X serves a function in relation to the use of Y, then X will usually be the accessory and Y will usually be the principal;

26
Q

what are the conditions for accession to take place

A

the attachment must be (within reason) inseparable for accession to take place. It depends on the extent to which there is a permanent physical attachment to the principal object.

27
Q

mixture

A

property belonging to two different people is mingled separably. There is no loss of identity; the objects could be separated again No change in ownership, but consider the practical result. Vindicate what’s yours in proportion to what you put in

28
Q

confusion/ fusion

A

property belonging to two different people is mingled inseparably. If parties agreed to the merger and made no further agreement on the point, then they will own the whole in common. But if the parties did not consent to the process then they will own the whole in proportion to the extent of their respective contributions

29
Q

specificatio

A

a means of acquiring ownership of something that belongs to another by making a new thing from the property belonging partly or wholly to the other. Loss of identity.

30
Q

in the case of specificatio if taken someone elses property and made something new, what did the romans say would happen?

A

if the thing could be reduced to its constituent parts, then those constituent arts would be returned to the original owners. But if the thing could not be reduced to its constituent parts, then the maker owns the new thing

31
Q

difference in specificatio in Roman Law and Scots law

A

in roman law it did not matter if you took someone’s property in good or bad faith, but in scots law have to do it in good faith (not essential to know)

32
Q

when do the rules of mixture or confusion apply

A

where the merger results in no change of identity

33
Q

when do the rules of accessio apply

A

where the merger results in a loss of identity by one thing to another and the thing cannot be separated

34
Q

when do the rules of specificatio apply

A

where the merger of two things results in both losing their identity and in the creation of a completley new thing, that cannot be reduced to its constituent parts

35
Q

what are the fruits of a thing

A

products that come from the position are the property of the original owner

36
Q

what happens when a good faith possessor cultivates land belonging to another and then harvests the fruits

A

the good faith possessor becomes owner of the fruits on separation/ Once the truth about ownership of the land becomes known, the law says that the good faith possessor does not have to account for any fruits he actually consumed. Account means give the value of possession in terms of money. Eating and sale count as consumption.

37
Q

treasure trove

A

not in force in Scotland today. This is when valuable have been hidden for so long that their owner can no longer be discovered. In this case the treasure goes to crown, the finder has no right to it.

38
Q

usucapio

A

that one can become an owner of a thing after possessing it for a period of time

39
Q

what are the prescriptive periods for movable possession, land and servitude

A

movable- 1 year
land- 2 years
servitude- 10 years

40
Q

what are the conditions of usucapio

A
  • uninterrupted possession of the thing for the period lay down by law
  • possession had to have been acquired in good faith
  • possession had to have been acquired on the basis of iusta causa traditionis ( the thing must have been acquired in circumstances that would normally have resulted in the transfer of ownership
  • the thing had to be capable of being owned
  • only if the object had not been taken by force
41
Q

mancipatio

A

the rule that some items were transferred through a certain ceremony

42
Q

remedies. If someone is deprived of ownership of a thing as a result of original acquisition of the thing by another. A builds a house on B’s land. B owns the house. But does A have remedy?

A

yes but only if the two conditions were satisfied:
- A had retain possession of the house ]- A had to built the house in the honest belief that he was in fact the owner of the land