PROPERY LAW NOTES
Abstract
THIS DOCUMENT CONTAINS SUMMARISED NOTES FOR LAW OF PROPERTY
Joseph
0784683517
,STUDY UNIT 1
INTRODUCTION
Property: in the broad sense: includes everything that forms part of someone’s
estate = includes immovable property, movable property etc
Property: in the narrow sense: amounts to a thing – law of things: which is a branch
of private law which consists of a number of legal rules that determine the nature,
content, establishment, protection, transfer and termination of various real
relationships between a legal subject and a thing.
DEFINITIONS
Legal subject: any person (natural/juristic) capable of acting as a subject in legal
relationships and getting rights and duties.
Legal object: every object with which a legal subject has a legally recognized
relationship – anything with regard to which a person can get and hold a right.
Property: is everything, which can form part of someone’s estate, including
corporeal and incorporeal rights.
Thing: is a corporeal object outside the human body and an independent entity
capable of being subjected to the legal control by a legal subject for who it has use
and value.
Right: is a legally recognized and valid claim by a subject to a certain object.
Property right: is a legally recognized claim or interest in property
Remedy: is a legal procedure provided by a legal system to protect a right against
infringement or to control the effects of unlawful action.
REAL RELATIONSHIP
This is a legal relationship between a legal subject and a thing.
“THE EXPERT IN ANYTHING WAS ONCE A BEGINNER”
,A legal subject can get rights from a real relationship only if it’s lawful – if it complies
with legal rules.
A legal subject won’t get any rights from unlawful relationships.
The most NB real relationships:
a) Ownership = lawful
b) Possession: physical control of a thing with the intention of an owner =
unlawful
c) Holdership: physical control of a thing with the intention to derive a limited
benefit = lawful and unlawful
Real right: is a lawful relationship between a legal subject and a thing which gives
direct control over the thing to the legal subject, as well as the relationship between
the legal subject and other legal subjects who must respect this relationship = its
enforceable against the whole world.
Entitlements: a legal subject who gets a real right from a real relationship is usually
entitled to:
a) use
b) Control
c) Encumber (give others limited real rights)
d) Enjoy the fruits
e) Consume
f) Alienate
g) Vindicate
The function of the law of things
1) To harmonize various competing ownership rights – neighbor law
2) To harmonize an owners right in regard to his thing, with the rights of other
limited real right holders to the same thing
3) It controls the acquisition and transfer of things and real rights
Sources of the law of things
a) The constitution
b) Statutory law
c) Case law
d) Common law
“THE EXPERT IN ANYTHING WAS ONCE A BEGINNER”
, e) Indigenous customary law
THINGS AS LEGAL OBJECTS
Thing: is a legal object, which is an independent part of the corporeal world, which is
external to humans, subject to human control and useful and valuable to humans.
Characteristics of a thing
a) Corporeal: perceivable to your senses – e.g. car, horse
b) External to humans: the human body cant be regarded as a legal object
c) Independent: the thing can function as a legal object for the purposes of the
law of things, only if it has its own individual existence and can be recognized
as a distinct entity
d) Subject to human control: objects are significant for the law of things only if
they have the potential to be legally controlled by humans
e) Useful and valuable to humans: the thing must satisfy the needs of a legal
subject. It need not necessarily have economic value but can also have
sentimental value.
CLASSIFICATION OF THINGS
NEGOTIABLE AND NON-NEGOTIABLE THINGS
Negotiable things:
1) Res alicuius: things owned by a person or things in a insolvent or deceased
estate
2) Res nullis: things capable of being owned but which at a particular stage
aren’t owned by anyone
3) Res derelictae: things no longer in the physical control of the owners and in
respect of which the owner no longer has the intention to be owner
4) Res deperditae: things lost and no longer in the physical control of the owner
but in respect of which the owner hasn’t lost the intention to be owner.
Non-negotiable things
a) Natural resources falling outside legal commerce which are available
for all people (air): res communes ominium
b) Things owned by the state and used for the publics benefit (sea): res
publicae
“THE EXPERT IN ANYTHING WAS ONCE A BEGINNER”
Abstract
THIS DOCUMENT CONTAINS SUMMARISED NOTES FOR LAW OF PROPERTY
Joseph
0784683517
,STUDY UNIT 1
INTRODUCTION
Property: in the broad sense: includes everything that forms part of someone’s
estate = includes immovable property, movable property etc
Property: in the narrow sense: amounts to a thing – law of things: which is a branch
of private law which consists of a number of legal rules that determine the nature,
content, establishment, protection, transfer and termination of various real
relationships between a legal subject and a thing.
DEFINITIONS
Legal subject: any person (natural/juristic) capable of acting as a subject in legal
relationships and getting rights and duties.
Legal object: every object with which a legal subject has a legally recognized
relationship – anything with regard to which a person can get and hold a right.
Property: is everything, which can form part of someone’s estate, including
corporeal and incorporeal rights.
Thing: is a corporeal object outside the human body and an independent entity
capable of being subjected to the legal control by a legal subject for who it has use
and value.
Right: is a legally recognized and valid claim by a subject to a certain object.
Property right: is a legally recognized claim or interest in property
Remedy: is a legal procedure provided by a legal system to protect a right against
infringement or to control the effects of unlawful action.
REAL RELATIONSHIP
This is a legal relationship between a legal subject and a thing.
“THE EXPERT IN ANYTHING WAS ONCE A BEGINNER”
,A legal subject can get rights from a real relationship only if it’s lawful – if it complies
with legal rules.
A legal subject won’t get any rights from unlawful relationships.
The most NB real relationships:
a) Ownership = lawful
b) Possession: physical control of a thing with the intention of an owner =
unlawful
c) Holdership: physical control of a thing with the intention to derive a limited
benefit = lawful and unlawful
Real right: is a lawful relationship between a legal subject and a thing which gives
direct control over the thing to the legal subject, as well as the relationship between
the legal subject and other legal subjects who must respect this relationship = its
enforceable against the whole world.
Entitlements: a legal subject who gets a real right from a real relationship is usually
entitled to:
a) use
b) Control
c) Encumber (give others limited real rights)
d) Enjoy the fruits
e) Consume
f) Alienate
g) Vindicate
The function of the law of things
1) To harmonize various competing ownership rights – neighbor law
2) To harmonize an owners right in regard to his thing, with the rights of other
limited real right holders to the same thing
3) It controls the acquisition and transfer of things and real rights
Sources of the law of things
a) The constitution
b) Statutory law
c) Case law
d) Common law
“THE EXPERT IN ANYTHING WAS ONCE A BEGINNER”
, e) Indigenous customary law
THINGS AS LEGAL OBJECTS
Thing: is a legal object, which is an independent part of the corporeal world, which is
external to humans, subject to human control and useful and valuable to humans.
Characteristics of a thing
a) Corporeal: perceivable to your senses – e.g. car, horse
b) External to humans: the human body cant be regarded as a legal object
c) Independent: the thing can function as a legal object for the purposes of the
law of things, only if it has its own individual existence and can be recognized
as a distinct entity
d) Subject to human control: objects are significant for the law of things only if
they have the potential to be legally controlled by humans
e) Useful and valuable to humans: the thing must satisfy the needs of a legal
subject. It need not necessarily have economic value but can also have
sentimental value.
CLASSIFICATION OF THINGS
NEGOTIABLE AND NON-NEGOTIABLE THINGS
Negotiable things:
1) Res alicuius: things owned by a person or things in a insolvent or deceased
estate
2) Res nullis: things capable of being owned but which at a particular stage
aren’t owned by anyone
3) Res derelictae: things no longer in the physical control of the owners and in
respect of which the owner no longer has the intention to be owner
4) Res deperditae: things lost and no longer in the physical control of the owner
but in respect of which the owner hasn’t lost the intention to be owner.
Non-negotiable things
a) Natural resources falling outside legal commerce which are available
for all people (air): res communes ominium
b) Things owned by the state and used for the publics benefit (sea): res
publicae
“THE EXPERT IN ANYTHING WAS ONCE A BEGINNER”
