DEFINITIONS

INTRODUCTION CLASSIFICATION
DISTINCTION
SCOPE AND DEFINITION OF
PROPERTY
WHAT IS PROPERTY LAW?
-Is it under public or private law?
HOW ARE OTHER AREAS OF PRIVATE LAW RELATED TO THE LAW OF PROPERTY?
-Contract law(lease, sale of property)?
-Family law (joint estate in marriage and upon divorce----ownership of property,
shared control) -Give examples of property….movable car and immovable-house
Why do we regulate property?
-Protect individuals from undue interference-----Prevention of conflict (who the
owner is)
-What issues do you think are covered by law of property?
Check module outline
SCOPE AND DEFINITION OF
PROPERTY
-Property Law is a branch of Private Law
-It regulates the legal relationship between legal subjects (natural
or juristic persons) and legal objects which have value … and their
rights and duties towards one another in respect of that object.
-It also encompasses what is generally known as the Law of Things.
Function of Law of Property:
-the main function of LoP is to harmonize numerous competing
legal interests or reconcile and address issues arising in relation to
legal objects, or to prevent conflict thereof.
SCOPE AND DEFINITION OF
PROPERTY
Terminology
A person is a legal subject who can acquire and exercise rights and obligations in law. A
legal subject can be either a natural person (an individual) or a juristic person
(groups/bodies operating and recognised as a single entity)
A legal object is anything with regard to which a person can acquire and hold a right
Property is everything which can form part of a person’s estate including corporeal and
incorporeal interests and rights
A right is a legally recognised and valid claim by a subject to a certain object. …not all
relations between a person and an object are recognised and protected by law e.g relation
btwn a thief and stolen object.
A property right is any legally recognised claim to or interest in property…real ryts,
personal ryts and constitutional ryts.
A remedy is a legal procedure provided by the legal system to protect a right against
infringement or to control the effects of an unlawful act or situation.
A thing is a specific category of property which is defined with reference to its
characteristics: a corporeal object which has use and value to a legal subject, external to
humans, and an independent entity (has a separate legal existence), which can be
subjected to juristic control.
SCOPE AND DEFINITION OF
PROPERTY
HISTORY OF PROPERTY LAW

- law of things used to incorporate only corporeal property (tangible),

a narrow variety of property but property law encompasses a wide
variety of property that forms part of one’s estate including
incorporeal (shares in a company, copyright rights, goodwill).
-Law of Property is also known as law of things.
-Traditionally, these two areas were separate and distinct, though related. Nowadays,
they mean the same thing in Zimbabwean law. The Roman Dutch common law
regarded it as law of things.
-However, expansion of things necessitated it becoming more broader as law of
property.
SCOPE AND DEFINITION OF
PROPERTY
-A thing is a valuable, corporeal object, external to humans which
enjoys a separate legal existence and which can be subjected to
juristic control.
Elements of law of things:
1. valuable
2. corporeal object
3. external to humans
4. separate legal existence
5. subjected to juristic control
SCOPE AND DEFINITION OF
PROPERTY
1. Useful and valuable to humans refers to: primarily economic value, but
also sentimental value.
2. Corporeal object means it could be tangible. (shares were excluded in
the def)?
3. Capable of juridical control means capable of being subjected to human
control (car).
4. Separate legal existence refers to separate legal entity and not a
component thereof. It emphasizes legal independence (the components of
composite thing are not things, but rather accessories or auxiliaries eg
phone battery is a component of a phone so it wasn’t considered as a thing?
5. External to humans means it is not a human being (slavery whr humans
were considered as property of the master),
 SCOPE AND DEFINITION OF
PROPERTY
Sources of Property law
(i) Common law ( eg RDL authors like Voet and remedies like
rei vindicatio and spoliation whose requirements are common law
remedies found in case law)
(ii) Statutory law (legislation)
(iii) Case law (precedent)
(iv) Customary law
(v) The Constitution (supremacy clause, property law clause)
(vi) Foreign law and International law (differences)
SCOPE AND DEFINITION OF
PROPERTY
Foreign law vs International law
Section 46 of the Constitution:
(1) When interpreting this Chapter, a court, tribunal, forum or body
—
must take into account international law and all treaties and
conventions to which Zimbabwe is a party (compulsory and
binding)
may consider relevant foreign law (optional and persuasive, point
of reference or guideline but not binding)
SCOPE AND DEFINITION OF
PROPERTY
Property may be divided into:
(i) proprietary rights and
(ii) proprietary objects
A right is a legally recognised valid claim, by a legal subject, on a
certain legal object.
A legal object is defined as anything with regard to which a person
can acquire and hold a right.
 CLASSIFICATION OF
PROPERTY
1. Negotiable vs Non-Negotiable things

Negotiable- things owned by a private legal person (house,car) or property capable of being owned but is
not owned e.g res derelict (things thrown away and owner has no intention to own them anymore) + res
nullius (wild animals/birds)- also known as res intra commercium

Non-Negotiable- things not subject to private ownership but are used directly for the public’s benefit. This
is property that falls outside legal commerce e.g public roads, national parks, sea, rivers , dams (also known
as res extra commercium)
-acquisition of ownership only on negotiable things
-res derelicta + res nullius= original acquisition of property
2. Res corporales (corporeals) vs res incorporales (incorporeals)

Corporales: property that is tangible (desk, chair, car)

Incorporeals: property that is intangible (shares in a company, goodwill of a business)

Initially law of things used to only incorporate corporeals/ tangibles. Currently, law of property incorporates
everything owned by a person, both corporeals and incoporeals.

3. Fungibles vs Non fungibles

Fungibles: property belonging to a certain group/class and can be replaced by similar things e.g money, light
bulb.
CLASSIFICATION OF
PROPERTY
4. Consummables vs Non-consumable things
Consummable things: things that are depleted in value or consumed by normal use e.g food,
money, fuel
Non-consumable things: things maintained even if normal wear and tear occurs through use e.g
house or car
-since consummables deplete by use, in an agreement concerning a loan or lease of consummables,
it is presumed that the intention of the borrower or lessor was that the thing be consumed and
replaced by a similar thing.
-A usufruct can only be given in terms of non-consumable things because it is the nature of a usufruct
to maintain and return the thing still intact and the same.
5. Divisible and Indivisible property
Divisible things: a thing is divisible if it can be divided into smaller components while retaining its
nature and function without the value being less than the original component e.g a piece of land, a
sack of mealies
Indivisible things: things that cannot be divided without changing the value, nature or function of
a thing e.g a chair, a car.
CLASSIFICATION OF
PROPERTY
6. Singular and Composite things
Singular things: things that exist independently without consisting of independent particular components e.g
brick, coffee mug, desk
Composite things: things that have different components consisting of independent things e.g a house or car.
Components of composite things:
Principal thing: a thing which exists independently and can be the object of real rights…..land will always be a
principal thing.
Accessory thing: a thing which can exist independently of the principal thing but has been attached to the
principal thing to such an extent that it has lost its independence…..tyres in a car, bricks in a house.
Auxiliary thing: a thing that exists separately and independently of the principal thing but because of its
economic value or use, it is nol onger regarded as an independent thing for purposes of property law e.g car
keys, house keys, certain tools marketed with a motor car or chairs of a dining table made of same material (a
thing meant to complement another thing).
Fruits: fruits are produced by a principal thing without the principal thing being destroyed or consumed.
Natural fruits: wool, milk, young ones of an animal.
Civil fruits: rent, profits, interest.
CLASSIFICATION OF
PROPERTY
7. Movable vs Immovable property
Movable property: property that can be moved/shifted from one place to the other e.g
car
Immovable property: property that cannot be moved/shifted from one place to the
other, this class includes land and everything permanently attached to land e.g land,
house, farm.
- Transfer of ownership of movables is by way of delivery whereas transfer of immovables
is by way of registration.
-Real security in the case of immovable is by way of registration of mortgage bond
whereas real security in relation to movables is through registration of notarial bond or a
pledge.
-Where a debtor’s property/assets are sold in execution, movables must first be attached
prior to attachment of immovable property unless in cases of mortgage bonds.
Why is the distinction between movables and immovable important in property law?
ACTIVITY
REARRANGE THE SECOND COLUMN BELOW SO
THAT THE EXAMPLES LISTED THERE
CORRESPOND TO THE THINGS IN THE FIRST
COLUMN.
Things Examples
1.Singular thing 3.Motorcar
2.Non-fungible thing 7.Public park
3.Composite thing 5.Tennis ball
4.Immovable thing 6.Shares in a company
5.Movable thing 4.Farm
6.Incorporeal thing 1.Table
7.Res publica 2.Original painting
CLASSIFICATION OF
PROPERTY RIGHTS
There are three common types of rights to property, namely
(i) Real Rights- a right in a corporeal/incorporeal thing belonging to oneself
(ii) Limited Real Rights- a right in a corporeal/incorporeal thing belonging to
another person
(iii) Creditor’s Rights/ Personal Rights-a right against a person, such a person has
an obligation to do something or refrain from doing something.
Real Rights: this is a claim of a legal subject to a thing as against other persons.
You can enforce a real right against the whole world. There is only one real right
in property, this is Ownership.
Personal Rights: this is a claim of a legal subject to a thing as against a person
who is obliged to act in terms of an agreement. You can enforce a personal right
against the person who is obligated to you. A personal right in property is by
agreement/contract.
CLASSIFICATION OF
PROPERTY RIGHTS
Limited real rights are rights in property whose property belongs
to another person. (e.g servitude)
-A real right is stronger than a LRR because it offers the most
comprehensive, almost unrestricted control over a thing.
-Limited real rights are different, but they offer less exclusive
control over a thing.
-Difference between: Real Right vs Limited Real Right and
Real Right vs Creditor’s right and give
examples.
CLASSIFICATION OF
PROPERTY RIGHTS
Real Right: buy a house and obtain title deeds or a car n its delivered
Creditor’s right: lease agreement, payment of rent and use and enjoyment
without interference
Limited Real Right: You take a loan from a pawnshop and you give the
pawnbroker as wristwatch. This is a form of a pledge, you leave the watch in the
care of the pawnbroker security your who retains it to secure payment of the loan.
The watch still belongs you and you retain your real right of ownership
but you temporarily lose some of the entitlements of use and enjoyment.
On the other hand, you provide the pawnbroker with a limited real right, a real
security right, with property belonging to yourself. The pawnbroker acquires the
right to retain the watch pending payment of the loan and in certain
circumstances, the right to sell the watch in order to raise money to repay the
loan should you fail to pay the loan as agreed. In this case, your right of
ownership is diminished temporarily in that your use of it is suspended until the
limited real right is extinguished.
CLASSIFICATION OF
PROPERTY RIGHTS
There are two theories that explains the nature of rights.
1 Classical Theory: emphasises the difference between the objects of a real right and creditor’s
right
-Real right is the right of a person in a thing whereas personal/creditor’s right is the right of a
person against another person. In the real right, the thing itself is the object of the right, in a
personal/creditor’s right, the object is the action which must be performed by the debtor (to do
something/refrain from doing something)
According to this theory, Real Rights are concerned with the relationship between a person and an
object/thing/res. (direct relationship with property)
Further, according to this theory, Limited Real Rights are concerned with the relationship btwn two
or more persons (indirect relationship with the property since such relationship is exercised through
someone else e.g lessee thru the owner)
I.r.o a Real right, there is a direct relationship between a person and his thing/property
I.r.o a LRR/PR, there is no such relationship; under LRR a person becomes bound to the owner of a
thing or a holder of a real right in that thing. This becomes a personal right. There is an indirect
relationship because your relationship with the thing/property is through another person.
CLASSIFICATION OF
PROPERTY RIGHTS
2. Personalist Theory: differences based on the ways in wc real
and personal ryts are enforced
-The focus of this theory is the person or persons against whom the
right is enforced.
-Thus, the holder of a real right can enforce such a right against the
whole world because the ryt is absolute.
The holder of a personal right (or LRR) can only enforce it against
the person who holds the real right to the object/res/property in
question, this right is relative. Eg a tenant whose use and
enjoyment of property is disturbed can sue the landlord, and can
only enforce rights pertaining to the lease against the landlord, not
the whole world.
CLASSIFICATION OF
PROPERTY RIGHTS
Real rights are known as absolute rights, they grant absolute,
exclusive, total, and the strongest control over a thing (use,
dispose/sell,pledge n other entitlements in property). There are
many remedies that the holder of a real right can resort to in the
face of violation of a real right(eg rei vindication only available to
the owner of property dispossessed of their property).

Personal rights or limited real rights are less absolute; they are
“relative rights” ….relative means limited e.g tenant’s right limited
to use and enjoyment not to sell or mortgage it by taking a loan n
using the house to secure debts
CLASSIFICATION OF
PROPERTY RIGHTS
If the obligation is a burden upon the land, it is a subtraction from the dominium/ownership,
such a right is a real right and should be registered.
-If the obligation rests upon land, it affects any owner of the piece of land regardless of
identity/contract with that person. Therefore, subsequent owners are affected/bound by that
obligation just like the original owner.
If the burden is placed upon a specific person in her personal capacity such a right is a
personal/creditor’s right and it may not be registered. The result is that such a right does not
affect subsequent owners of the land, because the burden is on a specific person in her
personal capacity not as the owner of land.
A real right is concerned with and accompanies the property (land) whereas a
personal/creditor’s right is concerned with and accompanies the person. If the person upon
whom the obligation rests sells the land to a different person, a real right would follow the land
and would still be enforced against the new owner whereas a creditor’s right would follow the
person and will be enforced against the original person but not against the new owner
A limited real right is created only when it is a right that result in subtraction/diminishing of the
owner’s riught to the physical use of the property
CLASSIFICATION OF
PROPERTY RIGHTS
a. ownership of a motor car (real right in a motor car)
b. ownership of a house (real right in a house)
c. a flat in a sectional title scheme (real right in a sectional title unit)
d. shares in a mining company (creditors’ right against the company)
e. short term lease of an office (creditor’s right against the owner of the building)
f. registered long term lease of a factory (limited real right in the factory)
g. registered right of way in a neighbour’s farm (servitude=limited real right in the farm)
h. usufruct (limited real right)
i. registered bond over a neighbour’s farm for a cash loan granted to the neighbour
(limited right on the farm)
J. right to a state pension and medical scheme to which the person contributed for ten
years (creditor’s right against the state pension fund and medical scheme)