The tacit hypothec does not; give the lessor a real right to the goods, which are subject to the hypothec. The lessor may not pursue the goods once they are in the possession of a 3rd party. The lessor’s real right exists only one her has confiscated the goods that are on the leased property or, if the goods have been removed, before they have reached their new destination. The hypothec is applicable only if the lessee owes the lessor rent. 19
How the doctrine of quick pursuit operates The doctrine of “quick pursuit” relates to when an attachment will be granted. ⇒ The lessor may apply to the court for an attachment order while the goods are in process of being ⇒ removed or are in transit. He or she may of course also apply for an interdict to prohibit the lessee from removing the goods from the leased property. Ex parte Coull the court granted an attachment order. In Webster v Ellison the AD while ⇒ recognising the principle of quick pursuit, refused an attachment order, since the removal of the goods had been completed at the time the court was approached. Webster case does contain very important dicta on quick pursuit. These dicta show that our courts ⇒ will grant an attachment order where approached before the goods have reached their destination. Those goods that have not yet reached their destination at the time the attachment is requested may then be taken back to the leased premises, where the hypothec is revived. Effect of termination of lease The termination of the lease does not discharge the hypothec. What will the position be if the goods are removed from the premises after termination of the lease? Spayile v Bouwer although in Spayile the goods (cattle) were still on the premises and had not yet been removed Frank v Van Zyl it was held that the landlord's hypothec was lost when the tenant removed movables to a new place. It was shown that before receiving notice of a rule nisi, the tenant had removed movables on the leased property to another farm. STUDY UNIT 14 Remission of rent What is meant by remission of rent? ⇒ Remission of rent is a doctrine, which our law inherited from Roman law. ⇒ The lessee is wholly or partially released from his or her obligation to pay the rent if he or she is prevented by vis maior from having the full use and enjoyment of the thing ⇒ De Wet and Van Wyk are of the view that the rule is nothing but “an expression of the principles of supervening impossibility of performance” Where circumstances beyond the control of the parties make it impossible for the lessee to have the full use and enjoyment of the thing, they hold that it is really the lessor’s performance which has become impossible ⇒ It must be conceded that in some cases where the doctrine is applied, it can indeed be said that the lessor's performance has become impossible.
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