Law of Property: Lecture 8

Protection of ownership remedies (3>6)

1. Real remedies

• Rei vindicatio

• Actio negatoria

2. Delictual remedies

• Condictio furtiva

• Actio ad exhibendum

• Actio legis Aquiliae

3. Unjustified enrichment

• Condictio sine causa

Rei vindicatio (4)

• The action whereby an owner can recover an existing and identifiable thing (movable or immovable) from any person who is exercising unlawful physical control over it

• It makes no difference whether the 3rd party is bona fide or if compensation was paid for it or if the owners loss of the thing was involuntary or due to a legal causa that fell away

• The use of rei vindicatio to claim damages for the loss or destruction of the thing in extraordinary circumstances by a mala fide possessor is possible but criticised

• It is not a monetary claim but a real remedy based on ownership transferred by derivative method only/ restoring possession; it does not prescribe like civil claim; the property must be existing & identifiable as a requirement for RV.

Rei vindicatio requirements (3)

• The owner must prove ownership of the thing

• The thing must be existing and identifiable to be claimed

• The thing must be in physical control of the defendant when the action is instituted

Estoppel defence against owner’s rei vindicatio (3 + 1)

• If the owner of the thing or the owner’s representative intentionally or negligently create the impression that ownership has been transferred to the 3rd party who is in physical control of the thing; and

• Relying on that impression, the 3rd party exercises physical control with intent to be owner to their detriment

• Then the 3rd party can raise estoppel defence against rei vindicatio

= legal implication: the misrepresentation is of such a nature that the representation must be accepted as face

Estoppel requirements (5)

• Owner or rep creates intent to transfer ownership

• A culpable representation (intentional or negligently)

• 3rd party must have relied on the misrepresentation made by the owner/rep

• To their detriment of the 3rd owner (not in fact the owner)

• Sustainable consequence: not unlawful or against public policy

Actio negatoria (2) and requirements (4)

• Aimed at protecting an owner’s right or capacity to exercise her entitlements arising from ownership of movable or immovable property.

• Note: Fallen into disuse because of declaratory court orders & interdicts

1. Only an owner can institute it

2. It is used against a defendant that infringes any entitlements of ownership or exceeds their servitude entitlements

3. Applies to movables & immovables

4. Claim damages or declaratory order

Interdicts (2) and requirements (3)

• Summary court order ordering to do/ refrain from doing- prevent infringement of rights

• Available to owners & lawful possessors

1. Proof of clear right in property

2. Unlawful infringement in a continuous way or reasonable expectation it will occur in future that will cause the applicant damage

3. No other effective remedy

Declaratory orders (1) and requirements (3)

• A binding court order an application which the court sets out the parties rights & obligations before an infringement arises

1. Proof of actual/existing/future right or obligation

2. Proof of dispute regarding the right or obligation

3. Convincing reason necessitating court to provide a declaratory order

Condictio furtiva (3)

• Action used to reclaim property and its fruits stolen or its highest value from the thief or their heirs

• Owner or any person with a lawful interest can institute it

• Can be used as an alternative to rei vindicatio

Actio ad exhibendum (2)

• Where the property has been alienated, consumed or destroyed intentionally/ male fide

• The market value of the property is claimed by the owner from male fide person

Actio legis aquilae (1) and requirements (3)

• Claim compensation/ damages for patrimonial loss suffered as a result of the defendant’s unlawful, culpable (intentional or negligent) actions

1. The existence of a patrimonial right or interest in property

2. That as a result of the defendant’s culpable action the plaintiff suffered patrimonial loss/damages

3. A causal connection between the unlawful action of the defendant and the loss

Unjustified enrichment (4)

• Condictio sine causa: The owner of the thing can claim from the controller the amount of enrichment is a result of consumption or alienation of the thing

• Unjustified enrichment takes places when one party is enriched and the other party is unjustly impoverished, without legal causa

• The defendant bona fide consumed or alienated the thing/ property

• Claim only the amount by which the defendant has been enriched