property - 2011 University of South Africa All rights...

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# 2011 University of South Africa All rights reserved Printed and published by the University of South Africa Muckleneuk, Pretoria PVL3701/1/2012–2014 98772694 3B2 NEW RSC_STYLE
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CONTENTS Page PART I INTRODUCTION 1 1. Division of study guide 2 2. Module objectives and learning outcomes 2 3. Division of work 3 4. Study aids 4 4.1 Latin and foreign concepts 4 4.2 Bibliography 13 PART II STUDY SKILLS 15 1. Introduction 16 2. Reading skills 17 2.1 Overview reading 17 2.2 Close reading 17 2.3 Critical reading 17 3. Writing skills 18 3.1 Pre-writing 18 3.2 Actual writing 18 3.3 Re-writing and revision 19 4. Answering test and examination questions 19 4.1 Orientation 19 4.2 Interpretation of questions 19 4.3 Substantiation 20 4.4 Identification of legal question 20 4.5 Conflicting legal principles 22 4.6 Authority 22 4.7 Subdivisions of questions 22 4.8 Presentation 23 5. Use of study manual and revision 23 PART III EXAMPLE 25 PART IV STUDY MANUAL 29 iii
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STUDY UNIT 1 INTRODUCTION TO PROPERTY LAW – THINGS AS LEGAL OBJECTS 31 INTRODUCTION TO PROPERTY LAW 31 1 Introduction 32 2 Definitions 33 2.1 Legal subject 33 2.2 Legal object 33 2.2.1 Thing 33 2.3 Law, right, real relationships, real rights and entitlements 34 2.3.1 Law and right 34 2.3.2 Real relationships and real rights 34 2.3.2.1 Entitlements 36 2.4 Remedies 36 3 Function of law of things 37 4 Basis and sources of law of things 37 THINGS AS LEGAL OBJECTS 40 1 Definition 41 1.1 Elements of definition 42 1.1.1 Corporeality 42 1.1.2 External to humans 42 1.1.3 Independence 43 1.1.4 Subject to human control 43 1.1.5 Useful and valuable to humans 44 2 Classification of things 45 2.1 Criteria for classification 45 2.1.1 Relation to humans 45 2.1.1.1 Negotiability 45 2.1.2 Inherent nature 46 2.1.2.1 Singular and composite things 46 2.1.2.2 Movable and immovable things 48 2.1.2.3 Fungible and non-fungible things 48 2.1.2.4 Consumable and non-consumable things 49 2.1.2.5 Divisible and indivisible things 49 STUDY UNIT 2 REAL RIGHTS AND PERSONAL RIGHTS (CREDITOR’’S RIGHTS/CLAIMS) 53 1 Introduction 54 2 Theoretical distinction 56 2.1 Personalist theory 56 2.1.1 Content 56 2.1.2 Criticism 57 2.2 Classical theory 57 2.2.1 Content 57 2.2.2 Criticism 57 3 Distinguishing criteria 58 4 Subtraction form the dominium (ownership) test 60 5 Categories of real rights 63 iv
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STUDY UNIT 3 OWNERSHIP DEFINITION OF AND LIMITATIONS ON OWNERSHIP 65 DEFINITION OF OWNERSHIP 65 1 Definition of ownership 66 1.1 Introduction 66 1.2 Inviolability 67 1.3 Inherent nature 67 1.4 Entitlements 69 1.4.1 Use 69 1.4.2 Fruits 70 1.4.3 Control 70 1.4.4 Consume or destroy 70 1.4.5 Alienate 70 1.4.6 Burden 70 1.4.7 Vindicate 70 LIMITATIONS ON OWNERSHIP 72 1 Introduction 73 2 Limitations imposed by law 74 2.1 Statutory limitations 74 2.2 Neighbour law 75 2.2.1 Nuisance 75 2.2.2 Lateral and surface support 77 2.2.3 Encroachments 77 2.2.3.1 Buildings 77 2.2.3.2 Trees 78 2.2.4 Surface water 78 2.2.5 Party walls and fences 79 2.2.6 Elimination of dangers 79 3 Limitations imposed by rights of other legal subjects 83 3.1 Limited real rights 83 3.2 Personal rights (creditor’s rights/claims) 84 STUDY UNIT 4 ORIGINAL ACQUISITION OF OWNERSHIP 87 1 Introduction 90 1.1 Outline of original methods of acquisition of ownership 90 2
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