NOTES for property A
These exam notes provide a comprehensive overview of Chapter 2: Property and Things from
your Property Law A course.
1. Defining a “Thing”
In private law, a thing is defined as any independent object (whether corporeal or incorporeal)
that is not part of a human being, can be controlled by humans, and possesses use and value
for them. It is crucial to determine if a legal object qualifies as a "thing" because proprietary
(property-law) remedies are only available for things. These remedies are often more effective
than contractual ones.
2. Key Characteristics of a Thing
A "thing" generally possesses six fundamental characteristics:
Corporeality: Traditionally, a thing is corporeal if it is tangible
(perceived by senses like sight and touch). However, incorporeal
objects (intangible interests like electricity or rights) are increasingly
recognized as things by courts to meet the demands of legal practice.
Impersonal Nature: Human beings are legal subjects, not objects,
and thus are not things. While advances in medicine have
"commodified" body parts (like blood or organs), these are generally
donated rather than sold, preserving their status as non-negotiable
(res extra commercium). Renewable parts like hair may be sold on the
open market.
Independence: A thing must have independent legal existence.
This does not require physical independence; the law can intervene to
create juridical independence. For example, a single building can be
legally divided into apartments under the Sectional Titles Act 95 of
1986. Conversely, fixtures like toilets or baths usually cannot be
excluded from a sale because their removal damages the building's
fabric.
Appropriability: A thing must be susceptible to human control,
allowing for the enforcement of rights. While the sun and stars cannot
be controlled and thus aren't "things," compressed air in a cylinder is a
thing because it has been brought under human control.
Use and Value: A thing must offer use and value, which may be
economic or sentimental. Even dangerous items like chemical waste
qualify as things, though they have negative value.
3. Property vs. Things
The concept of "property" is broader than that of a "thing". While things are the focus of
private law, "property" in a constitutional sense includes all patrimonial rights, such as real
rights (ownership), personal rights (performance), and intellectual property.
4. Classification of Things
Things are classified in two primary ways: by their negotiability and by their nature.
A. Classification According to Negotiability
Res in commercio: Things that can be owned and traded.
o Res alicuius: Things currently owned.
o Res deperditae: Owned things that have been lost.
o Res nullius: Unowned things (e.g., res nullius proper have never
been owned; res derelictae were abandoned).
o Res singuilorum: Owned by individuals.
o Res universitas: Owned by corporate bodies.
Res extra commercium: Things outside of commerce that cannot be
owned.
B. Classification According to Nature
Movable vs. Immovable: Movables (furniture, cars) can be moved
without damage, while immovables (land, houses) cannot. Real rights
follow the nature of the object: a usufruct over a house is an
incorporeal immovable.
Fungible vs. Non-fungible: Fungible things are interchangeable
(defined by weight or number), while non-fungible things are unique
and individually determined.
Consumable vs. Non-consumable: Consumables (food, fuel) are
used up by their use; non-consumables (land, art) are not. A
substantial reduction in value over time indicates a consumable
thing.
Divisible vs. Indivisible: A thing is legally divisible if the parts
retain the same nature and function as the whole (e.g., a barrel of
wine). A bicycle is indivisible because its parts do not share the nature
of the whole.
Single vs. Composite: A single thing exists independently (e.g., a
sheep), while a composite thing consists of different components
joined together (e.g., a car).
o Accessories are physically attached to a principal thing.
o Auxiliary things are not physically attached but are legally tied
to the principal thing for its effective use (e.g., a house key).
Fruits: These are products of a principal thing (e.g., offspring of
livestock or rental income). The owner of the principal thing generally
owns the fruits unless an agreement (like a usufruct) dictates
otherwise.
Topic 3