Law of Things

can something that is not recognised as a thing (property) have the same benefits?

no, then it cannot be owned, transferred, alienated, burdened, attached, inherited or protected through property law remedies

compare the main approaches of what constitutes property

narrow approach (private law)

• purpose of PVT = enforce protection vs other pvt actors

• focus is on objects of property

  • associated with corporeal things

• outdated

wide approach (public law)

• purpose of PBL = enforce protection vs state intervention

• section 25(4)(b) defines property loosely: “property not limited to land”

  • possible to protect intangible things not recognised under PVT

list the 5 characteristics of things

1. corporeality

2. external to persons

3. independence

4. appropriability

5. use and value

in regards to a thing, discuss corporeality as a charateristic

• object is corporeal if it is tangible

• test for tangibility:

  • observable with senses

  • occupy space

in regards to a thing, discuss external to persons as a characteristic

• of impersonal nature and ETP

• under doctrine of subjectivity, people = legal subjects and never legal objects (property)

  • components of body considered incidents of person’s personality. therefore not things

  • NHA: offence to sell own body parts but donations are allowed

    • cannot receive compensation

      • exception: body parts no longer connected to body (hair) - legal objects (property)

      • technically corpses = legal objects (property) due to no more subjectivity however = res extra commercium/things that fall outside legal commerce

      • tissue/organ donation may take place days after death but consent from family is needed

in regards to a thing, discuss independance as a characteristic

• definite and distinct entity that can exist separately from anything

• immovable things come into being once demarcated

  • buildings for part of land built on

• some things are granted legal independence

  • STA: each unit to exist as separate object of ownership even though part of larger building

in regards to a thing, discuss appropriability as a characteristic

must be capable of being subjected to human control

in regards to a thing, discuss use and value as a characteristic

• use = must intend to meet the needs of a legal subject

• value = legal subject must attach value to thing

  • monetary or sentimental

define incorporeal things

• intangible (observable + occupy)

• Roman Law, incorporeal with monetary value = things

  • eg inheritance

under South African law, list incorporeal things that have been recognised ito statute and case law

• section 12 CCA: common law offence of theft widened include incorporeal property

• section 22(1) CRA: copyright may be considered as movable property

• LSSA v Minis. of Transport: section 25(4)(b) mean that both corporeal and incorporeal property enjoy protection

discuss the main approaches towards the inclusion of incorporeals in South African property law

1. limited use = req’s for corporeality must be fixed and recognition of incorporeal things should be limited to few exceptions created by statute/case law

2. recognition = corporeality req’s should be discarded because incorporeal things should be recognised as a regular aspect of property law

3. compromise = incorporeal things should be recognised in property law because they are valuable patrimonial rights, esp. exist over limited real right

   1. eg = person’s limited real right over claim allows it to be deemed property

distinguish between res extra commercium and res in commercio

• res extra commercium = things out of commerce which are not susceptible to private ownership

• res in commercio = things in commerce which are susceptible to private ownership

distinguish between movable and immovable things

• movable things = moved without being damaged/losing identity

  • incorporeal movables exist eg claim and shares

• immovable things = land and things attached

  • incorporeal immovable exist eg praedial servitudes

why is the distinction between movable and immovable things relevant?

• different rules apply

  • successful transfer of ownership = movable req delivery whilst immovables req reg

  • real security = movables can be pledged or form part of notarial bonds whilst immovables placed under mortgages

  • sales of execution = movables attached before immovables

distinguish between divisible and indivisible things

• divisible = divided into small components while retaining their nature and function without losing proportional value

• indivisible = cannot be divided into smaller pieces without materially changing their value, nature or function

distinguish between consumable and non-consumable things

• consumable = depleted through normal use, can be replaced by similar things

• non consumable = remain same when used normally and only subject to wear and tear over time

why is the distinction between consumable and non-consumable things relevant?

• usufructs can only be given over non-consumables

  • bc usufruct requires object to be kept then returned to owner in same condition

• however, quasi-usufructs can be given over consumables if returned in same amount and quality

distinguish between fungible and non-fungible things

• fungible = belong to generic class of things and can be replaced by similar

  • eg paper ream, money, airtime, Bitcoin

• non-fungible = unique and irreplaceable

  • eg original painting, NFT’s

distinguish between singular and composite things

• singular = can exist independently without being compose of other components

  • eg wine glass, disc

• composite = made up of singular things which are joined together and lose their independence to become part

  • can consist of principle/accessory/auxiliary things

  • eg motor car, laptop

define principal thing

• that which gives composite thing its form, function and character

  • Khan v Minis. of Law and Order

  • owner of principal thing = owner of the composite thing

define accessory/accessio things

• could have existed separately but has been merged with principal thing and thus lost their independence

• effective attachment of movable to immovable by weight or physical connection

• intention that thing should remain permanently attached

  • Senekal v Roodt

define auxillary thing

• can exist separately from principal things

• movables intended to be of permanent service to immovable things

• deemed essential for their effective use

  • eg bar stools

define fruits

• produced by principal thing without destruction of principal thing

• accessories to the principal thing before separation

• destined to separate and become independent

• once separated from principal thing, becomes singular thing and independent

distinguish between the two kinds of fruit

fructus naturales (natural fruits)

• tangible products of nature

  • eg apple tree growing apples

fructus civiles (civil fruits)

• intangible legal/financial products derived from property ownership

  • eg rent

define ius fruendi

• the right to use the fruits of a thing

  • part of dominimum (ownership entitlements)

• restricting someone’s use of fruits of their thing constitutes as subtraction from dominimum

define digital/virtual things

• intangible things which have financial/sentimental value

• inside digital environment

in regards to a virtual thing, discuss corporeality as a characteristic

• incorporeal

  • not observable with sense and don’t occupy space in real world

• however opposite is true in digital world

  • users can interact using avatars

• compromise approach used

in regards to a virtual thing, discuss external to persons as a characteristic

• avatars = sold, altered or destroyed

• so long as avatar has subjectivity = it is external

in regards to a virtual thing, discuss independence as a characteristic

• not independent if still part of system of code

• gains independence once separated by code and recreated into identifiable thing on screen

in regards to a virtual thing, discuss appropriability as a characteristic

• directly subjected to avatar control

• indirectly subjected to human control

• exception: background scenery of game exists are game infrastructure

in regards to a virtual thing, discuss use and value as a characteristic

• interactive? controllable via avator thus useful

• not susceptible to avatar’s control = no use to user

• monetary/sentimental value

what was the legal question in Senekal v Roodt

• did movables become immovables via accessory

• did movables become immovables by virtue of being auxiliary things

  • bar stools to bar