Accessio
1. Janus walks home and, just before he gets there, he sees his neighbour Paul has left some bricks and pieces of wood near the gate of his (Paul’s) property, some clearly within his property and some just outside the gate on the pavement. Since Janus had for some time been planning to build a hut on his own property, he takes this (what he sees as) discarded rubble and transfers it to his property. He proceeds to build a hut on his land. Consider the following questions.
1.1 Are the bricks and wood res derelictae? What information would you need to make such a determination?
1.2 What is the relevance of the question under 1?
1.3 Assuming that the material has not been abandoned by Paul, would he have a remedy against Janus before Janus had started building the hut?
1.4 Would he have a remedy after the hut was fully built? What would the answer to this question depend upon? (In other words: does the answer to the last question depend upon Janus’ state of mind?)
1.5 Does your answer under 1.4 depend upon the date? In other words, did the law change over time, and, if so, how?
1.6 Do you think it’s a good idea for a legal system to encourage huts that have been built to be broken down? Why? Or, why not? If you think this is a good idea, in what circumstances would it be justified? If your answer is no, what other remedy would someone have if his res (things) have been taken by another and built into a building on the latter’s land?
1.7 What is the position in the modern South African law? (Explore.)
1.8 Refer again to the vignette (story) above: what would the legal position be if Paul had in fact built a hut on a tract of land which he thought belonged to him, but in fact belonged to Janus?
1.9 Does your answer under 1.8 depend upon Paul’s state of mind? Explain. If your answer is that it does in fact depend upon Paul’s state of mind, do any difficulties arise as a result of this state of the law. Consider.
1.10 Are there any similarities between the rules adverted to above and rules which emerged in indigenous African legal systems. What were the legal solutions devised for these (surely common) problems in indigenous African legal systems? If you do find similarities, what does this tell one about the emergence of early legal ideas?
To work on these questions you must take into account:
ReplyDelete- Res derelictae: only becomes res nullius when there is corpus and animus, this is material abandonement and intention of abandoning the thing.
- Superficies solo cedit: When there is inaedificatio, the principal is always the land and the materials attached to it are the accesory. Therefore, the owner of the land is ALWAYS the owner of the building that has been constructed over it.
- Take into account the actio furti for the things that were used without authorisation. It will always produce an obligation (in this case, to pay double the value of the materials taken) and not a real right over the building.
- Explore the figure of ius tollendi.
- Good faith is determinant to establish legal remedies.
- Explore who has the possession of the building and the land and how can this change the legal consequences for each party.