LU2a — Acquisition of Ownership
← 02 - LU2 Law of Property | 00 - Index | Next → 02b - LU2 Limited Real Rights & Servitudes
The Nemo Plus Iuris Rule
No one can transfer more rights in a thing to another person than they themselves have.
For ownership specifically: only an owner can transfer ownership. A thief cannot give valid title to a buyer, even a bona fide buyer (with limited exceptions under prescription).
Transfer of Ownership — Traditio ex Iusta Causa
To transfer ownership, two elements are required simultaneously:
Delivery (traditio) + Valid legal reason (iusta causa) = Transfer of ownershipNeither alone is sufficient:
- - Delivery alone does NOT transfer ownership
- - Agreement (contract) alone does NOT transfer ownership
This principle still applies in South African law — confirmed in Air-Kel (Edms) Bpk h/a Merkel Motors v Bodenstein 1980 (3) SA 917 (A), citing the Corpus Iuris Civilis.
What counts as a valid iusta causa?
A transaction on the basis of which ownership would normally pass:
- - Contract of purchase and sale ✓
- - Donation ✓
- - Gifting of a dowry ✓
Five Forms of Delivery (Traditio)
All five forms still apply in South African law today.
| Form | Latin | How it works | Example |
|---|---|---|---|
| 1. Simple / hand-to-hand delivery | Traditio de manu in manum | Physical handing over | Cashier hands you a loaf of bread |
| 2. Long-hand delivery | Traditio longa manu | Thing is pointed out within sight; recipient can take immediate control | Seller points to cattle in a field |
| 3. Short-hand delivery | Traditio brevi manu | Recipient already has possession before sale — delivery is dispensed with | Lessee buys the property they already occupy |
| 4. Constitutum possessorium | — | Transferor keeps possession after transfer of ownership | Seller sells furniture but keeps using it until they move out |
| 5. Symbolic delivery | Traditio symbolica | Delivery of a symbol representing the thing | Handing over the key to a warehouse full of goods |
Original Modes of Acquiring Ownership
These operate independently — no predecessor's assistance required.
| Mode | Latin | Meaning |
|---|---|---|
| Appropriation | Occupatio | Seizing ownerless things (res nullius) |
| Acquisition of fruits | Acquisitio fructuum | Owner of a thing owns its fruits (e.g. owner of cow owns the milk) |
| Accession | Accessio | One thing becomes incorporated into another (the more important thing's owner becomes owner of the whole) |
| Creation | Specificatio | Making a new thing from existing materials — the maker owns the new thing (even if made from another's materials, if the thing cannot be returned to its original form) |
| Prescription | Usucapio | Long, uninterrupted, bona fide possession leads to ownership |
Specificatio example (from study guide)
Refilwe makes wine from grapes — some her own, some Jacob's. She becomes owner of the wine. Jacob can only claim compensation because the wine cannot be turned back into grapes.
Prescription (usucapio) — key points
- - Possession must be bona fide at the time possession is taken
- - Discovery later that the transferor was not the owner does NOT destroy the initial good faith
- - If all requirements are met, the possessor can become the owner through prescription
Derivative vs Original Acquisition — Summary
| Type | Meaning | Modes |
|---|---|---|
| Derivative | Ownership derived from a predecessor | Traditio (with iusta causa) |
| Original | Ownership acquired independently | Occupatio, acquisitio fructuum, accessio, specificatio, usucapio |
Linked Notes
- - 02 - LU2 Law of Property — real rights, ownership definition, rei vindicatio
- - 02b - LU2 Limited Real Rights & Servitudes — servitudes and hypothec
- - 03a - LU3 Contract of Sale — the contract of sale as the iusta causa for transfer of ownership