Unit 2:real Rights and Personal Rights

Unit 2:REAL RIGHTS AND
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
• Indicate in what manner

• a)the personalist theory
• b) and the classical theory distinguishes between real
and personal rights. Do either of these theories provide
satisfactory results in practice?
• What are the main arguments for and against
recognising an obligation to pay money as a limited
right? In your answer refer to case law.
• Explain the formulation of the subtraction from the
dominium test with reference to the case of Ex parte
Geldenhuys 1926(O).
Unit Assessment continued
Can the following provisions be registered? Give reasons
for your answer and refer to case law.
• The provision in a deed of transfer that the seller and his
legal successors will have the right to use a dirt road on
the buyer’s adjacent piece of land.
• A provision in a will that the testator’s oldest son will
have a right of usufruct on his farm.
• A provision in a contract of sale in terms of which the
purchaser had to inform the seller if the land was no
longer used for the stated purpose, so that the seller
could exercise their right of first refusal to repurchase the
land.

Unit 2:real Rights and Personal Rights

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Unit 2:REAL RIGHTS AND

• Indicate in what manner

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