Law of Property

Law is that body of rules and norms which regulates and harmonises
society by demarcating the rights and duties of legal subjects.
Any natural or legal person capable of acting as a subject in legal
relationships and of acquiring rights and incurring duties in the
process is a legal subject.
Every object with which a legal subject has a legally recognised
relationship is a legal object.
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, is called a thing.
The law attaches consequences to legal relationships. A real
relationship (ownership, possession or holdership) thus exists where
the object of the relationship between two subjects is a thing.
A real right is 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. (E.g.
ownership, servitudes, real security rights, quitrent and leasehold)
A legal subject who acquires a real right from a lawful real
relationship is entitled to perform certain acts in connection with the
thing. Example, an owner may sell the thing, a servitude holder may
use the thing, and a pledgee may hold the thing as security.
Where the law recognises a real relationship or a real right,
enforcement takes place by means of a real remedy. A real remedy
is 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.
The law of things is 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.
Difference between Property and Things
Everything that forms part of a persons estate can be described as
property. Property therefore includes a variety of assets, such as
things (e.g. a car, computer, cellphone), personal rights (creditors
rights/claims) e.g. the right to ones salary, the right to the proceeds
of an insurance policy or the right to claim the purchase price in
terms of a contract of sale and immaterial property rights e.g.

copyright and patents rights. A thing is a specific asset (legal object)

in a persons estate, i.e. it is an independent part of the corporeal
world, which is external to humans, subject to human control and is
useful and valuable to humans.
The Difference between real rights and personal rights
A real right is 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. The object
of a real right is a corporeal thing e.g. a bicycle. On the other hand a
personal right, also known as creditors rights, originates from an
obligation (which arises either from a contract, a Delict, unjust
enrichment or unauthorized management of another legal subjects
affairs). This obligation is an abstract legal tie between two specific
legal subjects, where the creditor has a right to a particular
performance against the debtor, and the debtor a corresponding
duty to perform. The object of a personal right is a performance e.g.
a Delict.
Furthermore two theories are relevant when distinguishing these
rights, the personalist theory and the classical theory. In terms of
the personalist theory, a real right operates absolutely therefore
compliance with it may be enforced against anyone for instance the
owner of a bicycle may claim the thing from anyone who is in
control of it e.g. someone who bought it from a thief. Whereas; a
personal right has relative operation and can be enforced only
against a debtor, for example a Delict can only be claimed from
someone who caused the accident. The classical theory on the other
hand separates real and personal rights according to the nature of
the object of each right. Real rights thus concern the relationship
between a legal subject and a thing and personal rights entitle the
creditor to claim from a particular legal subject only.
Lastly we can identify the typical features or characteristics of these
rights to distinguish between them. The object of a real right is a
corporeal thing, e.g. an iPad, whereas the object of a personal right
is a performance, e.g. contract of sale. A real right gives the holder
a direct claim to a thing and he may do with it as he sees fit, while a
personal right entitles the holder to claim performance from a
specific legal subject. The holder of a real right can enforce his right
through a real action, while a personal right may be enforced by
means of a personal action. Real rights originate from legal facts
e.g. delivery, whereas personal rights arise out of obligations e.g. a
Delict. Real rights are absolute in principle; personal rights are
relative in principle. A real right enjoys preference over other rights.
Publicity is required for the creation, transfer or extinction of real
rights. This is not necessary for personal rights because they are not

enforceable against outsiders.

Subtraction from Dominium (ownership) test

Study Cases: Ex parte Geldenhuys, Cape Explosive Works Ltd v
Denel (Pty) Ltd
In Ex Parte Geldenhuys, the will of a husband and wife provided
that, on the death of one spouse, the surviving spouse shall be
bound to divide their farm into shares of equal lots as soon as their
eldest child became a major and the child who got the lot with the
homestead should pay a sum of money to the other children to
compensate them for the loss of their house. The Registrar of Deeds
refused to acknowledge the conditions or register them on the basis
that they didnt create any real rights because the Deeds Registries
Act stipulates that only real rights can be registered.

Difference between Ownership and Limited Real Rights

The difference between ownership and limited real rights lies in the
fact that ownership is a real right over ones own thing, whereas
limited real rights are real rights to another persons thing.
Furthermore ownership is the most comprehensive real right a
person can have to a thing, whereas limited real rights are
fundamentally limited in scope. For example in principle the owner
of a piece of land can use it as he/she sees fit, whereas the
entitlements of a usufructuary (limited real right holder in terms of a
personal servitude) are clearly defined.
Ownership is the most comprehensive real right a person can have with regard to a
thing. In principle, a person can act upon and with this thing as he/she pleases. This
apparent freedom is restricted, however, by the law, and the rights of others.
Inviobility of ownership refers to the principle that a person cannot
lose his ownership without his consent, nor can a person transfer
more rights to another person than he has himself (nemo plus iuris
in alium transferre potest ipse haberet)
Inherent nature of ownership is that a person may do with his thing
as that person pleases. However there are certain limitations on this
inherent nature of ownership:
(i)
(ii)

The law e.g. statutory limitation and neighbour law

Rights of other people e.g. limited real rights and personal
rights

Entitlements of ownership are capacities conferred on the legal

subject by virtue of a right i.e. real right of ownership. These
entitlements include:
-

Use the thing

Control the thing
Consume the thing

Alienate the thing (sell, donate or throw away)

Burden the thing (with a mortgage)
Vindicate the thing (claim form a third person with a rei
vindication)