Vertoon die Corpus Iuris Civilis Kenmerke van 'n Abstrakte Stelsel van Eiendomsoordrag?
Abstract
It is generally accepted that an abstract system for the transfer of property is
applied in South Africa. Characteristic of an abstract system is that the different
legal acts which form part of the process, namely the obligatory agreement,
delivery of the thing concerned or registration and the real agreement are
separated from each other. The real agreement is an agreement between the
transferor and the transferee based on a meeting of the minds; it is directed at
the transfer of ownership by delivery and should be distinguished from the
underlying causa (for example an obligatory agreement). The real agreement
merely consists of the transferor’s intention to transfer property and the
transferee’s intention to receive property. A second characteristic of the real
agreement is that it should meet its own requirements. It is therefore not
dependent on the validity of the preceding obligation or any other legal act. This
means that ownership will pass from the transferor to the transferee even
though the underlying obligatory agreement is invalid.
The real agreement is an invention of the German jurist Friedrich Carl von
Savigny. The purpose with this article is to ascertain whether or not Roman law
at the time of Justinian reflects any of the characteristics of an abstract system
and the real agreement (which is generally associated with an abstract system).
Can it be said that Savigny based his theory on Roman law? It appears from
this paper that a clear distinction was drawn in Roman law between the causa
(obligatory agreement) and delivery (traditio). Ownership in movable and
immovable property did not pass directly by virtue of the conclusion of the
contract of sale or donation (causa) - the thing concerned had to be delivered to
the transferee in a legally accepted way as well. Although there is no clarity
regarding the question of whether or not a valid causa was a requirement for
the transfer of ownership, it can be stated with a fair amount of certainty that
the causa had to be valid in those cases where delivery was effected by virtue
of sale and donation. If the causa was invalid, ownership did not pass, even
though the parties had the intention to pass ownership. In this regard Roman
law at the time of Justinian reflects the characteristics of a causal system.
However, if the thing was delivered on account of a dos or solutio by virtue of a
stipulatio (and maybe also mutuum), there was no prior obligatory agreement
and traditio was not affected by the causa at all. Ownership had passed merely
by virtue of the intention to transfer and to receive ownership. In other words,
Roman law portrays characteristics of an abstract system in these situations.
Regarding the question whether or not the reciprocal intention to transfer and to
receive ownership had been construed as an independent agreement which
should be distinguished from the obligatory agreement, it appears that that was
not the case. Because of the dual nature of the contract of sale in Roman law (it
created an obligation but it was also iusta causa traditionis), it was accepted
that the intention to transfer and to receive ownership was actually contained in
the obligatory agreement. It did not exist on its own as a separate agreement
(except in cases of a dos, solutio and mutuum). However, it emerges that the
intention was emphasised more and more and that it was gradually loosened
from the causa. The loosening, however, existed merely in the vision that the
intention to pass ownership (as contained in the causa) can continue to exist on
its own even though the causa appears to be invalid. The bond between causa
and traditio was not yet finally broken, because it was still the intention at the
time of the obligatory agreement that effected the passing of ownership. The
conclusion is that there was no sign of a real agreement which merely
consisted of the reciprocal intention to transfer and receive ownership and
which existed independently from the underlying obligatory agreement.