Voluntary Acquisition of Ownership

Question 1

What are the requirements for a voluntary transfer?

Answer 1

Capacity
Consent
Transferability
Specificity

Question 2

What is transferability?

Answer 2

It means can the right be transferred even if wrongly.

Question 3

What is specificity?

Answer 3

It means only what can be identified can be transferred.

Question 4

What is the publicity principle?

Answer 4

For transfer, mutual consent is necessary but it is not sufficient. An external or overt act is required.

Question 5

What does the case of Johnstone’s Tr v Baird (2012) show?

Answer 5

That an external or overt act is required.

Just because something is agreed in writing doesn’t make it binding because there’s no overt or external act.

Question 6

What is simple warrandice?

Answer 6

Simple warrandice is where the granter guarantees only that he or she will not grant any subsequent deed that could prejudice the deed now being granted

Question 7

What is ‘Fact and Deed’ warrandice?

Answer 7

Fact and Deed warrandice is where the granter guarantees the grantee’s title against any future or past act by the granter

Question 8

What is absolute warrandice?

Answer 8

Absolute; granter guarantee’s that (i) The grantee will acquire ownership and (ii) the title will be unaffected by any encumbrances.

Question 9

Why is the Rodger (Builder) Ltd v Fawdry case important?

Answer 9

It is the case which defines the ‘offside rule’.

Question 10

What is the offside rule?

Answer 10

The offside rule is where under which a transaction might be invalidated by the grantee’s bad faith.

Question 11

What are some remedies for the offside goal?

Answer 11

Sue for breach of contract or attempt to reduce the sale

Question 12

Give an example of the offside rule?

Answer 12

Henry contracts to sell the house to Ivor. Henry then contracts to sell his house to Jackie.

Question 13

What are the conditions of the offside rule?

Answer 13

1. Prior personal right between A&B (Contract/Agreement made)
2. Transfer from A-C in breach of the A-B obligation.
3. C has knowledge of the obligation owed to B or C is a donne.
4. Must be a voluntary act.

Question 14

What is accretion?

Answer 14

Accretion is when a grant from a non-owner to another can be retrospectively validated if non-owner subsequently gains title.

Question 15

What’s needed to acquire ownership of property?

Answer 15

1. Contract
2. Settlement
3. Registration

Question 16

What is the gap period?

Answer 16

Gap exists between settlement and registration where the grantee is at risk.

Question 17

When is the real right actually obtained with property?

Answer 17

When registration has completed.

Question 18

What can be done to reduce the risk of the gap period?

Answer 18

An advance notice.

Question 19

What is corporeal heritable property?

Answer 19

Things like land and buildings.

Question 20

What is corporeal moveable property?

Answer 20

Things that move.

Question 21

What is incorporeal property?

Answer 21

Legal right in property having no physical existence.

Question 22

What does corporeal moveables need under COMMON LAW transaction?

Answer 22

Mutual intention and delivery.

Question 23

Your cousin tells you that the latest FIFA 19 that he has in his room is now yours. Do you have ownership?

Answer 23

No, delivery is still needed.

Question 24

Under the Sale of Goods Act 1979, is delivery needed for a transaction?

Answer 24

No. Delivery passes when parties intend it to be transferred.

Question 25

How do you differentiate between applying the law of the Sale of Goods Act 1979 or common law?

Answer 25

Sale of Goods Act 1979 implies to contract sales.
For example:
Purchasing a book from a bookstore applies to the SOGA 1979 whereas if you give the same book to your friend for a Christmas present, it’s common law.

Question 26

What is the process for transferring personal rights for incorporeal moveable property called?

Answer 26

Assignation.

Question 27

What is ‘assignatus utitur jure auctoris’?

Answer 27

Assignee may use rights of his author.

Question 28

Explain assignatus utitur jure auctoris.

Answer 28

Circumstances surrounding the dcedent apply to the assignee and the common debtor must honour those circumstances.

Question 29

What does the case of Scottish Widows Fund v Buist (1876) show?

Answer 29

Is an example of assignatus utitur jure auctoris.

Question 30

What happened in case of Scottish Widows Fund v Buist (1876)?

Answer 30

Cedent suffered poor health and lied to common debtor. Transferred right to assignee who was in good faith but payment was denied on basis of assignatus utitur jure auctoris.

Question 31

What is debitum subesse?

Answer 31

Principle of warrandice to assignee from cedent that debt exists. (IE You transfer right for £15000 to be paid to your cousin but £5000 has already been paid).

Question 32

TRUE OR FALSE:

Under debitum subesse, any remaining debt must be paid.

Answer 32

False.

Debitum subesse just shows that debt exists, but it isn’t guaranteed that it will be paid.