Topic 6: Ownership

Question 1

What is a delictual remedy and what the 3 remedies available for it?

Answer 1

The physical restoration of property to owner is not available - property lost, destroyed or damaged.

Owner is compensated for patrimonial loss

• Condictio furtiva
• Actio ad exhibendum
• Actio legis aquilliae

Question 2

Condictio Furtiva

Answer 2

A special delictual remedy used to recover a stolen thing (with its fruits) or its highest value since the theft, from the thief or after the thief’s death from the thief’s heirs. The remedy may also be used by the owner or the lawful holder, in situations where the property was damaged/lost after being stolen.

Question 3

Requirements for Condictio Furtiva

Answer 3

Requirements:
o Ownership (extended in Clifford case to also allow people who have some lawful interest in the property)

o Can only be instituted against a thief or the thief’s heirs (expanded to institute against anyone who takes the property without the permission of the owner).

Question 4

Actio Ad Exhibendum

Answer 4

actio ad exhibendum serves as general personal action with delictual function: instituted by owner against person who wrongfully and deliberately disposed of the property

Basis of liability= bad faith (mala fides)- must be alleged and proved by claimant

Question 5

Requirements for Actio Ad Exhibendum

Answer 5

1. Remedy can only be instituted by owner of property.
   - Needs to be proven that claimant was owner at time of disposal.
2. Defendant must have wrongfully and intentionally disposed of it (acted in bad faith).
   - Clearly must have been defendant who disposed, destroyed, consumed/ alienated the thing.
   - Must have acted in bad faith (defendant had constructive knowledge of plaintiff’s title or claim).
   - There must be intent on the defendant’s part.
3. Owner must have suffered patrimonial loss as result of disposal of property. (Thing in question cannot be claimed- its market value at time of disposal claimed instead

Question 6

Actios Legis Aquilae

Answer 6

General action to claim compensation in all cases where property has been destroyed or damaged by the defendant in an unlawful and culpable manner.

Question 7

Requirements for Actio Legis Aquilae

Answer 7

o Conduct or an omission by defendant.
o Defendant acted wrongfully with culpability.
o There must be fault (negligence included).
o Unlawfulness.
o Loss or damage.
o Causation (link between lost experienced by owner and something someone did or neglected to do)
o Owner of property in question to suffer a patrimonial loss

Question 8

Enrichment remedies

Answer 8

Possible for owner to institute an enrichment action (condictio sine causa) against person who was unjustifiably enriched, without cause, by deriving a benefit from possession of the thing, which benefit ought to have accrued to the owner.

Question 9

To be successful for an enrichment remedy, owner must show:

Answer 9

o Owner was impoverished (in sense that what should have accrued to the owner has not so accrued).
o Defendant must have been enriched at expense of the owner.
o Financial shift must have been without legal basis.
o Defendant must have acted bona fide.

Question 10

Unjustified Enrichment

Answer 10

Someone else being unjustifiably enriched and there is no basis on which that person has been enriched.
* Requirements: owner that has been impoverished, defendant has been enriched, benefit that should have accrued to the owner is not accrued to the owner, there must have been some financial shift that has taken place without any legal basis and the defendant must have been bona fide.