Property chapter 2 Flashcards
understanding property and things
what is the doctrine of legal subjectivity
persons (legal subjects) can bear rights, duties and entitlements to a thing (legal object)
why do we need to understand what a thing is
The objective is to know when a proprietary remedy can be used.
explain characteristic corporeality/ incorporeality
− Corporeal= tangible (can be touched), can be perceived by the senses, it takes up space eg. A chair. Incorporeal= intangible, non- physical eg. Sound, a right
− Corporeals are protected in PL because of the ease of distinction between rights. If we say that a thing must be corporeal then we exclude that ‘a right’ may be a thing.
− ‘A thing’ attracts certain consequences.
− The question whether incorporeal objects can qualify as things is controversial. There are arguments both for and against treating incorporeal objects as property. (pp 21-22)
− The realities of legal practice require that the characteristic of corporeality should not be regarded as an essential characteristic or prerequisite of property but rather seen as a common characteristic.
discuss the approach to Incorporeal things
The scholar that follows the strict approach would say that a thing has to be corporeal. Some scholars say that if we make this category too bit then we are blurring the lines between property law and contract law→ huge dogmatic objection against making the category of things protected by property law too big. Our legislature and out courts takes a much more pragmatic approach. They acknowledge that one can hold a usufruct (a right) over a mineral right (a right), thus one could have a right over a right. Or that one could hold a lease (a right) over a mortgage (a right). In this case the mineral right functioned as an object. Real security rights over mortgages are possible. The courts have also recognised the use of certain incorporeals have attracted proprietary remedies. The courts and the legislature have gone further than the scholars were willing to. Thus, we cannot say that corporeality is necessary to classify an object as ‘a thing’. There are too many exceptions → strict v narrow approach. Corporeality is a frequent feature of ‘a thing’ but it is not a prerequisite.
characteristic: impersonal nature
− Humans or vital human body parts cannot be regarded as ‘things.’ They function as legal subjects, not objects. Slavery was abolished many years ago.
− Blood for transfusions, organs for transplantations, sperm and ova for fertilisation are donated and not sold. Hair is a renewable body part and thus can be regarded as a ‘thing’ as it is not a vital organ.
characteristic: independence
− A thing must have an independent legal existence.
− The law does not require that things be physically independent from the environment- judicial independence suffices. Therefore, the law may intervene and render something independent which otherwise would physical be part of another thing. For example, a house does not exist independently from the land on which it is built.
− Land is independent only once it is surveyed and indicated on the diagram required to enable transfer or land to an individual. A part of a building (a flat) can be legally independent from the rest of the building because of the Sectional Titles Act.
− Components of a composite entity lack legal independence until they are physically or juridically individualised. For example, a house is usually sold with all its fixtures but certain items can be excluded in the contract of sale. A mirror attached to the wall can be contractually excluded and then removed or it can be removed before putting the house up for sale. You may not remove something if it will damage the building.
characteristic : appropriability
− A thing must be susceptible to human control.
− Control= the possibility of enforcing and protecting the right in the thing.
− For example, the sun and moon do not qualify as things because they cannot be controlled. Air is not a thing unless it has been bottled or put in a gas cylinder.
characteristic: useful and valuable
− A thing must be of use and value (economic or sentimental) to a person.
− To determine the use and value, the object must be considered in context. For example, a dead leaf has no value but a collection of dead leaves and other plant matter may be used as compost.
what are the 5 characteristics of a thing
- corporeality (debated)
- impersonal nature
- independence (juridically)
- appropriable
- useful and valuable
what is the relationship between things, rights and property
• Rights relating to the assets (tangible things, immaterial property or performances) in one’s estate → patrimonial rights
• Thing- any corporeal or incorporeal, independent object, which does not form part of a human being, which may be controlled by humans, and is of use and value to them.
• Right- a legally valid claim to use or exercise a right over property.
• Property- Property includes the term ‘things’ but the term is also broader. It refers to the object (thing), the relationship with the thing (right) and it includes the constitutional claims that one may have with regards to the object. • Mainly concerned with patrimonial rights that flow from ‘things’ → real rights
• ‘Things’ cover only some of the interests that may form part of a person’s estate. The concept of property has a much broader meaning than ‘things.’
− Refers to the object itself (same meaning as ‘thing’)
− * Refers to the right to a specific object
− * Includes claims that a person may have against others, regarding her things.
what is the difference between immaterial property and incorporeal things
incorporeal things :is a legal right in property having no physical existence. … Under common law, incorporeal property was rights that affected a tangible item, such as a chose in action (a right to enforce a debt). Incorporeal is the opposite of corporeal, which is property that can be perceived.
immaterial property:The legal definition of Intellectual Property is broad and inclusive of many areas, such as music, inventions, law, etc. Intellectual property is defined as “An intangible right protecting the products of human intelligence and creation, such as copyrightable works, trademarks and trade secrets.
discuss s25 of the constitution
- S 25 of the Constitution is the property clause- it guards against unconstitutional deprivation and expropriation (to take possession) of property. The function of the property clause differs from the function of property law remedies and thus the definitional issues that arise in the constitutional context are different to those that arise in the private law context. For example, there is no controversial issue of whether property must be corporeal. It is assumed that the term ‘property’ includes any patrimonial right to be protected or regulated.
- S 25 does not provide a comprehensive definition of property. The courts are careful not to restrict the constitutional definition and are inclined to interpret the property concept generously. The open- endedness of the constitutional property concept influences private law in the acknowledgement of more incorporeal, economically valuable assets as things.
negotiability: intra commercium
• If things are privately owned (res in commercio) they are distinguished between things that are currently owned (res alicuius) and things that are not currently owned (res nullius).
• If things are currently owned, they may be owned by individuals (res singulorum) or corporate bodies (res universitatis). Things that have been lost (res desperditae) still belong to someone and thus qualify as res alicuius.
• Things that are unowned may be divided into things that have never been owned (res nullius proper) and things that were owned but later abandoned (res derelictae).
− Things that have never been owned (res nullius proper) include wild animals or birds, fish and products of the sea. One can acquire ownership of these things by appropriation (by catching or taming the animal). Ownership is lost if the animal is escapes and regains its freedom.
− The Game Theft Act excludes the common law rule that wild animals that escape from their owners become res nullius. The animal does not become the property of the hunter but rather they remain the property of the person on whose land they are kept/captured.
Negotiability: extra commercium
• If things cannot be privately owned, they are distinguished between things that are common to all (res omnium communes), things that are public (res publicae) and religious things (res divini iuris).
− Religious things category (res divini iuris) has become obsolete as graves, graveyards ad tombstones are now privately owned.
− Things common to all people (res omnium communes) belong to no one in particular and everyone at once. These are administered by the state. For example, air, running water, seashore. They cannot be privately owned.
− Public things (res publicae) belong to an entire civil community and are often referred to as state property. The state does not own these things but rather holds them for the benefit of its subjects. For example, public roads, public rivers and harbours.
− This property may not be freely used by everyone and the use of many resources is strictly regulated, eg. Mineral and petroleum resources.
what are the categories of classification according to nature
- corporeality vs incorporeality
- single vs composite
* fruits and components - movable vs immovable
- divisible vs indivisible
- fungible vs non fungible
- consumable vs non consumable
