PVL3701: Law of Property
Learning Unit 1:
DEFINITIONS:
Law of things: an area of private law that comprises a variety of regulations that
establish the nature, substance, vesting, protection, transfer, and termination of
different actual connections between a thing and a legal subject, as well as the rights
and obligations that follow from these relationships.
Legal subject: Any individual (natural or legal) who is able to act as a subject in legal
interactions, gaining rights and taking on obligations in the process, is referred to as a
legal subject. (humans are the most common, but state, universities, closed
corporations etc are also legal subjects)
Legal object: every object the legal subject owns which is recognised in a legal
relationship. These legal objects are distinguished between things, performances,
immaterial property and personality property
Thing: independent, useful, and valuable component of the physical universe that is
both outside of people and under human control
Law: the body of rules and norms which regulate and harmonises society by defining
boundaries between rights and duties of legal subjects
Right: rights deal with the lawful relationship between legal subjects and legal subjects
and legal objects of their rights.
Real relationship: is the particular legal relationship between one or more legal
subjects and a thing (2 kinds of relationships: subject x subject & subject x object) and
is divided into three categories: ownership, possession, holdership.
Ownership: which is always a lawful real relationship and therefore a real right
Possession: (physical control of a thing with the intention of an owner: amino domini)
which is always unlawful and is therefore only a real relationship, not a real right
Holdership: (physical control of a thing with the intention to derive a benefit), which
may be lawful or unlawful. When it is lawful it could give rise to a real right
Real right: a lawful relationship that gives a legal subject direct authority over an
object, as well as the relationship between the legal subject and any other legal
subjects who require honour this partnership.
Remedy: a legal process with its own purpose, for which certain requirements are set
and which protects, maintains or restores a particular real relationship in a specific
way.
,What is the function of the Law of Things?
1. It aims to balance or control conflicting ownership rights, particularly between
adjacent owners.
2. It aims to balance or control an owner’s rights to their property with those of
other restricted real right holders.
3. It regulates the purchase, preservation and destruction of property and actual
rights.
Things as legal objects:
Elements of definition:
Corporeality Two problems arise:
• Although the law of things is typically restricted to
corporeal (physical) objects, Roman-Dutch tradition
permits some real rights—particularly promises of
claims—to have incorporeal things (i.e. rights) as their
object, despite the logical inconsistency.
• Modern advances create doubts about whether
intangible phenomena such as electrical or atomic
energy count as "things," which impacts questions such
as whether electricity may be stolen or whether services
such as electricity, internet, or telephone supply can be
protected by spoliation laws.
External to humans 1. On religious and ethical reasons, the human body and
its parts are not treated as legal objects ("things") under
present South African law, while developing medical
technology and organ shortages may stimulate future
discussion on this exclusion
2. A major differential exists between readily separable
and self-replenishing human tissue (e.g., hair, blood,
semen, ova), important to artificial reproduction and
gamete donation, and non-replenishing parts (e.g.,
kidneys, lungs) needed for transplants, both involve
parts from live people.
3. The question is whether individuals should be legally
permitted to deal with (e.g., donate or sell) their own
body parts, with such transactions governed by the
National Health Act 61 of 2003 (particularly Chapter 8,
which regulates human tissue, blood, gametes, and
organ donations/transplants, prohibiting commercial
trade and requiring strict consent and allocation rules).
4. Objects from a brain-dead person (no longer attributable
to a living individual) raise two issues: whether the
deceased gave prior consent to donation, and whether
relatives can demand payment; while corpses or corpse
parts may technically qualify as "things," they are extra
commercium (outside private commerce/ownership)
and not subject to private property rights.
, Independence Composite things such as bikes and cars can cause
problems with regards to ownership, therefore the South
African law of property distinguishes between: principal
things, accessory things, and auxiliary things.
Sectional title ownership involves owning a segment of a
building as well as a share of the structure's shared areas
and land.
The idea of a "thing" has been legally modified to align with
the principle of independence.
The sectional title unit can thus be considered as an
autonomous item.
Subject to human control Only when humans are truly capable of bringing a particular
item under their control in such a way that a legal
connection can be stated to exist between the legal subject
and the object, can the object be considered a thing.
Useful and valuable to Value does not always suggest economic or market worth
human beings with a price connected to it, but rather that the legal subject
wants his/her connection with the object to be protected by
the law against interference by other legal subjects.
The law determines whether something is valuable to
people based on the circumstances and objective criteria.
de minimis non curat lex: the law does not concern
itself with trivialities.
The Classification Of Things:
It can be classified into two categories: 1. Their relation to humans; 2. The inherent
nature of the thing concerned.
In relation to humans:
The function or purpose of the thing is considered and is then further divided into
negotiable things and non-negotiable things.
In principle all things are negotiable res in commercio which means things which are
in the legal sense or in commerce or trade.
Non-negotiable things = res extra commercium, which include the following:
Res communes omnium: things that do not fall under private legal control, but that
are available to be used by all legal subjects, for example, free air and things that are
really only susceptible of human control by communal use.
Res publicae: things that belong to the state but that are used for the general benefit
and use of the public, for example, national parks, the seashore, et cetera.
Other res extra commercium: things that are not freely negotiable for another
, reason, for example, body parts or a corpse. For religious and/or ethical reasons a
corpse and parts of a corpse are not regarded as things.
res alicuius: things belonging to an owner and forming part of his/her estate
res nullius: things that are susceptible of ownership, but that belong to no one at a
particular stage, for example, wild animals or fish (see SU 4 para 2.2.2) or a thing that
has been thrown away by its owner who no longer intends to be the owner (res
derelictae).
Inherent nature:
• Classified according to their characteristics and qualities
• Things can be solely or composite, depending on whether they are made up of
a single piece or a combination of constituent elements.
A collection of similar individual things (e.g., a flock of sheep, a swarm of bees, or a
shop's stock) may be treated by the law as a single composite unit for certain
purposes, even if each member retains its individuality, and the owner thus owns both
the collection as a whole and the individual items.
The law treats a collection of dissimilar things and/or rights (e.g., an entire estate
consisting of corporeal and incorporeal items) as a single legal unit for specific
purposes only, most notably in insolvency law (where the insolvent estate is an
independent entity) and succession law (where the deceased estate is regarded as a
separate entity).
Principle thing: The principal thing is an independent composite thing composed of
various parts that exists on its own and is not simply a constituent or supplementary
part of something else (e.g., a car as a whole), whereas land is always treated as the
principal thing even when buildings are attached to it.
Accessory thing: An accessory thing is one that may exist independently but has lost
its independence due to physical joining or incorporation into the primary entity.
Auxiliary thing: An auxiliary thing, such as an accessory, can exist independently but
loses its independent character without physical attachment, becoming economically
dependent on the principal thing for its purpose and value (e.g., a key in relation to a
lock, as confirmed in Senekal v Roodt 1983 (2) SA 602 (T)).
Learning Unit 1:
DEFINITIONS:
Law of things: an area of private law that comprises a variety of regulations that
establish the nature, substance, vesting, protection, transfer, and termination of
different actual connections between a thing and a legal subject, as well as the rights
and obligations that follow from these relationships.
Legal subject: Any individual (natural or legal) who is able to act as a subject in legal
interactions, gaining rights and taking on obligations in the process, is referred to as a
legal subject. (humans are the most common, but state, universities, closed
corporations etc are also legal subjects)
Legal object: every object the legal subject owns which is recognised in a legal
relationship. These legal objects are distinguished between things, performances,
immaterial property and personality property
Thing: independent, useful, and valuable component of the physical universe that is
both outside of people and under human control
Law: the body of rules and norms which regulate and harmonises society by defining
boundaries between rights and duties of legal subjects
Right: rights deal with the lawful relationship between legal subjects and legal subjects
and legal objects of their rights.
Real relationship: is the particular legal relationship between one or more legal
subjects and a thing (2 kinds of relationships: subject x subject & subject x object) and
is divided into three categories: ownership, possession, holdership.
Ownership: which is always a lawful real relationship and therefore a real right
Possession: (physical control of a thing with the intention of an owner: amino domini)
which is always unlawful and is therefore only a real relationship, not a real right
Holdership: (physical control of a thing with the intention to derive a benefit), which
may be lawful or unlawful. When it is lawful it could give rise to a real right
Real right: a lawful relationship that gives a legal subject direct authority over an
object, as well as the relationship between the legal subject and any other legal
subjects who require honour this partnership.
Remedy: a legal process with its own purpose, for which certain requirements are set
and which protects, maintains or restores a particular real relationship in a specific
way.
,What is the function of the Law of Things?
1. It aims to balance or control conflicting ownership rights, particularly between
adjacent owners.
2. It aims to balance or control an owner’s rights to their property with those of
other restricted real right holders.
3. It regulates the purchase, preservation and destruction of property and actual
rights.
Things as legal objects:
Elements of definition:
Corporeality Two problems arise:
• Although the law of things is typically restricted to
corporeal (physical) objects, Roman-Dutch tradition
permits some real rights—particularly promises of
claims—to have incorporeal things (i.e. rights) as their
object, despite the logical inconsistency.
• Modern advances create doubts about whether
intangible phenomena such as electrical or atomic
energy count as "things," which impacts questions such
as whether electricity may be stolen or whether services
such as electricity, internet, or telephone supply can be
protected by spoliation laws.
External to humans 1. On religious and ethical reasons, the human body and
its parts are not treated as legal objects ("things") under
present South African law, while developing medical
technology and organ shortages may stimulate future
discussion on this exclusion
2. A major differential exists between readily separable
and self-replenishing human tissue (e.g., hair, blood,
semen, ova), important to artificial reproduction and
gamete donation, and non-replenishing parts (e.g.,
kidneys, lungs) needed for transplants, both involve
parts from live people.
3. The question is whether individuals should be legally
permitted to deal with (e.g., donate or sell) their own
body parts, with such transactions governed by the
National Health Act 61 of 2003 (particularly Chapter 8,
which regulates human tissue, blood, gametes, and
organ donations/transplants, prohibiting commercial
trade and requiring strict consent and allocation rules).
4. Objects from a brain-dead person (no longer attributable
to a living individual) raise two issues: whether the
deceased gave prior consent to donation, and whether
relatives can demand payment; while corpses or corpse
parts may technically qualify as "things," they are extra
commercium (outside private commerce/ownership)
and not subject to private property rights.
, Independence Composite things such as bikes and cars can cause
problems with regards to ownership, therefore the South
African law of property distinguishes between: principal
things, accessory things, and auxiliary things.
Sectional title ownership involves owning a segment of a
building as well as a share of the structure's shared areas
and land.
The idea of a "thing" has been legally modified to align with
the principle of independence.
The sectional title unit can thus be considered as an
autonomous item.
Subject to human control Only when humans are truly capable of bringing a particular
item under their control in such a way that a legal
connection can be stated to exist between the legal subject
and the object, can the object be considered a thing.
Useful and valuable to Value does not always suggest economic or market worth
human beings with a price connected to it, but rather that the legal subject
wants his/her connection with the object to be protected by
the law against interference by other legal subjects.
The law determines whether something is valuable to
people based on the circumstances and objective criteria.
de minimis non curat lex: the law does not concern
itself with trivialities.
The Classification Of Things:
It can be classified into two categories: 1. Their relation to humans; 2. The inherent
nature of the thing concerned.
In relation to humans:
The function or purpose of the thing is considered and is then further divided into
negotiable things and non-negotiable things.
In principle all things are negotiable res in commercio which means things which are
in the legal sense or in commerce or trade.
Non-negotiable things = res extra commercium, which include the following:
Res communes omnium: things that do not fall under private legal control, but that
are available to be used by all legal subjects, for example, free air and things that are
really only susceptible of human control by communal use.
Res publicae: things that belong to the state but that are used for the general benefit
and use of the public, for example, national parks, the seashore, et cetera.
Other res extra commercium: things that are not freely negotiable for another
, reason, for example, body parts or a corpse. For religious and/or ethical reasons a
corpse and parts of a corpse are not regarded as things.
res alicuius: things belonging to an owner and forming part of his/her estate
res nullius: things that are susceptible of ownership, but that belong to no one at a
particular stage, for example, wild animals or fish (see SU 4 para 2.2.2) or a thing that
has been thrown away by its owner who no longer intends to be the owner (res
derelictae).
Inherent nature:
• Classified according to their characteristics and qualities
• Things can be solely or composite, depending on whether they are made up of
a single piece or a combination of constituent elements.
A collection of similar individual things (e.g., a flock of sheep, a swarm of bees, or a
shop's stock) may be treated by the law as a single composite unit for certain
purposes, even if each member retains its individuality, and the owner thus owns both
the collection as a whole and the individual items.
The law treats a collection of dissimilar things and/or rights (e.g., an entire estate
consisting of corporeal and incorporeal items) as a single legal unit for specific
purposes only, most notably in insolvency law (where the insolvent estate is an
independent entity) and succession law (where the deceased estate is regarded as a
separate entity).
Principle thing: The principal thing is an independent composite thing composed of
various parts that exists on its own and is not simply a constituent or supplementary
part of something else (e.g., a car as a whole), whereas land is always treated as the
principal thing even when buildings are attached to it.
Accessory thing: An accessory thing is one that may exist independently but has lost
its independence due to physical joining or incorporation into the primary entity.
Auxiliary thing: An auxiliary thing, such as an accessory, can exist independently but
loses its independent character without physical attachment, becoming economically
dependent on the principal thing for its purpose and value (e.g., a key in relation to a
lock, as confirmed in Senekal v Roodt 1983 (2) SA 602 (T)).
