Introduction To Property law

Place of Law of Property in Law

Zimbabwean Law

Substantive law
Adjective law

Law of procedure
Private law Public law
 Private law

Patrimonial law

Law of Industrial property

law of obligations
things/property law
 DEFINITIONS
 Law of things
 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 relationship
between a legal subject and a thing, as well
as the rights and duties ensuing from these
relationships.
Legal Subject
 A legal subject can be defined as any person
(whether a natural or legal person) capable of
acting as a subject in legal relationship 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 duties.
Legal Object
 The rights and duties established by legal
subjects in legal relationships pertain to one
or more various kinds of legal object. A legal
object can be defined as every object with
which a legal subject has a legally recognised
relationship. The legal objects may be divided
into things, performances, immaterial
property and personality property. Each of
legal objects has its own characteristics which
distinguish it from other legal objects.
Thing
 A legal object characterized 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.
Law, right, real relationships, real
rights and entitlements.
 Law and right- first distinguish between a
“law” and a “right”.
 What is a law?
 What is a right?
 Rights deal with the lawful relationship

between legal subjects and the relationship

between legal subjects and the objects of
their rights.
Real relationships and real rights.
 A legal relationship is a relationship to which
the law attaches consequence.
 A real relationship is the particular legal

relationship between one or more legal

subjects and a thing.
 What does a real right entail and what is the

difference between a real right a real

relationship?
Important real relationships
 The most important real relationships are
usually divided into three categories-

 i) ownership- which is always a lawful real

relationship and therefore a real right.
ii) possession
 Physical control of a thing with the intention
of an owner (animo domini).

 physical control of a thing with the intention

to derive a benefit.
 May be lawful or unlawful.
 When it is lawful it can give rise to a real

right, for example, a pledge, usufructuary

right, etc.
Definition of a real right.
 A lawful real relationship between a legal
subject and a thing which confers direct
control over the thing on the legal subject, as
well as the relationship between the legal
subject and all other legal subjects who must
respect this relationship.
Categories of rights
OBJECT RIGHT EXAMPLE
Thing Real right Ownership
Performance Personal right Right to purchase
price
Personality Personality right Right to good name
Immaterial property Immaterial property Copyright
right
Entitlements
 A legal subject who acquires a real right from
a lawful real relationship is usually entitled by
the legal order to perform certain acts in
connection with the thing.
 The entitlements of a right determine which

acts a legal subject is entitled to perform in

regard to a thing.
Remedies
 A real remedy 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.
FUNCTION OF THE LAW OF
THINGS
 It strives to harmonize or regulate various
competing ownership rights, especially
between neighbouring owners
 It strives to harmonize or regulate and

owner’s rights in regard to his/her thing with

the rights of other limited real right holders
to the same thing.
 It controls the acquisition, protection and

extinction of things and real rights.

Basis
Basisand
andsources
sourcesof
oflaw
lawof
ofthings
things
 The Constitution of Zimbabwe
 Statute Law
 Case law
 Common law
 Customary law
THINGS AS LEGAL OBJECTS
THINGS AS LEGAL OBJECTS
What is a thing?
 A thing may be defined as a legal object which is an
independent part of the corporeal world, is external
to humans, subject to human control and is useful
and valuable to humans.
 Take a moment to reflect on slavery. Human beings
were sold as “things” and they were capable of
being owned. In England, the legal debate on slave
ownership raged on for decades because the
common law was in conflict with those who ruled
the commercial world.
  R v Inhabitants of Thames Ditton (1785) 99 ER 891.
Corporeality
 It is generally accepted that 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.
External to humans
 It is accepted in modern law and on the basis
of religious and ethical considerations
underlying the legal system that the human
body and parts thereof can not be regarded
as legal objects.
 An object can only qualify as a thing if it is

not part of the human body.

Activity
◦ Should the definition of “property” in the
constitution extend to human organs?
◦ Take a look at the Anatomical Donations and Post-
Mortem Examinations Act [Chapter 15:01] section
19
◦ To what extent is its regulations on human organs
justifiable?
◦ Should people have the right to trade their own
body parts?
◦ What are the ethical and public policy
considerations?
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 its own,
individual existence and can be recognised as
a demarcated, distinct entity.
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.
Useful and valuable to humans
 The law is only concerned with real
relationships when these have legal
consequences.
 A thing should useful or valuable to a legal

subject.
 The legal maxim de minimis non curat lex

( the law does not concern itself with

trivialties) is an important consideration.
CLASSIFICATION OF THINGS
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
Relation to humans
 When things are classified according to this
criterion, the nature of the thing is not
considered, but only the function or purpose
of the thing in various legal process and
transactions.
 It is either negotiable or non-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)
 Res communes omnium= things that do not fall under
private legal control, but 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 general benefit and use of the public, for
example national parks etc
 Other Res extra commercium= things that are not
freely negotiable for another reason, e.g. body parts

NEGOTIABILITY
The negotiability of a thing can influence its function
radically and classification of things according to this
criterion is therefore important. In principle all things
are negotiable (res in commercio) .
Inherent nature
 When this criterion is used to categorise,
things are classified not according to their
relationship to man, but according to their
inherent characteristics or qualities. Various
classifications are possible on this basis.
 Things can be singular or composite,

depending on whether the thing consists of a

single piece or of a composition of
constituent parts.
Singular and composite things

 A collection of things must be distinguished from composite

things. Two forms of collections are relevant:
 In one we deal with a collection of similar principal things.
 In the other the collection consists of different types of
principal things.
 In both cases the collection is treated as a singular unit.
 A composite thing usually consists of various constituent
parts and they are 3 namely: - principle thing
-accessory thing
- Auxiliary thing
 Principle thing- the independent thing made up of various
parts with an independent existence as a composite thing.
Principal thing is not a constituent or supplementary part
e.g. land.
 Accessory thing- can have separate existence apart from
the composite thing but has forfeited its independent
existence in that it has been physically joined to the
principal thing.
 Auxiliary thing- like an accessory thing it can have an
independent existence apart from the composite thing
however it forfeits its independent existence without being
physically joined to the principal thing. The auxiliary thing
is economically dependent on the principal thing.
Fruits
 Form a separate class of things, e.g. Apples
on a tree (natural fruits) or the interest on
investments (civil fruits).
 As long as fruits are attached to a principal

thing, it is an accessory to the principal thing.

 Fruits denote the income or yield regularly

produced by the principal thing while the

principal thing itself is preserved.
 Natural fruits (fructus naturales) e.g. Wool,
fruit or milk
 Civil fruits (fructus civiles) or non-organic

yield e.g. Interest on capital or rent

payments.
Moveable and immovable things
 Immovable things consist of land ad
everything permanently attached to it e.g.
Natural things like trees and other artificial
structures like buildings.
 Movable things can be moved from one place

to another without losing their identity.

Fungible and non-fungible
 Things that are fungible; are replaceable or
non-fungible; irreplaceable.
 The distinction depends on whether they

have individual characteristics or if they

belong to a certain kind of genus.
 Flexibility or otherwise of a specific thing is

affected by the agreement between the

parties and it might affect the consequences.
Significance of distinction between
fungibles and non-fungibles.
 In the law of obligations: the replaceability of or otherwise of a
specific things is determined by agreement between the parties,
and may affect the consequences of the agreement.
 Pledge: a fungible cannot, in principle, be given in pledge with the

intention that it can be replaced by a similar thing. It is a basic rule

of the law of pledge that the pledgee may not replace the pledged
article.
 Transfer of ownership: in certain circumstances a fungible may

change ownership by means of commixtio (mixing solids) or

confusio (mingling of liquids).
 Replacement: it would seem that the courts are more inclined to

authorise the repair and even the replacement of a damaged or

destroyed fungible thing in a spoliation order , in certain cases, than
would be the case with non-fungibles.
Consumable and non-consumable
 Consumable things are used up or their value
is considerably diminished by ordinary
uses .e.g. Food stuffs, cigarettes.
 Non-consumable things are preserved inspite

of ordinary use.
Divisible and indivisible things.
 Divisible – it can be divided without losing its
essential characteristics into smaller parts of
which the nature and function are essentially
the same as those of the original thing. E.g. A
bag of sugar, a roll of fabric, a piece of land.
 Indivisible things such as a car or painting

cannot be divided without destroying or

changing the nature of the thing.
REAL RIGHTS AND PERSONAL
RIGHTS!
 Two important theories that have gained
acceptance over many years are
 i) the personalist theory
 ii) the classical theory
Personalist theory
 Emphasis is placed on the person against
whom the right may be enforced.
 In terms of this theory, a real right operates

absolutely in the sense that it is enforceable

against the world at large e.g. The right to
ownership maybe enforced against anyone.
 A personal right on the other hand has

relative operation it can be enforced only

against the particular person who is obliged
to perform.
criticism
 It over emphasizes the absolute operation of
real rights and in reality such rights do not
always and necessarily operate absolutely.
 Personal rights also do not always have only

relative operation, in exceptional

circumstances they operate absolutely and
have to be respected by outsiders.
Classical Theory
 This theory distinguishes between real and
personal rights with reference to the nature of
the object to which the right pertains.
 Real rights according to this theory concern the

relationship between person and a thing. A real

right confers direct control and the right of
disposal over a thing.
 Personal rights on the other hand concern the

relationship between persons. A personal right

entitles the creditor to claim performance from
a particular person only.
Criticism
 It’s sometimes difficult to determine exactly
what’s meant by a direct relationship with a
thing. Certain personal rights ultimately also
have a thing as their object but they are not
real rights.
Distinction theories
 Real right  Real rights
 Direct relationship
 Can enforce claim against the
whole world (actio in rem)
between subject and  Personal right
object  Can enforce claim against the
 Personal right other subject who is party to
 Relationship between the agreement (actio in
subject and another personam)
subject
 NB
 Focus on the person against
 In respect of a whom the rights operate
“performance”
 NB

Classic theory Personalist theory

Distinguishing Criteria

 Neither of the theories serve as an inclusive

absolute basis for distinguishing between real
and personal rights.
 In certain instances they also overlap.
 Typical real and personal rights have the

following distinguishing characteristics:

Object
 The object of a real right is generally
corporeal whereas the object of a personal
right is perfomance.
Content
 The holder of a real right has a direct claim to
and right of disposal over a thing whereas the
holder of a personal right is entitled to claim
performance for the specific person.
Remedies
 The holder of a real right can enforce his or
her real right by means of real action such as
rei vindicatio (vindicatory action) of the
owner which can be used against anyone who
is in unlawful control of the thing. Whilst the
holder of the personal right on the other
hand enforces his or her right by means of
personal action e.g. Specific performance.
Origin
 Real rights have their origins in legal facts
other than obligations e.g. Delivery of
movable things, registration, accession,
prescription while personal rights come to
existence through obligation e.g. In terms of
a contact.
Absoluteness
 Real rights are absolute in principle. The
holder of the right can generally vindicate his
or her thing from whoever is in control of the
thing. With personal rights, the holder can
enforce his or her right only against the
person who is obliged to perform interms of
an obligation.
Preference
 In the case of insolvency, real rights enjoy
preference over personal rights.
 Also first in time is stronger in law maxim is

applied in the case of two or more competing

real rights.
 Apart from a few exceptions this principle

does not apply in terms of personal rights.

Publicity
 A creation, transfer or extinction of real
rights requires some form of publicity. This
takes the form of deliver in the case of
movables and registration in the case of
immovables.
 See Jolly v Shannon & Anor 1998, ZLR p98
Subtraction from the dominium test.
 Ex parte Geldenhuys 1926 OPD 155
 • Facts
 Distinction between real and personal rights
 “The point, however, which I am attempting to elucidate is that,
when it is said that “personal rights” cannot be registered
against the title to land, the reference is not to rights created in
favour of a “person,” for such rights may be real rights against
the land. The reference is to rights which are merely binding
on the present owner of the land, and which thus do not bind
the successors in title of the present owner. ”
 Whether rights are registrable
 “One has to look not so much to the right, but to the correlative

obligation. If that obligation is a burden upon the land, a

subtraction from the dominium, the corresponding right is real
and registrable; if it is not such an obligation, but merely an
obligation binding on some person or other, the corresponding
right is a personal rights, or a right in personam, and it cannot as
a rule be registered. ”
 Application to the facts
 Time and manner of division
 Amounted to restriction of common law rights of the co-owners
 Entitlement of co-owners to undivided land
 Uncertainty about which child would reach age of majority first
 Payment of the 200 pounds
 Did NOT amount to subtraction from the dominium
 Imposed monetary obligation on a specific person
 Once monetary amount was paid the obligation would be extingsuihed
 HOWEVER, “intimate connection”
 “If the direction as to the time of the partition and the drawing of lots
were registered, without the direction as to the payment of the 200
pounds, the result would be an incorrect representation, and an
imperfect picture of the testamentary direction, which would be most
misleading to strangers who may purchase undivided shares from the
children before the partition takes place. ”
 Importance
 The subtraction from the dominium test involves an enquiry into
whether any ownership entitlements are reduced either by way of (1)
giving certain entitlements away or (2) by limiting the exercise of
certain entitlements.
 Personal rights may be registered in exceptional
circumstances when those rights are intimately connected
to real rights in land that are registrable.
 The act of registering a personal obligation does not
change it into a real right that would then be binding upon
third parties in terms of the doctrine of constructive
notice.
 Lorentz v Melle, Pearly Beach Trust v Registrar of Deeds,
and Cape Explosice Works Ltd v Denel (Pty) Ltd
 Re-evaluate these decisions
 Correctly decided?
 Ownership should not be impaired by allowing too many
restrictions
 Public policy considerations should be registered for the sake of
clarity


Cape Explosive Works Ltd v Denel (Pty) Ltd

 Facts
 “A real right is adequately protected by its registration in the Deeds
Office (see Frye’s (Pty) Ltd v Ries 1957 (3) SA 575 (A) at 582A).
Once Capex’s rights had been registered they were maintainable
against the whole world (Frye’s case at 583E). They were not
extinguished by their erroneous omission from subsequent title
deeds and the fact that Denel’s title deed, registered with the Dees
Office, did not reflect those rights does not asset Denel. We have a
negative system of registration where the deeds registry does not
necessarily reflect the true state of affairs and third parties cannot
place absolute reliance thereon. ”
 Deeds Registries Act Chp 20:05
 Section 56 (1) of D.R.A
 “No deed or condition in a deed purporting to

create or embody any personal any personal

right in respect of immovable property shall
be capable of registration.”
Categories of Real Rights
 Having established what real rights are, we
must draw a further distinction between
ownership, which is a real right to one’s own
thing (ius in re propria) and limited real rights,
which are real rights to someone else’s thing
(iura in re aliena)
 The difference between ownership and limited
real rights lies in the fact that ownership is a
real right over one’s own thing, whereas limited
real rights are rights to another person’s thing.
OWNERSHIP
OWNERSHIP
DEFINITION
 Ownership is the right to one’s own thing (ius
in re propia).
 Ownership embraces the power:
 To enjoy the fruits
 To use
 To consume the thing
 To possess
 To dispose
 To reclaim the thing from anyone who wrongfully holds it
 To resist any unlawful invasion of the thing people.
Entitlements
 The capacities conferred on the legal subject
by virtue of a right, in this case the real right
of ownership, are called entitlements.
 The entitlements of ownership include the

entitlement to use the thing, control the

thing, consume or destroy the thing, alienate
the thing, burden the thing and vindicate the
thing.
Limitations of ownership
 Public law restrictions
 Private law restrictions
Public Law Restrictions
 The ownership of movables is restricted by
various statutes. For vehicles for instance this
includes, the Road Traffic Act.
 Public law also governs and regulates the
movement of contaminated animals and how
animals should be treated in general.
 Other statutes include, Firearms Act, Censorship
Act
 The ownership of immovables is restricted by
statutes such as the Regional Town and Country
Planning Act.
Private Law Restrictions
 The extent of ownership is limited in the interest of
private individuals.
 Ownership is restricted in order to obtain harmony in

case of conflicting ownership interests.

 The requirement for an action of private law restriction

is that the interference with one’s right must be a

continuous one as opposed to a single isolated event.
 There must be an unreasonable use of land by the

other person which causes an unreasonable and

unjustifiable degree of interference on his land.
 See Wright v Pomona Stone Quaires Pvt Ltd 1988 ZLR

144 (S).
Public Nuisance.
 This is when nuisance is controlled by
legislation. E.g. Public Health Act [Chp 15:09],
Environmental Management Act, Atmospheric
Pollution Act, Regional Town and Country
Planning Act.
 Right of lateral support.
 Encroaching trees, branches, roots
 Danger of collapsing buildings.
Acquisition of Ownership
 Ownership is either original or derivative if it
is acquired independently and not derived
from the ownership of the predecessor.
 In some cases of original acquisition such as

in the case of expropriation there may be a

predecessor.
Derivative Acquisition
 This acquisition takes the form of a bilateral
transaction for which the cooperation of the
predecessor in title is required.
 The acquirer obtains the rights inherent in

the ownership of his predecessor but also

succeeds to the liabilities attached to the
right.
Types of original acquisition
 Appropriation / Occupation
◦ the unilateral taking of physical control of the thing
which does not belong to anyone but which is within
the sphere of law with the intention of becoming its
owner.

Three requirements must be met:

i) object of occupation must be an unowned thing
capable of being owned.
ii) the acquirer must have animus domini
iii) the acquirer must exercise the necessary physical
control R v Mofahlai
 Treasure
 Treasure which is found by a man on his own land
belongs to him.
 If an independent person finds the treasure by accident
and not in consequence of a deliberative search, he’s
entitled to half of the treasure and the other half goes to
the land owner.
Requirements are as follows:
i)the treasure must be movable and valuable
ii) the treasure must be hidden in land or elsewhere
iii) it must have been concealed for such a long time that
no recollection of ownership exists.
iv) The discovery of treasure must have been by accident.
Accession
 Accession takes place when an accessory
thing becomes merged with a principal thing
with the result that the two things form one
entity.
 The accessory thing loses its independence

and becomes part of the principal thing.

 The owner of the principal thing is the owner

of the composite thing.

 There are various tests that determine which
is the principal thing and which is the
accessory thing:
 The thing with the highest value
 The thing with the greatest bulk
 The thing without the accessory can not exist
 The thing which belongs to the person on whose
account the things are joined.
 The thing which is adorned by the accessory.
 The thing which gives the final entity its identity, form
or function.
Accession of immovables
 Alluvion
 Avulsion
 An island arsing in a river
 A river changing its course
Alluvion
 Aluvion is the gradual and increase of land by
soil being deposited by the action of a river
or the sea.
 The following requirements must be fulfilled:
 The increase must have occurred because of the
natural imperceptibility gradual deposit of soil.
 The soil must have been deposited by the public.
Avulsion
 Takes place when the etent of land is
increased by the sudden addition of land
which has by violent natural causes been
dislodged elsewhere.
 Requirements: there must be a sudden

addition of land through violent natural

causes dislodged
Island arising in a river
 An island is formed in a river by the natural
action of water in such a way that the island
is divided proportionately and acquired by
riparian owners.
 The requirements for acquisition of

ownership in the island by the riparian owner

are the same as for alluvion.
 The island must have arisen naturally.
 It must have arisen in a public river.
A river changing its course
 If a river dries up or changes its course the
old bed accrues to the riparian owners in the
same proportion as an island arising in a
river.
 The drying up of the bed or the changing of

course must be permanent. The river must be

a public river.
Accession of movables to movables
 It is an original method of acquiring
ownership in terms of which accessory
movable becomes attached to a principal
movable in such a way that a single entity is
formed and ownership of the principal
movable extends to the accessory and the
accessory thing loses its independence e.g.
Painting, weaving, writing.
Mixing of solids
 This is where movable things belonging to
different persons are mixed together without
the consent of the owners in such a way that
the movables can’t be separated.
 The mixture becomes the joint properly of

the former owners in proportion to the value

of the things included.
Manufacture Specification
 This is where ownership is acquired by the
unauthorized production of a completely new
thing using a thing belonging to another.
Acquisition of Fruits
 This takes place when a person who is
entitled to separate or gather fruits does so.
Accession of movables to
immovables.
 Anything painted or sown or artificially
attached to land becomes part of the land
and that’s the property of the land owner.
 In these cases the land is always the principal

thing.
 Types – planting and sowing
 - inaedificatio
 -Prescription
Planting and sowing
 Everything that is sown or planted in the soil
accedes to the soil as soon as it has taken
root.
 The rational for this rule is apparently that

the owner of the soil which nourishes the

seeds or plants should become the owner of
the eventual product.
Inaedificatio
 This takes place when physical accessories
are built or attached to the land.
 In order to determine whether a movable

which has been attached to the soil or to

another immovable becomes part of the soil
3 factors have to be considered:
◦ Nature and purpose of the movable
◦ The degree and manner of its attachment
◦ Intention of the owner of the movables with regard
to the attached of the movable to the soil.
Prescription
 Prescription Act Chapter 8:11
 Section 4 in particular.
 In terms of section 4 a person shall by prescription
becomes the owner of the thing which he has
possessed openly and as if he were the owner thereof
for
 a) an uninterrupted period of 30 years
 b) a period which together with any periods for which
such things was so possessed by his predecessors in
title, constitutes an uninterrupted period of 30 years.
 Elements : physical, mental
 Physical Control- dependant on the circumstances
and objective assessment of whether the influence
of occupation or control can be drawn together with
the intention of the owner.
 Openly- was defined in an early case as “So patent
that the owner, with the exercise of reasonable care
would have observed it.” the openly requirement is
subject to an objective case, the practical effect of
which is to require the claimant to establish that
the nature of this possession was such that a
reasonable man would have been aware of it.
 As if he or she were the owner- This
requirement refers to the animus domini of
the possessor.
 For an uninterrupted period of 30 years-

i)period of predecessors in title added

ii)absolute continuity not required
 Msasa Lodge (pvt) Ltd v Lightfoot 2000 (2) ZLR 1 (HC)
 Rational – the acceptable justification for acquisition by
prescription is that the legal rules applicable to prescription
aim at perpetuating the factual impression of ownership
created by the long and uninterrupted period during which the
possessor has possessed the thing.
 Since this false impression can deceive outsiders a situation
of uncertainty is created.
 In order to promote certainty the rules of prescription have
the consequence that the original owner loses his ownership if
he does not claim restitution of his thing during the period of
prescription. The emphasis is not so much on the negligence
of the owner but on the incorrect impression created by this
negligence.
 Interruption – natural, juristic
 Natural Interruption

◦ Section 5 of the prescription act provides that the

running of prescription shall not be interrupted by
involuntary loss of possession if:
 Possession is regarded at any time by means of legal
proceedings instituted within 6 months or
 Possession is lawfully regained in any other way within 1
year of such loss.
 Judicial Interruption
◦ Section 7 of the Act provides for judicial
interruption.
◦ Prescription is interrupted by the service of court
process including, petition, notice of motion, rule
nisi.
Derivative Forms of Ownership
 Derivative methods of acquiring ownership
occur with the cooperation of the predecessor
in title.
Forms of constructive delivery
 Delivery takes the form of the physical handover of
the thing to the transferee in the majority of the cases.
 Depending on the narrative of the object transferred,

actual handing over is not always transferrable.

 In the case of constructive delivery although the

physical element is less prevalent it is strictly required

that the transferee must be placed in a possession to
exercise physical control of the object.
 Constructive delivery usually occurs when objects

which can not be handled easily are delivered or in

circumstances where it is impractical to deliver the
object physically.
Clavium traditio

◦ this form of delivery takes place where the contents

of the box, cupboard, room or warehouse are
transferred by handing over the keys thereof.
Transferee must be given physical access to the
object delivered.
Traditio longa manu/ long hand

◦ Physical transfer of the thing is not possible

because of its size or weight.
◦ This includes bulky things such as a huge quantity
of timber or sand, cattle, heavy machinery e.t.cc
Traditio brevi manu/ short hand

◦ This form of delivery occurs where the person to

whom the thing is transferred is already in
possession of the thing.
◦ Ownership passes as soon as the parties have the
requisite intention to transfer and acquire
ownership.
Constitium possessorium

◦ Is in a sense the opposite of brevi manu.

◦ The transferor retains physical control of the thing
to be transferred but he acknowledges that the
thing is hence forth owned by the transferee and
that he retains it on behalf of the latter.
Attornment

◦ Is a method of delivery developed in English law.

◦ Ownership is transferred by attornment when the
thing to be transferred is in the physical control of
the third party who holds it on behalf of the owner.
◦ Attornment takes place when the transferor, the
transferee and the holder of he thing enter into a
tripartite agreement to the effect that the holder is
henceforth to hold the thing no longer on behalf of
the transferor but the transferee.
 Cession of rights/ vindication
◦ Occurs where the cessionary transfers his or her
rights and interests to usually an immovable
property to the cedent.
Protection of ownership
 The remedies can be divided into three
groups: property law remedies, delictual
remedies, and enrichment remedies.
Property law remedies
 Rei vindicatio
 Interdict
 Declaratory
 Actio negatoria
Delictual remedies
 Condictio furtiva
 Actio ad exhibendum
 Aquilian action (delictual claim for damages)
Enrichment
 An owner may possibly also claim the
grounds of unjustified enrichment where a
bona fide possessor benefited from the thing
which he had under his/her control.
Remedy What can be Who can Against What must
claimed? claim? whom can be proved?
action be
instituted?
Rei -Thing -Owner -Any person -Ownership
vindicatio in control, -thing exists
unlawfully and
identifiable
-defendant
in control
when action
instituted.
Remedy What can be Who can Against who What must be
claimed? claim? can action be proved?
instituted?

Interdict - Order to do -Owner - Violator -Clear right

or refrain. -Lawful -injury actually
holder committed or
reasonably
apprehended,
and
- Absence of
similar
protection by
any other
ordinary remedy.
Remedy What can be Who can Against What must
claimed? claim? whom can be proved?
action be
instituted?
Declaratory - Order for -owner -opponent -Existing/fut
order setting out -possessor/ in dispute. ure/interest
the rights holder. -Real dispute
and duties of about
parties to right/interes
dispute. t
-Requiremen
ts for
right/interes
t relied on
Remedy What can be Who can Against What must
claimed? claim? whom can be proved?
action be
instituted?
Actio -Prohibition - owner -violator -Ownership
negatoria of exercising -Physical
entitlements infringement
of servitude of
holder or entitlements
exceeding of of
rights of ownership.
servitude
holder.
Remedy What can be Who can Against What must
claimed? claim? whom can be proved?
action be
instituted?
Condictio - Stolen -owner or -Thief or
furtiva thing or person with thief’s heirs
highest lawful (after thief’s
value of interest. death)
thing since -Person who
theft. removed
with
deceitful
intent.
Remedy What can be Who can Against What must
claimed? claim? whom can be proved?
the action be
claimed?
Actio ad ex- - Market -owner -former -Ownership
hibendum value of holder who -wrongful
thing at time mala fide and
of alienated or intentional
alienation/d destroyed alienation/d
estruction thing.- estruction
-mala fide
conduct
(with
knowledge)
- loss
Remedy What can be Who can Against What must
claimed? claim? whom can be proved?
the action be
claimed?
Actio legis -damages -owner -person who -Against the
aquilliae -bona fide caused law
possessor/ damage. -Culpability
holder of
defendant.
-Proprietary
right/interes
t in thing
-Patrimonial
loss
-Causal
connection
between
Termination of ownership
 Death of owner
 Destruction of thing
 Termination of legal relationship

◦ Transfer of ownership
◦ Loss of physical control
◦ Operation of law