Rights Flashcards
‘Classical theory of property law’
One of the tools used to determine whether a right is real or not
If one relies on this model, it would mean that if all the requirements of the classical model of property law are met, a right will be a property right
Six basic principles of property law that form foundation of no of traditional property law rules
(also represent framework for creation of new property law rules)
*the principle of numerus clausus
*the principle of
absoluteness
*the principle of publicity
*the principle of specificity
*the principle of
transferability
*the principle of abstraction
anti-fragmentation
approach to property rights
This is the approach in which the six basic principles and their modern application in SA law are to be understood against
History and development of the anti-fragmentaion approach
closely linked to the abolition of feudalism stemming
from the French Revolution, and the associated ‘post-revolutionary, anti-feudal preferences’ found in modern law. One of the most succinct descriptions of the feudal system
as it pertains to our discussion, is provided by Van Erp, who notes that ‘[u]nder the
feudal system a tenant held land from a lord, thus at the same time creating a bond of
allegiance and a property relationship (“estate”) between them
duplex dominium.
A sort of theoretical versus factual ownership situation
In terms of ownership, it was then said that the there was a possibility that one could have various types of simultaneous ownership towards a single thing.
As suchin terms of this example, it was said that the lord had dominium directum
(direct ownership) and the tenant had dominium utile (ownership of use). However, since
not all things are equal, the lords, with dominium directum, were able to participate in society and government, while the tenants who had dominium directum were not, and as
such were side-lined from participating in political life
The principle of numerus clausus
Embodies that characteristic of closed systems of property law
entails that when one deals with real rights, only property rights and
methods of acquiring ownership falling within the accepted categories are allowed. This
is in contrast to the almost unlimited freedom that contracting parties have to create
(new, personal) rights between themselves
main purpose of this closed system of property rights
To ensure and promote legal certainty.
This results in relative certainty with regard to
the accepted categories of property rights that can be vested, as well as the legally accepted constructive modes of transfer of property
number of criticisms levelled at the principle of numerus clausus.
- it cannot keep up with the fast pace of societal development since it is a system that
is created without precognition and as such is incapable of dealing with new and unforeseen developments. - With regard to the application of the numerus clausus to the recognition of new categories of real rights, the South African courts have not been as strict as they could have been, while some authors opine that the South African law does not recognise a closed system of real rights at all
To main methods used to create new real right (to address criticisms of
principle of numerus clausus)
The creation of new real rights by means of legislation, and
the creation of new forms of real rights inside an established common-law category
New categories of real rights that have been accepted in SA because of changing socio-economic circumstances
*ownership
*servitudes
*pledge
*mortgage
*perpetual
*land lease
Main stumbling blocks for the
recognition of new and previously unforeseen things (or objects of property) in South
African law
PRINCIPLE OF NUMERUS CLAUSA
creates difficulties with novel
forms of things, since many of these new types of things are almost exclusively based on
contract (personal rights) and therefore inherently excludes real rights
REQUIREMENT IN LAW OF THINGS THAT THING MUST BE CORPOREAL TO BE AN OBJECT OF A REAL RIGHT
makes it difficult to recognise these digital/virtual/intangible
things, since they are, by their very nature, incorporeal.
First test used to determine whether particular right is personal or real
If all the
requirements of the classical model of property law are met, a right is a property right
Numerus clausus as gatekeeper of property rights
If a right is accepted under the numerus clausus it is a property right;
if not, it is a personal right
Principle of absoluteness
a real right provides absolute certainty to the holder of that right with regard to the
following aspects:
(1) The holder’s control over the property will be respected and protected;
(2) the holder’s right to the property will, in general, be given preference over other rights that third parties may have vested in that same property
The whole point (idea) of the principle of absoluteness
to place
the holder of a real right in an incontestable position vis-à-vis the property itself,
as a consequence of which the holder’s real right can be enforced against the whole world
(erga omnes).
