Analysing the transfer of ownership in the case of suspensive instalment agreements – a causal or abstract system and the implications thereof
| dc.contributor.advisor | Sibanda, Nkanyiso | |
| dc.contributor.author | Morgan, Kirsty Kate | |
| dc.date.accessioned | 2024-09-17T09:32:19Z | |
| dc.date.accessioned | 2025-03-03T08:09:20Z | |
| dc.date.available | 2024-09-17T09:32:19Z | |
| dc.date.available | 2025-03-03T08:09:20Z | |
| dc.date.issued | 2023 | |
| dc.description | Doctor Legum - LLD | en_US |
| dc.description.abstract | South Africa follows an abstract system of transfer of ownership, as opposed to a causal system of transfer. Under an abstract system of transfer, the cause of the transfer, the iusta causa, is separated from and abstracted from the transfer of ownership itself. This results in the validity of the transfer of ownership being reliant on a real agreement and conveyance. The validity or invalidity of the underlying cause of the transfer is irrelevant for the purposes of determining whether ownership has passed. Instead, the validity of the transfer is dependent upon the real agreement and conveyance, specifically, delivery in respect of movable property. Delivery may take the form of either real or constructive delivery. In respect of constructive delivery, there is a numerous clausus of constructive delivery modes. In order to transfer ownership through the use of constructive delivery, the requirements of a particular mode must be met. The real agreement is insufficient on its own to affect transfer of ownership. The rigidity of the abstract system of transfer, although beneficial for legal certainty, can result in conceptual challenges at times. This thesis examines the conceptual challenges presented by the case of instalment agreements that reserve ownership until certain obligations are met. Specifically, analysing how and when the transfer of ownership, in the case of these types of credit agreements, takes place. This thesis analyses two approaches, the Lauritzen approach and the Info Plus approach, concluding that the latter approach provides the most equitable balancing of interests. The Info Plus approach allows ownership to transfer immediately, resulting in ownership passing to the transferee for the duration of the instalment agreement. The timing of the transfer, that is immediately, has important implications for other areas of law, in particular credit regulation as well as the law of cession and lease. | en_US |
| dc.identifier.uri | https://hdl.handle.net/10566/20182 | |
| dc.language.iso | en | en_US |
| dc.publisher | University of the Western Cape | en_US |
| dc.rights.holder | University of the Western Cape | en_US |
| dc.subject | Transfer of ownership | en_US |
| dc.subject | National Credit Act 34 of 2005 | en_US |
| dc.subject | Abstract system of transfer | en_US |
| dc.subject | Causal system of transfer | en_US |
| dc.subject | Credit Agreement | en_US |
| dc.title | Analysing the transfer of ownership in the case of suspensive instalment agreements – a causal or abstract system and the implications thereof | en_US |