Original Acquisition Flashcards
Property ownership can be acquired in which two ways?
Unilateral process.
- Ownership is acquired without cooperation of current property holder and may even be against their will.
- Automatic transfer of ownership, transfers by law once all requirements are met.
Bilateral process.
- Ownership is acquired from another property holder through mutual agreement.
- Transfer of ownership involves cooperation of current owner who wishes to transfer ownership.
What are the two modes of original acquisition?
- Inaedificatio (movables attached to immovables).
- Accession of movables (movable attached to another movable).
Briefly discuss Inaedificatio.
- Refers to movable thing being attached to an immovable thing, in building
context, through human intervention, which then becomes accessory to land. - For example, benches in class (was movable, but is now bolted to the floor).
Which requirements must be met for Inaedificatio to take place?
Macdonald case.
- Nature and purpose of attached movable.
- Manner and degree of attachment.
- Subjective intention of the annexor.
Discuss the manner and degree of attachment requirement.
- If it can be removed easily without damage, Inaedificatio did not occur.
- If removal of movable thing causes damage to movable thing or land,
Inaedificatio took place.
Discuss the subjective intention of the annexor requirement.
- If annexor intended for movable to permanently form part of land, Inaedificatio took place.
- If not, movable still enjoys independent legal existence.
There’s a distinction between two different approaches used to apply three
requirements set out in MacDonald case, discuss these approaches.
Traditional approach.
- Focuses on objective factors (nature or purpose and manner or degree of attachment) to determine if Inaedificatio occurred.
- The subjective intention of the annexor or owner is only considered if the objective factors are inconclusive.
New Approach.
- Prioritises the subjective intention of the annexor or owner.
- The first two factors are used only as aids to determine this intention.
What is the criticism of the new approach?
- This approach conflicts with principle of original acquisition of ownership, which should rely on objective requirements rather than subjective intentions.
- It undermines publicity principle, which requires property rights to be clear and public.
- Courts may have been influenced by commercial policies to protect interests of movable property owners, ensuring they can reclaim their property in cases of non-payment.
What is the suggested solution?
- Develop ius tollendi (right of removal).
- To protect commercial interests of movable property owners without
compromising rinciples of original acquisition and publicity.
Briefly discuss the accession of movables.
- When two movables are attached to one another through human intervention in such a way that they become a composite thing.
- Attachment must happen through human intervention, not natural intervention.
- Owner of principal thing then becomes owner of the composite thing.
What are the requirements for this kind of attachment?
- Principal thing and accessory thing must still be recognisable after attachment.
- Must be difficult to separate principal thing from accessory thing.
- Attachment should not amount to spesificatio.
What are the four special applications developed for different instances in which movables
are attached to one another?
Intenxtura (weaving).
- When material is woven into cloth, the cloth is considered the principal thing, even if the thread is more valuable.
Scriptura (writing).
- When someone writes on paper, they acquire ownership of the paper and must supply equivalent paper to the original owner.
Pictura (painting).
- The painter becomes the owner of the cloth or board if the painting is worth more than the base material.
Ferruminatio (welding).
- The owner of the larger part of a composite thing becomes the owner of the smaller welded part, unless the smaller part is more valuable.
