Test One Flashcards
What is the subtraction from the dominium requirement?
Together with the intention requirement, the subtraction from the dominium requirement is used by the courts to distinguish between limited real rights in immovable property and creditor’s (personal) rights.
Why is it important to distinguish between limited real rights and creditors rights?
- In terms of section 63(1) of the Deeds Registries Act only real rights in land can be registered.
- Real rights are absolute and can be enforced against successors-in-title, while creditor’s rights are relative and can be enforced only against a specific person (the debtor).
Where does this requirement come from?
Ex parte Geldenhuys
When can it be said that an obligation is a burden on the land?
An obligation may be said to be a burden on the land when it subtracts from, or takes away from, the owner’s entitlements, so that all later owners (successors-in-title) acquire a right of ownership which is “diminished” by the burden which is the other side of someone else’s limited real right.
What the the branches of Public Law?
Constitutional Law
Administrative Law
Criminal Law
Define Public Law
Public law is that branch of the legal system which regulates relations between the state as the bearer of political or state authority and the state’s subjects as subservient to that authority. Political or state authority is the power of the state to rule over the citizens even with force if necessary; power of the state to coerce us into doing or not doing. Always vertical relations.
What type of relations are public law and why?
It also establishes the bodies and institutions that make up the state and regulates the mutual relations between state and government bodies. Given that the state always acts with political or state authority in public law relations, we refer to these relations as vertical relations.
Define Private Law
Private law is that branch of the legal system which regulates the relations between persons without either person being able to resort to political or state authority against the other. Private law regulates the relations between persons by means of the concepts of rights and objects. In this respect private law provides that persons may acquire rights in objects, and those other persons have a duty to respect those rights.
Why is Private Law considered horizontal relations?
Given that neither of the parties acts with political or state authority in private law relations, we refer to these relations as horizontal relations.
Provide an example of Private Law
An example would be the bank and its customers; the bank is clearly much more powerful. Another example is a telecommunications company and the client. In theory it is a horizontal power relation however in practice this is not always the case.
State the branches of Public Law
Delict Succession Property Persons Property law is made up of a mix of public and private law principles specifically in the way the constitution is bringing a new system of property. The Constitution has introduced multiple public law practices into property law.
Explain the relationship between private law and objects
Private law provides that persons may acquire rights in objects.
As we have also seen, other persons (third parties) are under a duty to respect those rights. If a third part does not respect these rights then the law will provide a remedy.
Define Natural Persons
These are human beings. In South Africa, every human being has capacities, rights, and duties and hence every human being is a person in a regular and legal sense of the word. In RDL, deformed children were considered objects.
Define Artificial or juristic persons
These are associations of people and bodies other than natural person upon whom the law has bestowed a legal personality. Not every business or trade union is a juristic person. An entity which wishes to be classified as a legal person must comply with the formalities, rules and procedures laid down by the law. These can be found in an act of Parliament or within the rules of the common law.
What is an important consequence of legal personality being an artificial creation of the law?
An important consequence of the fact that legal personality is an artificial creation of the law is that it may be conferred, not only on human beings, but also on other entities such as companies, universities, para-state organisations and trade unions. South African private law therefore recognises two categories of persons, namely: natural persons and artificial/juristic persons.
