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law > Syscon March test > Flashcards

Syscon March test Flashcards

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1
Q

which claim is stronger? in rem or in personam

A

in rem

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2
Q

what do claims in rem do?

4

A
  1. a direct right of control
  2. absolute right of pursuit
  3. requirement of delivery
  4. publicity of the delivery
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3
Q

what does a direct right of control mean?

A

when there are multiple or competing claims . the owners claim in rem trumps anyone else’s claim in personam

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4
Q

what does absolute right of pursuit mean

A

an owner is unlawfully dispossessed of something they have a right to claim it back , a claim in property trumps a claim in contract and could cause conflict resulting in invalidity of contract ( the person losing a possession must claim against the person who sold it to them)

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5
Q

what is requirement of delivery

A

when an owner is transferring right of ownership in a specific property to another, they must deliver the property to that person

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6
Q

what is publicity of the delivery

A

generally when delivery takes place an element of publicity is needed ( i.e land ownership- transfer with deeds registry)

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7
Q

which type of possession is protected? physical or legal?

A

legal possession

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8
Q

what are the two questions to know whether or not a possession is protected in law by a claim in rem

A
  1. requisite physical control over the thing (corpus)

2. mental element for possession ( animus)

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9
Q

what is a good faith possessor

A

when a person who is in possession of a thing thinks they are the owner

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10
Q

what are the two types of ownership ( acquisition)

A

derivative and original

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11
Q

what is derivative acquisition

A

when a person acquires ownership from another through an exercise of both their wills , an intention to transfer from one and an intention receive from the other . this is coupled with delivery

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12
Q

what is original acquisition

A

all other cases where ownership is acquired that is not derivative

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13
Q

Original Acquisition: occupation

2

A
  1. acquiring ownership of property that had no owner

2. no previous owner, so person who acquires the property becomes the owner

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14
Q

Original Acquisition: accession

3

A
  1. property of two owners mixed together , the owner of the principal thing becomes owner of the accessory
    - accessory must be lose in its identity
    - the incorporation must be inseperable
  2. the owner of principal becomes owner of whole
  3. the owner of the accessory before it acceded to the thing has a claim in personam of unjustified enrichment against the the owner of the whole
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15
Q

orignial acquisition : fusion

2

A
  1. when the property of two different people becomes mingled and is inseparable
  2. bother are considered owners and own the final product in proportion to their contributions
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16
Q

original acquisition: mixture

2

A
  1. when the property of two different people becomes mingled and is separable
  2. there is no change of ownership , you just recover your portion because they are seperable
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17
Q

Original acquisition: specification

3

A
  1. acquiring ownership of one thing that belonged to another by making a new thing from it
  2. reducibility test - if the materials can be restoed to their former state then the owner of the materials owns the end product, otherwise the maker is the owner
  3. if the maker contributes some of the materials then the maker is always the owner
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18
Q

original acquisition: treasure trove

2

A
  1. valuable property that was hidden away and not “abandoned” and hence cannot be treated under the rules of occupation
  2. the person who finds the property does not become the owner as the property was not abandoned or ownerless
19
Q

original acquisition: prescription & conditions

2

A
  1. becoming the owner by possessing something for a certain period of time under certain conditions
    - just cause
    - acquisition in good faith
    - prohibition of prescription of things that have been stolen
    - holding for the time required
  2. the person who fulfils the requirements becomes the owner of the property , the previous owner has no claim
20
Q

what are the two elements required for derivative acquisition
(2)

A
  1. delivery

2. intention to transfer ownership

21
Q

what does delivery comprise of

2

A
  1. physical transfer

2. underlying cause which explains the transfer

22
Q

what are the requirements for the transfer of ownership by delivery
(3)

A
  1. a person can acquire ownership through derivative acquisition ( thieves cant transfer ownership but can validly sell)
  2. there must actually be physical delivery of the thing
  3. there must be some reason or cause that gives the delivery its effect in law e.g transferring something to complete a sale
23
Q

what are the different types of simple delivery?

4

A
  1. long hand delivery
  2. short hand delivery
  3. agreement on retaining possession
  4. symbolic delivery
24
Q

what is long hand delivery?

A

effectively just pointing out the thing you’re selling

25
Q

what is short hand delivery?

A

very rare, lend something to someone that you later sell them

26
Q

what is agreement on retaining possession?

A

when you agree to sell someone something but agree to keep hold of the thing for a certain period of time

27
Q

what is symbolic delivery?

A

the handing over of the means required to access the thing actually being sold

28
Q

what is unjustified enrichment?

A

when one person is unjustly enriched at another’s expense , the person who was unjustly enriched must make restitution with the other party
- other person has a claim in personam

29
Q

what is a servitude?

A

a right in rem less than the ownership of the property of another involving the use of the other’s property in a defined way
- carved out of the full dominium of the owner and exercised by another person

30
Q

what are the two types of servitudes ?

A
  1. praedial

2. personal

31
Q

what is a praedial servitude

A
  • two pieces of land owned by different persons
  • praedial servitude benefits one property in favor of the other property
  • passive in the nature and thus cannot impose an active or positive duty on the owner of the servient land
  • created by formal delivery / legacy in will/ long enjoment of period of 10 years / by reservation of person selling land
  • termination by agreement of two property owners
32
Q

what is a personal servitude

A
  • burden property of another in favour of a particular person
  • holder of a personal servitude has a claim in rem over the property which the personal servitude extends
  • created by agreement
  • terminated when holder dies
33
Q

what is an usufruct

A

a person is granted the right to enjoy the fruits from another’s property
common in wills i.e spouse leaves house to kids but grants surviving spouse usufruct to live in the house

34
Q

what is the difference between rustic and urban praedial servitudes ?

A

rustic is agricultural , urban is buildings

35
Q

what is the distinction between praedial and personal servitudes

A

does the right in rem attach to land or a person

36
Q

what is real security

A

if a creditor is not comfortable with the ordinary protection the law would give him or should the debtor not be able to pay him they may try to get real security for the loan.

i.e mortgage or bond

37
Q

what is an obligation

A

legal bond where we are bound to perform something according to the laws of the state
usually in the form of having to do something or pay an amount of money to someone

38
Q

what claim is an obligation protected by

A

claim in personam

39
Q

how is a contract formed?

A
  1. offer

2. acceptance

40
Q

what is the capacity to contract?

A
  1. a person must be minimum age and sound mind
41
Q

what is privity of contract?

A

cannot be placed under obligations to a contract to which you are not party, ninds oly the parties to it
can however confer a benefit on a third party

42
Q

what is breach of a contract?

A
  • claim for damages and compensation

- the contract is still valid

43
Q

void contracts

A
  • unenforceable and if performed the law of unjustified enrichment applies
44
Q

difference between creation of an obligation and evidence of an obligation

A
  • document saying it has been concluded is merely evidence
  • conclusion of the correct form of question and answer forms the contract
  • verbal contracts can be valid

law (17 decks)

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