FLS1502 EXAM PACK 2023

Exam Papers FLS1502 October/November 2013 Section A: Roman Law of Things Question 1 What is the difference between a personal and a real action? (2) A real action enforced a real right in respect of a thing and could be enforced against any person who encroached on a person’s right to a thing. A personal action on the other hand enforced a personal right that can only be enforced against a specific person. Question 2 Which forms of delivery are applicable in the following cases? 2.1 P buys a herd of cattle from Q. The cattle can only be removed to P’s farm four days later P appoints a farm hand to take care of the cattle. (1) Delivery with the long hand. 2.2 A leases a house from B. Six years later B sells the house to A. (1) Delivery with the short hand. 2.3 A sells his house to C, and the parties agree that A will lease the house from C for six months. (1) Constitutum possessorium 2.4 A buys a farm from D. The details of the transaction are put into writing, and the document is delivered to A. (1) Symbolic delivery Question 3 Read the following scenario carefully and answer the questions which follow. Pay careful attention to the different historical periods referred to in each instance. In the year AD 531 Nero buys twelve horses from Augustus. The animals are transferred by means of traditio. 3.1 Does Nero immediately obtain civil ownership (dominium) of the horses? (3) No, because horses were part of res mancipi that could only be transferred by the formal mancipatio not tradition. 3.2 If the same transaction between Nero and Augustus took place in 45BC, would Nero immediately have obtained civil ownership (dominium) of the horses? (2) Yes, because the praetor gave protection to persons who had acquired res mancipi by an informal method of delivery. 3.3 Suppose Augustus stole the horses from a neighbour in 45 BC, would he be able to transfer civil ownership (dominium) of the animal to Nero, if all the correct procedures for the transfer of civil ownership were followed? (2) No, because Augustus was not the owner of the horses, therefore not entitled to transfer ownership. No one can transfer rights than he has himself. 3.4 Considering the facts in 3.3 above, which remedy would Nero have if Augustus’ neighbour arrives at his (Nero’s) farm and threatens to forcefully claim the horses that Augustus stole from him? (1) Interdictum utrubi Question 4 4.1 Identify the original mode of acquisition of ownership provided in the following situations. (a) Lea becomes the owner of a shell she finds that had washed up on the beach. (1) Appropriation (b) Paul and Quinn’s wines get mixed together and they become co-owners of the mixture. (1) Confusio (c) Teresa becomes the owner of an antique gold necklace that she digs up in her garden. (1) Treasure Trove (d) If Xania’s silk scarf is dyed with Gacius’ dye Xania becomes owner of the dyed scarf. (1) Accession or joining of things (e) In the classical period Brutus becomes the owner of the oil the he (Brutus) made from Cassius’s olives. (1) The creation of a new thing from existing material 4.2 Select the correct answer from COLUMN B that matches the term in Column A and write down the correct answer in the spaces provided below. You need only write down the correct letter from B. 4.2.1 Pledge Only possession of the thing is transferred to the creditor. 4.2.2 Fiducia The most beneficial form of real security to a creditor. 4.2.3 Hypothec The debtor retains ownership and possessions of the thing. 4.3 Indicate whether the following statements are TRUE or FALSE. (a) The rei vindication still exists today and is probably the most important action to protect ownership. True (b) The ius civile was the law applicable to all notions. False (c) With the actio Publicana the owner of a piece of land could deny the existence of a servitude over his property. False (d) The ius gentium was applicable only to Roman citizens. False (e) A turkey is an example of a res mancipi. False (f) Oranges are examples of natural fruits. True (g) The interdictum utrubi protects the possession of movable things. True Question 5 5.1 Name five requirements for obtaining ownership by means of prescription (usucapio) (5) The thing had to be capable of ownership (res habilis) A valid reason or legal ground for prescription Possession (possessio) Period of prescription (tempus) Good Faith (bona fides) 5.2 Indicate whether the following statements are TRUE or FALSE. (a) Prescription is an original mode of acquiring ownership. True (b) In South African law prescription is still recognized as a method of acquiring ownership. True Question 6 Name and briefly discuss any FIVE requirements for praedial servitudes (10) 1.Praedio utilitas (the servitude had to benefit the dominant tenement) 2.Causa perpetua (perpetual benefit) 3.Civiliter modo ( A reasonable manner) 4.Ius in re aliena (right in respect to another’s thing) 5.Servitus non in eo consistit ut aliquid faciat quis sed ut patiatur vel non faciat (a servitude does not consists in doing something, but in allowing something or refraining from doing something) 6. Servitus servitutis esse non potest (there could be no servitude over another servitude) 7.A servitude was indivisible Section B: Roman Law of Contract Question 7 7.1 What is an obligation? (3) An obligation can be defined as a legal bond (an indivisible bond created by law) between two or more parties, one of which, the creditor, had a personal right against the other party (Parties), the debtor (debtors), to enforce a particular performance, while the debtor is under an obligation to the creditor to perform. 7.2 Name the four kinds of contracts acknowledged by Gaius and adopted by Justinian. (4) Contracts that came about through a mere agreement Contracts that came about as a result of formal words Contracts that came about after delivery of a thing Contracts that came about as a result of writing 7.3 Name the three factors that could exclude or influence agreement between the parties. (3) Fraud (dolus) Duress (metus) Mistake (error) Question 8 8.1 Septimus and Octivus conclude a contract of purchase and sale on 1 April in terms of which Septimus sells his house to Octavus. They agree that Octavus can move into the house on 1 May on 15 April the house is destroyed by a fire Octavus claims back the purchase price. Is he entitled to do so? (3) Octavus cannot claim back the purchase price because the contract is regarded as perfecta since everything has been completed apart from the delivery of the house. 8.2 Antonio lends Servus a donkey to move his household belongings, along with a basket of bread and a small barrel of wine. What would the legal position be if Sevus forgot to give the donkey food and water and the animal died as a result? (2) The duty of care that rested on Servius as the loan for use was culpa levis in abstracto. If the donkey died as a result of his negligence, the lender (Antonius) could hold him (Servius) liable for the loss of the donkey. 8.3 Marcus agreed with Aulus that Aulus would copy a manuscript from him at a weekly wage Marcus undertook to provide that ink and pens insisted that Aulus should work under his supervision every day. What kind of contract was created? (1) The contract of letting and hiring of services or a service contract. 8.4 Pamphilus and Julius concluded a contract of sale in terms of which Pamphilus buys ten cows at a price of ten gold coins per animal from Julius’s stud. A serious stock disease breaks out soon afterwards, making it necessary for Julius to have all his cattle put down. Who bears the risk for the death of the cattle. (4) This is a semi-specific sale, which means that the contract was not yet perfecta. It will only become perfecta once the ten cattle have been identified. Since the contract is still imperfecta, this means that the risk still rests with the seller, Julius. Julius will therefore have to bear the loss of the death of the cattle and cannot expect Pamphilus to pay the purchase price (The position would have been different, however, if the specific ten cattle had already been selected and identified. In the latter case the contract would have been perfecta and the risk would have passed to the purchaser, Pamphilus, in which case Julius would have been able to claim the payment of the purchase price) Question 9 Study the following scenarios carefully and answer the questions that follow. 9.1 Brutus sold his horse to Justinianus under the false and fraudulent representation that the horse was five years old, whereas the horse was in fact already fifteen years old. (a) Which factors in this transaction may influence consensus between Brutus and Justinianus? (1) Fraud (b) What influence does this factor have on the agreement between Brutus and Justinianus? (1) Voidable 9.2 Felix and Pompeius concluded a contract Felix was under the impression that he was selling his house to Pompeius, whereas Pompeius thought that he was concluding a contract of letting and hiring with Felix. (a) Which factor in this transaction may influence the consensus between Felix and Pompeius? (1) Mistake in regard to the nature of the legal act. (b) What influence does this factor have on the agreement between Felix and Pompeius? (1) Void ab initio 9.3 Antonius sold his slave, Baldus, to Ceasar. Ceasar was under the impression that the name of the slave was “Domitianus” (a) Which factor in this transaction may influence the consensus between Antonius and Ceasar? (1) Mistake regarding the name of the object of the contract (b) What influence does this factor have on the agreement between Antonius and Ceasar? (1) Valid Question 10 10.1 Briefly distinguish between the purchase of an object hoped for (emptio rei speratae) and the purchase of a hope (emptio spei). (2) The purchase of a future thing differs from the purchase of an expectation in this respect that at the time when the agreement was concluded there was a reasonable expectation that the object of the sale would materialise. 10.2 In terms of the risk rule, when does the risk for the destruction of or damage to the object of sale pass from the seller to the purchaser? (2) As soon as the contract was perfecta. 10.3 Name the four consensual contracts (contractus consensus) in Roman law. (2) The contract of letting and hiring The contract of purchase and sale Partnership Mandate Question 11 Carefully and fully identify the following contracts. 11.1 Quintus and Darius agree that Quintus will let five oxen to Darius at thirty gold coins per month. (1) The contract of letting and hiring of a thing (locatio conductio rei) 11.2 Paulus agrees to erect a tombstone gratuitously for Antonius if he were to pass away before him. (1) Mandate 11.3 Aulus and Balbus agree that Aulus will harvest the grapes in Balbus’s orchard for a fixed weekly wage of five gold coins. Balbus will provide Aulus with the necessary implements to pick the grapes and he will supervise Aulus while he picks the grapes. (1) The contract of letting and hiring of services or a service contract. Question 12 12.1 Deposit (depositum) derives from the ius civile/ ius honorarium Ius honorarium 12.2 Mora creditoris is the guilty failure of the debitor to deliver the performance/ creditor to co-operate to make performance possible. Creditor to co-operate to make performance possible 12.3 A loan for consumption (mutuum) is a unilateral/ bilateral contract Unilateral 12.4 Since the borrower benefited from the contract of loan for use (commodatum) he was liable for culpa levis in abstracto/ culpa levis in concerto. Culpa levis in abstracto 12.5 Contracts that came about after delivery of a thing were called contractus litteris / contractus re Contractus re Question 13 Name five duties of the seller in terms of the Roman Contract of purchase and sale (5)  Duty of custody before delivery  Delivery with vacant possession  Guarantee against eviction  Guarantee against latent defects  Conduct in accordance with good faith Question 14 14.1 In terms of Roman legal principles theft qualified as both a delict and a crime. False 14.2 Antonia visits the home of her friend Bartolus Antonia is not aware that an expensive sculpture had been placed under the table and she accidentally kicks it over. The sculpture breaks Antonia has committed the delict of damage of property False 14.3 The actio vi bonorum raptorum is an example of an action rei persecutorial False 14.4 The elements of a delict are an act, wrongfulness, fault, damage and causality True 14.5 Octavia sees her original painting hanging on the wall of her neighbour’s house two months after the painting had been stolen. Upon confrontation Nero admits to stealing the painting. Octavia can institute the rei vindicatio and the actio furti nec manifesti against Nero. True 14.6 A victim of robbery could simultaneously institute the rei vindicatio and the condictio furtiva against the wrongdoer False 14.7 During the early lex Aquilia Titus could not be held liable if he forced Gaius to burn down Julia’s house True 14.8 In terms of the developed lex Aquilia the drowning of another’s pig qualified False 14.9 It is not really possible to put a monetary value on hurt feelings and the injured party therefore claimed satisfaction with the actio iniuriarum True 14.10 Intent was not a requirement for the commission of iniuria False May/June 2014 Section A: Roman Law of Things Question 1 1.1 Briefly discuss TWO differences between a personal right and a real right. (4) A real right is a right in respect of a thing which was enforced under Roman law by a real action and that this right could be enforced against any person who encroached on a person’s right to a thing. A personal right, on the other hand, is the right that can only be enforced against a specific person (by means of a personal action) 1.2 Briefly discuss TWO differences between ownership and possession. (4) Ownership is the fullest possible right one could have over corporeal thing, only the owner could have ownership over a thing. Ownership is limited by the limited real rights other people may have over a thing, but the owner’s entitlements are always more comprehensive than those of other persons with limited real rights. Possession is purely the physical and factual control a person has over a corporeal thing. Without possession, it was impossible to acquire ownership. It is also possible that a person who is not the owner of a thing has control over it (eg the lessee of a house). Question 2 Titus bequeaths his farm to his son, Nardus, and establishes a lifelong usufruct over the farm in favour of his wife, Gaia. Gaia decides to let the farm to Marius for a period of five years. 2.1 What rights to the farm did Gaia acquire on the grounds of usufruct? (3) Gaia was entitled to use the farm for the purpose for which it was intended and to enjoy the fruits or yield of the farming operations on condition that the nature of the farm remained unchanged. 2.2 Was she entitled to let the farm to Marius? (2) She was also entitled to let the farm, but she could not make the lessee a usufructuary. 2.3 Would Marius have had any other remedy if Nardus had refused to allow him to exercise his rights of the lessee? (2) Marius obtained no real right, but merely a personal right against Gaia that he could use to try to enforce his rights. Question 3 3.1 Name and briefly discuss any THREE original methods of acquiring ownership. (6) 3.2 Name and briefly discuss the five requirements for obtaining ownership through prescription (usucapio) (10) Prescription (usucapio) It dates back to the Twelve Tables. It was laid down in the Twelve Tables that if a person had enjoyed uninterrupted possession of a piece of land for a period of two years pursuant to a mancipatio act or had enjoyed uninterrupted possession of any other thing for a least of a year, he became the owner. This applied only in respect of res mancipi, however, and only to Roman citizens. Ownership of stolen property could not be acquired in this way either. Appropriation (occupation) It was derived from the ius gentium. The first person who took possession of a res nullius, that is a thing that was owned by no-one, with the intention of becoming the owner became the owner of the thing by taking possession. Treasure Trove (Thesauri inventio) A treasure trove was something that had lain hidden for so long that it was impossible to trace the owner. The treasure must have been hidden: A thing that had fallen out of someone’s pocket along the roadside or that had been mislaid or an abandoned thing, did not constitute a treasure. The acquisition of fruits (acquisition fructuum) It took place by means of separation (separatio) from the fruit-bearing thing. While the fruits had not yet been separated, they formed part of the principle thing. It was only on separation that they began to exist independently and were capable of ownership. Here we are thinking specifically of natural fruits (fructus naturalus), that is fruits produced by nature, such as the fruits of trees, crops, the young of animals, wool and milk. This is also an original means of acquiring ownership, derived from the ius gentium. Accession or joining of things (accessio) The question of accession arose when two things belonging to different owners were indivisibility attached to one another so that the owner of one of the things also became the owner of the composite thing. Mixing (commixito) and blending (confusion) When solids (for example grain or two flocks of sheep) belonging to different owners became mixed (commixito), accessio did not take place. If this “mixing” took place with the permission of the different owners, they became the co-owners of the joint thing. If it took place without their permission, each owner retained ownership of his separate portion. If it were not possible to physically identify the things belonging to different owners (eg grain), each owner would be able to claim his pro rata share by means of the rei vindication. In the case of the mixing of fluids (confusion) like wine, honey or molten metal, which belonged to different owners, the substance were inseparably blended. Since there was no question of one thing being subordinate to the other, the two owners acquired joint ownership of the mixture. Whether they did so by agreement or by accident made no difference. The owners could claim their perspective shares (pro rata shares of the mixture) by means of the action communi dividundo (action for division of joint property). The creation of a new thing from existing material (specificatio) Specificatio occurred when someone, without authorisation, created a new thing (nova species) from, without authorisation, material belonging partially or entirely to