Possession & Holdership Flashcards
What are the 3 types of relationships with a thing (ito possession/holdership)?
- Real right
- Personal right
- Unlawful
Ito the National Credit Act in whom does ownership vest?
It vests in the credit grantor (the bank) until the last instalment is paid.
The bank has a property right (i.e. ownership).
What are the 3 main groups of property relations wrt corporeal things?
- Ownership
- Possession
- Holdership
What is the main distinguishing factor between possession, ownership, and holdership?
Actual physical control.
Define physical control of corporeal things
Physical control of corporeal things is generally defined as actual, physical holding or domination of a corporeal thing.
Are incorporeal things treated in the same way?
No, because cannot be held or controlled physically.
Define ‘control’
Control of corporeal things (and a property relation based upon such control) is LAWFUL when it was acquired and is held in accordance with the applicable legal rules and principles.
Are the intentions of the controlling person relevant when control of corporeal property is established and held lawfully?
No. There is no such thing as an owner or a lawful holder in good or bad faith.
What is the most important consequence of lawful control?
That it is protected by law.
What protection does lawful control offer?
Usually the form of a remedy.
What are the 2 categories into which all forms of lawful control of corporeal things are divided?
- Ownership
2. Lawful holdership
What is lawful holdership?
Nothing more than a form of lawful control of corporeal property that belongs to somebody else.
Define unlawful control
Unlawful control of a corporeal thing is physical control which was acquired or is held in contravention of the applicable property rules, and will not be recognised or protected by law. The law may attach certain implications to unlawful control, even though it is not recognised or protected.
Are the intentions of the controller relevant wrt unlawful control?
Yes. The law attaches different consequences to unlawful control exercised in good or in bad faith.
To what does intentions, good or bad faith, refer?
The mental attitude with which they exercise their unlawful control.
What is bad faith intention?
When the unlawful holder is aware of the unlawfulness of her control.
What is good faith intention?
When the unlawful holder is unaware of the unlawfulness of her control.
What is the intention of the consequences of unlawful control?
Aimed at preserving the peace. The law does note allow anybody else to commit further unlawful acts against the original thief.
Does the law protect the thief?
No, it protects the legal order.
What are the 4 categories of unlawful control?
- Unlawful possessors in good faith
- Unlawful possessors in bad faith
- Unlawful holders in good faith
- Unlawful holders in bad faith
What is the distinction between unlawful possessors and unlawful holders?
People who act as if they are the owners of the property and those who do not act as if they are the owners.
What are the 3 distinctions used to classify ownership, possession, and holdership.
- Lawful or unlawful - Ownership and lawful holdership are the only forms of lawful control; possession and unlawful holdership are unlawful control
- As owner or for own benefit - Holdership, whether lawful or unlawful, is control of somebody else’s property.
- Good or bad faith.
