Law of Property

Introduction and Classification

PROPERTY Law is one branch of Private Law;

It regulates the legal relationship between legal subjects and legal

objects which have value (economic???) and their rights and duties
towards one another in respect of that object. It also encompasses;

(i) The Law Of Things

The Law of Things deals with:
(a) the definition and classification of things;
(b) the nature, origin, content and termination of
real rights

Sources of the Law of Property:

(i) Roman Dutch law / Common law
(ii) Statutory law (legislation)
(iii) Case law (precedent)
(iv) Customary law
(v) The Constitution

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Section 46 of the new 2013 Constitution:

(1) When interpreting this Chapter, a court, tribunal, forum or
body—
(a) must give full effect to the rights and freedoms enshrined in
this Chapter;
(b) must promote the values and principles that underlie a
democratic society based on openness, justice, human dignity,
equality and freedom, and in particular, the values and principles
set out in section 3;
(c) must take into account international law and all treaties and
conventions to which Zimbabwe is a party;
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(d) must pay due regard to all the provisions of this Constitution,
in particular the principles and objectives set out in Chapter 2;
and
(e) may consider relevant foreign law;
in addition to considering all other relevant factors that are to be
taken into account in the interpretation of a Constitution.
(2) When interpreting an enactment, and when developing the
common law and customary law, every court, tribunal, forum or
body must promote and be guided by the spirit and objectives of
this Chapter.

Note: All the sources of law must be interpreted and developed

to reflect the constitutional law principles

We now need to do the following:

(i) Explain what the meaning and scope of the law of things
is.
(ii) Define things
(iii) Explain what real rights are and how these are
distinguished from personal rights.
(iv) Deal with the various real rights.
(v) Deal with constitutional property law

Meaning and Scope of the Law of Things

Law of Property:
 system of legal rules which regulates:
 the legal relationship between a legal subject and
property or (a thing).
 the different real rights in respect of that thing

Legal subject  thing = factual relationship

 eg:

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and / or

 legal relationship
 eg:

Questions:
 What is a thing?
 What is a real right?

 Various real rights:

 origin?
 nature?
 content?
 limitations?
 remedies?
 termination?

Function of Law of Things:

 to harmonize numerous competing legal interests with regard to
things

Sources of Law of Things:

 principles of Roman-Dutch law
 Roman law foundation
 influenced by Germanic law, English law
 developed by case law
 complemented by statutory law, customary law and the
Constitution

DEFINITION / CLASSIFICATION / COMPONENTS

Definition of a thing:
 A thing is a valuable, corporeal object, external to humans which
enjoys a separate legal existence and which can be subjected to
juristic control.

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Characteristics:
 External to humans
 not a human being, aspects of personality or organs
 Organs :
 exceptions:

 Corporeal object
 tangible?
 reduced to some form / space and can be perceived by any
of 5 senses
 problem: incorporeal things recognized as things i.t.o.
statute law and court decisions
 electricity, mineral rights, usufruct with shares

 Separate legal existence

 separate legal entity and not a component thereof
 emphasis on legal independence
 components of composite thing are not things, but rather
accessories or auxiliaries

 Capable of juridical control

 capable of being subjected to human control
 reduced to recognisable and manageable entity

 Useful and valuable to humans

 primarily economic value
 but also sentimental value

 Res intra commercium

 falls within the scope of private commercial enterprise
 susceptible of private ownership

CLASSIFICATION OF THINGS

A) Classification in relation to humans:

Res intra commercium / Res extra commercium

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Res extra commercium:

- destined to serve public or government body
- unique purpose and special function

 res omnium communes

 not susceptible of private ownership
 used by all people
 eg: sea

 res publicae
 belonging to state for use and enjoyment of the
public
 eg: public hall

 res divini iuris

 res sacrae
 res sanctae
 res religiosae

- SA Law: res divini iuris = res intra commercium

Res intra commercium:

 res singulorum / res universitatis

 belonging to  belonging to groups
an individual
 eg:

 res alicuius / res nullius

 belonging to  belonging to no one
someone
 eg:

B) Classification according to nature:

 Res corporales / res incorporales

 corporeal  incorporeal

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 Res singulars / res universales

 single thing  composite thing - eg
 eg:

 universitas rerum  universitas rerum

cohaerentium distantium
- organic or mechanic - economic unit
entity
- after joinder no - no organic or
separate legal existence mechanic entity
- owner of whole thing eg:
and not individual parts
eg:

 Movable / Immovable
 look at size, nature & composition of thing
 can it be moved without damage or change in form /
identity

 Movable: eg: car

 Immovable:
 land with all its geological contents
 movables - organic / mechanic connection to
immovable – eg:
 movable serving a specific function / purpose– eg:

 Importance of distinction:
 law of things: movable = delivery
immovable = registration
 criminal law: theft – only movable
arson – only immovable
 private international law:

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 movable = lex loci domicilii

 immovable = lex loci rei sitae
 law of contract: sale of land must be in writing -
Deeds Registries Act

 Res fungibiles / res non fungibiles

 not individually  individually
determined determined
 can be replaced  cannot be replaced
by similar thing by similar thing
 eg:  eg:

 Res consumptibiles / res non consumptibiles

 consumable  non-consumable
 eg:  eg:

 NB: look at its ordinary use

 Importance of distinction:
 eg: contract of loan:
 consumable: receiver becomes owner and
must return similar thing of same quality and
quantity
 non-consumable: receiver does not become
owner and same thing must be returned
 Q: money?

 Divisible / Indivisible things

 juridical and not physical divisibility
 must retain its nature and function when divided
 also its characteristics and value
 importance of distinction: co-ownership
 eg:

A THING and its COMPONENTS

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Composite thing:  Example : a house

 principle thing
 accessory (+ fruits)
 auxiliary

Principle thing:
 has independent legal existence
 is the object of rights
 basic structure of house

Accessory:
 prior to attachment - independent legal existence
 after attachment - loses independent legal existence and
becomes part of principle thing
 roof, tiles, doors and windows of house

Fruits:
 proceeds / income produced periodically by principle thing
 in accordance with its destination and
 without impairing the substance of principle thing

 Natural fruits:
 grows in accordance to laws of nature
 intended to be separated
 eg:
Q: minerals?
Minerals which renew themselves (renascentia)
 considered to be fruits
 eg:
Minerals which do not renew themselves (non
renascentia)
 not considered to be fruits
 eg:
 Civil fruits :
 periodic income from capital
 eg:

Auxiliary:
 physically independent but not legally

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 destined to serve the economic purpose of principle thing

permanently
 promotes utility of principle thing
 keys to the house