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Unit 2:real Rights and Personal Rights
Unit 2:real Rights and Personal Rights
PERSONAL RIGHTS
• Importance of distinction
• Forms of real rights
• Cases where distinction is problematic
• Theoretical approaches
• “Subtraction from the dominium”- test
Prescribed work
This unit is based on Chapter 3 of the prescribed
text book as well as the cases of:
• Ex parte Geldenhuys 1926(OPD)155[2]
• Cape Explosive Works Ltd & A v Denel & O
2001 (3) SA 569 (SCA)
• Pearly Beach Trust v Registrar of Deeds 1990
(4)SA 614 (C) [1]
as in case book
LEARNING OUTCOMES
After studying this unit the learner must be able to:
• Explain the basis of the distinction between real
rights in terms of the classical and personalist
theories, including criticism of these theories.
• Explain the basis of the distinction between real
rights and personal rights in terms of the
‘subtraction of the dominium’ – test, with
reference to case law.
• Differentiate between ownership and limited real
rights.
• Differentiate between an obligation-creating
agreement and a real agreement with the help of
an example.
BACKGROUND
– Importance of distinction
• Acquisition, exercise and protection differs
• See example of assets
– Forms of real rights
• “rights in property” created by Constitution
• ownership most complete real right
• limited real right
• limited right to specified uses of someone
else’s property
• eg servitudes, real security rights
• problem only regarding limited real right
Cases when distinction is
problematic
• limited real right v personal right
• corporeal property
• immovable property
• created in a will or contract
THEORETICAL APPROACHES
– Classical theory
• look at object of right: thing v performance
• real right: right of a person in a thing
• personal right: right of person against person
– Personalist theory
• Way they are enforced
• Real right: absolute - against the whole world
• Personal right: relative – specific person
Ex parte Geldenhuys
SUBTRACTION FROM THE DOMINIUM-TEST
• Problems with registration of • personal right:”burden upon
rights person”
– time and manner of - In personal capacity
subdivision - Successors in title not
bound
– (co-owners freedom to
decide) • obligation to pay money
• intention of the parties
– payment of money
• Formulation of the subtraction
test
– nature and effect of
obligation
– intention merely a clue
• real right: “burden upon land”
– in capacity as owner
– subsequent owners are
bound
Lorentz v Melle
• according to contract divided into 3
• township development
• application: must restrict owner’s
physical use of land
• obligations to pay money
- never a real right
• intention of parties disregarded
Pearly Beach Trust v
Registrar of Deeds
• Application
- traditional
- restricts right to dispose of property and
enjoy full fruits
• obligation to pay money: criticized
– direct product of land
– reduce owner’s benefit of use and enjoyment
• intention of the parties
- weight attached
Cape Explosive Works Ltd & A v
Denel & O
• Facts
• Requirements for real right (Erlax Properties)
- intention of creator to bind successors in
title
- nature of the right must be a “subtraction
from the dominium”
• Why not option?
• 2 conditions seen as a whole (closely bound)
• Judgement: real right created
Unit Assessment