Module 2- What Are Property Rights Flashcards
How does Sonnekus distinguish between “the law of things” and the “law of property”?
The law of things deals firstly with the norms that govern the relationship between legal subjects and their tangible things that forms part of that subject’s estate. In a society that recognises private or individual property rights as the starting point, it is accepted that not all tangible goods are available to the whole society or society’s benefit. The law of property organises the relationship and therefore the applicable competencies of subjects with regards to the tangible goods that complies with the description of a “thing”.
How does Van der Merwe define the “law of things”?
The law of things is the system of legal norms that regulates the legal relationship between legal subjects and “things” as legal objects.
How do Van der Walt and Pienaar define the law of property?
The law of property deals with the rights and actions of persons with regard to things and other forms of property, as well as other relations between persons and property. It describes the ways in which property rights can be acquired and exercised lawfully and the remedies by which they are protected against infringement, as well as the legal results and implications of other relations between persons and property.
How do Mostert, Pope et al. define the function of the law of property?
The formal function of property law is to harmonise different individual interests in respect of property; to guarantee and protect individual rights (and sometimes group rights) to property; and to control the relationships between natural or juristic persons, the things to which they are entitled, and the rights and obligations that arise from these relationships between different persons in respect of things.
Are the “law of things” and the “law of property” the same thing?
The “law of things” and “law of property” are NOT synonymous. Property is a much wider terms than “things”, and refers to a wide variety of patrimonial assets. While all things are property, not all property is things. It is important to bear this in mind, as some scholars argue that a course like this should only focus on things.
In general, what does the “law of things” refer to?
In general “law of things” will only refer to the private relationship between a legal subject and a legal object.
In general, what does the”law of property” refer to?
“Law of property” refers to a broader scope of relationships that includes public law relations with a proprietary character and includes incorporeal objects.
How did the traditional “law of things” develop?
Traditional law of things developed around certain principles. These principles provided a framework for development.
What are the basic principles that the traditional law of things developed around? -6 points
1) Numerus clausus principle;
2) Principle of Absoluteness;
3) Publicity principle;
4) Specificity principle;
5) Transmissibility;
6) Abstract principle.
How has the Constitution changed the basic principles of the traditional law of things?
Some scholars will argue that the Constitution does not influence the law of property, as Constitutional law deals with public relationships, while the law of property should only look at private relationships that leave very little room for the Constitution. In light of s 8 of the Constitution (application of the BoR), this is a very difficult argument to make.
What does the Numerus clausus principle refer to?
The numerus clausus principle refers to the close systems we find in property law. If we look at delivery, for instance ways in which property can be transferred, original acquisition methods. Acquisition of property must therefore fall in one of the recognized categories of transfer of property for it to be recognized. There used to be a closed system of real rights.
Why would one want a closed system such as this?
Well, if there are only certain ways in which property can be transferred, it helps with legal certainty. Legal certainty is good insofar it enables people to position themselves and make decisions with relative certainty about the outcomes.
In a changing society, why might such closed systems hamper change?
In a changing society, such closed systems might hamper change. Constructive delivery, for instance, is one of the fields that had to allow more forms of delivery to keep up with commercial demands. New real rights were also created: think of the apartheid 99 year lease in cities, mineral rights, sectional titles etc.
What does the principle of Absoluteness entail?
The idea that property rights are more or less absolute. Real rights gives the holder of such a right absolute certainty that his right will be respected and protected, and even if other people acquire rights in his property, his rights will always receive preference. A real right can also be enforced against everybody. Of course personal rights are also absolute in the sense that they must be respected by everyone, but a real right is more absolute.
What is a practical example of the principle of Absoluteness?
Ben agrees to sell his car to Connor. Before Ben delivers the car to Conner, he sells and delivers it to Anne who offered a higher price for it. Connor, in this case, only has a contractual claim against Ben (for the delivery of the vehicle), and can only claim damages for breach of contract. He cannot claim the car, as the car was never delivered and ownership therefore not transferred. Because the car was delivered to Anne, she became owner, and her ownership of the car therefore needs to be respected by everybody.
What does the Publicity principle entail?
It requires that the real relationship between the legal subject and legal object must be clear, and publicly visible. Since the rights must be respected, it is important that it must be clear, who, for instance, is the owner of a thing. It should be clear which rights are transferred to whom at what time. This is easy, for instance, with real delivery, where the mere handing over of a thing shows that ownership is transferred (think when you buy a chocolate at the shops). With immovable property this function is adhered to by registering property in a register that is available for public viewing.
Why might the principle of Publicity be a problem in the case of a bona fide possessor?
Think of the person who mistakenly takes your textbook thinking it is theirs. To the outside world it might look as if it is theirs, when in fact it is not.
In what other instances can publicity often be a problem?
With certain forms of delivery, publicity is often a problem. Sometimes ownership can be transferred without the new owner being in control of the object. Publicity also plays a role in original acquisition of ownership.
What does the principle of Specificity entail?
Specificity implies that a real right can only exist in respect of certain things. An owner, for instance, does not have a general right with regards to all his property, but has a specific real right in respect of each thing individually. If you sell “all your property”, the transfer of ownership of each thing will be handled individually. Think for instance when you want to sell all your textbooks at the end of the year. Even if you sell them all to one person, the law will look at the transfer of each book individually. If you encumber your property with a real right, you also have to specify all the property that will be encumbered individually. Like with all principles, there are exceptions. For instance, a covering bond does not specify property, but an amount.
What does the principle of Transmissibility entail?
Real rights can be freely transferred to heirs, for instance, which means that transmissibility is another principle of property law. You cannot transfer your personal rights, as they bind you personally, but it is possible to, for instance, transfer your ownership to your child through a will. Transmissibility is limited when you have a bond over your house, for instance. You can only transfer your property once the bond is paid.
What does the Abstract Principle entail?
The abstract principle dictates that the mere intention of the parties to pass ownership is sufficient to transfer such ownership, and that one does not need to look at the underlying causa for such transfer.
Therefore, if the contract of sale that preceded the transfer of ownership is invalid, it does not influence the transfer of ownership self. The real agreement to transfer ownership is treated in the abstract and independently from the contractual agreement of transfer.
Where there is an absolute statutory prohibition on concluding certain contracts, for example, the abstract principle will not be adhered to. You can also contract that the transfer will only be valid if the contract is valid.
What is a “legal subject”?
A legal subject is any person (natural or legal person) that can hold rights and incur duties with regard to an object.
What are the categories of legal subjects?
There are only two categories of legal subjects:
1) Humans; and
2) Legal persons such as companies, clubs etc.
How does the law look at “property”?
The law will look at “property” as rights that people have with regards to things.
What does the doctrine of subjective rights entail?
A legal subject is a natural OR juristic person who can acquire right and duties in terms of a legal relationship. A legal object is anything in respect of which a legal subject can acquire and hold a right.
What is a legal object?
A legal object is anything in respect of which a legal subject can acquire and hold a right. A legal object is usually classified according to its nature. A thing is, for instance, a legal object in the Law of Property.
What is a personal right?
It is a subjective right that has performance as its object (think contract or delict).
What is a personality right?
A personality right is a subjective right that has an aspect of personality (such as your dignity or privacy) as its object.
What is an immaterial property right?
An immaterial property right is a subjective right that has a type of immaterial property (and this includes subjective rights) as its object.
How do “real rights” differ from other subjective rights?
they can be enforced “against the world”. They impose duties on everyone else to respect those rights. People must respect your subjective right to your property. All people.
Of course all people must also respect your contractual right that you might have with B.
But to say that your property rights can be enforced against the world implies that even if you don’t have any legal relationship with a person (ie signing a contract with B), you can enforce your property right against that person should they infringe on it.
Think for instance: you lend your car to B. B without your permission, passes it on to C. You, without having any other legal relationship with C, can institute a rei vindication against C to claim back your vehicle.
