Term 3 Test Flashcards
Criteria for whether an accessory thing has become immovable / acceded to the land (as per Macdonald)
- Nature and purpose of attachment. Requires accessory thing to be capable of permanent attachment to principal thing
- degree and manner of attachment
- subjective intention of annexor
Konstanz
Components not impossible to remove and the other party had expressly reserved ownership. Court felt that the INTENTION of the owner of the movable PREVAILED and thus accession did not take place.
Dreyer
Shows requirements for a real agreement. Must have authority to transfer ownership - here authority was not present and therefore there was no intention either.
[REAL AGREEMENT; AUTHORITY]
Legator Mckenna
McKenna did have authority, therefore legal cause is valid. Applies to movables and immovables.
Where fraud / misrepresentation taints a transaction ownership may not transfer.
Regardless of whether contract of sale was valid or not, there was a real agreement.
Quartermark investments v Pinky
ownership will not pass if transaction is tainted by fraud (even though registration may have taken place)
Fraud = invalid real agreement.
court must always, in case of invalid obligatory agreement, determine whether invalid obligatory agreement has the consequence that parties dont intend to transfer.
Groenewald v Van Der Merwe
Emphasises importance of pointing the property out and inspecting it when long hand delivery is taking place.
groenewald clearly hadnt sufficient mental attitude: he did not intend there and then to acquire and exercise control over the thing as his own
van der merwe had explicitly walked around machine in presence of transferor stating machine was henceforth his - showing necessary mental attitude.
Oriental products
mr qu did not having capax to transfer ownership but oriental lost right of ownership through estoppel.
Sets out requirements for valid reliance on estoppel: misrepresentation and negligence.
Oriental negligently misrepresented sitch to 2nd purchaser and world at large that the registration of transfer in deeds office was true reflection of state of affairs. thus true owner estopped from vindicating ownership.
Requirements of derivative acquisition of ownership
real agreement and conveyance
thus owner must intend to transfer ownership to buyer, buyer must intend to acquire ownership, buyer must effect payment in regard to thing, seller must deliver thing to buyer.
If a sale is for cash, when does ownership transfer?
upon payment and delivery with a real agreement.
If a sale is for credit, when does ownership transfer?
ownership transfers upon delivery with a real agreement - no payment necessary at that time.
requirements of estoppel
- Misrepresentation by owner through conduct or otherwise that the other person was owner of it or entitled to dispose of it.
- Representation must have been relied upon by person raising estoppel and such reliance must have been the proximate cause of his detriment
- person raising estoppel must have acted to his detriment
- must have been fault on part of person making representation.
[Misrepresentation + conduct; detrimentally relied upon misrepresentation; act to detriment; fault]
Requirements for accession
Must first determine whether joined things are movable / immovable
Whether there has been a join between 2+ things for composite.
join must be permanent and sufficient
must be possible to identify principal and accessory.
Appropriation
Currently unowned property capable of private ownership - either never been owned or used to be owned but subsequently abandoned. Must be corpus and animus.
Authority for movables to movables + what does this authority tell us?
Khan. Says thing that gives the composite thing its character, form and function is the principal thing.
Manufacture
New product from items wholly / in part belonging to someone else. Maker will acquire ownership and previous owner has a claim.
