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The characteristics of an abstract system for the transfer of property in South African law as distinguished from a casual system

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dc.contributor.author Schutte, P J W
dc.date.accessioned 2012-10-24T11:30:00Z
dc.date.available 2012-10-24T11:30:00Z
dc.date.issued 2012
dc.identifier.citation Schutte, P.J.W. 2012. The characteristics of an abstract system for the transfer of property in South African law as distinguished from a casual system. Potchefstroom electronic law journal (PELJ) = Potchefstroomse elektroniese regsblad (PER), 15(3):120-151 [http://www.nwu.ac.za/p-per/index.html] en_US
dc.identifier.issn 1727-3781
dc.identifier.uri http://hdl.handle.net/10394/7636
dc.description.abstract Two divergent systems are usually differentiated between when it comes to the way in which real rights are transferred from one person to another, namely abstract and causal systems. In this article the features of each system, the respect in which they differ from each other, and the practical implications of the distinction are established. It appears that in a causal system real rights are transferred by conclusion of the obligatory agreement, which should be valid and enforceable. The mutual intention to transfer and to receive real rights is not construed as an independent real agreement as it is contained in the obligatory agreement. In a causal system the transferor finds himself in a favourable position in relation to other parties while bona fide third parties undoubtedly get the worst of the deal since they have no protection against the disadvantageous consequences of delivery owing to a void obligation. In an abstract system the obligatory agreement is not sufficient for the transfer of real rights, the thing should also be delivered and there should be a valid real agreement which consists merely of the mutual intention to transfer and to receive real rights. The real agreement is a characteristic of an abstract system which distinguishes it from a causal system. Compared with the position of those in the causal system, the transferee and third parties find themselves in a favourable position vis-à-vis the transferor. In a causal system the concept iusta causa refers to a valid and enforceable obligatory agreement or other juridical fact which obliges the transferee to deliver thething. In an abstract system it serves no purpose to describe the causa with reference to the obligatory agreement, since it is not a substantive law requirement for the transfer of real rights. The causa concept refers rather to the mutual intention to transfer and to receive real rights, which is nothing less than the real agreement. Since the causa is contained in the real agreement it is no longer of any use in an abstract system and should be abandoned. The Dutch system displays the characteristics of an abstract system in that a separate act of delivery should exist and a valid real agreement is a requirement for the transfer of real rights. On the other hand it also displays characteristics of a causal system, since a valid obligatory agreement is a requirement for the transfer of real rights. en_US
dc.language.iso en en_US
dc.subject Causal and abstract systems for the transfer of real rights en_US
dc.subject Transfer of real rights en_US
dc.subject Contential abstraction en_US
dc.subject External abstraction en_US
dc.subject Real agreement en_US
dc.subject Animus transferendi et accipiendi en_US
dc.subject Consensualism en_US
dc.subject Traditionalism en_US
dc.subject Iusta causa traditionis en_US
dc.subject Causa remota en_US
dc.subject Causa immediate/causa efficiens en_US
dc.subject Legal ground or reason for transfer en_US
dc.subject Void obligatory agreement en_US
dc.subject Bona fide third parties en_US
dc.subject Rei vindicatio en_US
dc.subject Savigny en_US
dc.title The characteristics of an abstract system for the transfer of property in South African law as distinguished from a casual system en_US
dc.type Article en_US


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