DERIVATIVE ACQUISITION

• Derivative acquisition of ownership

  The passing of ownership to a new owner with the cooperation of the previous owner, where the acquired ownership is derived from that of the previous owner
• Real agreement


  The juridical act through which the parties express their respective intentions to transfer and receive ownership

  
• For valid transfer, you must focus on requirements of transfer (juridical act of transfer), not on the contract for transfer (juridical act of concluding contract)
• South African property law uses the abstract system of transfer
• Prerequisites for valid transfer

  • Res in commercio (Things in commerce/negotiable things)
  • Nemo plus iuris maxim (only owner or authorized agent can be the transferor)
  • Both transferor and transferee must have the legal and contractual capacity
  • Causa for the transfer (a legal reason or cause)
  • Payment of the purchase price must be tendered upon delivery
• Essential requirements for transfer

  • Animus: Reciprocal intention to transfer and receive ownership
  • Corpus: Conveyancing - Represents the outward expression of the intention of the parties to transfer ownership in a physical way

  
• Delivery


  The transfer of physical control of a moveable thing to the transferee to enable him/her to exercise control of the relevant moveable with the intention to be the owner (animus domini)
• Requirements for successful delivery

  • Delivery is linked to the 'animus' requirement (intention)
  • Delivery + animus forms a real agreement
  • Delivery is the outward expression of the reciprocal intention of the transferor to the transferee
  • Absence of the animus element will prevent the delivery of transfer of ownership
• Recognized modes of delivery

  • Actual Delivery (Traditio Vera)
  • Constructive Delivery (Traditio Fictio)

  
• Delivery


  The outward expression of the reciprocal intention of the transferor to the transferee
• Animus


  The intention element required for a valid transfer of ownership

  
• Delivery + animus


  Forms a real agreement
• Absence of the animus element

  Will prevent the delivery of transfer of ownership
• Animus + delivery


  Are inter-connected for establishment of transfer of ownership

  
• Two Recognized Modes of Delivery

  • Actual Delivery (Traditio Vera)
  • Constructive Delivery (Traditio Fictio)

  
• Actual Delivery (Traditio Vera)


  Transferor literally hands over the legal and physical control of the moveable, to the transferee
• Constructive Delivery (Traditio Fictio)


  Actual delivery is impossible or impracticable due to the nature of the thing or circumstance, but will be regarded as valid delivery, although there is no physical transfer

  
• Parties must intend to use the mode of constructive delivery
• No new modes of constructive delivery may be created, only the recognised modes may be used
• If the circumstances are not present, there is no constructive delivery and no transfer of ownership
• Modes of Constructive Delivery


  • Symbolic Delivery (Clavium Traditio)
  • Delivery with the Long Hand (Traditio Longa Manu)
  • Delivery with the Shorthand (Traditio brevi manu)
  • Attornment
  • Constitutum Possessorium

  
• Symbolic Delivery (Clavium Traditio)

  The moveable thing is delivered by handing over a symbol or instrument of the thing, which must provide the transferee with effective and exclusive control over the thing
• Symbolic Delivery


  • Used where due to the nature and size of the thing, physical delivery is prevented
  • Involves physical and mental elements in handing over the instrument or symbol
• Symbols/Instruments for Symbolic Delivery

  • Keys to a warehouse
  • Silo certificate
  • Bill of lading
• Delivery with the Long Hand (Traditio Longa Manu)


  Delivery occurs when the item is pointed out and clearly identifiable to the transferee, allowing them to exercise effective control
• Delivery with the Long Hand

  • Used when the thing is too big or physical delivery is impossible due to the item's nature, size or weight
  • Requires clear intention of parties, pointing out in the presence of both parties, and clear separation and identification of the item
• Examples of Long Hand Delivery

  • Billboard structure
• Delivery with the Shorthand (Traditio brevi manu)


  Takes place where the transferee was in physical control of the thing before the transfer, and remains in physical control after the transfer, but with a changed intention to hold ownership
• Delivery with the Shorthand

  • Transferee must have pre-existed physical control over the thing, continue to have physical control, and there must be a change of intention regarding the ownership
• Examples of Delivery with Shorthand

  • Selling a boat to the lessee
• Attornment


  Constructive delivery mode where the moveable thing is held by a third party (detentor), other than the transferor or transferee
• Requirements for Valid Attornment

  • Tripartite agreement among transferor, transferee and detentor
  • Detentor must exercise physical control over the moveable at the conclusion of the tripartite agreement
• Constitutum Possessorium


  Ownership transfer without physical transfer, occurring through a change in the parties' intentions, where the moveable remains with the transferor after the transfer
• Requirements for Constitutum Possessorium

  • Transferor must be in physical control of the thing, prior, during and after the transfer
  • Transferor's intention must change from owner to mere holder (detentor), and the transferee's intention must be animus domini (intention to be the owner)
  • There must be a valid and genuine causa detentionis (agreement between the parties providing the basis for the transferor's continued control)