Property law 2

CLASSIFICATION OF THINGS

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 Criteria for classification
• The practically infinite number of objects which
may be defined as things can be divided into
different categories that are significant for various
aspects of the law of things.
• The classification of things is important in that it
assists in determining the choice of rules or
principles as regards the acquisition, protection
of rights in things according to their nature.
• The function of a thing in a particular
circumstance determines its classification
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 Criteria for classification
• We classify things in various ways, according
to different criteria. 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

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 Classification of things in relation to a
person
• A distinction is made between things which are
capable of being owned and things which are
incapable of being owned.
• 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 processes and
transactions.
• Here we distinguish between negotiable and non-
negotiable things;
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 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 = things that are in
commerce (i.e. negotiable)
• res extra commercium = things that are out of
commerce and are therefore not negotiable
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 res

Res in Res extra

commercio commercium

Res omnium
Res alicuius Res nullis Res publicae Res divini uris
communes

Res Res Res Res Res nullis

deoerditae singulorum universitatis derelictae proper

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 Not negotiable (res extra
commercium)
• Things out of commerce are things which
cannot be privately owned

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 (i) Common things (Res communes
omnium)
• these are things that according to natural law are
common to all persons and belong to no one. 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.
• It is possible to acquire ownership of a specific portion
eg. Gas in a cylinder, and then reduce it to a thing in
commerce.
• In Roman times if you interfered with a persons access
to common things it could lead rise to an action in
injuria.

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 Public things (Res Publicae)
• Res publicae: things that belong to an entire
civil community and are often referred to as
state property.
• that are used for the general benefit and use
of the public, for example, national parks, the
seashore, etcetera.

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 Not negotiable (res extra
commercium)
(i) 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.
The Roman law category of things belonging to the
gods (res divini iuris) is no longer recognised in
modern law, but the question has been raised
whether land on which family graves are situated
should not be regarded as being outside commerce.

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 Negotiable things (res in commercio)
• Things in commerce are things which may be
privately owned.

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 Things owned by a person (res
alicuius)
• may be either someone’s property (res
alicuius) that are owned by a legal subject at
a particular point in time. These can belong to
a single person res singulorum or to corporate
bodies res universitatis.or

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 Things not owned by a person (res
nullis)
• These are things that though susceptible to private
ownership do not belong to anyone at a particular
point in time. E.g.
(i) Things in commerce that have never been privately
owned e.g. birds and bees. Before they are captured
they fall into this category.
(ii) Birds, bees and wild animals regaining freedom fall
into this category.
(iii) Things abandoned by their owners. Loss of
possession is not enough, it has to be accompanied
by an intention to relinquish ownership.

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CLASSIFICATION OF THINGS
ACCORDING TO THEIR NATURE

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• 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.
• Various classifications are possible on this
basis.

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 Corporeal and incorporeal things
• In Roman Law of things is confined to things
that form part of the corporeal world and are
therefore perceptible by means of the senses
• an object can be labelled as corporeal if it is
tangible i.e. if it can be felt or touched, or
perceived by any of the five senses and if it
occupies space.
• Intangible things were considered Incorporeal
object may also refer to rights.

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 Corporeal and incorporeal things
• Non- physical types of property are becoming
increasingly important in the private and
commercial spheres of life. for example, whether
something like electricity can be stolen and
whether an electricity supply, internet service or
telephone service may be subject to spoliation.
• The question of whether incorporeal objects may
qualify as things has given rise to many academic
opinions

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 Corporeal and incorporeal things
• Reasons to exclude incorporeal things
• Some authorities believe that only corporeal things can
be things because
(i) Acknowledging incorporeal would make it difficult to
distinguish between various types of rights.
(ii) Its impossible to acknowledge that one right could be
subject to another right – jurisprudentially speaking.
(iii) the nature of the relationship between a person, a
real right and the thing itself does not permit
incoporeality as it conflicts with the idea that real
rights confer direct physical control of the thing.
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 Corporeal and incorporeal things
• Reasons to include incorporeal
• Development have led to the recognition that
incorporeal cannot be continue to be ignored.
Therefore corporeality should not continue to
be regarded as an essential characteristic and
pre-requisite of property

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 Movable and immovable things
• The most important classification of things is
between movable and immovable things.
• Immovable things is land and anything attached
to it by natural and artificial means.
• The concept of movable things is self explanatory,
but regard has to be had to whether it can easily
be moved from one place to another without
being damaged and without losing its identity;
having regard to its size nature and composition.
• Eg. Granite is immovable until it is quarried.
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 Movable and immovable things
• A movable may be affixed to an immovable in
such a way that it loses its identity. This will
depend on 3 factors:-
(i) The nature of the thing
(ii) The manner of its annexation
(iii) The intention of the owner of the movable at
the time of its annexation.
Siverstone (Pty) Ltd &another v Lobatse Clayworks
(Pty) Ltd Botswana High Court Misca No. 148/95
(unreported)

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 Movable and immovable things
• Attempts have been made to classify
incorporeal as movable or immovable.
• The simplest way to distinguish between
movable and immovable incorporeal is to
determine whether the right pertains to an
immovable.
• The definitions in the deeds registry act
• Attempts to classify incorporeal have been
criticised.
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Importance of the distinction between
movable and immovable
• Criminal law – arson can only be to immovable
and theft to movable.
• Conflict of laws – movables the place where the
owner is domiciled. Immovable the place where
they are situated.
• Hypothecation – mortgages for immovable,
pledge for movables.
• Transfer – movables delivery immovable
registration.
• Sale of judgement debtors property – first the
movables then the immovable.
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 Divisible and indivisible things
• A thing is divisible only if the nature and function
of each of the smaller parts correspond with that
of the thing as it was before division and the total
value of such parts is not substantially less than
the value of the undivided thing. Eg. Liquid and
land will normally be divisible.
• If a thing is not divisible courts will not order
division. It should be sold and the proceeds
divided among the joint owners.

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Consumable and inconsumable things
• Things are consumable if the are usually
destroyed as a result of being used in
accordance with their normal destiny.
• Wear and tear does not necessarily render
something as a consumable.
• Eg. Consumable things are subject to a loan
and inconsumable things are subject to a
lease.

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 Fungible and non fungible things

• Fungibles are things that have not been

individually determined by are determined
merely with reference to weight, number and
dimensions.
• Fungible things are not separate individual
entities and are identical to each other eg.
Individual cans of coca cola.
• One resembles the other so they are not
independently determined
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 Fungible and non fungible things
• Things are non- fungible when they are
individually determined.
• Non- fungibles are unique in nature, and have
distinctive individual characterises and are not
interchangeable
• Interchangeably is either impossible or illegal.
• Some things are naturally non fungible eg.
Paintings, or designated non fungible eg. A
person requesting a specific type of apple.
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• This distinction is important in the law of
contract and succession.
• In contract of sale if a non fungible thing is
destroyed, it cannot be replaced by another
thing without the cooperation of both parties
to the contract.
• If a non fungible is bequeathed to a legatee
under a will, but no longer exists, the legatee
cannot received anything in lieu thereof.

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 Single and complex things
• A single thing is an individual thing that exists
independently.
• A complex thing consists of several different
parts or components that are for all intents
and purposes a single thing. Eg. Bicycle, house
• Complex things can be corporeal and
incorporeal.

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• Some single things only have value when they
are a collection (aggregate) of single things eg.
A ton of sand, or a flock of sheep.
• An aggregate does not have the same concept
as a composite thing.

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• The components of a composite thing are the
principal thing and the accessory thing or
auxiliary things.

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• Accessory things are those things are things
that have physically been attached to the
principal thing in such a way that they have
lost their identity.
• Auxiliary things are not physically attached to
the principal and but they belong with the
principal thing for purpose. Eg. A lock on a
gate

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• It should not be assumed that the auxiliary
thing is included in a transaction.
• In some cases it may need a separate
transaction.
• See Khan v Minister of Law and Order 1991
(3) SA 439 (T) wherein the concept of a
principal auxilary and accessory thing was
discussed.

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 fruits
• Fruits are produced by a principal thing and
are destined to be separated either naturally
or by human aid.
• Before separation fruits are accessories of the
principal thing, but after separation they exist
as separate legal entities.
• There are 2 categories of fruits, natural fruits
and civil fruits

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 fruits
• Natural fruits are brought fourth by nature alone
e.g. apples or offspring of animals
• In principle the owner of the principal thing is the
owner of the fruits, though the entitlement to
enjoy the fruits could vest with someone else –
e.g. lessee
• Fruits are classified into various categories ie.
Hanging fruit – fruits still attached to the principal
thing or separated fruits, collected fruits, existing
fruit, consumed fruits and fruits that ought to
have been collected.

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