1
Study unit 1: Intro
2.1 Definitions
Definition of law of things:
Therefore, the law of things can be defined as a branch of private law which consists of a
number of legal rules that determine the nature, content, vesting, protection, transfer and
termination of various real relationships between a legal subject and a thing, as well as the
rights and duties ensuing from these relationships.
Legal subjects:
A legal subject can be defined as any person capable of acting as a subject in legal
relationships and of acquiring rights and incurring duties in the process. Human beings
(natural persons) are the most common and best-known legal subjects, but legal persons
such as the State, universities, companies, close corporations, and so on, are also legal
subjects, since they can act as legal subjects in legal relationships and can therefore acquire
rights and duties.
Legal object:
A legal object can be defined as every object with which a legal subject has a legally
recognised relationship. These legal objects may be divided into things, performances,
immaterial property and personality property
Thing:
Generally, a thing is a legal object characterised by its material (corporeal) nature. For a
complete picture of a thing in a legal sense, we define a thing as an independent part of the
corporeal world, which is external to humans and subject to human control, as well as useful
and valuable to humans.
2.2 Law, right, real relationships, real rights and entitlements
2.2.1 Law and right
Law is that body of rules and norms which regulates and harmonises society by
demarcating the rights and duties of legal subjects.
Rights deal with the lawful relationships between legal subjects and the relationship
between legal subjects and the objects of their rights.
2.2.2 Real relationships and real rights
A real relationship is the particular legal relationship between one or more legal
subjects and a thing.
There are usually two sides to a real relationship (and therefore, if it is a lawful real
relationship, to a real right), namely:
o the subject-object relationship between the particular legal subject and the
particular thing involved in the relationship
o the subject-subject relationship between the particular legal subject and all
other legal subjects
Important real relationships:
The nature, content and consequences of a particular real relationship in a specific
situation may be influenced by the attitude of the legal subjects concerned, by the
nature of the thing, as well as by a variety of surrounding circumstances. The most
important real relationships are usually divided into three categories:
o ownership, which is always a lawful real relationship and therefore a real right
o possession (physical control of a thing with the intention of an owner (animo
domini)), which is always unlawful and is therefore only a real relationship, not a
real right
o 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
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2.3 Remedies
When the law recognises a particular real relationship or a particular real right,
enforcement takes place by means of a specific real remedy. A real remedy can be
defined as 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.
A real remedy, therefore, finds application in lawful and unlawful real relationships.
Various remedies are used in the law of things to fulfil different functions.
o In the case of real rights, remedies serve to maintain, protect or restore the real
rights concerned, but
o there are also remedies governing the legal consequences of unlawful real
relationships, for example, the spoliation remedy
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3 FUNCTION OF LAW OF THINGS
The function of the law of things can be summarised as follows:
1 It strives to harmonise or regulate various competing ownership rights, especially
between neighbouring owners.
2 It strives to harmonise or regulate an owner’s rights in regard to his/her thing with the
rights of other limited real right holders to the same thing.
3 It controls the acquisition, protection and extinction of things and real rights.
4 SOURCES
(i) the Constitution of the Republic of South Africa, 1996
(ii) statute law
(iii) case law
(iv) common law (Roman-Dutch law)/indigenous (customary) law
THINGS AS LEGAL OBJECTS
2.1 Elements of definition
2.1.1 Corporeality:
The law of things is confined to things that form part of the corporeal world and are
therefore perceptible by means of the senses – for example, land, a car, a brick or a
horse.
2.1.2 External to humans:
In modern law on the basis of religious and ethical considerations underlying the legal
system that the human body and parts thereof cannot be regarded as legal objects.
2.1.3 Independence:
The independence of a thing denotes that it 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
recognised as a demarcated, distinct entity.
2.1.4 Subject to human control:
Objects can be significant for the law of things only if they have the potential to be
legally controlled by humans. It would be absurd, at this stage, for any person or group of
persons to claim control over the planet Mars, for example, and therefore it cannot be
considered a thing.
2.1.5 Useful and valuable to humans:
Value need not denote economic or market value with a price attached to it, but simply
that the legal subject wants his/her relationship with the thing to be maintained by the
law against interference by other legal subjects.
2.2 CLASSIFICATION OF THINGS
2.2.1 Criteria for classification:
All things may be classified according to either of two major criteria, namely:
(i) their relation to humans
(ii) the inherent nature of the thing concerned
2.2.2 Relation to humans:
Only the function or purpose of the thing in various legal processes and transactions.
2.2.2.1 Negotiability –
All things are negotiable (res in commercio = things which are in the legal sphere or in
commerce or trade).
The following things are excluded from commerce (res extra commercium) and are
therefore not negotiable:
(i) 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.
(ii) 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.
(iii) 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.
, 4
Negotiable things (res in commercio) may be either someone’s property (res alicuius) or
no-one’s property (res nullius). In the latter instance anyone can claim ownership of them
by means of appropriation.
We therefore distinguish between:
(i) res alicuius: things belonging to an owner and forming part of his/her estate
(ii) res nullius: things that are susceptible of ownership, but that belong to no one at a
particular stage, for example, wild animals or fish or a thing that has been thrown
away by its owner who no longer intends to be the owner (res derelictae).
2.2.3 Inherent nature:
When this criterion is used to categorise things, things are classified not according to their
relation to man, but according to their inherent characteristics or qualities.
2.2.3.1 Singular and composite things –
A collection of things must be distinguished from composite things.
A collection of similar things, for example, a flock of sheep, a swarm of bees.The owner
owns both the flock or swarm or stock and the individual sheep or bees or items in the
stock.
A collection of dissimilar things, such as corporeal and incorporeal things or things and
rights, for example, an entire estate. Such a collection would be treated by the law as a
legal unit, but then only for specific purposes. This would be the case in insolvency law
and in the law of succession where the insolvent estate and the deceased estate,
respectively, are regarded as independent entities.
2.2.3.2 Fruits –
Fruits denote the income or yield regularly produced by the principal thing, while the
principal thing itself is preserved.
In principle, fruits are accessory things and as such constitute part of the principal
thing, but with this difference:
Fruits are intended to be separated from the principal thing so as to have an
independent existence.
We distinguish between: natural fruits (fructus naturales), for example, wool, fruit or
milk, and civil fruits (fructus civiles) or non-organic yield, for example, interest on
capital or rent payments. In the case of natural fruit further distinctions can be made
between: hanging fruits (fructus pendentes)
2.2.3.3 Movable and immovable things -
(i) It affects the formalities and requirements for the transfer of ownership. Transfer of
ownership of movables is effected by delivery, and of immovables by registration in the
deeds registry.
(ii) Several statutes distinguish between movable and immovable things: for example, the
Deeds Registries Act 47 of 1937 and the Alienation of Land Act 68 of 1981.
(iii) Private international law distinguishes between movable and immovable things in that
the law of the owner’s domicile (lex loci domicilii) applies in the case of movables, whereas
the law of the immovable thing’s location governs immovables
(lex loci rei sitae) (Southern Tankers (Pty) Ltd t/a Unilog v Pescana D’’Oro Ltd 2003 (4)
SA 566 (C) 570E).
(iv) The right to alienate or encumber the estate of a minor is affected as follows:
Permission of the High Court is required for the alienation or encumbrance of a minor’s
immovable assets worth more than R100 000-00.
(v) In the execution of a judgment debt and in the case of insolvency, the debtor’s movable
assets are sold before the immovables, to secure payment of the judgment debt.
(vi) In criminal law theft can be committed only in respect of movables, while arson can only
be committed in relation to immovables.
(vii) Real security is effected by means of a pledge in the case of movables and by means of
a mortgage in the case of immovable things.
2.2.3.4 Fungible and non-fungible things -
Things are fungible (replaceable) (res fungibiles) or non-fungible (irreplaceable) (res
non fungibiles).
Study unit 1: Intro
2.1 Definitions
Definition of law of things:
Therefore, the law of things can be defined as a branch of private law which consists of a
number of legal rules that determine the nature, content, vesting, protection, transfer and
termination of various real relationships between a legal subject and a thing, as well as the
rights and duties ensuing from these relationships.
Legal subjects:
A legal subject can be defined as any person capable of acting as a subject in legal
relationships and of acquiring rights and incurring duties in the process. Human beings
(natural persons) are the most common and best-known legal subjects, but legal persons
such as the State, universities, companies, close corporations, and so on, are also legal
subjects, since they can act as legal subjects in legal relationships and can therefore acquire
rights and duties.
Legal object:
A legal object can be defined as every object with which a legal subject has a legally
recognised relationship. These legal objects may be divided into things, performances,
immaterial property and personality property
Thing:
Generally, a thing is a legal object characterised by its material (corporeal) nature. For a
complete picture of a thing in a legal sense, we define a thing as an independent part of the
corporeal world, which is external to humans and subject to human control, as well as useful
and valuable to humans.
2.2 Law, right, real relationships, real rights and entitlements
2.2.1 Law and right
Law is that body of rules and norms which regulates and harmonises society by
demarcating the rights and duties of legal subjects.
Rights deal with the lawful relationships between legal subjects and the relationship
between legal subjects and the objects of their rights.
2.2.2 Real relationships and real rights
A real relationship is the particular legal relationship between one or more legal
subjects and a thing.
There are usually two sides to a real relationship (and therefore, if it is a lawful real
relationship, to a real right), namely:
o the subject-object relationship between the particular legal subject and the
particular thing involved in the relationship
o the subject-subject relationship between the particular legal subject and all
other legal subjects
Important real relationships:
The nature, content and consequences of a particular real relationship in a specific
situation may be influenced by the attitude of the legal subjects concerned, by the
nature of the thing, as well as by a variety of surrounding circumstances. The most
important real relationships are usually divided into three categories:
o ownership, which is always a lawful real relationship and therefore a real right
o possession (physical control of a thing with the intention of an owner (animo
domini)), which is always unlawful and is therefore only a real relationship, not a
real right
o 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
, 2
2.3 Remedies
When the law recognises a particular real relationship or a particular real right,
enforcement takes place by means of a specific real remedy. A real remedy can be
defined as 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.
A real remedy, therefore, finds application in lawful and unlawful real relationships.
Various remedies are used in the law of things to fulfil different functions.
o In the case of real rights, remedies serve to maintain, protect or restore the real
rights concerned, but
o there are also remedies governing the legal consequences of unlawful real
relationships, for example, the spoliation remedy
, 3
3 FUNCTION OF LAW OF THINGS
The function of the law of things can be summarised as follows:
1 It strives to harmonise or regulate various competing ownership rights, especially
between neighbouring owners.
2 It strives to harmonise or regulate an owner’s rights in regard to his/her thing with the
rights of other limited real right holders to the same thing.
3 It controls the acquisition, protection and extinction of things and real rights.
4 SOURCES
(i) the Constitution of the Republic of South Africa, 1996
(ii) statute law
(iii) case law
(iv) common law (Roman-Dutch law)/indigenous (customary) law
THINGS AS LEGAL OBJECTS
2.1 Elements of definition
2.1.1 Corporeality:
The law of things is confined to things that form part of the corporeal world and are
therefore perceptible by means of the senses – for example, land, a car, a brick or a
horse.
2.1.2 External to humans:
In modern law on the basis of religious and ethical considerations underlying the legal
system that the human body and parts thereof cannot be regarded as legal objects.
2.1.3 Independence:
The independence of a thing denotes that it 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
recognised as a demarcated, distinct entity.
2.1.4 Subject to human control:
Objects can be significant for the law of things only if they have the potential to be
legally controlled by humans. It would be absurd, at this stage, for any person or group of
persons to claim control over the planet Mars, for example, and therefore it cannot be
considered a thing.
2.1.5 Useful and valuable to humans:
Value need not denote economic or market value with a price attached to it, but simply
that the legal subject wants his/her relationship with the thing to be maintained by the
law against interference by other legal subjects.
2.2 CLASSIFICATION OF THINGS
2.2.1 Criteria for classification:
All things may be classified according to either of two major criteria, namely:
(i) their relation to humans
(ii) the inherent nature of the thing concerned
2.2.2 Relation to humans:
Only the function or purpose of the thing in various legal processes and transactions.
2.2.2.1 Negotiability –
All things are negotiable (res in commercio = things which are in the legal sphere or in
commerce or trade).
The following things are excluded from commerce (res extra commercium) and are
therefore not negotiable:
(i) 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.
(ii) 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.
(iii) 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.
, 4
Negotiable things (res in commercio) may be either someone’s property (res alicuius) or
no-one’s property (res nullius). In the latter instance anyone can claim ownership of them
by means of appropriation.
We therefore distinguish between:
(i) res alicuius: things belonging to an owner and forming part of his/her estate
(ii) res nullius: things that are susceptible of ownership, but that belong to no one at a
particular stage, for example, wild animals or fish or a thing that has been thrown
away by its owner who no longer intends to be the owner (res derelictae).
2.2.3 Inherent nature:
When this criterion is used to categorise things, things are classified not according to their
relation to man, but according to their inherent characteristics or qualities.
2.2.3.1 Singular and composite things –
A collection of things must be distinguished from composite things.
A collection of similar things, for example, a flock of sheep, a swarm of bees.The owner
owns both the flock or swarm or stock and the individual sheep or bees or items in the
stock.
A collection of dissimilar things, such as corporeal and incorporeal things or things and
rights, for example, an entire estate. Such a collection would be treated by the law as a
legal unit, but then only for specific purposes. This would be the case in insolvency law
and in the law of succession where the insolvent estate and the deceased estate,
respectively, are regarded as independent entities.
2.2.3.2 Fruits –
Fruits denote the income or yield regularly produced by the principal thing, while the
principal thing itself is preserved.
In principle, fruits are accessory things and as such constitute part of the principal
thing, but with this difference:
Fruits are intended to be separated from the principal thing so as to have an
independent existence.
We distinguish between: natural fruits (fructus naturales), for example, wool, fruit or
milk, and civil fruits (fructus civiles) or non-organic yield, for example, interest on
capital or rent payments. In the case of natural fruit further distinctions can be made
between: hanging fruits (fructus pendentes)
2.2.3.3 Movable and immovable things -
(i) It affects the formalities and requirements for the transfer of ownership. Transfer of
ownership of movables is effected by delivery, and of immovables by registration in the
deeds registry.
(ii) Several statutes distinguish between movable and immovable things: for example, the
Deeds Registries Act 47 of 1937 and the Alienation of Land Act 68 of 1981.
(iii) Private international law distinguishes between movable and immovable things in that
the law of the owner’s domicile (lex loci domicilii) applies in the case of movables, whereas
the law of the immovable thing’s location governs immovables
(lex loci rei sitae) (Southern Tankers (Pty) Ltd t/a Unilog v Pescana D’’Oro Ltd 2003 (4)
SA 566 (C) 570E).
(iv) The right to alienate or encumber the estate of a minor is affected as follows:
Permission of the High Court is required for the alienation or encumbrance of a minor’s
immovable assets worth more than R100 000-00.
(v) In the execution of a judgment debt and in the case of insolvency, the debtor’s movable
assets are sold before the immovables, to secure payment of the judgment debt.
(vi) In criminal law theft can be committed only in respect of movables, while arson can only
be committed in relation to immovables.
(vii) Real security is effected by means of a pledge in the case of movables and by means of
a mortgage in the case of immovable things.
2.2.3.4 Fungible and non-fungible things -
Things are fungible (replaceable) (res fungibiles) or non-fungible (irreplaceable) (res
non fungibiles).
