18 nov exam prep. Multiple choice covered, short questions, long
questions, and summarized notes. This is pass guaranteed pack.
, Compiled bystudybuddy10111
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1. Indicate the correct option.
Which one of the following things can be regarded as a res nullius?
(1) a domesticated tiger living in his owner’s house
(2) an impala roaming in the bushes
(3) a Persian cat lying on the neighbour’s patio
(4) a springbok kept on a private game farm for hunting purposes
ANSWER:
Option 2 is correct. A res nullius is a thing which does not belong to anyone.
All creatures that are wild by nature either in their natural state or when they
have reverted to their former wild state are regarded as res nullius. Wild
animals that have been tamed (option 1), domestic animals (option 3) or wild
animals regulated by the Game Theft Act 105 of 1991 (option 4), are not res
nullius. An impala roaming in the bushes is wild by nature and regarded as a
res nullius.
See Study Guide pg 92
2. Indicate the correct option.
The following is an example of constructive delivery where a transferee is
placed in position to exercises physical control over a thing:
(1) delivery with the short hand
(2) symbolic delivery
(3) attornment
(4) cession of ownership
ANSWER: Option 2 is correct. Constructive delivery is when there is no
physical or actual handing over of the thing. The transferee is either placed in
a position to exercise physical control, already in physical control or someone
else exercises physical control on his/her behalf. Examples of a transferee
placed in a position to exercise physical control over the thing are symbolic
delivery, delivery with the long hand (traditio longa manu) and bills of lading.
See Study Guide pg 132-134
3. Indicate the correct option.
The aim of the actio negatoria is:
(1) to determine the rights and duties of contesting parties.
(2) to claim the stolen thing or its highest value since the theft.
(3) to claim the market value of the thing that was destroyed or alienated with
mala fide intention.
(4) to protect ownership where a servitude holder exceeds the limits of
her servitude.
ANSWER: Option 4 is correct. The actio negatoria is a property law remedy. It
is a real action aimed at protection of ownership in circumstances where third
persons seek to exercise rights of a servitude holder which they do not have or
where servitude holders exceed the limits of their servitude. The owner can
institute this action against the violator and have to prove that he/she is the
owner and that there is a physical infringement of his/her entitlements of
ownership. See Study Guide pg 163 and 169
4. Indicate the correct option.
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X and Y are co-owners of a farm. They built a road on the farm, which they use
to transport lime to the market. Without X's knowledge and approval Y gives
permission to a neighbour, Z, to use the road so that he can transport his lime
to the market. X is unhappy about the heavy traffic on the road and asks Y to
revoke her permission to Z. X also asks Z to discontinue his activities. Neither
Y nor Z takes any notice of X. Which remedy does X have against Y?
(1) X can claim damages from Y.
(2) X can institute the condictio furtiva against Y.
(3) X can approach the court for a declaratory order.
(4) X can institute the rei vindicatio against Y.
Answer:
option 1
5. Indicate the correct option.
S, X and Y‟ son, leases a portion of their farm. When his father's farm
implements are stolen, he gives some of his (rented) equipment to his father, X,
to use. Father and son have an argument. In his anger X destroys his son's
rented equipment. Which remedy is available to S?
(1) spoliation remedy
(2) condicio furtiva
(3) enrichment action
(4) possessory action
ANSWER: Option 4 is correct. S is in control of the rented equipment. When a
person who is in control of a thing, loses control of the thing, he/she can
restore his/her control with the spoliation remedy. In this example the
equipment is destroyed and S will not be able to claim restoration of his
control with the spoliation remedy. S will however be able to claim damages
resulting from the loss of control from X with the possessory action. S can
therefore claim the value of the equipment from X, who has a weaker right to
control it than what S has.
See Study Guide pg 212-213
6. Indicate the incorrect option.
A land servitude must comply with the following requirements before it will be
recognised as a limited real right to the land of another:
(1) The servitude must have a degree of permanency.
(2) The servitude must enhance the use and benefit of the dominant tenement.
(3) The servitude must impose a duty on the owner of the servient
tenement to perform a positive act.
(4) The tenements must be situated, in relation to each other, in such a way
that the
effective exercise of the servitude to the benefit of the dominant tenement is
possible.
ANSWER: Option 3 is incorrect. The maxim Servetus in faciendo consistere
non potest applies to all servitudes. According to this maxim a servitude
(personal or land) cannot impose a duty on the owner of the servient tenement
to perform a positive act. Land servitutes must have a degree of permanency
(perpetua causa) and enhance the use and benefit of the dominant tenement
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(utilitas). Furthermore the tenements must be situated, in relation to each
other, in such a way that the effective exercise of the servitude to the benefit of
the dominant tenement is possible (proximity).
See Study Guide pg 237-238
7. Indicate the correct option.
X lends R5 000 to Y and X secures payment of the loan by registering a
notarial bond over Y‟s car. Y owes Z R8 000 as a result of a collision that
occurred between Y and Z. Y becomes insolvent before repaying X and before
paying Z. In this scenario, who has a preferent claim against Y‟s insolvent
estate?
(1) X, because he has a limited real right over Y‟s car.
(2) X, because the smaller amount must be paid first.
(3) Z, because he has a personal right against Y‟s insolvent estate.
(4) Z, because the larger amount must be paid first.
ANSWER: Option 1 is correct. X has a notarial bond over Y‟s car. A notarial
bond is a form of a conventional or express mortgage. The notarial bond in this
case is a special notarial bond as it is registered over a specified movable thing.
In terms of section 1 of the Security by Means of Movable Property Act 57 of
1993 the specified movable thing under a special notarial bond are deemed to
have been pledged and delivered. The Act creates a fictitious (non-possessory)
pledge. The Act therefore creates a real security right in the form of a pledge
and X (the notarial bond holder) is consequently a secured creditor.
Z only has a personal right (creditor„s right) against Y‟s insolvent estate. He is
an unsecured creditor. Therefore X‟s secured claim (real security right) will
enjoy preference over Y‟s unsecured claim.
See Study Guide pg 269-272
8. Indicate the correct option.
In Mapenduka v Ashington 1919 AD 33 the court held that:
(1) the clause in the pledge agreement stipulating that the pledgee may keep
the calve of the cow as interest on the amount owing by the pledgor is invalid.
(2) the clause in the pledge agreement stipulating that the pledgee may sell the
6 oxen,
1 cow and 1 horse (the pledged animals) without a court order is invalid.
(3) the clause in the pledge agreement stipulating that the pledgee may keep
the 6 oxen,
1 cow and 1 horse if the pledgor fails to pay his debt is invalid.
(4) the clause in the pledge agreement stipulating that the pledgor may not pay
his debt is invalid.
ANSWER: Option 3 is correct. The parties in Mapenduka v Ashington (1919 AD
33) agreed in writing that the pledgee may keep the 6 oxen, 1 cow and 1 horse
(the pledged animals) if the pledgor fails to pay his debt. The court held that
this clause was invalid.
See Study Guide pg 264 -265 and Mapenduka v Ashington 1919 AD 33
9. Indicate the incorrect option.
A mortgage is terminated:
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