ACQUISITION OF OWNERSHIP ACQUISITION OF OWNERSHIP Chapter 8 Chapter 8 •Original v derivative Original v derivative •O O - no transfer of rights from no transfer of rights from predecessor to successor predecessor to successor predecessor to successor predecessor to successor •D D - New owner entitled to benefits New owner entitled to benefits inherent in the ownership of his inherent in the ownership of his predecessor predecessor • succeeds to liabilities attached to the succeeds to liabilities attached to the right. right.
Learning outcomes of this unit Learning outcomes of this unit After studying this unit the learner must be able to: After studying this unit the learner must be able to: • Explain Explain what is meant by original acquisition of what is meant by original acquisition of ownership and ownership and distinguish distinguish it from it from derivative acquisition of ownership. derivative acquisition of ownership. derivative acquisition of ownership. derivative acquisition of ownership. appropriation ( occupatio occupatio ), and • Define Define appropriation ( ), and discuss discuss and apply and apply the legal principles involved with the legal principles involved with reference to relevant case law. reference to relevant case law. between res nullius, res res nullius, res derelictae derelictae • Distinguish Distinguish between and res res deperditae deperditae with the help of examples. and with the help of examples.
Learning outcomes of this unit (Cont…) Learning outcomes of this unit (Cont…) • Discuss and apply Discuss and apply the legal principles involved the legal principles involved in the following forms of accession ( accessio accessio ) in the following forms of accession ( ) with reference to relevant case law: with reference to relevant case law: - - immovables to immovables immovables to immovables immovables to immovables immovables to immovables - movables to immovables movables to immovables - movables to movables. movables to movables.
Learning outcomes (cont..2) Learning outcomes (cont..2) • Explain Explain how expropriation takes place. how expropriation takes place. • Discuss Discuss the requirements for acquisition the requirements for acquisition of ownership through prescription are. of ownership through prescription are. • Illustrate • Illustrate Illustrate what interruption and Illustrate what interruption and what interruption and what interruption and suspension of prescription mean. suspension of prescription mean.
ORIGINAL ACQUISITION OF ORIGINAL ACQUISITION OF OWNERSHIP OWNERSHIP • OCCUPATIO OCCUPATIO • Definition Definition • Requirements Requirements • Corpus Corpus • Animus • Animus Animus Animus • Object Object- res nullius principles, res derelictae res nullius principles, res derelictae • ACCESSIO ACCESSIO • Definition Definition • Test Test • requirements requirements
Accessio (cont…) Accessio (cont…) • Accession of immovables to immovables Accession of immovables to immovables Alluvio Alluvio (alluvion) a) a) (alluvion) • definition definition • requirements • requirements requirements requirements b) Avulsio b) Avulsio (avulsion) (avulsion) • definition definition • Requirements Requirements c) Forming of Islands (read) c) Forming of Islands (read)
Accessio(cont…) Accessio(cont…) • • Accession of movables in immovables Accession of movables in immovables superficies solo cedit superficies solo cedit Plantatio et satio Plantatio et satio (planting and a) a) (planting and sowing) sowing) Gore v Parvatas sowing) Gore v Parvatas sowing) Gore v Parvatas Gore v Parvatas Inaedificatio Inaedificatio (building) b) b) (building) • Criteria Criteria • Respective weights Respective weights • Effect Effect • Remedies Remedies • Case law Case law
Accessio (cont…) Accessio (cont…) • Accession of movables to movables Accession of movables to movables • principal thing v accessory principal thing v accessory –examples examples
Homework activity Homework activity • Discuss the three criteria taken into consideration to Discuss the three criteria taken into consideration to determine whether a movable thing has been attached determine whether a movable thing has been attached to an immovable thing. to an immovable thing. • Refer to your textbook p 105 Refer to your textbook p 105-108 108 • Refer to the cases of : • Refer to the cases of : Refer to the cases of : Refer to the cases of : • MacDonald Ltd v MacDonald Ltd v Radin Radin NO and NO and Potchefstroom Potchefstroom Diaries Diaries • Theatre Investments v Butcher Brothers Theatre Investments v Butcher Brothers • Melcorp Melcorp SA v Joint Municipal Pension Fund ( SA v Joint Municipal Pension Fund (Tvl Tvl) • Konstanz Properties(Pty) Ltd v WM Konstanz Properties(Pty) Ltd v WM Spilhaus Spilhaus (WP) (WP)Bpk Bpk
Homework activity (Cont…) Homework activity (Cont…) • As assessment criteria will be taken into account your ability to: As assessment criteria will be taken into account your ability to: • Identify the traditional position Identify the traditional position The three criteria as indicated in the Potchefstroom case The three criteria as indicated in the Potchefstroom case Refer to Standard Vacuum to indicate application of manner and degree of attachment Refer to Standard Vacuum to indicate application of manner and degree of attachment principle and the fact that it is applied objectively. The subjective intention emphasized principle and the fact that it is applied objectively. The subjective intention emphasized for the first time. for the first time. • Identify the change that took place from the original position Identify the change that took place from the original position The ipse dixit (subjective will) of the of the annexor was emphasised to determine his The ipse dixit (subjective will) of the of the annexor was emphasised to determine his intention. First two criteria of Potchefstroom case not independent anymore but mere intention. First two criteria of Potchefstroom case not independent anymore but mere intention. First two criteria of Potchefstroom case not independent anymore but mere intention. First two criteria of Potchefstroom case not independent anymore but mere indications from which the annexor’s intention can be derived. indications from which the annexor’s intention can be derived. indications from which the annexor’s intention can be derived. indications from which the annexor’s intention can be derived. • Identify the approach by the court Mistake in indicating ownership of movable thing is Identify the approach by the court Mistake in indicating ownership of movable thing is transferred by attachment to imm. Subtle change. Attachment of mov makes it lose its transferred by attachment to imm. Subtle change. Attachment of mov makes it lose its independence and therefore owner of movable becomes owner of imm. Melcorp case. independence and therefore owner of movable becomes owner of imm. Melcorp case. Indicate position of court to infer intention of annexor. Indicate position of court to infer intention of annexor. • Critically evaluate the current position Konstanz properties. Critically evaluate the current position Konstanz properties. Can the parties ahead of time always contract that they will exclude possibility of Can the parties ahead of time always contract that they will exclude possibility of attachment? Will then ignore legal principles. Consent of owner not involved in original attachment? Will then ignore legal principles. Consent of owner not involved in original acquisition of ownership. acquisition of ownership. In Konstanz case the court left open that position could be changed if argued in future. In Konstanz case the court left open that position could be changed if argued in future.
COMMIXTIO ET CONFUSIO (MIXING COMMIXTIO ET CONFUSIO (MIXING AND FUSING) AND FUSING) • Definition Definition • Requirements Requirements • effect: joint ownership in ratio to effect: joint ownership in ratio to contribution contribution contribution contribution • ACQUISITION OF FRUITS ACQUISITION OF FRUITS – Read only Read only
SPECIFICATIO (MANUFACTURE) SPECIFICATIO (MANUFACTURE) • Definition Definition • Requirements Requirements • Effect Effect • Remedies • Remedies Remedies Remedies
EXPROPRIATION EXPROPRIATION • Definition Definition • EXPROPRIATION PROCEDURE EXPROPRIATION PROCEDURE • COMPENSATION COMPENSATION Read only the following: Read only the following: • FORFEITURE AND CONFISCATION FORFEITURE AND CONFISCATION • STATUTORY PASSING OF STATUTORY PASSING OF OWNERSHIP OWNERSHIP
PRESCRIPTION PRESCRIPTION • DEFINITION AND PURPOSE DEFINITION AND PURPOSE • PRESCRIPTION ACT 18 OF 1943 PRESCRIPTION ACT 18 OF 1943 – Requirements Requirements Nec vi Nec vi (without force) • (without force) Nec clam (openly) Nec clam Nec clam (openly) Nec clam • • (openly) (openly) Nec precario Nec precario (without owner’s consent) • (without owner’s consent) • Adverse use Adverse use • Period of 30 years Period of 30 years • Continuous Continuous Coniunctio temporum Coniunctio temporum •
Recommend
More recommend
