Syscon March test

Question 1

which claim is stronger? in rem or in personam

Answer 1

in rem

Question 2

what do claims in rem do?

4

Answer 2

1. a direct right of control
2. absolute right of pursuit
3. requirement of delivery
4. publicity of the delivery

Question 3

what does a direct right of control mean?

Answer 3

when there are multiple or competing claims . the owners claim in rem trumps anyone else’s claim in personam

Question 4

what does absolute right of pursuit mean

Answer 4

an owner is unlawfully dispossessed of something they have a right to claim it back , a claim in property trumps a claim in contract and could cause conflict resulting in invalidity of contract ( the person losing a possession must claim against the person who sold it to them)

Question 5

what is requirement of delivery

Answer 5

when an owner is transferring right of ownership in a specific property to another, they must deliver the property to that person

Question 6

what is publicity of the delivery

Answer 6

generally when delivery takes place an element of publicity is needed ( i.e land ownership- transfer with deeds registry)

Question 7

which type of possession is protected? physical or legal?

Answer 7

legal possession

Question 8

what are the two questions to know whether or not a possession is protected in law by a claim in rem

Answer 8

1. requisite physical control over the thing (corpus)

2. mental element for possession ( animus)

Question 9

what is a good faith possessor

Answer 9

when a person who is in possession of a thing thinks they are the owner

Question 10

what are the two types of ownership ( acquisition)

Answer 10

derivative and original

Question 11

what is derivative acquisition

Answer 11

when a person acquires ownership from another through an exercise of both their wills , an intention to transfer from one and an intention receive from the other . this is coupled with delivery

Question 12

what is original acquisition

Answer 12

all other cases where ownership is acquired that is not derivative

Question 13

Original Acquisition: occupation

2

Answer 13

1. acquiring ownership of property that had no owner

2. no previous owner, so person who acquires the property becomes the owner

Question 14

Original Acquisition: accession

3

Answer 14

1. property of two owners mixed together , the owner of the principal thing becomes owner of the accessory
   - accessory must be lose in its identity
   - the incorporation must be inseperable
2. the owner of principal becomes owner of whole
3. the owner of the accessory before it acceded to the thing has a claim in personam of unjustified enrichment against the the owner of the whole

Question 15

orignial acquisition : fusion

2

Answer 15

1. when the property of two different people becomes mingled and is inseparable
2. bother are considered owners and own the final product in proportion to their contributions

Question 16

original acquisition: mixture

2

Answer 16

1. when the property of two different people becomes mingled and is separable
2. there is no change of ownership , you just recover your portion because they are seperable

Question 17

Original acquisition: specification

3

Answer 17

1. acquiring ownership of one thing that belonged to another by making a new thing from it
2. reducibility test - if the materials can be restoed to their former state then the owner of the materials owns the end product, otherwise the maker is the owner
3. if the maker contributes some of the materials then the maker is always the owner

Question 18

original acquisition: treasure trove

2

Answer 18

1. valuable property that was hidden away and not “abandoned” and hence cannot be treated under the rules of occupation
2. the person who finds the property does not become the owner as the property was not abandoned or ownerless

Question 19

original acquisition: prescription & conditions

2

Answer 19

1. becoming the owner by possessing something for a certain period of time under certain conditions
   - just cause
   - acquisition in good faith
   - prohibition of prescription of things that have been stolen
   - holding for the time required
2. the person who fulfils the requirements becomes the owner of the property , the previous owner has no claim

Question 20

what are the two elements required for derivative acquisition
(2)

Answer 20

1. delivery

2. intention to transfer ownership

Question 21

what does delivery comprise of

2

Answer 21

1. physical transfer

2. underlying cause which explains the transfer

Question 22

what are the requirements for the transfer of ownership by delivery
(3)

Answer 22

1. a person can acquire ownership through derivative acquisition ( thieves cant transfer ownership but can validly sell)
2. there must actually be physical delivery of the thing
3. there must be some reason or cause that gives the delivery its effect in law e.g transferring something to complete a sale

Question 23

what are the different types of simple delivery?

4

Answer 23

1. long hand delivery
2. short hand delivery
3. agreement on retaining possession
4. symbolic delivery

Question 24

what is long hand delivery?

Answer 24

effectively just pointing out the thing you’re selling

Question 25

what is short hand delivery?

Answer 25

very rare, lend something to someone that you later sell them

Question 26

what is agreement on retaining possession?

Answer 26

when you agree to sell someone something but agree to keep hold of the thing for a certain period of time

Question 27

what is symbolic delivery?

Answer 27

the handing over of the means required to access the thing actually being sold

Question 28

what is unjustified enrichment?

Answer 28

when one person is unjustly enriched at another's expense , the person who was unjustly enriched must make restitution with the other party - other person has a claim in personam

Question 29

what is a servitude?

Answer 29

a right in rem less than the ownership of the property of another involving the use of the other's property in a defined way - carved out of the full dominium of the owner and exercised by another person

Question 30

what are the two types of servitudes ?

Answer 30

1. praedial | 2. personal

Question 31

what is a praedial servitude

Answer 31

- two pieces of land owned by different persons - praedial servitude benefits one property in favor of the other property - passive in the nature and thus cannot impose an active or positive duty on the owner of the servient land - created by formal delivery / legacy in will/ long enjoment of period of 10 years / by reservation of person selling land - termination by agreement of two property owners

Question 32

what is a personal servitude

Answer 32

- burden property of another in favour of a particular person - holder of a personal servitude has a claim in rem over the property which the personal servitude extends - created by agreement - terminated when holder dies

Question 33

what is an usufruct

Answer 33

a person is granted the right to enjoy the fruits from another's property common in wills i.e spouse leaves house to kids but grants surviving spouse usufruct to live in the house

Question 34

what is the difference between rustic and urban praedial servitudes ?

Answer 34

rustic is agricultural , urban is buildings

Question 35

what is the distinction between praedial and personal servitudes

Answer 35

does the right in rem attach to land or a person

Question 36

what is real security

Answer 36

if a creditor is not comfortable with the ordinary protection the law would give him or should the debtor not be able to pay him they may try to get real security for the loan. i.e mortgage or bond

Question 37

what is an obligation

Answer 37

legal bond where we are bound to perform something according to the laws of the state usually in the form of having to do something or pay an amount of money to someone

Question 38

what claim is an obligation protected by

Answer 38

claim in personam

Question 39

how is a contract formed?

Answer 39

1. offer | 2. acceptance

Question 40

what is the capacity to contract?

Answer 40

1. a person must be minimum age and sound mind

Question 41

what is privity of contract?

Answer 41

cannot be placed under obligations to a contract to which you are not party, ninds oly the parties to it can however confer a benefit on a third party

Question 42

what is breach of a contract?

Answer 42

- claim for damages and compensation | - the contract is still valid

Question 43

void contracts

Answer 43

- unenforceable and if performed the law of unjustified enrichment applies

Question 44

difference between creation of an obligation and evidence of an obligation

Answer 44

- document saying it has been concluded is merely evidence - conclusion of the correct form of question and answer forms the contract - verbal contracts can be valid