AN INTRODUCTION
TO
ROMAN-DUTCH LAW
L
oo
. -V
AN
INTRODUCTION
TO
EOMAN-DUTCH LAW
x+fy*' BY
R. W. LEE, D.C.L., F.B.A.
*»
Rhodes Professor of Roman-Dutch Law, Fellow of All Souls College, Oxford
Hon. LL.D. the University of the Witwatersrand
Docteur (honoris causa) de I'Universite' de Lyon
Vice-President de l'Acad6mie Internationale de Droit Compare"
A Master of the Bench of Gray's Inn
FOURTH EDITION
OXFORD
AT THE CLARENDON PRESS
1946
OXFORD UNIVERSITY PRESS
AMEN HOUSE, E.G. 4
London Edinburgh Glasgow New York
Toronto Melbourne Cape Town Bombay
Calcutta Madras
GEOFFREY CUMBERLEGE
PUBLISHER TO THE UNIVERSITY
PRINTED IN GREAT BRITAIN
PREFACE
(ADAPTED FROM THIRD EDITION)
THE first edition of this book published in 1915 was
designed to present a survey of the Roman-Dutch Law
as it then existed in South Africa, in Ceylon, and in British
Guiana. From January 1, 1917, this system was replaced
in British Guiana by the Common Law of England. Conse-
quently in the second edition, published in 1926, British
Guiana was omitted from the picture. South Africa and
Ceylon remained, the former being without question the
predominant partner. In the interval of thirty years which
has elapsed since the first edition, legislation of the Union
Parliament and decisions of the Appellate Division of the
Supreme Court of South Africa have been active in con-
solidating the law of the Union. To the extent to which
these influences operate the old law either takes a new
shape or fades into the background. Even today an
immense chasm separates the Roman-Dutch Law of Hol-
land from the modern law of South Africa. In another
half-century, or less, recourse to the old authorities, which
still form the basis of this book, will seldom be made. The
Roman-Dutch Law will have been superseded in South
Africa, not per saltum, as in British Guiana, but by a
gradual process of disintegration and re-statement. This,
rather than codification, may be predicted as the future
of the Roman-Dutch Law in this part of the world.
Meanwhile, in the Union of South Africa, if not elsewhere
in equal degree, many institutions of the old law exhibit
a stubborn persistency. The law of marriage, particularly
as regards the proprietary rights of the spouses and the
contractual capacity of the wife, remains to-day substan-
tially what it was in the time of Grotius ; and though a
South African judge has adverted to 'the unfortunate con-
sequences arising from the application to modern conditions
vi PREFACE TO THE FOURTH EDITION
of an archaic system of law affecting the property of
married persons', the system thus described seems, or
seemed till lately, too firmly established in popular senti-
ment to be in immediate danger of change. This statement
must be understood to be limited to the Union of South
Africa. Southern Rhodesia has followed the example of
Ceylon in declaring (Married Persons' Property Act, 1928)
that ' Community of property and of profit and loss and
the marital power or any liabilities or privileges result-
ing therefrom shall not attach to any marriage solemnised
between spouses whose matrimonial domicile is in this
Colony entered into after the date of the coming into effect
of this Act ' (unless such spouses shall by an instrument in
writing executed before a magistrate have expressed their
wish to be exempt from the provisions of this law).
Further, in imitation of the law of Natal, the Act provides
that, spouses married in community prior to the taking
effect of the Act may take advantage of its provisions by
postnuptial deed. Is it significant of a trend of opinion
in the Union that a Private Member's Bill proposing
extensive changes in the common law was introduced in
the 1945 Session of Parliament (62 S.A.L.J., p. 333) ?
If the established law of marriage may be supposed, at
least in the Union, to make a sentimental appeal, there are
other institutions of the old law which have nothing to
commend them. Donations between spouses are still
ineffectual until confirmed by death, and the Appellate
Division has recently decided that it is incompetent to a
husband married out of community and with exclusion of
the marital power to make a valid conveyance of immov-
able property to his wife. Modern codes repudiate such
hoary archaisms. The process of tying up property through
successive generations by what is called 'fideicommissary
substitutions' is another case in point. These have been
prohibited in France since 1792, and the law is the same,
or nearly the same, in other European countries. In South
Africa a testator, if he goes the right way about it, may
tie up his property for ever (p. 386). Can it be said that
PREFACE TO THE FOURTH EDITION vii
such a tyranny of the dead hand has any reason for existing
except that it exists ?
The South African law of intestate succession is of an
immemorial antiquity, a survival, if Professor E. M.
Meijers of Leyden is correct, of a prehistoric ' Ligurian ' or
'Alpine' Law, which once obtained over a great part of
Central and Western Europe. This system assumes that
the whole of a dead man's estate came to him by descent
from his parents or parent, with the consequence that a sur-
viving parent, having contributed nothing, takes nothing
from a son who dies intestate. If the Octrooi of 1661
(p. 408) has been more indulgent to a surviving father or
mother, the old law is still effectual to exclude a surviving
grandparent (p. 411). A recent Union statute, following
the example of Natal and Southern Rhodesia, has intro-
duced a succession unde vir et uxor unknown to the com-
mon law (p. 412).
If I touch upon these facts it is with no intention of
underrating the Roman-Dutch system of law, but to sug-
gest that it carries a burden of ancient tradition, much of
which is out of harmony with the spirit of the age.
The history of the Roman-Dutch Law contains many
surprises. Perhaps the greatest of these is its persistence
under the British Crown for more than a century after it
ceased to function in the land of its origin and for a shorter
period after its disappearance from the Colonies still sub-
ject to the Kingdom of the Netherlands. It has even been
extended to the Mandated Territory of South- West Africa,
in abrogation of the much more highly developed system
of German law.
A minor surprise is that Roman-Dutch Law, being
allowed by the Inns of Court as an alternative to the
English Law of Real Property, has. come to be studied by
candidates for the English Bar, drawn from remote parts
of the world, who have no intention of practising law in
any jurisdiction where this system is administered. Such
students may well be bewildered by its strange complexity
and the archaic character of its sources. They would do
viii PREFACE TO THE FOURTH EDITION
well to regard it, not, with the late Sir Paul Vinogradoff,
as 'a ghost story', 'a second life of Roman Law after the
demise of the body in which it first saw the light', but
rather as a surviving specimen of the jus romanum
hodiemum, which in one form or another constituted for
centuries the common law of the greater part of Western
Europe, and has been a useful, perhaps necessary, bridge
between the Middle Ages and modern times.
II
A LEGAL text-book which passes into successive editions
is apt to expand, and often changes its character in doing
so. It is therefore a relief to find that the text of this
edition has not been enlarged by more than twelve pages,
and, of these, four are occupied by new appendices, one
on Inheritance ab intestate in Ceylon, the other a short note
on Conflict of Laws. Some space has been saved by cutting
out dead matter, in particular the disused tacit hypothecs.
On the other hand, the Law of Sale, of Delict, and of
Testamentary Succession have been more fully stated than
in the last edition. This has been done for the convenience
of students in order that they may have a completer picture
of the whole law. I have moved some footnotes into the
text, but I regret that these parasitic additions are as
numerous as ever. After all, they afford an author a means
of escape from the temptation to overload his text.
Besides, this book, I have been told, has been found useful
by practising lawyers and their needs are not the same
as those of students approaching the subject with a view
to an examination (though I would not recommend a
student wholly to neglect the footnotes).
The author of this book cannot be sufficiently grateful
for the indulgent reception which it has met with from the
legal profession in South Africa and Ceylon since its first
publication. He is very sensible of the disadvantage under
which he has laboured in being out of touch with the
daily disputatio fori. Distance may lend detachment to
PREFACE TO THE FOURTH EDITION ix
the view, but it tends to blur the details and even the
principal features of the landscape.
Dr. T. W. Price of Trinity Hall, Cambridge, has very
kindly compiled the list of cases and given much valuable
help in every part of the book.
Previous editions of this book have been dedicated ' To
The Hon. Sir John G. Kotze LL.D. One of His Majesty's
Judges of the Appellate Division of the Supreme Court of
the Union of South Africa: Late Chief Justice of the
Transvaal'. I dedicate this volume to his beloved and
honoured memory.
R. W. LEE.
ALL SOTJLS COLLEGE, OXFORD
All Souls Day, 1945
CONTENTS
PRINCIPAL AUTHORITIES CITED, WITH MODE OF
CITATION xiii
TABLE OF LAW REPORTS, WITH MODE OF CITATION . xxii
TABLE OF CASES . . xxv
TABLE OF STATUTES . Ixvii
GENERAL INTRODUCTION 2
Appendix : HOW FAR THE STATUTE LAW OF HOLLAND OBTAINS IN
SOUTH AFRICA AND CEYLON ...... 26
BOOK I
THE LAW OF PERSONS
INTRODUCTION ... .- . ' ' _~. . . . 30
Chapter I. BIRTH, SEX, LEGITIMACY .... 31
Chapter II. PARENTAGE 36
A. The parental power and its consequences' ... 36
B. The reciprocal duty of support ..... 42
Chapter III. MINORITY 44
Chapter IV. MARRIAGE 51
Section 1. The Contract to Marry . . . . .61
Section 2. The Legal Requisites of Marriage ... 52
Section 3. The Legal Consequences of Marriage ... 64
Section 4. Antenuptial Contracts ..... 72
Section 5. Dissolution of Marriage — Nullity ... 87
Section 6. Miscellaneous Matters relating to Marriage . . 96
Chapter V. GUARDIANSHIP 100
Section 1. The Kinds of Guardians and the Appointment of
Guardians . . . . . . . . . 100
Section 2. Who may be Guardians 106
Section 3. The Powers, Rights, and Duties of Guardians . 107
Section 4. Actions arising out of Guardianship . . .115
Section 5. How Guardianship ends . . . . .117
Chapter VI. UNSOUNDNESS OF MIND— PRODIGALITY . 119
Chapter VII. JURISTIC PERSONS 121
CONTENTS xi
BOOK II
THE LAW OF PROPERTY
INTRODUCTION . . '124
Chapter I. THE MEANING OF OWNERSHIP . . . 125
Chapter II. CLASSIFICATION OF THINGS . . . 128
Chapter III. HOW OWNERSHIP IS ACQUIRED .. . 135
Chapter IV. INCIDENTS OF OWNERSHIP . . . .151
Section 1. The Incidents of Ownership in General . . 151
Section 2. The Kinds of Ownership of Land ... . . 156
Chapter V. POSSESSION . . . . . . .162
Chapter VI. SERVITUDES . . . . . . .167
Chapter VII. MORTGAGE OR HYPOTHEC ,. . . 187
BOOK III
THE LAW OF OBLIGATIONS
INTRODUCTION . . . . ... . . 210
PART I. OBLIGATIONS ARISING FROM CONTRACT 212
Chapter I. FORMATION OF CONTRACT . . . . ' . 214
Section A. The parties must be agreed . . . . 214
Section B. The parties must intend, or be deemed to intend,
to create a legal obligation . . . . . . . 222
Section C. The object of the agreement must be physically
and legally possible . . ... . . 223
Section D. The requisite forms or modes of agreement (if
any) must be observed . . ; • ; . ", . 223
Section E. The agreement must not be impeachable on the
ground of fraud, fear, misrepresentation, undue influence,
or lesion . . . ' . , . . 227
Section F. The agreement must not be directed to an illegal
object . . . . . :. . . ' • • t . 234
Section G. The parties must be competent to contract . . 243
CJiapter II. OPERATION OF CONTRACT . . . . 244
Section 1. The persons affected by a contract . . . 244
Section 2. The Dutj of Performance .... '. . 252
Section 3. The Consequences of Non-performance . . 263
Chapter III. INTERPRETATION OF CONTRACT . .271
rii CONTENTS
Chapter IV. DETERMINATION OF CONTRACT . . 273
Chapter V. PLURALITY OF CREDITORS AND DEBTORS 284
Chapter VI. SPECIAL CONTRACTS 287
PART II. OBLIGATIONS ARISING FROM DELICT 320
Appendix: ADDITIONAL CASES ON THE LAW OF DEFAMATION . 344
PART III. OBLIGATIONS ARISING FROM SOURCES
OTHER THAN CONTRACT AND DELICT . . 346
BOOK IV
THE LAW OF SUCCESSION
Chapter I. SUCCESSION IN GENERAL . . . .350
Chapter II. TESTAMENTARY SUCCESSION . . .356
Chapter III. INTESTATE SUCCESSION . . . .397
APPENDICES
Appendix A. FORMS AND PRECEDENTS . . . . .416
I. Form of Grant of Venia Aetatis in Ceylon . . . 416
II. Form of Grant of Venia Aetatis in South Africa . . 417
III. Form of Antenuptial Contract in use in South Africa . 418
IV. Precedents of Mutual Wills 419
A. Notarial Will 419
B. Underhand Will 421
Appendix B. THE CONTRACTS OF MINORS . . . .421
Appendix C. MARRIAGE: PROHIBITED DEGREES . . . 423
Appendix D. THE LEGAL CAPACITY OF MARRIED WOMEN . . 426
Appendix E. THE LIMITS OF THE jus VINDICANDI . . . 433
Appendix F. CONTRACT AND CAUSA ..... 436
Appendix O. STIPULATIONS FOR THE BENEFIT OF A THIRD PERSON 442
Appendix H. THE THEORY OF MORA ..... 445
Appendix I. THE PRACTICE OF THE SOUTH AFRICAN COURTS WITH
REGARD TO SPECIFIC PERFORMANCE ..... 448
Appendix J. COMPENSATION FOR IMPROVEMENTS . . .451
Appendix K. INHERITANCE AB INTESTATO IN CEYLON . . 453
Appendix L. CONFLICT OF LAWS ...... 455
INDEX 457
PRINCIPAL AUTHORITIES CITED, WITH
MODE OF CITATION
ALPHEN, W. VAN. Papegay ofte formulierboek. Papegay
ANSON, SIB W. R. Law of Contract (18th edition). Anson
Antwerpen, Rechten ende Costumen van, Ceulen, 1660.
APELDOOBN, PBOF. L. J. VAN. Geschiedenis van het Nederland-
sche Huwelijksrecht.
ABNTZENIUS, H. J. Institutiones Juris Belgici Civilis de condi-
tione hominum.
AUSTEN, J. E. W. W. Schorer, Aanteekeningen over de Inleydinge
tot de Hollandsche rechtsgeleerdheid van H. de Groot, uit
het Latijn vertaald door. . . .
BALASINGHAM, K. The Laws of Ceylon.
BELL, W. H. S. South African Legal Dictionary.
Bellum Juridicum sive Oorlog der Advocaten.
BEBWICK, T. A. Contribution to an English Translation of Voet's
Commentary on the Pandects, comprising all the Titles on
Purchase and Sale — Letting and Hiring — Mortages —
Evictions — Warranty — and allied subjects; being lib. xvii,
xix, xxi, and tit. vii of lib. xiii, 2nd ed. 1902.
BlJNKEBSHOEK, COBNELIS VAN.
— Observationes Juris Romani. 06s. Jur. Rom.
Quaestiones Juris Privati. Quaest. Jur. Priv.
Observationes Tumultuariae. O.T.
BISSET, M., and SMITH, P. F. The Digest of South African Case
Law. Consolidated Edition to the end of 1921, 6 vols. ; Con-
solidated edition 1922-33, 2 vols.; Annual Supplements.
BLACKSTONE, SIB W. Commentaries on the Laws of England,,
with notes by Edward Christian. Blackst.
BLAINE, C. H. New Consolidated Index to the Statute Law of the
Union of South Africa up to 1936.
Boel, T. See Loenius.
BOEY, T. Woordentolk.
BOBT, P. Tractaet van Complainte.
Tractaet van de Domeynen van Hollandt.
British Guiana, The Laws of, ed. 1905.
British Guiana, Report of the Common Law Commission,
1914.
British Guiana. The Civil Law of British Guiana Ordinance, 1916,
edited with notes by the Hon. LI. C. Dalton (Georgetown,
1921).
BBUNEMANNTJS, JOH. Commentarius in leges Pandectarum.
BUCKLAND, W. W. A Text-Book of Roman Law (2nd ed.).
xiv AUTHORITIES CITED
BUCKLAND, W. W., and MCNAIB, A. D. Roman Law and Common
Law.
BUBGE. W. Commentaries on Colonial and Foreign Laws (1838).
- New edition (1907).
Biirgerliches Gesetzbuch (German Civil Code). B.O.B.
Burgerlijke Wetboek (Dutch Civil Dode). B.W.B.
CALVINUS, J. Lexicon juridicum juris Caesarei simul et Canonici.
CANEY, L. R. A Treatise on the Law relating to Novation.
The Law of Suretyship in South Africa.
Cape Law Journal.
Cape Rules of Court (C. J. Ingram and J. E. de Villiers).
CAFTTANT, HENBI. De la Cause des obligations. 3me ed., Paris, 1927.
Censura Forensis. See Leeuwen, S. van.
CHESHIRE, G. C. The Modern Law of Real Property (4th and
5th eds.).
Private International Law (2nd ed.).
CHEVBIER, GEORGES. Essai sur I'Histoire de la Cause dans les
Obligations, These pour le doctorat en droit, Sirey, Paris, 1929.
CHIJS, J. A. VAN DER. Nederlandsch-Indisch Plakaat-Boek.
CHKISTINAEUS, PAULTTS. In Leges Municipales Mechlinienses
Commentaria ac Notae.
Code Civil (French Civil Code). C.C.
Code Civil Suisse.
Codex Juris Canonici.
Codex Theodosianus. Cod. Theodos.
COKE, SIR EDWARD. Commentary on Littleton's Tenures. Co. Litt.
COHN, A., and CAPITANT, H. Cours e"lementaire de droit civil
franfais (6me ed.).
Commercial Laws of the World, vol. xv (South Africa, &c.).
COREN, J. Observationes rerum in Senatu Hollandiae, Zelandiae,
Frisiae judicatarum.
Corpus Juris Civilis. Institutiones. Inst.
— Digesta. Dig.
Codex. Cod.
Novellae. Nov.
Authentica. Authent.
Cum notis D. Gothofredi. Qothojredus.
CUQ, EDOUABD. Manuel des institutions juridiques des Romains
(2«»e &i.), Paris, 1928.
DE BLECOUBT, A. S. Kort Begrip van het Oud-Vaderlandsch
Burgerlijk Recht (fijvde druk).
DE BBTJYN, D. P. Opinions of Grotius (translated into English
from the Hollandsche Consultation).
DE HAAS, GERARDUS. Nieuwe Hollandsche Consultation [and see
Leeuwen, Simon van].
AUTHORITIES CITED xv
Decisien en Resolution van den Hove van Holland ( 'sHaage, 1751 ).
DECKER, MB. COBNELIS W. Latin annotations of S. van Leeuwen's
Roomsch Hollandsch Recht, ed. 1 780. Decker ad Van Leeuwen.
DECBETUM GBATIANI.
DE VILUEBS, J. E., and MACINTOSH, J. C. The Law of Agency in
South Africa (1933).
DE WET, J. C. Die Ontwikkeling van die Ooreenkomst ten
Behoeve van 'n Derde (Leiden, 1940).
DOMAT, M. Les Loix Civiles.
DONGES, T. E. The Liability for Safe Carriage of Goods in Roman-
Dutch Law.
DUFF, P. W. Personality in Roman Law.
ENNECEBtrs-KiPP-WoLFF, Lehrbuch des Biirgerlichen Rechts.
FOCKEMA ANDBEAE, MB. S. J. Bijdragen tot de Nederlandsche
Rechtsgeschiedenis (Haarlem, 1888-1900).
— Het Oud-Nederlandsch Burgerlijk Recht (Haarlem, 1906).
Fock. And.
— Grotius, Inleidinge tot de Hollandsche Rechts -geleerdheid,
met aanteekeningen, derde, herziene en vermeerderde uitgave
door Mr. L. J. Van Apeldoorn, Arnhem, 1926.
FOSTEB, JOSEPH. Legal Forms for common use in the Cape Colony.
FBTJIN, ROBEBT. Geschiedenis der Staatsinstellingen in Nederland,
uitgegeven door Dr. H. T. Colenbrander (tweede bijgewerkte
druk, 's Gravenhage, 1922).
GATLL, A. Practicae Observationes.
GAIUS, Institutiones.
GATLEY. Libel and Slander, 3rd ed.
GIEBKE. Deutsches Privatrecht.
GIBABD, P. F. Manuel elementaire de droit romain (8me ed., 1929,
revue et mise a jour par Felix Senn). Girard.
GLUCK, C. F. Ausfiihrliche Erlauterung der Pandecten.
GOTHOFBEDUS. Corpus Juris Civilis Romani cum notis Dionysii
Gothofredi.
GOUDSMIT, J. E. Pandekten-systeem.
GBIMM. Deutsche Rechtsaltertiimer.
GROENEWEGEN VAN DEB MADE, S. Annotations of Grotius' In-
leidinge tot de Hollandsche Rechts -geleerdheid. Groen. ad Gr.
Tractatus de legibus abrogatis et inusitatis in Hollandia vici-
nisque regionibus. Groen. de leg. abr.
Groot Placcaet-Boeck, vervattende de Placaten, Ordonnantien,
ende Edicten van de Staten Generael, van de Staten van
Hollandt en West-Vrieslant en van Zeelandt (1576-1795),
Byeengebracht door C. Cau, Simon van Leeuwen, J. en
J. P. Scheltus en J. van der Linden. G.P.B.
xvi AUTHORITIES CITED
GBOTIUS (DE GBOOT), HUGO. Inleidinge tot de Hollandsche
Rechtsgeleerdheid. Or.
[See Fockema Andreae ; Groenewegen ; Keessel, van der ;
Rechtsgeleerde Observation ; Scheltinga ; Schorer.]
- Translation of the above under the title 'Jurisprudence of
Holland' by R. W. Lee. Vol. 1, Text, translation and notes;
vol. 2, Commentary.
De Jure Belli ac Pacis.
GUDELINUS, P. De jure novissimo.
HALL, C. G., and KELLAWAY, E. A. Servitudes.
HALSBUBY. Encyclopaedia of the Laws of England.
HEIJNSBEBGEN, DB. P. VAN. Verspreide Opstellen (Amsterdam,
1929).
HEINECCIUS, J. G. Elementa Juris Civilis. Elem. Jur. Civ.
— Elementa Juris Germanici. Elem. Jur. Germ.
Annotations of Vinnius ad Institutions.
HEUMANN. Handlexicon zu den Quellen des romischen Rechts.
HOLDSWOBTH, PsoF. W. S. A History of English law.
HOLLAND, SIB T. E. Jurisprudence, 13th ed., 1924.
Hollandsche Consultation. Holl. Cons.
HOLLEMAN, F. A. Rechtsgeschiedenis der Heerlijke Veren in
Holland.
HOWABD, C. L. The Administration of Estates in South Africa.
HUBEB, ULBIK. Heedensdaegsche Rechtsgeleertheyt.
- The Jurisprudence of my Time (Heedendaegse Rechtsgeleer-
theyt) by ULBIC HUBEB, translated from the Fifth Edition
by Percival Gane, Judge of the Supreme Court of South
Africa assigned to the Eastern Districts' Local Division.
Butterworth & Co. (Africa, Ltd. 1939, 2 vols. 4°).
Praelectiones Juris Civilis.
HUNTEB, W. A. Roman Law.
INGBAM, C. J., and DE VILLIEBS, J. E. Rules of Court (Cape).
JENKS, EDWABD. A Digest of English Civil Law (3rd ed.).
JOSSEBAND, Louis. Cours de droit civil positif francais.
Journal of the Society of Comparative Legislation. Journ. Comp.
Leg.
JUTA, SIB HENBY. Water Rights.
[See Linden, van der.]
KEESSEL, D. G. VAN DEB. Theses selectae juris Hollandici et Ze-
landici ad supplendam Hugonis Grotii Introductionem ad
Jurisprudentiam Hollandicam. V. d. K. Th.
- Translation of the above by C. A. Lorenz.
— MS. Dictata upon the above. V. d. K. Dictat.
AUTHORITIES CITED xvii
KEBSTEMAN, F. L. Hollandsch rechtsgeleert Woordenboek, met
Aanhangsel.
KOTZE, J. G. Causa in the Roman and Roman-Dutch Law of
Contract (1922).
[See Leeuwen, Simon van.]
Law Quarterly Review. L.Q.R.
LAW REVISION COMMITTEE, Sixth Interim Report ( 1937) Cmd. 5449.
LEE, R. W. Elements of Roman Law (1944). [And see Grotius.]
LEEUWEN, SIMON VAN. Censura Forensis, recensuit Gerardus de
Haas (Leyden, 1741). Gens. For.
— Het Roomsch Hollandsch Recht. Van Leeuwen.
— Het Roomsch Hollandsch Recht, met Aanteekeningen uitge-
breid door Mr. Cornells Willem Decker (Amsterdam, 1780).
Decker ad Van Leeuwen.
Simon van Leeuwen's Commentaries on Roman-Dutch Law,
revised and edited by C. W. Decker, translated with added
notes by J. G. Kotze. (2nd ed., 1921.) Kotze, Van Leeuwen.
Paratitla Juris Novissimi.
Liber Feudorum. Lib. Feud.
LINDEN, J. VAN DEB. Rechtsgeleerd, Practicaal, en Koopmans
Handboek, V. d. L.
The same, translated by Sir H. Juta under the title 'Institutes
of Holland'.
— The same, translated by Judge G. T. Morice under the title
'Institutes of the Laws of Holland'.
Verhandeling over de judicieele practijcq of form van pro-
cedeeren voor de Hoven van Justitie in Holland gebruikelijk.
V. d. L. Jud. Pract.
Verzameling van meerkwaardige Gewijsden der Gerechts-
hoven in Holland.
[See Pothier, Voet.]
LOENTUS, J. Decision en Resolution. Loen. Decis.
Annotations of the same by T. Boel. Boel ad Loen.
LOBENZ, C. A. [See Keessel, van der.]
LYBBEGHTS, A. Redenerende Practycq over 't oeffenen van 't
Notaris ampt.
Redenerend Vertoog over 't Notaris-ampt.
MAASDOBP, SIB A. F. S. The Institutes of South African Law
(Cape Law), vol. 1, 6th ed.; vol. 2, 6th ed. ; vol. 3, 4th ed.;
vol. 4, 4th ed. Maasd.
— Translation of Grotius' 'Inleidinge', under the title 'The
Introduction to Dutch Jurisprudence'.
McGBEGOB, HON. A. J. Translation, with notes, of Voet, Book
xxxvi, Titles 1 and 2 (ad S. C. Trebellianum).
MACINTOSH, J. C. Negligence in Delict.
4901
xviii AUTHORITIES CITED
McKEBKON, R. G. The Law of Delict (2nd ed., 1939).
MACKEUBTAN, G. H. The Sale of Goods in South Africa (2nd ed.,
1935).
MAINE, SIB H. S. Ancient Law.
MABS, W. H. The Law of Insolvency in South Africa. Mars,
Insolvency.
MARSHALL, SIB CHARLES. Judgments, &c., of the Supreme Court
of the Island of Ceylon ; Paris, 1839.
MATTHAEtrs, ANTONIUS. De Auctionibus.
Paroemiae Belgarum jurisconsultis usitatissimae.
MEBULA, PAUL. Manier van Procederen.
MIEBIS, F. VAN. Groot Charterboek der Graven van Holland, Zee-
land en Vriesland, Leiden. 1753-6.
MODDEBMAN, MB. W. De Receptie van het Romeinsche Regt.
MOLTZEB, J. P. De overeenkomst ten behoeve van derden,
Amsterdam, 1876.
MONBO, C. H. Dig. xli. 1 (de adquirendo rerum dominio).
— The Digest of Justinian, translated (to lib. xv).
MOBIGE, G. T. English and Roman-Dutch Law (2nd ed.).
Sale in Roman-Dutch Law.
[See Van der Linden.]
MOYLE, J. B. Imperatoris Justiniani Institutionum Libri Quattuor,
with Introductions, Commentary, and Excursus (5th ed.).
The Contract of Sale in the Civil Law.
NATHAN, MANFBED. The Common Law of South Africa.
NATHAN, MANTBED, and SCHLOSBEBG, H. J. The Law of Damages
in South Africa.
NEOSTADIUS, COBNELIUS. Observationes rerum judicatarum de
pactis antenuptialibus. Neostad. de pact, antenupt.
Utriusque Hollandiae, Zelandiae, Frisiaeque Curiae Decisio-
nes. Decis. van den Hove., Supr. Cur. Decis.
NOBMAN, ROBEBT. Purchase and Sale in South Africa (2nd ed.,
1939).
Ontwerp van het Burgerlijk Wetboek voor het Koningrijk der
Nederlanden, 1820. Ontwerp.
Papegay. [See Alphen, van.]
PEBEIBA, THE HON. J. C. W. The Laws of Ceylon (2nd ed.,
Colombo, 1913). Pereira.
PLANIOL, MARCEL. Trait6 elementaire de droit civil (llme &l.,
avec la collaboration de Georges Ripert).
POLLAK, W. The South African Law of Jurisdiction ( 1937).
POLLOCK, SIB F. The Law of Torts (14th ed., 1939).
POTHIEB, R. J. Contrat de Louage.
— Contrat de Vente.
— Trait6 des Obligations.
AUTHORITIES CITED xix
POTHIEB, R. J. Verhandeling van Contracten en andere Ver-
bintenissen uit het Fransch vertaald, en met eenige aanmer-
kingen verrijkt door Mr. Johannes van der Linden.
Protectorate of South-West Africa, Official Gazette.
Rechtsgeleerde Observation, Dienende tot opheldering van ver-
scheide . . . passagien uyt de Inleidinge tot de Hollandsche
Rechts-geleerdheid van H. de Groot (Amsterdam, 1776-8).
Rechts. Obs.
Report of the (British Guiana) Common Law Commission (George-
town, 1914).
ROBERTS, A. A. A South African Legal Bibliography (Pretoria,
1921).
ROBY, H. J. Roman Private Law.
RODENBUBG, CHRISTIAN, Tractatus de jure conjugum, Antuer-
piae, 1676.
ROIXIN CotrQTTERQUE, MR. L. M. Het Aasdoms en Schependoms-
recht in Holland en Zeeland uitgegeven door het Provinciaal
Utrechtsch Genootschap van Kunsten en Wetenschappen,
's Gravenhage, 1898.
SALMOND, SIR J. The Law of Torts (10th ed.), edited by Dr. W.
T. S. Stallybrass, 1945.
SALMOND, SIR J., and WINFIELD, P. H. Principles of the Law of
Contracts, 1927.
SANDE, J. A. De actionum cessione.
— De prohibita rerum alienatione.
Decisiones Frisicae. Decis. Fris.
SAVIGNY, F. C. VON. Das Recht des Besitzes.
On Possession, translation of the above by Sir E. Perry.
— System des heutigen Romischen Rechts.
SCHELTINGA, GERLOFF. Dictata ad Grotium.
SCHOMAKER. Consilia et Responsa Juris.
SCHORER, W. Annotations of Grotius' Inleiding tot de Holland-
sche Rechtsgeleerdheid (Middelburg, 1767). Schorer ad Gr.
[See Austen.]
SCHRASSERT, J. Consultation, Advyzen en Advertissementen.
Sententien en gewezen zaken van den Hoogen en Provincialen
Raad in Holland, Zeeland en West-Vriesland (Rotterdam,
1662).
SEWEL, W. Groot Woordenboek (Amsterdam, 1735).
Smith's Leading Cases in Common Law (13th ed.).
SMITH, MUNROE. The Development of European Law.
SOHM, RUDOLPH. Institutes of Roman Law, translated by J. C.
Ledlie (3rd ed.).
South African Law Journal. 8.A.L.J.
South -West Africa, The Laws of, 1915-1922.
xx AUTHORITIES CITED
SPIEGEL, L. P. VAN DE. Verhandeling over den Oorsprong en de
Historic der vaderlandsche Rechten (Goes, 1769).
STEYN, G. The Law of Wills in South Africa (1935).
STEYN, DR. I. VAN ZIJL. Mora Debitoris volgens die Hedendaagse
Romeins-Hollandse Reg, Kaapstad, 1929.
STOBBE. Deutsches Privatrecht.
STOCKMANS. Decisiones Brabantiae.
STORY, J. Conflict of Laws.
- Equity Jurisprudence.
Swiss 'Code des Obligations'.
TACITUS, P. CORNELIUS. Germania.
THOMSON, HON. H. B. Institutes of the Laws of Ceylon, 1866.
Tijdschrift voor Rechtsgeschiedenis.
Tydskrif vir Hedendaagse Romeins-Hollandse Reg.
Utrechtsche Consultation.
VANOEROW, KARL ADOLPH. Lehrbuch der Pandekten.
VEEGENS, J. D., and OPPENHEIM, A. S. Schets van het Neder-
landsch Burgerlijk Recht (derde druk 1921-6).
Vervolg op de Hollandsche Consultatien.
VICAT, P. B. Vocabularium Juris.
VINNTUS, ARNOLDUS. In quatuor libros Institutionum Imperialium
Commentarius academicus et forensis. Vinnius ad Inst.
— Selectae Juris Quaestiones.
— Tractatus de Pactis.
VINOGRADOFF, SIR PAUL. Roman Law in Medieval Europe, 2nd
ed., 1929.
Vocabularium jurisprudentiae Romanae editum jussu instituti
Savigniani.
VOET, JOHANNES. Commentarius ad Pandectas. Voet.
Tomus tertius ejusdem Commentarii continens Supplemen-
tum auctore J. van der Linden. Supplement, ad Pandect.
— Compendium juris juxta seriem Pandectarum.
— Elementa Juris.
— De beginselen des rechts.
VOET, PAULUS. De mobilium et immobilium natura.
VORM, H. VAN DER. Verhandeling van het Hollandsch, Zeelandsch
en Westvrieslandsch versterfrecht, 7e druk, met Aanteeke-
ningen door V. J. Blondeel.
VROMANS, P. Tractaat de foro competenti.
WALTON, F. P. The Egyptian Law of Obligations (2nd ed.).
WASSENAAR, G. VAN. Praxis Judiciaria.
WESEL, ABRAHAM A. Commentarius ad novellas constitutiones
Ultraj ectinas .
WESSELS, HON. J. W. History of the Roman-Dutch Law.
- The Law of Contract in South Africa, edited by A. A. Roberts.
2 vols. 1937.
AUTHORITIES CITED xxi
WILLE, G. Landlord and Tenant in South Africa (3rd ed., 1937).
The Law of Mortgage and Pledge in South Africa.
Principles of South African Law (1937).
WILLE, G., and MTLLIN, P. Mercantile Law of South Africa.
WINDSCHEID, B. Lehrbuch des Pandektenrechts.
WINFIELD, P. H. A Text-Book of the Law of Tort (2nd ed., 1943).
ZTTLUETA, F. DE. The Roman Law of Sale (Clarendon Press).
ZTJBCK, E. VAN. Codex Batavus.
ZUTPHEN, BEKNHAKD VAN. Practycke der Nederlandsche Rechten.
ZYI, VAN, C. H. The Notarial Practice of South Africa.
ZYL VAN, G. B. The Judicial Practice of South Africa, 3rd ed.,
1921.
ZYPAEUS, F. Notitia Juris Belgici.
TABLE OF LAW REPORTS
pp. Cas.\
.C. /
App
A
A. D.
Buch.
Buch. A. C.
C. L. J.
C.P.
C. P. D.
WITH MODE OF CITATION
Appeal Cases (House of Lords and Judicial Com-
mittee of the Privy Council), 1876-91.
Appellate Division of the Supreme Court of South
Africa, 1910 onwards.
Buchanan, James & E. J. Cases decided in the
Supreme Court of the Cape of Good Hope,
1868-79.
Buchanan, James & E. J. & D. M. Cases decided
in the Court of Appeal of the Cape of Good
Hope, 1880-1910.
Cape Law Journal, 1884-1900.
Common Pleas, or Common Pleas Division
(England).
Cases decided in the Cape Provincial Division of
the Supreme Court of South Africa, 1910
onwards.
C. T. R. Cape Times Reports, 1891-1910.
Ceylon, N. L. R. Ceylon New Law Reports.
Ch. Chancery, or Chancery Division (England).
Co. Rep. Sir Edward Coke's Reports.
Current L. R. Current Law Reports (Ceylon).
E. D. C. Cases decided in the Eastern Districts Court of
the Cape of Good Hope, 1880-1909.
E. D. L. Cases decided in the Eastern Districts Local
Division of the Supreme Court of South Africa,
1910 onwards.
Exch. Exchequer Reports (England), 1846-56.
Foord Foord, A. J. Cases decided in the Supreme
Court of the Cape of Good Hope, 1880.
H. C. G. Reports of the High Court of Griqualand West,
1882-1910.
Hertzog Hertzog's Cases in the High Court of the South
African Republic, 1893, translated by Leonard.
K. Kotz6, J. G. Cases decided in the High Court of
the Transvaal (1877-81).
K. B. King's Bench, or King's Bench Division (Eng-
land).
Knapp P. C. Knapp's Reports of Cases determined before the
Committees of H.M.'s Privy Council, 1829-36.
L. R. C. P. Law Reports, Common Pleas, 1865-75.
L. R. H. L. Law Reports, House of Lords, English and
Irish Appeals, 1865-76.
TABLE OF LAW REPORTS
XXlll
L. R. P. C. Law Reports, Privy Council, 1865-75.
Menz. Menzies, Hon. W. Cases decided in the Supreme
Court of the Cape of Good Hope, 1820-50.
Moo. P. C. C. Moore's Privy Council Cases, 1836-62.
Moo. P. C. C. [N.S.] Ditto. New Series.
N. L. R. [O.S.] Natal Law Reports, Supreme Court, Old Series,
1873-9.
N. L. R. Natal Law Reports, Supreme Court, New Series,
1879-1910.
N. L. R. New Law Reports (Ceylon).
N. P. D. Cases decided in the Natal Provincial Division
of the Supreme Court of South Africa, 1910
onwards.
O. F. S. Reports of the High Court of the Orange Free
State, 1879-83.
O. P. D. Reports of the Orange Free State Provincial
Division, 1910 onwards.
O. R. Official Reports of the High Court of the South
African Republic, translated into English by
W. S. Webber & J. G. Kotze", 1894-9.
O. R. C. Orange River Colony, Reports of Cases decided
in the High Court, 1903-10.
P. Reports of the Probate, Admiralty, and Divorce
Division of the High Court (England).
P.-H. Prentice-Hall, Weekly Legal Service.
Ramanathan Ramanathan, P. Judgments of the Supreme
Court and High Court of Appeal, Ceylon,
between 1820-33.
„ Important Cases, Supreme Court, Ceylon, 1843-
55.
„ Important Cases, Supreme Court, Ceylon, 1860-
8.
„ Important Cases, Supreme Court, Ceylon, 1872,
1875, 1876.
„ Reports of Cases, Supreme Court, " Ceylon,
1877.
R. Rettie's series of the Court of Sessions Reports
(the Fourth Series), 1873-98.
R. Roscoe's Reports of the Supreme Court of the
Cape of Good Hope, 1861-78.
Searle Searle, M. W. Cases decided in the Supreme
Court of the Cape of Good Hope, 1850-67.
S. A. L. J. South African Law Journal, 1901 onwards.
S. A. R. Cases decided in the Supreme Court of the
South African Republic.
S. C. Supreme Court Reports (Cape of Good Hope),
1880-1910.
xxiv TABLE OF LAW REPORTS
S. C. C. Supreme Court Circular (Ceylon):
S. C. B. Supreme Court Reports (Ceylon).
T. H. Cases decided in the Witwatersrand High Court
(Transvaal), 1902-10.
T. P. D. Cases decided in the Transvaal Provincial
Division of the Supreme Court of South
Africa, 1910 onwards.
T. S. Cases decided in the Transvaal Supreme Court,
1902-10.
Vanderstraaten, J. W. Decisions, Supreme Court, Ceylon, in
Appeal, 1869-71.
W. L. D. Reports of the Witwatersrand Local Division
of the Supreme Court of South Africa, 1910
onwards.
TABLE OF CASES
A v. B [1906] T.S. 958 . .
. . . . 59
A. v. M [1930] W.L.D. 292
. . . . 42
A.B., exparte [1910] T.S. 1332
.. ..336
Abbott, ex parte [1915] C.P.D. 544
. . . . 67
Abbott v. Bergman . . . . [1922] A.D. 53 . .
.. ..330
Abdul Azeez v. Abdul Rahiman [1911] A.C. 746 ..
.. ..165
Abdulla & Co. v. Kramer Bros. [1928] C.P.D. 423
.. ..310
Abeyesekera v. Tillekeratne . . [1927] A.C. 277 . .
.. ..393
Abrahams v. Isaacs & Co. . . (1887) 5 S.C. 183
.. ..306
Aburrow v. Wallis (1893) 10 S.C. 214
.. 239,289
Acton v. Motau [1900] T.S. 841
.. ..451
Adam v. Ward [1917] A.C. 309 . .
.. ..333
Adams v.Mocke (1906) 23 S.C. 782
.. 434,435
Aegis Assur. Co., exparte . . [1909] E.D.C. 363
.. ..195
African Guarantee Co. v. Rabi-
nowitz [1934] W.L.D. 151
.. ..316
African Guarantee Co. v. Thorpe [1933] A.D. 330 . .
.. ..318
African Life Assurance Soc. v.
Robinson & Co [1938] N.P.D. 277
.. ..345
African Realty Trust v. Holmes [1922] A.D. 389 . .
.. ..280
African Realty Trust v. Robin-
son & Co [1939] T.P.D. 155
.. ..345
African Theatres Ltd. v. Jewell [1918] N.P.D. 1 . .
.. ..449
African Universal Stores Ltd. v.
Dean [1926] C.P.D. 390
.. ..445
Ahmed v. Coovadia . . . . [1944] T.P.D. 364
. . . . 41
Ainsbury v. Ainsbury . . . . [1929] A.D. 109 . .
.. .. 91
Aird v. Hockley's Est [1937] E.D.L. 34. .
.. ..428
Akiki, ex parte [1925] O.P.D. 211
. . . . 44
Albertus v. Albertus' Exors. . . (1859) 3 Searle 202
93, 96
Aldine Timber Co. v. Hlatwayo [1932] T.P.D. 337
.. ..138
Aldred v. Aldred [1929] A.D. 356 . .
88, 92
Alexander v. Johns . . . . [1912] A.D. 393 . .
.. ..170
Algoa Milling Co. v. Arkell &
Douglas [1918] A.D. 145 . .
.. 262,280
Alison, ex parte [1940] C.P.D. 586
.. ..455
Alia v. Thaba [1939] N.P.D. 231
.. ..333
Allen v. Allen [1935] C.P.D. 557
.. .. 91
Amarasekere v. Podi Menika (1932) 34 Ceylon N,
,L.R. 82 378
Ambaker v. African Meat Co. [1927] C.P.D. 326
. . . . 41
Ambrose & Aitken v. Johnson
& Fletcher [1917] A.D. 327 . .
.. ..264
Amin v. Ebrahim [1926] N.P.D. 1 . .
.. ..302
Amina Umma v. Nuhu Lebbe (1926) 30 Ceylon N
.L.R. 220 31
Amod v. Parsotham . . . . [1929] N.P.D. 163
. . . . 317
Anderson v. Kaplan . . . . [1931] C.P.D. 50 . .
.. ..192
Anderson v. Van der Merwe .. [1921] C.P.D. 342
.. ..342
XXVI
TABLE OF CASES
Anderson & Co. v. Pienaar &
Co
Anderson's Assignee v. Ander-
son's Exors
Andrews v. Levy
Annamma v. Moodley
Anon
Appuhami v. Kirihami
Appuhamy v. Appuhamy
Arbor Properties v. Bailey
Arend v. Est. Nakiba
Armstrong v. Magid
Aronowitz v. Atkinson
Arulampikai v. Thambu
Attorney-General v. Pana
Adappa Chetty
Attorney-General v. Pitche . .
Avis v. Verseput
Ayob & Co. v. Clouts
Azar, ex parte
[1922] T.P.D. 435
198,319
(1894) 11 S.C. 432 .. .. 250
[1930] S.R. 101 339
[1943] A.D. 531 272
(1871) Van der Straaten 172 405
(1895) 1 Ceylon N.L.R. 83 335
(1880) 3 Ceylon S.C.C. 61 . . 144
[1937] W.L.D. 116 .. .. 268
[1927] C.P.D. 8 185
[1937] A.D. 260 233
[1936] S.R. 45 244
(1944) 45 Ceylon N.L.R. 407 366
Baard, ex parte
Babaihamy v. Marcinahamy . .
Badenhorst, ex parte
Badenhorst v. Joubert
Badroodien v. Van Lier
Baikie v. Pretoria Munic. . .
Bajie, ex parte
Baker's Est. v. Baker's Est. . .
Balfour v. Balfour
Balkis v. Perera
Balsillie, ex parte
Bandara v. Elapatha
Banks v. Ayres
Banks v. Clements N.O.
Barclay's Bank v. The Master
Barker v. Beckett & Co
Barnabas Plein & Co. v. Sol
Jacobson & Son
Barnard, ex parte
Barnard v. Col. Govt
Barnet v. Glanz
Barnett v. Milnes
Barnett v. Rudman
Barrett v. O'Niel's Exors.
Barry v. Mundell
Barry Colne & Co. v. Jackson's
Ltd
Baskin & Barnett v. Barnard
Bassa Ltd. v. East Asiatic (S.A.)
Co. Ltd.
(1928) 29 Ceylon N.L.R. 431 196
(1892) 1 Ceylon S.C.R. 11 .. 129
[1943] A.D. 331 . . 289, 290, 291
[1925] W.L.D. 199 . . . . 274
[1932] O.P.D. 107 .... 63
B
[1926] C.P.D. 201 .... 85
(1908) 11 Ceylon N.L.R. 232 288
[1937] T.P.D. 174 . . . . 378
[1920] T.P.D. 100 . . . . 170
[1928] C.P.D. 311 .. ..451
[1921] T.P.D. 376 . . . . 246
1941 (2) P.H., B. 66 [W.L.D.] 74
(1908) 25 S.C. 234 .. .. 412
[1919] 2 K.B. 571 . . . . 223
(1927) 29 Ceylon N.L.R. 284 384
[1928] C.P.D. 218 . . 85, 86
(1922) 23 Ceylon N.L.R. 411 49
(1888) 9 N.L.R. 34 .. ..335
[1921] C.P.D. 197 . . 92, 94
[1934] C.P.D. 413 .... 187
[1911] T.P.D. 151 . . . . 449
[1928] A.D. 25 21
[1929] T.P.D. 276 . . . . 386
(1887) 5 S.C. 122 .. .. 306
(1908) 25 S.C. 967 .. .. 285
[1928] N.P.D. 1 . . 67, 426
[1934] A.D. 203 70
(1879) Kotze 104 .. .. 288
(1909) 26 S.C. 475 .. ..394
[1922] C.P.D. 372 . . . . 256
[1928] C.P.D. 58 . . . . 276
[1932] N.P.D. 386 . . . . 256
TABLE OF CASES
Batchoo v. Crick
Baum v. Rode
Bayer v. Bayer
Bayne N. O. v. Kanthack
Beart, In re
Becker v. Stusser
Beebee v. Magid
Begemann v. Cirota
Bell v. Bell
Bell v. Lever Bros. Ltd.
Bellingham v. Blommetje
Bellstedt v. S. A. R
Benischowitz v. The Master . .
Benjamin v. Salkinder
Bennet, ex parte
Bennett v. Bennett
Benning v. Union Govt.
Bensimon v. Barton
Beretta v. Beretta
Bergl & Co. v. Trott Bros. . .
Bernitz v. Euvrard
Berrange, ex parte
Berthiaume v. Dastous
Bester v. Taylor
Beukes v. Coetzee
Bevan v. Bevan
Beyers v. McKenzie
Bezuidenhout v. Strydom
Bezuidenhout v. Van Graan
Bhaijee v. Khoja
Bhana Nana v. Patel
Biggs v. Molefe
Biljoen v, Peterson
Bing & Lauer v. Van der
Heever . . *.
Bingham v. Johannesburg City
Council
Black v. Black's Exors
Blatchford v. Blatchford's Exors
Blatt v, Swakopmunder Bank-
verein
Bliden v. Carasov
Bloemfontein Munic. v.
Jackson's Ltd.
Bloemfontein Town Council, ex
parte
Bloemfontein Town Council v.
Richter
Blomerus ex parte
Blomson v. Boshoff
xxvu
[1941] N.P.D. 19 . . . . 338
[1905] T.S. 66 304
[1937] S.W.A. 73 . . . . 344
[1934] W.L.D. 13 .... 39
[1912] N.P.D. 65 . . . . 67
[1910] C.P.D. 289 . . . . 267
(1929) 30 Ceylon N.L.R. 361 451
[1923] T.P.D. 270 . . . . 336
[1909] T.S. 500 87
[1932] A.C. 132 221
[1874] Buch. 36 . . . . 451
[1936] C.P.D. 397 . . 39, 337
[1921] A.D. 589 366
(1908) 25 S.C. 512 .... 95
[1926] C.P.D. 436 .... 85
[1939] P. 274 89
[1914] A.D. 420 233
[1919] A.D. 13 . . . . 327, 328
[1924] T.P.D. 60 . . . . 217
(1903) 24 N.L.R. 503
262, 264, 269
[1943] A.D. 595 263
[1938] W.L.D. 39 . . . . 379
[1930] A.C. 79 64
[1912] O.P.D. 60 309
(1883) 1 S.A.R. 71 . . . . 343
[1908] T.H. 193 87
(1880) Foord 125 143, 218, 230
(1884) 4 E.D.C. 224 .. . . 238
[1938] T.P.D. 331 . . 247
[1937] A.D. 246 192
[1929] W.L.D. 234 . . . . 278
[1910] C.P.D. 242 . . . . 250
[1922] N.P.D. 63 . . . . 242
[1922] T.P.D. 279 . . . . 432
[1934] W.L.D. 180 . . . . 15*2
[1934] T.P.D. 301 ., .. 338
(1904) 21 S.C. 555 .. .. 370
(1861) 1 E.D.C. 365 . . 72, 455
[1929] S.W.A. 90 . . . . 262
[1927] C.P.D. 2 310
[1929] A.D. 266 195
[1934] O.P.D. 11 39
[1938] A.D. 195 328
[1936] C.P.D. 368 . . . . 388
[1905] T.S. 429 .... 238
XXVU1
Bloom v. American Swiss
Watch Co
Bloomfield v. Bloomfield
Blower v. Van Noorden
Blumberg v. Buys & Malkin . .
Blumberg & Sulski v. Brown &
Freitas
Bona Pierce v. Hau Mon
Booysen, In re
Boshoff v. Reinhold . .
Boshoff v. Theron
Boshoff v. Van Zyl
Bosnian Bros. v. Van Niekerk
Botha v. Botha
Botha v. Brink
Botha v. Peach
Botha v. Van der Vyver
Botha N. O. v. Tunbridge N. O,
Bowditch v. Peel & Magill
Bower v. Heam
Bowern v. Gowan
Bown v. Mowbray Munic.
Boyd, ex parte
Boyd v. Nel
Boyd v. Stables
Boyd v. Stuttaford
Boyes v. Versigman
Brandt v. Bergstedt
Braude v. Braude
Braun v. Powrie
Braunschweig V. M. Board v.
Union Govt
Breda's Exors. v. Mills
Bredell v. Pienaar
Breed v. Van den Berg
Breeds v. Breeds
Brenner v. Hart
Bresky v. Vivier
Breyten Collieries Ltd. v.
Dennil
Breytenbach v. Frankel
Breytenbach v. Van Wijk
Brice v. Zurcher
Briggs v. Hughes
Brill v. Madeley
Brink v. Louw
Brink's Trustees v. Mechan . .
Biinkman v. McGill
B.S.A. Co. v. Bulawayo Munic.
British Westinghouse Co. v.
Underground Ry. Co.
Brodie v. Attorney-General . .
[1915] A.D. 100 215
[1942] C.P.D. 251 . . . . 105
[1909] T.S. 890 311
[1908] T.S. 1175 .. .. 267
[1922] T.P.D. 130 . . . . 312
1944 (1) P.H., O. 10 [A.D.] 326
(1880) Foord 187 .. 64,90
[1920] A.D. 29 175
[1940] T.P.D. 299 . . . . 309
[1938] C.P.D. 415 . . . . 335
[1928] C.P.D. 67 . . . . 297
(1848) 1 Menz. 259 . . . . 93
[1878] Buch. 118 .. ..332
[1939] W.L.D. 153 . . . . 327
(1908) 25S.C. 760 .. .. 379
[1933] E.D.L. 95 .. ..113
[1921] A.D. 561 230
[1938] N.P.D. 399 . . . . 326
[1924] A.D. 550 264
[1911] C.P.D. 429 .. .. 429
[1938] C.P.D. 197, 510 . . 388
[1922] A.D. 414 215
(1821) Ramanathan,p. 19 .. 312
[1910] A.D. 101 304
(1879) Buch. 229 .... 75
[1917] C.P.D. 344 . . . . 235
(1899) 16S.C. 565 .. .. 239
(1903) 13 C.T.R. 464 .. . . 178
[1917] E.D.L. 186 . . . . 174
(1883) 2S.C. 189 .. .. 168
[1924] C.P.D. 203 . . . . 338
[1932] A.D. 283 271
[1929] N.P.B. 122 .... 89
[1913] T.P.D. 607 . . 278, 279
[1928] C.P.D. 202 . . . . 303
[1913] T.P.D. 261 .... 152
[1913] A.D. 390 49, 111, 161,422
[1923] A.D. 541
[1908] T.S. 1082
[1933] N.P.D. 618
[1937] T.P.D. 106
(1842) 1 Menz. 210
(1864) 1 Roscoe 209
[1931] A.D. 303 . .
[1919] A.D. 84 . .
. . 146, 445
.. ..307
.. ..234
. . . . 344
. . . . 72
.. ..292
.. ..318
376, 384, 435
[1912] A.C. 673 267
(1903) 7 Ceylon N.L.R. .. 132
TABLE OF CASES
XXIX
Brooks & Wynberg v. New
United Yeast Distributors
Ltd
Brown v. Brown
Brown v. Brown
Brown v. Brown
Brown v. Laing
Brown v. Rickard
Brown's Est. v. Elliot Bros. . .
Brown's Executrix v. McAdams
Brown John v. Brownjohn
Brownlie v. Campbell
Brunsdon's Est. v. Brunsdon's
Est
Bruton, ex parte
Buck v. Green
Buisinne, In re Insolv. Est.
Buisinne v. Mulder
Bull v. Est. Bull
Buller N. O. v. Linder
Burger v. Central S. A. Rys.
Burgers v. Knight
Burns v. Burns
Burrows v. McEvoy
Burstein, ex parte
Bushby v. Guardian Ass. Co. Ltd.
Byrne v. Boadle
[1920]
[1938]
[1932]
(1828)
(1835)
[1940]
[1925]
[1903]
[1916]
[1937]
[1921]
[1941]
[1916]
(1863)
T.P.D. 296
T.S. 415 ..
A.D. 478 ..
N.P.D. 41
E.D.L. 75.. ..
2S.C. 314
C.P.D. 325
A.D. 231 ..
W.L.D. 80
5 A.C. 925
C.P.D. 159
C.P.D. 548
N.P.D. 425
1 Menz. 318, 326
1 Menz. 162
W.L.D. 133 . .
N.P.D. 9
T.S. 571 ..
N.P.D. 399
N.P.D. 67
C.P.D. 229
C.P.D. 87
A.D. 488 .. ..
2 H. & C. 722 .
182, 452
.. 96
.. 427
196, 203
.. 376
.. 86
.. 72
.. 319
.. 95
.. 451
.. 307
.. 388
.. 221
. 325
C. v. C
Cachet, In re
Cadija Umma v. S. Don Manis
Appu
Caganoff v. Zacks
Calitz v. Calitz
Campbell v. Welverdiend Dia-
monds Ltd
Canavan & Rivas v. The New
Transvaal Gold Farms Ltd.
Caney v. Est. Johnsson
Cantiare San Rocco S. A. v.
Clyde Shipbuilding and
Engineering Co
Cape Dairy and General Live-
stock Auctioneers v. Sim
Cape Explosive Works Ltd. v.
S. A. Oil & Fat Industries
Ltd
Cape Govt. v. Freer
Cape Govt. v. Liq. Balmoral
Diamond Co.
[1943] E.D.L. 152
(1898) 15 S.C. 5 . .
[1939] A.C. 136 . .
[1917] T.P.D. 334
[1939] A.D. 56 . .
[1930] T.P.D. 287
[1904] T.S. 136 . .
[1928] N.P.D. 13
[1924] A.C. 226 .
[1924] A.D. 167 .
[1921] C.P.D. 244
(1886) 4 S.C. 313
[1908] T.S. 681 .
87
45
282
434
37
238
160
411
347
237
216
161
197
XXX
Cape Town Council v. Ben-
ning
Cape Town Munic. v. Fletcher
Cape Town Munic. v. Paine . .
Cape Town Waterworks Co. v.
Elder's Exore
Carelse v. Est. De Vries
Carey v. Carey
Carlisle Banking Co. v. Bragg
Carolis v. Simon
Cassels v. Love
Cato v. Alion & Helps
Cato's Est. v. Est. Cato
Celliers v. Colliers
Central S. A. Rys. v. McLaren
Ceylon Exports Ltd. v. Abey-
sundere
Chandler v. Middelburg Munic.
Chase v. Du Toit's Trustees . .
Chater, ex parte
Cheek v. Cheek
Chelliah v. Fernando
Chester v. Munic. Council of
Waverley
Chiappini, In re Insolv. Est. of
Chinnia v. Dunna
Chisholm v. East Rand Mines
Chiwell v. Carlyon
Chong v. Chong
Chudleigh's Case
Cilliers, ex parte
City Deep v. McCalgan
Clarke v. Bruning
Clarke v. Soffiantini
Clement N. O. v. Banks
Cloete v. Cloete's Trustees
Cloete v. Roberts
Cloete v. Union Corp. Ltd.
Cluley v. Muller
Coaton v. Alexander
Coaton's Est. v. The Master . .
Cock v. Cape of Good Hope
Marine Ass. Co
Coetzee, ex parte,
Coetzee v. Higgins .....
Coetzee v. S. A. R
Cohen, ex parte
Cohen v. Herman & Canard . .
Cohen v. Rapidol Ltd
Cohen v. Shires, McHattie &
King
TABLE OF CASES
[1917] A.D. 315 154
[1936] C.P.D. 347 . . . . 176
[1923] A.D. 207 . . 302, 324, 325
(1890) 8S.C. 9 131
(1906) 23 S.C. 532 .. .. 327
[1931] C.P.D. 465 .... 88
[1911] 1 K.B. 489 .. .. 222
(1929) 30 Ceylon N.L.R. 266 387
[1924] E.D.L. 28 312
[1922] N.P.D. 469 . . 192, 200
[1915] A.D. 290 . . 353, 370, 381
[1904] T.S. 926 90
[1903] T.S. 727 216
(1933) 35 Ceylon N.L.R. 417 145
[1924] T.P.D. 450 . . . . 337
(1858) 3 Searle 78 . . . . 196
[1942] O.P.D. 106 .... 74
[1935] A.D. 336 91
(1937) 39 Ceylon N.L.R. 130
332, 333
55 L.Q.R. (1939), p. 495 . . 342
[1869] Buch. 143 .... 83
[1940] N.P.D. 384 . . . . 40
[1909] T.H. 297 .... 31
(1897) 14 S.C. 61 .. ..70
[1942] C.P.D. 192 .... 87
(1589) 1 Co. Rep. 120 . . 376
[1927] O.P.D. 65 384
[1924] W.L.D. 276 . . . . 180
[1905] T.S. 295 242
1939 (1) P.H., B. 30 [C.P.D] 64
[1920] E.D.L. 362 . . 70, 77
(1887) 5 S.C. 59 .... 97
(1903) 20 S.C. 413 . . . . 258
[1929] T.P.D. 508 . . . . 205
[1924] T.P.D. 720 . . . . 299
[1879] Buch. 17 . . 200, 202
[1915] C.P.D. 318 . . . . 394
(1858) 3 Searle 114 . . . . 261
1930 (1) P.H., B. 5 [O.P.D] 85
(1887) 5 E.D.C. 352 .. . . 432
[1933] C.P.D. 565 . . . . 342
[1937] T.P.D. 155 .... 388
(1904) 21 S.C. 621 . . . . 239
[1934] A.D. 137 272
(1882) 1 S.A.R. 41
269
TABLE OF CASES
XXXI
[1936] C.P.D. 490
297, 298
[1940] A.D. 399 . . 160,
217,227
ver . . . . [1938] C.P.D. 464
(1857) 8 E. & B. 647 ..
[1926] C.P.D. 187
.. 335
.. 311
. . 260
[1944] A.D. 456 . .
. . 146
(1907) 17 C.T.R. 110 ..
rn (1767) 1 Sm. L.C. 406
[1939] W.L.D. 48
(1893) Hertzog 176 . .
IT [1933] A.D. 141 ..
.. 339
.. 235
.. 88
.. 132
.. 343
Cohen v. Van der Westhuizen [1912] A.D. 519 160
Cohen & Klein v. Duncan Gray
& Co.
Cole v Stuart
Cole's Est. v. Oliver
Collen v. Wright
Collet v. Eva .
Collin v. Toffie .
Collinet v. Leslie
Collins v. Blantern
Collins v. Collins
Collins v. Hugo
Colman v. Dunbar
Colonial Banking & Trust Co.
v. Hill's Trustee
Colonial Industries Ltd. v. Pro-
vincial Insur. Co
Colonial Manufacturing Co. v.
Wiid
Colonial Mutual Life Assurance
v. Macdonald [1931] A.D. 412 339
Columbia Furnishing Co. v.
Goldblatt [1929] A.D. 27 194
Comerma v. Comerma . . . . [1938] T.P.D. 220 . . . . 70
Commrs. of Customs v. Randies
Bros [1941] A.D. 369 .. . . 192, 240
Commissioners of French Hoek
v. Hugo (1885)
[1927] A.D. 488 240
[1922] A.D. 33 232
[1927] C.P.D. 198 . . . . 198
10 A.C. 336 ; 3 S.C.
346
155
Commr. for Inland Revenue v.
Crewe's Est
Commrs. of Inland Revenue v.
Est. Graaff
Commrs. of Inland Revenue v.
Est. Hollard
Coningsby v. Coningsby
Conradie v. Jones
Conradie v. Roussouw
Consolidated Finance Co. v.
Reuvid
Conway v. Westwood
Cook v. Cook
Cooper v. Crane
Cooper v. Jordan
Cooper v. The Govt
Cooper's Est. In re
Cooray v. Fernando
Copeland & Creed v. Ditton
Corea v. Peiris
Coronation Collieries Co. v.
Malan
Coronel's Curators. Est. Coronel
[1943] A.D. 656 .. . . 370, 443
[1935] A.D. 210 .. . . 289, 445
[1925]
[1923]
[1917]
[1919]
[1912]
[1936]
[1937]
[1891]
(1884)
[1906]
[1939]
(1941)
(1895)
[1909]
[1911]
[1941]
T.P.D. 154 . . 384, 386
C.P.D. 443 .... 88
O.P.D. 112 .. ..434
A.D. 279 . . 215, 226, 440
T.P.D. 1019
N.P.D. 245
A.D. 154 . .
P. 369
4 E.D.C. 181
T.S. 436 . .
C.P.D. 309
276
344
90
95
138
333
370
42 Ceylon N.L.R. 329 335
9 E.D.C. 123 .. . . 429
A.C. 549 . . 335
T.P.D. 586
A.D. 323 .
153, 272
289, 290
xxxn
TABLE OF CASES
Coulthard v. Coulthard
Court v. Mosenthal & Co.
Coutts v. Jacob
Cowan v. Beckworth
Craggs, ex parte
Cressey v. African Life Assur-
ance Soc. Ltd
Crisp v. Crisp
Cronje v. Cronje
Cronwright's Exors, ex parte . .
Crook v. Pedersen Ltd
Crooks & Co. v. Agricultural
Co-op Union
Cullinan v. Pistorius
Cullinan v. Union Govt.
Cuming v. Cuming
Cundy v. Lindsay
Curtis, Est. v. Gronningsaeter
Cuthbert, In re
Cutting v. Van der Hoven
[1922] W.L.D. 13
.. 96
(1896) 13 S.C. 127
.. 142
[1927] E.D.L. 120
.. 21
1932 (1) P.M., B. 1 (D. &
5
C.L.D.)
.. 95
[1915] T.P.D. 385
.. 85
[1917] A.D. 605 ..
.. 344
[1934] W.L.D. 26
.. 94
[1907] T.S. 871 ..
.. 90
[1938] C.P.D. 236
.. 132
[1927] W.L.D. 62
21,262
[1922] A.D. 423 . . 137,
193, 196
[1903] O.R.C. 33
250, 309
[1922] C.P.D. 33
.. 214
[1945] A.D. 201 ..
.. 70
(1878) 3 App. Cas. 459
.. 230
[1942] C.P.D. 531
.. 97
[1932] N.P.D. 615
.. 90
[1903] T.H. 110
.. 247
D
Dadoo Ltd. v. Krugersdorp
i
Munic. Council
[1920] A.D. 530 . .
.. ..240
Dalton v. Angus
(1881) 6 App. Cas. •;
r40 .. 175
Dama v. Bera
[1910] T.P.D. 928
. . . . 41
Daniels v. Cooper
(1880) 1 E.D.C. 174
.. ..294
Danovich v. Danovitch's
Exors
[1919] T.P.D. 198
. . . . 94
Davies v. Lawlor
[1941] E.D.L. 128
.. ..261
Davis v. Lockstone
[1921] A.D. 153 . .
.. ..319
Davis' Tutor v. Est. Davis
[1925] W.L.D. 168
. . . . 43
Dawson v. Dawson
(1892) 9 S.C. 446
. . . . 89
De Beer v. De Beer
[1940] T.P.D. 230
93, 94
De Beer v. Est. De Beer
[1916] C.P.D. 125
46, 47, 422
De Beer v. Van der Merwe
[1923] A.D. 378 . .
. . 148, 175
De Beer's Consol. Mines v
(1893) 10 S.C. 359; (
1895) 12
London & S.A. Exploratio]
i S.C. 107
; [1895]
Co.
A.C. 451
303,
306, 307, 451
Debenham v. Mellon
(1880) 5 Q.B.D. 394
.. ..432
De Charmoy & St. Pol v. Dhoo
^
koo
[1924] N.P.D. 254
.. ..286
De Jager, ex parte
[1907] T.S. 283 . .
.. ..384
De Jager, ex parte
[1926] N.P.D. 413
.. ..378
De Jager, In re
[1876] Buch. 228
. . 71, 105
De Jager v. Oliphant's Syndi
cate
[1912] A.D. 505 . .
.. ..232
De Jager v. Scheepers
(1880) Foord 120
.. 149,383
TABLE OF CASES
xxxm
De Jager v. Sisana [1930]
Dekenah v. Linton . . . . [1920]
De Klerk v. Pienaar . . . . (1899)
De Kock v. De Kock . . . . [1942]
De Kock v. Est. De Kock . . [1922]
De Kock v. Fincham . . . . (1902)
Delport v. Ah Yee [1913]
Demerara Electric Co. Ltd. v.
White
Demerara Turf Club Ltd. v.
Wight [1918]
De Montford v. Broers . . . . (1887)
Denny, Mott & Dickson Ltd. v.
James B. Fraser & Co. Ltd. [1944]
Denyssen v. Mostert . . . . (1872)
De Pass v. Colonial Govt. . . (1886)
Deny «. Peek (1889)
De Silva v. De Silva . . . . (1925)
De Silva v. Juan Appu .. .. (1928)
De Silva v. Wagapadigedera . . (1929)
De Smidt v. Hoets (1852)
Deutrom v. Deutrom . . . . (1935)
Deutschman v. Mpeta . . . . [1917]
De Villiers, ex parte [1943]
De Villiers v. Barlow . . . . [1925]
De Villiers u. Cape Divis. Council [1875]
De Villiers v. Commaile . . . . (1846)
De Villiers v. De Villiers . . [1920]
De Villiers v. De Villiers : . [1938]
De Villiers v, Est. De Villiers [1929]
De Villiers v. Galloway . . . . [1943]
De Villiers v. O'Sullivan . . (1883)
De Villiers v. Parys Town
Council [1910]
De Vries v. Alexander . . . . (1880)
De Waal v. Messing . . . . [1938]
De Waal v. Ziervogel . . . . [1938]
De Wet, ex parte [1919]
De Wet, ex parte [1921]
De Wet v. Bouwer [1919]
De Wet v. Hiscock (1880)
De Wet v. Union Govt [1934]
Dhanalakium v. Subramanian [1943]
Dias v. Livera (1879)
Dias v. Silva (1937)
Dicks, ex parte [1915]
Dippenaar v. Hauman . . . . [1878]
Dobbs v. Verran [1923]
Dodd v. Hadley [1905]
Dolphin, In re (1894)
Dona Clara v. Dona Maria . . (1822)
4901
A.D. 71 . . . . 192, 200
C.P.D. 579 . . . . 245
16 S.C. 370 .. .; 148
O.P.D. 140 . . . . 94
C.P.D. 110 .. ..394
19 S.C. 136 . . . . 295
E.D.L. 374 . 328
[1907] A.C. 330 328
A.C. 605 294
13 App. Cas. 149 . . 353
A.C. 265 280
L.R. 4 P.O. 236 . . 393
4 S.C. 383 . . . . 285
14 App. Cas. 337 . . 227
27 N.L.R. 289 90, 336
29 Ceylon N.L.R. 417 239
30 Ceylon N.L.R. 317 383
1 Searle 272 . . 356, 358
37 Ceylon N.L.R. 91 143
C.P.D. 79 197, 199, 250
W.L.D. 16 . . . . 105
O.P.D. 45 329
Buch. 50 . . . . 161
3 Menz. 544 . . . . 275
C.P.D. 301 .... 93
C.P.D. 565 .... 94
C.P.D. 106 . . . . 385
A.D. 439 155
2 S.C. 251 . 152
O.P.D. 55..
Foord 43 . .
T.P.D. 34
A.D. 112 ..
O.P.D. 61..
C.P.D. 812
C.P.D. 43
1 E.D.C. 249
A.D. 59 . .
A.D. 160 .
.. ..220
. . 26, 309
.. ..330
.. ..332
359
. . . . 85
. . . . 49
.. ..129
159, 160, 308
. . 38, 106
L.R. 5 App. Cas. 123 393
39 Ceylon N.L.R. 358 274
T.P.D. 477
Buch. 135
E.D.L. 177
T.S. 439 . .
15 N.L.R. 343
Ramanathan,
33, p. 33
61
. ..333
. 215,218
. 241,242
.. 37
1820-
. 405
XXXIV
TABLE OF CASES
Donniger v. Thorpe
Dormiux v. Kriekenbeek
Doubell v. Tipper
Dreyer's Trustee v. Lutley . .
Duckett v. Ochberg
Dukes v. Marthinusen
Duncan v. Duncan
Dunman v. Trautman
Dunn v. Bowyer
Du Plessis v. Aswegen . . . .
Du Plessis v. Est. Meyer
Du Preez v. Du Preez
Du Preez v. M'Kwambi
Du Preez v. Steenkamp
Durban Corp. v. McNeil
Dutch Reformed Church of
Dewetsdorp, ex parte
Du Toit v. Renison
Dwyer v. Goldseller
Dwyer v. O'Flinn's Exor.
Dyason v. Ruthven
Dyer v. Melrose Steam Laundry
[1930] T.P.D. 839
.. 304,311
(1821) Ramanathan,
1820-
33, p. 23
. . . . 52
(1894) 11 S.C. 23
.. ..314
(1884) 3 S.C. 59 ..
.. ..204
[1931] C.P.D. 493
.. ..448
[1937] A.D. 12 . .
.. .. 339
[1937] A.D. 310 . .
89, 92
(1891) 9 S.C. 14 ..
.. ..308
[1926] N.P.D. 516
.. ..135
[1931] T.P.D. 332
.. ..341
[1913] C.P.D. 1006
.. 376,452
(1901) 18 S.C. 438
. . . . 93
[1929] E.D.L. 90..
.. ..309
[1926] T.P.D. 362
.. ..312
[1940] A.D. 66 . .
.. ..268
[1938] O.P.D. 136
.. ..291
[1939] E.D.L. 101
.. .. 81
[1906] T.S. 126 . .
. . 277, 286
(1857) 3 Searle 16
.. ..368
(1860) 3 Searle 282
.. ..258
[1912] T.P.D. 164
.. ..216
E
Eastern & S. A. Telegraph Co.
Ltd. v. Cape Town Tram-
ways Co. Ltd
Eastern Rand Exploration Co.
v. Nel
East London Munic. v. Halberd
Eastwood v. Shepstone
Eaton v. Registrar of Deeds . .
Ebden's Est. v. Ebden
Ebert v. Ebert
Ebrahim's Est., In re
Eckhardt v. Nolte
Edmeades v. Scheepers
Edwards v. Hyde
Edwards (Waaikraal) G. M. Co.
v. Mamogale
Eksteen v. Eksteen
Electric Process Engraving Co.
v. Irwin
Elliot v. Elliot ..
Elliot v. Lord Joicey
Els v. Mills
Emslie v. African Merchants
Ltd
Enslin v. Meyer
Erasmus v. Du Toit
Erasmus v. Erasmus
[1902] A.C. 381 338
[1903] T.S. 42 250
(1884) 3 S.C. 140 .. .. 238
[1902] T.S. 294 236
(1890) 7 S.C. 249 .. .. 133
[1910] A.D. 321 .. . . 361, 371
(1939) 40 Ceylon N.L.R. 388 90
[1936] T.P.D. 60 . . . . 360
(1885) 2 S.A.R. 48 . . 26, 309
(1881) 1 S.C. 334 .. .. 178
[1903] T.S. 381 .. . . 329, 342
[1927] T.P.D. 288 . . 215, 301
[1920] O.P.D. 195 . . . . 240
[1940] A.D. 220 277
[1925] C.P.D. 286 .... 87
[1935] A.C. 209 31
[1926] E.D.L. 346 . . . . 327
[1908] E.D.C. 82 . . 266, 267
[1925] O.P.D. 125 . . . . 314
[1910] T.P.D. 1037 . . . . 173
[1942] A.D. 265 70
TABLE OF CASES
XXXV
Erasmus v. Erasmus' Guardians [1903] T.S. 843
Erasmus v. Russell's Exor. .
Essakow v. Galbraith
Estel v. Novazi
Evans, ex parte
Evans & Plows v. Willis & Co.
Everard, ex parte Exors. Est.
Excell v. Douglas
.. 361,362
[1904] T.S. 365 .. . . 298, 299
[1917] O.P.D. 53 119
[1919] N.P.D. 406 . . . . 449
1942 (2) P.H., B. 73 [O.P.D.] 74
[1923] C.P.D. 496 . . . . 298
[1938] T.P.D. 190 .... 86
[1924] C.P.D. 472 ..431,432
F. ex parte
Fairlie v. Raubenheimer
Farmer's Co-op. Soc. v. Berry
Farnum v. Adm.-Gen. of Brit.
Guiana
Farrell v. Hankey
Faure v. Tulbagh Div. Council
Federal Tobacco Works v. Bar-
ron & Co
Feigenbaum v. Mills
Fellows -Smith v. Shanks
Fender v. St. John-Mildmay
Ferguson v. Hucknell & Lan-
german
Fernandez v. Fernandez
Fernando v. Alwis
Fernando v. Fernando
Fernando v. Fernando
Fernando v, Fernando
Fernando v. Kalutara Police
Fichardt v. Webb
Fichardt Ltd. v. Brand
Fichardt Ltd. v. Faustmann . .
Fichardt Ltd. v. Friend News-
papers Ltd
Fick v. Bierman
Fick v. Rex
Fietze v. Fietze
Fillis v. Joubert Park Private
Hospital
Findlay v. Knight
Fine v. Gen. Assur. Corp.
Finn v. Joubert
Fischer v. Liquidators Union
Bank
Fisher v. Coleman
Fisher v. Malherbe & Rigg
Fisher & Son v. Voges
Fitzgerald, ex parte
Fitzgerald v. Green
Flanagan v. Flanagan
[1914] W.L.D. 27 . . . . 363
[1935] A.D. 135 243
[1912] A.D. 343 .. . . 267, 269
(1889) 14 App. Cas. 651 . . 353
[1921] T.P.D. 590 .... 42
(1890) 8 S.C. 72 .. .. 69,80
[1904] T.S. 483 261
[1929] N.P.D. 235 . . . . 261
[1925] N.P.D. 168 . . . . 238
[1938] A.C. 1 239
[1903] T.H. 221 353
[1943] 'C.P.D. 363 .... 87
(1935) 37 Ceylon N.L.R. 201 379
(1899) 4 Ceylon N.L.R. 285 268
(1916) 19 Ceylon N.L.R. 193 46
(1929) 31 Ceylon N.L.R. 107 168
(1943) 45 Ceylon N.L.R. 49 129
(1889) 6C.L.J. 258 .. .. 160
[1928] O.P.D. 56 .. ..311
[1910] A.D. 168 289
[1916] A.D. 1
(1882) 2 S.C. 26 . .
[1904] O.R.C. 25
[1913] E.D.L. 170
[1939] T.P.D. 234
[1935] A.D. 58 . .
[1915] A.D. 213 . .
[1940] C.P.D. 130
(1890) 8 S.C. 46 ..
[1937] T.P.D. 261
[1912] W.L.D. 15
[1925] C.P.D. 370
[1923] W.L.D. 187
[1911] E.D.L. 433
[1913] N.P.D. 452
. . 338, 340
. . . . 248
. . . . 47
. . . . 33
. . . . 38
. . . . 333
.. ..232
. . . . 344
352, 353, 354
.. ..325
. . . . 73
. . 236, 237
. . . . 38
9, 31, 35, 63
. 450
XXXVI
Flats Ltd. v. Transvaal Cons.
Land Co
Fletcher v. Bulawayo Water
Works
Fluxman v. Brittain
Ford, ex parts.
Ford v. Reed Bros
Forster v. Becker
Foster v. Hillman Bros.
Foster v. Moss & Dell
Foster v. Wheeler
Fouche v. Battenhausen & Co.
Fourie v. De Bruyn
Foy v. Morkel
Frame v. Boyce & Co
Francis v. Savage & Hill * ..
Franco v. Klug
French Hoek Munic. v. Hugo
Fresh Meat Supply Co. v. Stan-
dard Trading Co
Friedlander v. Cr oxford
Friedman v. Friedman
Friedman v. Harris
Frost v. Leslie
Fuchs v. Whiley, N. O
Fulton, ex parte
TABLE OF CASES
[1920] T.P.D. 146
. 170
Gabergas v. Gabergas
Gabrial v. Adikaran
Galant v. Mahonga
Galliers v. Rycroft
Gammon v. McClure
Gantz v. Wagenaar
Gardens Est. Ltd. y. Lewis . .
Gardner, ex parte
Gaskill v. Gaskill
Gates' Est., ex parte
Gault v. Behrman
Gavenas v. Gavenas
Geldenhuys, ex parte
Geldenhuys & Neethling v.
Beuthin
General Ceylon Tea Estates Co.
v. Pulle
George v. Lewe
Gerber, ex parte
Gerber v. Gerber
Gerike v. Gerike
Ghislin's Est. v. Fagan
Gibson, In re
[1915] A.D. 636 . .
.. 451,452
[1941] A.D. 273 . .
. . . . 261
[1940] W.L.D. 155
.. .. Ill
[1922] T.P.D. 266
. . 198, 199
[1914] E.D.L. 193
. . .. 66
[1932] W.L.D. 222
.. ..265
[1927] E.D.L. 208
.. ..342
(1887) 36 Ch. D. 695
.. ..223
[1939] C.P.D. 228
47, 50, 422
[1914] A.D. 374 . .
. . . . 215
[1929] W.L.D. 174
58, 59, 95
[1925] T.P.D. 353
.. ..431
(1882) 1 S.A.R. 33
.. ..191
[1940] A.D. 126 . .
.. ..326
(1883) 10 App. Cas. 336; 3
S.C. 346
.. ..155
[1933] C.P.D. 550
.. ..195
(1867) 5 Searle 395
.. ..309
[1917] C.P.D. 268
.. ..309
[1928] C.P.D. 43
.. ..239
[1923] A.D. 276 . .
.. 228,230
[1934] C.P.D. 130
. . 55, 423
[1912] C.P.D. 868
.. ..378
G
[1921] E.D.L. 279 . .
(1941) 42 Ceylon N.L.R.
[1932] E.D.L. 69. . . .
[1901] A.C. 130; 17 S.C.
[1925] C.P.D. 137 ..
(1828) 1 Menz. 92 ..
[1920] A.D. 144
[1940] E.D.L. 175 . .
[1921] P. 425
[1919] C.P.D. 162 ..
[1936] T.P.D. 37 ..
[1936] C.P.D. 132 ..
[1926] O.P.D. 155 . .
. . 33
146 204
167, 185
569 381
.. 65
.. 46
169
. . 122
33
.. 40
.. 134
.. 63
. . 167
[1918] A.D. 426
449
(1906) 9 Ceylon N.L.R. 98 451
[1935] A.D. 249 ...... 243
[1928] W.L.D. 228 . . . . 427
[1928] W.L.D. 300 . . . . 59
(1900) 14E.D.C. 113 .. .. 92
[1925] C.P.D. 206 . . . . 203
[1912] N.P.D. 204 . . . . 87
TABLE OF CASES
Gillespie, ex parte [1943]
Gilsonv. Payn (1899)
Girigorishamy v. Lebbe Marikar (1928)
Glaser v. Blotwick [1941]
Glass v. Perl [1928]
Gledhill, In re Intest. Est. of (1891)
Glover v. Finch [1921]
Gluckman v. Goodworths Ltd. [1928]
Gluckman v. Schneider . . . . [1936]
Gnanaprakasam v. Mariapillai (1937)
Goldblatt v. Fremantle . . . . [1920]
Goldblatt v. Merwe .. .. (1902)
Goldfoot v. Myerson . . . . [1926]
Goldinger's Trustee v. Whitelaw[1917]
Goldman N. O. v. Est. Gold-
man [1937]
Goldseller v. Kuranda . . . . [1906]
Gonstana v. Ludidi Diana . . (1892)
Gooneratne v. Don Philip . . (1899)
Goonewardene v. Goonewar-
dene
Goonewardene v. Wickrema-
singhe (1932)
Goosen v. Bosch [1917]
Goosen's Trustees v. Goosen . . (1884)
Gopalsamy v. Ramasamy Pulle (1911)
Gordon, In re Intest. Est. of (1909)
Gordon v. Gordon [1929]
Gordon's Bay Estates v. Smuts [1923]
Gorfinkel v. Miller [1931]
Gow v. The Master [1936]
Graaf-Reinet Bd. of Exors. v.
Est. Erlank [1933] C.P.D. 41
Graham v. Local & Overseas
Investments (Pty) Ltd. . . [1942]
Grassman v. Hoffman . . . . (1885)
Gray v. Perpetual Trustee Co. [1928]
Gray v. Poutsma [1914]
Greef v. Verraux (1829)
Greeff v. Pretorius (1895)
Green v. Fitzgerald . . . . [1914]
Green v. Griffiths (1886)
Greenberg's Est. v. Rosenberg
& Greenberg [1925]
Grek v. Jankelowitz . . . . [1918]
Greydt-Ridgeway v. Hopperjb 1930 1
Greyvenstein v. Hattingh .. [1911]
xxxvii
C.P.D. 58 . . . . 374
16 S.C. 286 . . . . 261
30 Ceylon N.L.R. 209 111
C.P.D. 403 . . . . 242
T.P.D. 264 . . 333, 344
12 N.L.R. 43 .. . . 406
C.P.D. 358 . . . . 319
E.D.L. 95 311
A.D. 151 333
39 Ceylon N.L.R. 406 176
A.D. 123 217
19 S.C. 373 . . . . 261
T.P.D. 242 . . 246, 445
A.D. 66 . . . . 142, 190
W.L.D. 64 . . 43, 388
T.H. 185 333
7 E.D.C. 60 . . . . 314
5 Ceylon N.L.R. 268 234
(1929) 31 Ceylon N.L.R. 9 371
34 Ceylon N.L.R. 5 89
C.P.D. 189 . . . . 353
3 E.D.C. 368 .. . . 190
14 Ceylon N.L.R. 238 353
30 N.L.R. 325 . . 406
W.L.D. 165 . . . . 92
A.D. 160 386
C.P.D. 251 . . . . 346
C.P.D. 296 . 373
A.D. 95 . .
3 S.C. 282
A.C. 391 . .
T.P.D. 203
1 Menz. 151
12 S.C. 104
.. 247
.. 158
.. 429
.. 395
.. 340
.. 51
. 194
Grinker v. Grinker [1940]
Grobler v. Grobler [1943]
Grobler v. Schmilg & Freedman [1923]
Grobler v. Union Govt [1923]
A.D. 88 10, 34, 365, 406
4 S.C. 346 160, 161, 308
T.P.D. 924 . . 247, 445
C.P.D. 140 . . . . 340
P.H., J. 14. [T.P.D.] 338
A.C. 355; [1911] A.D.
358 322
W.L.D. 236 . . . . 94
O.P.D. 192 . . . . 94
A.D. 496 .. . . 66, 429
T.P.D. 429 . . 42
XXXV111
TABLE OF CASES
Groenewald v. Van der Merwe
Grootchwaing Salt Works Ltd.
v. Van Tender
Gruenewald v. Mathias
Gunatilleke v. Fernando. .
Gunatilleke v Mille Nona
Guneratne v. Yapa . .
[1917] A.D. 233
142
H. (wrongly called C.) v. C.
Haacke v. Deutsche Presse Ltd.
Hadley v. Baxendale
Hagemann, exparte
Haines' Exor. v. Haines
Hairman v. Crawley
Hall v. Hall's Trustees
Hall v. Howe
Hall v. Zietsman
Halliwell v. Johannesburg
Munic. Council
Hamilton v. MacKinnon
Hanau & Wicke v. The Stan-
dard Bank
Haniffa v. Ocean Accident Corp.
Hannay v. Parfitt
Hansen, Schrader & Co. v.
Kopelowitz
Hardaker v. Tjabring
Hare v. Heath's Trustee
Harms v. Malherbe
Harris v. A. C. White Co. Ltd.
Harris v. Buisinne's Trustee . .
Harris v. Pieters
Hart v. Cohen
Hart v. Lennox
Hart v. The Master
Hartogh v. Nat. Bank
Hartzenberg, ex parte
Hasler v. Hasler
Hauman v. Nortje
Haupt v. Haupt
Havemann v. Oldacre Bros. . .
Havemann's Assignee v. Have-
mann 's Exor
Hayes v. Hayes
Hazaree v. Kamaludin
Hazis v. Transvaal & Delagoa
Bay Investment Co.
Head v. Du Toit
[1920] A.D. 492 310
[1925] S.W.A. 117 .. ..156
(1919) 21 Ceylon N.L.R. 257;
[1921] 2 A.C. 357;
22 N.L.R. 385 144
(1936) 38 Ceylon N.L.R. 291 95
(1926) 28 Ceylon N.L.R. 397 291
H
[1929] T.P.D. 992 .... 64
[1934] T.P.D. 191 . . . . 345
(1854) 9 Exch. 341 .. .. 266
(1909) 26 S.C. 503 .. .. 67
[1917] E.D.L. 40 290
[1923] O.P.D. 3 63
(1884) 3 S.C. 3 .. .. 75,96
[1929] T.P.D. 591 . . . . 241
(1899) 16 S.C. 213 .. .. 334
[1912] A.D. 659 325
[1935] A.D. 114, 346 .. .. 325
(1891) 4S.A.R. 130 .. .. 249
(1933) 35 Ceylon N.L.R. 216 260
[1927] T.P.D. Ill .. ..302
[1928]
(1896)
[1914]
(1897)
(1905)
T.S. 707 . .
N.P.D. 145
3 S.C. 32 . .
C.P.D. 167
O.P.D. 104
2 Menz. 105
A.D. 644 . .
16 S.C. 363
W.L.D. 219
C.P.D. 78
T.S. 1092;
T.H. 207
C.P.D. 385
13 S.C. 377
A.D. 293 . .
14 S.C. 39
26 N.L.R. 56
[1927] A.D. 473 .
[1928] T.P.D. 618
[1934] A.D. 108 . ,
[1939] A.D. 372 . .
[1932] C.P.D. 287
.. ..305
. . . . 344
.. ..191
. . 340, 427
.. ..334
145, 146, 191
. . . . 274
. . . . 341
.. ..134
. . . . 362
[1907]
.. ..200
.. ..105
. . . . 87
. . . . 264
. . . . 50
.. ..259
. . . . 355
88
. . . . 333
. . . . 260
. 175
TABLE OF CASES xxxix
Hearson v. Natal Witness Ltd. [1935] N.P.D. 603 . . . . 344
Heidelburg Munic. v. Uys . . (1898) 15 S.C. 156 . . . . 173
Heilman v. Vorbeck . . . . [1925] T.P.D. 790 . . . . 236
Heinamann, Est. v. Heinamann [1919] A.D. 99 8, 27, 54, 91, 365
Helps v. Natal Witness Ltd. . . [1937] A.D. 45 344
Henderson v. Henderson . . [1944] A.C. 49 87
Henley's Trustee v. Henley . . [1926] N.P.D. 119 . . . . 96
Henning v. Le Roux . . . . [1921] C.P.D. 587 . . . . 302
Henry v. Henry [1935] C.P.D. 224 .... 91
Herbert v. Anderson . . . . (1839) 2 Menz. 166 . . 26, 160
Heriot G. M. Co. v. Union Govt. [1916] A.D. 415 319
Hermann v. Charlesworth . . [1905] 2 K.B. 123 . . . . 239
Hem & Co. v. de Beer . . . . [1913] T.P.D. 721 72, 429, 430
Herron, In re, ex parte Waters (1840) 2 Menz. 423 . . . . 372
Hersman v. Shapiro & Co. . . [1926] T.P.D. 367 . . . . 279
Hertzog v. Wessels' Est. . . [1925] O.P.D. 141 . . . . 450
Herzenberg Mullne Ltd. v. Cape
Town Council [1926] C.P.D. 451 .... 153
Heydenrych v. Fourie .. .. (1896) 13 S.C. 371 .. 199,201
Heydenrych v. Standard Bank
of S.A [1924] C.P.D. 335 . . . . 218
Heyman v. Darwin's Ltd. . . [1942] A.C. 356 265
Hiddingh v. Commissioners for
Inland Revenue .. .. [1941] A.D. Ill .. ..247
Hiddingh v. Denyssen .. .. (1885) 3 S.C. 424 .. ..354
Hildebrand v. Hildebrand . . [1923] W.L.D. 151 . . . . 59
Hilder v. Young (1890) 11 N.L.R. 154 .. 429
Hill & Co. v. McClure . . . . [1909] T.H. 212 .... 429
Hochster v. De la Tour . . . . (1853) 2 E. & B. 678 . . . . 265
Hodgson Bros. v. S. A. R. . . [1928] C.P.D. 257 . . . . 220
Hoffman v. Est. Mechau . . [1922] C.P.D. 179 .... 35
Hoffman v. Prinsloo & Hoffman [1928] T.P.D. 621 . . . . 234
Hoffman v. S. A. Conserva-
torium of Music .. .. (1908) 25 S.C. 24 .. ..220
Holdgate v. Moodley . . . . [1934] N.P.D. 356 . . . . 72
Holdt v. Meisel [1927] S.W.A. 45 . . . . 344
Holmes Garage Ltd. v. Levin [1924] G.W.L.D. 58 199, 319
Hong Kong & Shanghai Bank
v. Krishnapillai . . . . (1932) 33 Ceylon N.L.R. 249 206
Hoogendoorn Ltd. v. Fouche [1933] C.P.D. 560 . . . . 340
Hopley's Est., ex parte, ,. . . [1940] C.P.D. 60 . . . . 388
Horak v. Horak (I860) 3 Searle 389 . . 33, 96
Home v. Hutt [1915] C.P.D. 331 .... 295
Home v. Williams & Co. . . [1940] T.P.D. 106 . . . . 261
Hotz v. Standard Bank . . . . (1907) 3 Buch. A.C. 53 . . 238
Houghton Est. Co. v. McHattie (1894) 1 Off. Rep. 92 . . 307
Houldsworth v. City of Glasgow
Bank (1880) 5 App. Gas. 317 .. 339
Houston v. Bletchly . . . . [1926] E.D.L. 305 . . . . 216
Hulley v. Cox [1923] A.D. 234 .... 330
Hulton v. Jones [1910] A.C. 20 331
Human v. Rieseberg .. .. [1922] T.P.D. 157 .. ..311
xl TABLE OF CASES
Humphreys, ex parte .. .. [1921] W.L.D. 74 .... 37
Humphreys v. Cassell . . . . [1923] T.P.D. 280 . . . . 217
Humphreys v. Pickles .. .. [1925] A.D. 471 .. ..189
Hunt v. Hunt [1940] W.L.D. 55 .... 95
Hurwitz v. Taylor [1926] T.P.D. 81 . . . . 239
Hyams & Wolf v. Simpson .. [1908] T.S. 78 445
I
Ibrahim Saibo v. Pallaku Lebbe (1928) 29 Ceylon N.L.R. 347 241
Incorporated Law Soc. v. Reid (1908) 25 S.C. 612 .. ..238
Ingle Colonial Broom Co. v.
Hocking [1914] C.P.D. 495 . . . . 449
Irvin & Johnson (S.A.) Ltd. v.
Kaplan [1940] C.P.D. 647 . . . . 220
Irwin v. Davies [1937] C.P.D. 442 . . . . 318
Isaacman v. Miller [1922] T.P.D. 56 . . 237, 337
Ismail v. Marikar (1932) 34 Ceylon N.L.R. 198 387
Jacobs v. Cape Town Munici-
pality [1935] C.P.D. 474 .. .. 43
Jacobs v. Lorenzi [1942] C.P.D. 394 . . . . 328
Jacobs v. Macdonald . . . . [1909] T.S. 442 335
Jacobsohn's Trustee v. Standard
Bank (1899) 16 S.C. 201 .. 247,248
Jaffar, ex parte [1944] C.P.D. 142 .... 74
Jajbhay v. Cassim [1939] A.D. 537 236
James v. James' Est [1941] E.D.L. 67 240
Jameson's Minors v. C. S. A. R. [1908] T.S. 575 .. . . 329, 330
Janson v. Driefontein Cons.
Mines [1902] A.C. 484 239
Japhtha v. Mill's Exors [1910] E.D.C. 150 .. ..303
Jassat v. Lewis [1924] T.P.D. 11 .. .. 308
Jayashamy v. Abeysuriya . . (1912) 15 Ceylon N.L.R. 348 365
Jayawickreme v. Amasuriya . . [1918] A.C. 869 226
Jeffery v. Pollack [1938] A.D. 1 247
Jewish Colonial Trust v. Est.
Nathan [1940] A.D. 163 .. . . 384, 388
Jinadasa v. Silva (1932) 34 Ceylon N.L.R. 344 246
Jinasena v. Engeltina . . . . (1919) 21 Ceylon N.L.R. 444 152
Joffe v. African Life Ass. Ltd. [1933] T.P.D. 189 . . . . 256
Joffe & Co. v. Hoskins . . . . [1941] A.D. 431 104
Johannesburg City Council v.
Viccinovich [1940] A.D. 365 341
Johannesburg Mun. v. Trans-
vaal Cold Storage Co. . . [1907] T.S. 722 184
Johannesburg Mun. Council v.
African Realty Trust Ltd. [1927] A.D. 163 341
Johannesburg Mun. Council v.
Rand Townships Registrar [1910] T.P.D. 1314 .. ..161
Johannesburg Mun. Council v.
Robinson G. M. Co. . . [1923] W.L.D. 99 . . . . 153
TABLE OF CASES
Johnson v. Mclntyre
Johnson v. Rand Daily Mails
Johnson & Co. v. Grand Hotel
Co
Johnson & Irvin v. Mayston
Johnston v. Powell
Johnstone v. Johnstone
Jones v. Cape Town Town
Council
Jones v. Cotts & Co
Jones v . Goldschmidt
Jones v. Reynolds
Jonnsson's Est. v. Est. Jonns-
son
Jooste v. Jooste
Jooste v. Jooste's Exors.
Jordaan v. Winkelman
Jordaan's Curator, ex parte . .
Jordaan's Est., In re
Josef v. Mulder
Joseph v. Est. Joseph
Joseph Constantino Steamship
Line Ltd. v. Imperial
Smelting Corp. Ltd.
Joubert v. Enslin
Joubert v. Russouw's Exor. . .
Joubert v. Tarry & Co
Judd v. Fourie
Judes v. S. A. Breweries Ltd.
xli
(1893) 10 S.C. 318 ..39,58,59
[1928] A.D. 190 332
[1907] O.R.C. 42 . . . . 138
(1908) 29 N.L.R. 696 . . 137
(1909) 26 S.C. 35 .... 66
[1917] A.D. 292 .. . . 91,92
(1896) 13 S.C. 43 .. ..148
(1902) 23 N.L.R. 269 . . 298
(1881) 1 S.C. 109 .. .. 240
[1913] A.D. 366 215
[1926] N.P.D. 284 . . . . 218
(1907) 24 S.C. 329 .. .. 87
(1891) 8 S.C. 288 .. 71,355
[1879] Buch. 79 175
[1929] O.P.D. 168 . . . . 42
(1907) 24 S.C. 84 . . . . 379
[1903] A.C. 190 378
(1907) 24 S.C. 76 .. ..361
[1942] A.C. 154 280
[1910] A.D. 6 . . 44, 215, 261
[1877] Buch. 21 368
[1915] T.P.D. 277 . . . . 312
(1881) 2 E.D.C. 41 . . 173, 174
[1922] W.L.D. 1 204
K
Kaal Valley Supply Stores v.
Louw . . . . , .
Kalamie v. Armadien
Kam N.O. v. Udurn
Kanatopsky v. Kanatopsky . .
Kaplan v. Schulman
Karbe, ex parte
Kareiga Baptist Church Trus-
tees v. Webber
Karonchihamy v. Angohamy
Karoo & Eastern Board of
Exors. v. Farr
Karsten v. Foster
Katz v. Dreyer's Trustee
Kay v. Argus Printing Co.
Kayser & De Beer v. Est. Lie-
benberg
Keeler v. Butcher & Sons
Keeve, ex parte
Kelly v. Holmes Bros. Ltd. . .
[1923] O.P.D. 60
[1929] C.P.D. 490 . .
[1939] W.L.D. 339; [1940]
W.L.D. 137 . .
[1935] E.D.L. 308 . .
[1933] C.P.D. 544 . .
[1939] W.L.D. 351 . . . .
142
328
264
95
279
74
(1903) 17 E.D.C. 105 ..
(1904) 8 Ceylon N.L.R. 1 ..
148
28
[1921] A.D. 413
[1914] C.P.D. 919 . .
[1920] A.D. 454
[1937] N.P.D. 119 .. ..
231
66
142
345
[1926] A.D. 91
(1907) 28 N.L.R. 43 .. ..
[1929] O.P.D. 19 . .
[1927] O.P.D. 29
199
249
41
262
xlii
TABLE OF CASES
Kelner v. Baxter (1866) L.R. 2 C.P. 174
.. 444
Kemp's Est. v. McDonald's
Trustee [1915] A.D. 491 ..
384, 388
Kemsley v. Kemsley . . . . [1936] C.P.D. 518
67, 379
Kennedy v. Steenkamp . . . . [1936] C.P.D. 113
.. 236
Kent v. Salmond [1910] T.S. 637
.. 81
Kerguelen Sealing & Whaling
Co. v. Comrnrs. for Inland
Revenue [1939] A.D. 487 .. . .
.. 216
Kerkhof, ex parte .. .. .. [1924] T.P.D. 711
27,91
Keyter v. Terblanche . . . . [1935] E.D.L. 186
.. 449
Kidney v. Garner [1929] C.P.D. 163
.. 295
Kieley v. Dreyer [1916] C.P.D. 603
.. 239
Kilbum v. Est. Kilburn . . [1931] A.D. 501 ..
.. 187
Killian v. Reilly (1908) 18 C.T.R. 159 . .
.. 198
King v. Gray (1907) 24 S.C. 554 ..
.. 239
King v. Neale [1936] E.D.L. 236 . .
.. 344
Kingsley v. African Land Corp. [1914] T.P.D. 666
.. 231
Kirkpatrick v. Bezuidenhout . . [1934] T.P.D. 155
.. 333
Kirsh v. Pincus [1927] T.P.D. 199 ^ ..
151, 152
Kirsten v. Niland [1920] E.D.L. 87. . ..
.. 298
Kistan v. Komarasamy . . . . [1940] N.P.D. 56
.. 285
Kithiratne v. Salgado .. .. (1932) 34 Ceylon N.L.R.
69 378
Klass v. Klass . . . . . . [1924] W.L.D. 136 . .
.. 90
Kleinhans, In re Est [1927] C.P.D. 73
.. 378
Klette v. Pfitze (1891) 6 E.D.C. 134 ..
.. 427
Kleyn v. Est. Kleyn .. .. [1915] A.D. 527 .. ..
371,394
Kleynhans v. Usmar . . . . [1929] A.D. 121 ..
.. 333
Kleynhans Bros. v. Wessel's
Trustee [1927] A.D. 271 ..
228, 296
Klopper v. Maloko [1930] T.P.D. 860
.. 267
Klug v. Perkin [1932] C.P.D. 401
.. 347
Knocker v. Standard Bank . . [1933] A.D. 128 ..
.. 316
Knoop, In re (1893) 10 S.C. 198
42,43
Knox v.Koch (1883) 2 S.C. 382
.. 238
Knupffer v. London Express
Newspaper Ltd [1944] A.C. 116 .. ..
.. 345
Koch v. Panovska [1934] N.P.D. 776
.. 267
Kock v. Klein [1933] C.P.D. 194
.. 338
Koen, ex parte [1930] O.P.D. 154
.. 388
Koenig v. Godbold [1923] C.P.D. 526
.. 319
Koenig v. Johnson & Co. . . [1935] A.D. 262 . .
.. 264
Koenigsberg & Co. v. Robinson
G. M. Co [1905] T H. 90
. . 166
Komen v. De Heer (1908) 29 N.L.R. 237 . .
.. 160
Komen, Exor. Est. v. De Heer (1907) 28 N.L.R. 577
.. 160
Konien, Exor. Est. v. De Heer (1908) 29 N.L.R. 487
.. 292
Koniglich Preussisch-Branden-
burgische Hausfideikom-
miss v. Admin. S. W. A.. . [1928] S.W.A. 82
.. 121
Koopmans' Est. v. Est. De Wet [1912] C.P.D. 1061 . .
.. 392
Kotz6 v. Frenkel & Co [1929] A.D. 418 . . . .
.. 272
TABLE OF CASES
xliii
Kotze v. Johnson
Kotz6 v. Prins
Krige v. Scoble
Kristnappa Chetty v. Horatala
Kroon v. Enschede
Kroonier v. Hess & Co
Kropf , ex parte
Kruger v. Verster ....
Kunne v. De Beer
Kunz v. Swart
Kusmawathi v. Weerasinghe
Kynochs Ltd. v. Transvaal Sil-
[1928] A.D. 313 266
(1903) 20S.C. 156 .. .. 433
[1912] T.P.D. 814 . . . . 353
(1923) 25 Ceylon N.L.R. 39 206
[1909] T.S. 374 318
[1919] A.D. 204 297
[1936] W.L.D. 28 .... 59
[1925] C.P.D. 6 435
[1916] C.P.D. 667 . . . . 427
[1924] A.D. 618 397
(1932) 33 Ceylon N.L.R. 265 383
ver & Base Metals Ltd. . .
[1922] W.L.D. 71
.. 445
L
Laas, ex parte
[1923] N.P.D. 104 . .
.. 378
Lacey v. Lacey
[1929] W.L.D. 132 . .
.. 427
Lachter v. Glaser
[1914] T.P.D. 461
.. 334
Laing v. Le Roux
[1921] C.P.D. 745
.. 71
Laing v. S. A. Milling Co.
[1921] A.D. 387 ..
.. 294
Lalla, In re Est
[1922] N.P.D. 18
. . 359
Lalchand v. Saravanamuttu . .
(1934) 36 Ceylon N.L.R.
273 431
Lamahamy v. Karunarotno . .
(1921) 22 Ceylon N.L.R.
289 43
Lamb v. Walters
[1926] A.D. 358 ..
.. 229
Lamb & Sons v. Goring Brick Co.
[1932] 1 K.B. 710
.. 271
Lament v. Heyns
[1938] T.P.D. 22
.. 135
Land Bank v. Mans
[1933] C.P.D. 16
.. 198
Landau v. City Auction Mart
|>1940] A.D. 284 ..
.. 264
Lanfear v. Du Toit . . . . , .
[1943] A.D. 59 . .
.. 272
Lange v. Lange
[1945] A.D. 332 ..
.. 95
Lange v. Liesching
(1880) Foord 55 376,
383, 434
Larkin v. Jacobs
[1929] T.P.D. 693
.. 304
Lategan v. Union Govt.
[1937] C.P.D. 202
.. 169
Lavery & Co. v. Jungheinrich
[1931] A.D. 156 ..
.. 267
Lawrie v. Union Govt
[1930] T.P.D. 402
.. 347
Laws v. Rutherford
[1924] A.D. 261 ..
.. 216
Lazarus & Jackson v. Wessels
[1903] T.S. 510 ..
.. 186
Lechoana v. Cloete
[1925] A.D. 536 ..
79, 452
Lecler v. Grossman
[1939] W.L.D. 41
.. 90
Ledimo v. Ledimo
[1940] O.P.D. 65.. ..
.. 87
Leedham, In re
(1901) 18 S.C. 450 ..
.. 361
Leeuw, ex parte
(1905) 22 S.C. 340
406,412
Leibenguth v. Van Straaten . .
[1910] T.P.D. 1203 . .
.. 332
Leisa v. Siyathuhamy
(1925) 27 Ceylon N.L.R.
315 333
Le Lievre v. Gould
(1893) 1 Q.B.D. 491 . .
.. 325
Leschin v. Kovno Sick Benefits
Soc
[1936] W.L.D. 9
.. 122
Lever v. Buhrmann
[1925] T.P.D. 254
.. 318
Levin v. Levin
[1911] C.P.D. 1026 . .
.. 92
Levine v. Levine
[1939] C.P.D. 97
94,95
Levine v. Levine
[1939] C.P.D. 246
.. 63
Leviseur v. Scott
[1922] O.P.D. 138
.. 274
xliv
TABLE OF CASES
Levy v. Phillips [1915] A.D. 139 . .
Levy v. Tyler [1933] C.P.D. 377
Lewis & Co. v. Malkin . . . . [1926] T.P.D. 665
Liebenberg v. Loubser . . . . [1938] T.P.D. 414
Liebenberg's Est. v. Standard
Bank [1927] A.D. 502 . .
Lilienfeld v. Bourke . . . . [1921] T.P.D. 365
Lionel v. Hepworth . . . . [1933] C.P.D. 481
Liquidators of Union Bank v.
Kiver (1891) 8 S.C. 147
Liquidators of Union & Rhode-
sia Wholesale Ltd. v. Brown
& Co [1922] A.D. 549 . .
. . . . 227
. . . . 198
. . . . 262
. . . . 257
. . ..318
.. ..233
. . . . 64
. . . . 72
. . 189, 203
Lissack & Co. v. Sigma Build-
ing Co (1897) 4 O.K. 213
. . . . 178
Livera v. Gonsalez (1913) 17 Ceylon NJ
Liverpool Corp. v. Coghill . . [1918] 1 Ch. 307
Lobley v. Lobley [1940] C.P.D. 420
Logan v. Beit (1890) 7 S.C. 197
London Chemists & Opticians
Ltd. v. Shapiro . . . . [1926] T.P.D. 690
London & S. A. Exploration
Co. v. Kimberley Town
Council (1882) 1 H.C.G. 136
London & S. A. Exploration
Co. v. Bouliot (1890) 8 S.C. 75
Longpan Salt Co. v. Blumenfeld
& Co [1922] N.P.D. 177
L.R. 5 239
. . . . 175
. . . , 93
. . 220, 222
. . . . 445
.. ..178
.. ..153
.. ..198
Lord v. Gillwald [1907] E.D.C. 64
LorentzN.O., ex parte .. .. [1928] S.W.A. 153
Lorenz v. Rabinowitz . . . . [1933] C.P.D. 143
Lorenzo v. Rakagiatis . . . . [1938] N.P.D. 68
Loteryman & Co. v. Cowie . . [1904] T.S. 599 . .
Loudon, In re insol. est. of, Dis-
count Bank v. Dawes . . (1829) 1 Menz. 380
Louisa v. Van den Berg . . . . (1830) 1 Menz. 471
Lourenson v. Swart . . . . [1928] C.P.D. 402
Louw, ex parte [1920] C.P.D. 7 . .
Louw v. Louw [1933] C.P.D. 407
Lovell v. Paxinos [1937] W.L.D. 84
Lubbe v. Trollip [1926] E.D.L. 239
Lucas' Trustee v. Ismail &
Amod [1905] T.S. 239 ..
Luyt v. Morgan [1915] E.D.L. 142
Luzmoor v. Luzmoor . . . . [1905] T.H. 74 . .
Lydenburg Estates v. Palm &
Schutte [1923] T.P.D. 278
Lyon v. Steyn [1931] T.P.D. 247
M
Macdonald, ex parte .. .. [1929] W.L.D. 18
MacDonald Ltd. v. Radin N. O. [1915] A.D. 454 . .
.. ..267
.. ..110
.. ..264
.. ..373
.. ..283
. . . . 26
239, 289, 445
. . . . 296
. . . . 45
.. .. 31
. . . . 247
.. ..237
.. 391,392
. . . . 342
. . . . 92
.. ..285
. . . . 344
. . . . 388
.. ..134
TABLE OF CASES
xlv
Macduff & Co. v. Johannes-
burg Consol. Investment
Co [1924]
MacGregor v. Sayles . . . . [1909]
Machattie v. Filmer . . . . (1894)
Mackay v. McCankie .. .. (1883)
Mackellar v. Bond .... .. (1884)
Mackenzie v. Bilbrough . . . . [1906]
MacNaught v. Caledonian Hotel [1938]
Macrae v. Nat. Bank of S. A. [1927]
Madrassa v. Johannesburg
Munic [1917]
Maharaj v. Maharaj . . . . [1938]
Malcolm v. Malcolm . . . . [1926]
Male, ex parte (1910)
Mandelkoorn v. Strauss . . . . [1942]
Mann v. Mann [1918]
Manning & Wax v. Heathcote's
Trustee [1915]
Manton v. Manton (1909)
Mapenduka v. Ashington . . [1919]
Marais v. Andrews [1914]
Marais v. Commercial General
Agency Ltd [1922]
Maraisburg Div. Council v.
Wagenaar
Marcus v. Stamper & Zouten-
dijk
Mare v. Grobler N. O
Marikar v. Marikar
Marikar v. Supramanian Chel-
liar
Maritz v. Pratley
Marks, ex parte
Marks, ex parte Est.
Marks, re Est.
Marks v. Laughton
Martens, ex parte
Martienssen, ex parte
Mason v. Bernstein
Mason & Co. v. Williams
Master, ex parte, The
Master, ex parte, The
Master, The v. African Mines
Corp. Ltd.
Master, The v. Castellani
Master, The v. Edgecombe's
Exors.
Master, The v. Ocean AccidenJ
Corp. Ltd. . . . . [1937]
Masters v. Central News . . [1936]
Matson v. Dettmar [1917]
[1923]
[1910]
[1930]
(1930)
(1943)
(1894)
[1926]
[1927]
[1921]
[1920]
[1928]
[1944]
(1897)
(1884)
[1906]
[1927]
[1907]
[1911]
A.D. 573
T.S. 553
1 O.K. 305
10 R. 537
9 App. Cas. 715
T.H. 116
T.P.D. 577
A.D. 62 . .
A.D. 718
N.P.D. 128
C.P.D. 235
20 C.T.R. 941 . .
C.P.D. 493
C.P.D. 89
E.D.L. 81.. ..
30 N.L.R. 387
A.D. 343
T.P.D. 290
T.P.D. 440
C.P.D. 94
A.D. 58 . .
T.P.D. 632
32 Ceylon N.L.R.
43 Ceylon N.L.R.
11 S.C. 345
T.P.D. 1 . .
T.P.D. 316
T.P.D. 180
A.D. 12 . .
N.P.D. 323
C.P.D. 139
14 S.C. 504
5 N.L.R. 168 . .
T.S. 563
T.P.D. 117
T.S. 925
T.P.D. 763
.. 264
.. 333
10, 248
.. 335
.. 316
.. 249
.. 431
.. 257
.. 337
. . 452
.. 87
.. 67
165, 166
.. 340
.. 119
.. 59
.. 205
.. 319
.. 299
.. 328
.. 294
.. 435
111 340
409 259
218, 220
.. 388
.. 388
.. 374
.. 231
.. 377
.. 90
.. 431
.. 429
.. 132
.. 110
.. 183
37
[1910] T.P.D. 263 117, 118, 353
C.P.D. 302
C.P.D. 388
E.D.L. 371
354
345
429
xlvi
TABLE OF CASES
Matthews v. Young
Maxwell & Earp v. Est. Dreyer
Maynard v. Usher
Mazista Slate Quarries Ltd. v.
Oosthuizen
McAlpine v. Celliers
McCabe v. Burisch
McCalgan, In re
McCalman v. Thorne
McCarthy v. Newton & Zeeder-
burg
McCullogh v. Fernwood Estate
Ltd
McCullough v. Ross
McCullough & Whitehead v.
Whiteaway & Co
McDaid v. De Villiers
McGee v Mignon
McGill v. McGill
McGregor v. S. A. Breweries
Ltd
McGregor's Trustees v. Silber-
bauer
Mclntyre v. Goodison
Mclntyre v. Johnston
McKabe v. Moore
McKay Bros. v. Eaglestone
McKenzie v, Bloemfontein Town
[1922] A.D. 492
(1908) 25 S.C. 723
(1845) 2 Menz. 170
[1943] T.P.D. 28
[1921] E.D.L. 112
[1930] T.P.D. 261
(1893) 10 S.C. 277
[1934] N.P.D. 86
(1861) 4Searle 64
[1920] A.D. 204 . .
[1918] C.P.D. 389
[1914] A.D. 599
[1942] C.P.D. 220
[1903] T.S. 89 . .
[1926] N.P.D. 398
[1919] W.L.D. 22
(1891) 9 S.C. 36
[1877] Buch. 83
(1895) 2 Off. Rep. 202.
[1909] E.D.C. 161
[1932] T.P.D. 301
324, 333, 341
98, 99
. 160
.. ..177
.. ..218
.. 262,264
.-. .. 360
. . . . 52
.. ..379
443, 444, 445
. 426
Council
McKenzie v. Farmers Co-op.
Meat Indust. Ltd
McKenzie v. Van der Merwe
McLaughlin v. Koenig . .
McLean v. Murray
McLoughlin N. O. v. Turner .
McNaught v. McNaught ' .
Meenadchipillai v. Sanmugam
Mehnert v. Morrison
Meintjes' Est., ex parte . .
Meintjes v. Oberholzer . .
Meintjes v. Wilson
Meiring v. Meiring's Exors.
[1904] O.R.C. 83
[1922] A.D. 16 . .
[1917] A.D. 41 . .
[1928] C.P.D. 102
[1923] A.D. 406
[1921] A.D. 537
[1937] W.L.D. 103
(1916) 19N.L.R. 209
[1935] T.P.D. 144
(1907) 17 C.T.R. 451
(1859) 3 Searle 265
[1927] O.P.D. 183
204
299
234
87
427
247
429
306
59
195
341
214
339
339
344
237
94
328
338
183
177
142
[1878] Buch. 27; 3 Roscoe 6 358
Meiya Nona v. Davith Vedarala (1928) 31 Ceylon N.L.R. 104 377
Melck,Exor. of Burger u.David (1840) 3 Menz. 468 .. ..145
Mellish v. The Master
Merrington v. Davidson
Meyer v. Botha & Hergenroder
Meyer v. Glendinning
Meyer v. Jockie
Meyer v. Merchants Trust Ltd. [1942] A.D. 244
[1940] T.P.D. 271 .... 366
(1905) 22 S.C. 148 .. .. 220
(1882) 1 S.A.R. 47 .. 200,202
[1938] C.P.D. 84 . . . . 165
1944(2)P.H.,J14[E.D.L.].. 266
Meyer v. Rudolph
Meyer v. Rudolph's Exors.
[1917] N.P.D. 159
[1918] A.D. 70 . .
221
.. 288
288, 292
TABLE OF CASES
xlvii
Meyerowitz v. Annetts . . . . [1937] N.P.D. 140
. . . . 261
Meyer's Exors. v. Gericke . . (1880) Foord 14
. . 341,447
Meyer's Exors. «. Meyer's Exors. [1927] T.P.D. 331
. . ..396
Mfunda v. Brammage . . . . [1913] N.P.D. 477
. . ..234
M'Guni v. M'Twali . . . . [1923] T.P.D. 368
. . ..327
Michelsen v. Aaronson & Baikie [1914] T.P.D. 158
. . ..435
Middellandsche Nationale Pers
v. Stahl [1917] A.D. 630
. . ..344
Middler v. Hamilton . . . . [1923] T.P.D. 441
. . . . 344
Miller, ex parte [1922] W.L.D. 105
. . ..359
Miller v. Abrahams . . . . [1918] C.P.D. 50
. . ..335
Miller v. Attwell [1927] C.P.D. 150
. . ..386
Miller v. De Bussy [1904] T.S. 655
. . . . 285
Miller v. Harris [1912] C.P.D. 203
. . ..166
Miller v. Miller [1925] E.D.L. 120
. . . . 90
Miller v. Miller [1940] C.P.D. 466
43, 65
Mills & Sons v. Benjamin Bros."
Trustees [1876] Buch. 115
. . ..247
Milner v. Webster [1938] T.P.D. 598
. . ..279
Mitchell v. Maison Libson . . [1937] T.P.D. 13
. . ..325
Mitchell v. Mitchell . . . . [1922] C.P.D. 435
88, 89
Mitchell v. Mitchell . . . . [1930] A.D. 217
. . 61,105
Mitchell Cotts & Co. v. Commr.
of Railways [1905] T.S. 349 . .
. . ..253
Mkize v. Martens [1914] A.D. 382 . .
. . ..339
Moffat v. Rawstorne . . . . [1927] T.P.D. 435
. . ..431
Moffat v. Towyz & Co [1918] E.D.L. 316
. . ..269
Mofuken v. Mtembu . . . . [1929] W.L.D. 82
. . . . 52
Mogamat Jassiem v. The
Master (1891) 8 S.C. 259
. . . . 34
Mograbi v. Mograbi . . . . [1921] A.D. 274
. . . . 68
Mohamad v. Eastern Bank . . (1931) 33 Ceylon N.L.
R. 73 191
Molepo v. Achterberg . . . . [1943] A.D. 85 . .
. . 333,344
Molyneuxv. Natal Land Etc. Co. (1903) 24N.L.R. 259;
[1905]
A.C. 555;
(1905)
26 N.L.R.
423 . . 120
Momololo's Exor. v. Upini v. . [1919] A.D. 58 . .
. . ..368
Momsen v. Mostert (1881) 1 S.C. 185
. . . . 447
Moolman, ex parte [1903] T.S. 159 . .
. . - . . 45
Moolman v. Cull [1939] A.D. 213
. . 332, 333
Moolman v. Erasmus . . . . [1910] C.P.D. 79
. . . . 46
Moolman v. Est. Moolman . . [1927] A.D. 133
. . 377,378
Moorrees' Est. v. Board of
Exors [1939] A.D. 410
. . . . 379
Moosa v. Duma [1944] T.P.D 30 . .
. . . . 344
Moosa v. Mahomed .. .. [1939] T.P.D. 271
. . ..318
Morisset v. Brochu (1883) 10 Quebec L.R
. 104 219
Morkel v. Holm (1882) 2 S.C. 57 . .
. . ..249
Morrison v. Standard Building
Soc. [1932] A.D. 229 . .
. . ..122
Morton v. Morton [1934] C.P.D. 51
. . . . 87
Morum Bros. v. Nepgen . . [1916] C.P.D. 392
. . . . 435
xlviii
TABLE OF CASES
Moses v. Moses
Moss v. Moss
Mostert v. Mostert
Mostert v. The Master
Mostert's Trustee v. Mostert . .
Motan v. Joosub
Moti & Co. v. Cassim's Trustee
Mouton, ex parte
Mouton v. Becket
Mowbray v. Syfret . . . .
Mowlem v. Morris
Mshwakezele v. Guduka
Mtembu v. Webster
Mulholland v. Smith
Muller v. Chadwick & Co.
Muller v. Muller
Muller v. Muller
Mulligan v. Mulligan
Mulock-Bentley v. Curtoys . .
Murchie v. Murchie
Murison v. Murison
Murphy v. London & S. A. Ex-
ploration Co
Murray's Est., In re, ex parte
Mulheam
Muttiah Chetty v. Ukkurala
Korala
Muttunayagam v. Brito
Muttunayagam v. Senathiraja
Mutual Life Ins. Co. of N.Y.
v. Hotz
[1935] C.P.D. 24
.. 94
[1897] P. 263 . .
. . 33
(1854) 2 Searle 128
.. 89
[1878] Buch. 83 ..
.. 61
(1885) 4 S.C. 35 .. ..
.. 61
[1930] A.D. 61 . .
.. 43
[1924] A.D. 720 ..
20, 316
[1929] T.P.D. 406
.. 85
[1918] A.D. 181 ..
.. 339
[1935] A.D. 199 ..
.. 338
[1930] E.D.L. 83. . ..
.. 264
(1903) 18 S.C. 167
.. 135
(1904) 21 S.C. 323
.. 226
(1910) 10 H.C.G. 333
.. 328
[1906] T.S. 30 27, 187,
433, 434
[1929] W.L.D. 161 . .
.. 92
[1941] C.P.D. 332
.. 87
[1925] W.L.D. 178 . .
.. 291
[1935] O.P.D. 8 . .
. . 335
[1923] S.R. 116 .. ..
.. 89
[1930] A.D. 157 ..
.. 89
(1887) 5 S.C. 259
.. 302
(1901) 18 S.C. 213 '..
.. 392
(1925) 27 Ceylon N.L.R. 336 353
[1918] A.C. 895 77
(1926) 28 Ceylon N.L.R. 353 275
Nahass, ex parte
Narunsky, ex parte
Nasionale Pers Bpkt. v. Long
Natal Bank v. Kuranda
Natal Bank v. Rood's Heirs . .
Natal Land & Colonization Co.
v. Pauline Colliery Syn-
dicate
Natal Trading Co. v. Inglis . .
National Acceptance Co. v.
Robertson
National Bank of S. A. v.
Cohen's Trustee
National Bank of S. A. v. Leon
Levson Studios
National Bank of S. A. v. Marks
& Aaronson
[1911] A.D. 556 .. . . 254, 445
N
[1939] C.P.D. 173 . . . . 61
[1922] O.P.D. 32 247
[1930] A.D. 87 345
[1907] T.H. 155 .. . . 10, 259
[1909] T.S. 243; [1910] A.C.
570 ; [1910] T.P.D. 1360 97, 393
[1904] A.C. 120; 25 N.L.R. 1 444
[1925] T.P.D. 724 . . . . 340
[1938] C.P.D. 175
.. 316
[1911] A.D. 235 187, 190, 191,
192, 200, 251, 275
[1913] A.D. 213 261
[1923] T.P.D. 69 . . 250, 275
TABLE OF CASES
National Butchery Co. v. Afri-
can Merchants
National Meat Suppliers (Pty)
Ltd. v. C. T. City Council
Naude v. Harrison
Naude & Du Plessis v. Mercier
Naude, N. O. v. Transvaal Boot
& Shoe Co.
Neale v. Neale
Neilson v. Mahoud
Nel, ex parte
Nel, ex parte
Nel v. Divine Hall & Co.
Nelson v. Currey
Nelson v. Nelson's Est
Nestadt v. Hope
Neugebauer & Co. v. Hermann
Neville v. Flasket
Newberry, ex parte
Newmark Ltd. v. Cereal Manu-
facturing Co
Newood v. Newood
Newstead v. London Express
Newspaper Ltd
Niekerk v. Niekerk
Nieman v. Scrivenor, N.O.
Nieuwoudt v. Slavin
Niewenhuis v. Schoeman's Est.
Nino Bonino v. De Lange
Nolte v. Johannesburg Consol.
Investment Co.
Nooitgedacht, In re
Norden v. Oppenheim
Northmore v. Meyapulle
Northmore v. Scala Cinemas
(Pty) Ltd
N.W. Bank v. Poynter
North Western Hotel Co. v.
Rolfes, Nebel & Co.
Norton v. Spooner
Nosworthy v. Yorke
Nourse v. Malan
Nurok v. Nurok's Exors.
Nyokana v. Nyokana
[1907] E.D.L. 57.. ..
[1938] C.P.D. 498
[1925] C.P.D. 84
[1917] A.D. 32 .. ..
[1938] A.D. 379 .. ..
(1903) 20 S.C. 198
[1925] E.D.L. 26.. ..
[1929] N.P.D. 240
[1941] C.P.D. 314
(1890) 8 S.C. 16 .. ..
(1886) 4 S.C. 355 362,
[1932] C.P.D. 395
[1928] W.L.D. 31
[1923] A.D. 564 ..
[1935] C.P.D. 115
[1924] O.P.D. 219
[1921] C.P.D. 52
[1939] C.P.D. 414
[1940] 1 K.B. 377
(1830) 1 Menz. 452 ..
[1922] O.P.D. 101
(1896) 13 S.C. 58
[1927] E.D.L. 266
[1906] T.S. 120 ..
[1943] A.D. 295 ..
(1902) 23 N.L.R. 81 . .
(1846) 3 Menz. 42
(1864) Ramanathan 95
[1936] T.P.D. 280
[1895] A.C. 56 . .
xlix
.. 450
.. 342
.. 229
.. 340
.. 325
.. 92
.. 168
376, 377
.. 388
47, 422
372, 374
.. 378
.. 432
240, 294
.. 274
.. 182
.. 294
.. 87
.. 331
.. 116
198, 199
.. 309
.. 240
165, 238
.. 186
.. 49
.. 333
.. 433
.. 261
. 201
[1902] T.S. 324 .. .... 304
(1854) 9 Moo. P.C.C. 103 .. 336
[1921] C.P.D. 404 . . . . 318
[1909] T.S. 202 .. . . 298, 299
[1916] W.L.D. 125 . . . . 360
[1925] N.P.D. 227 . . . . 63
O
Oak v. Lumsden (1884) 3 S.C. 144
Obermeyer's Est. v. Wolhuter's
Est. [1928] C.P.D. 32
O'Brien v. O'Brien [1938] W.L.D. 221
4901
316
282
88
1
O'Callaghan N. O. v. Chaplin
O'Callaghan's Assignees v. Cav-
anagh
Ochberg v. Ochberg's Est.
Odendaal, ex parte
Odendaal, ex parte
Odendaal, ex parte Est
Odendaal v. Du Plessis
Odendaal v. Registrar of Deeds
Ogle v. Ogle
Ohlsson's Cape Breweries v.
Cossey
Ohlsson's Cape Breweries v.
Thompson
Olifant's Vlei G. M. Co. v. Wolff
Oliphant, ex parte
Oliver v. Matzner
Olivier v. Paschke
Olufsen v. Fielder
Omar v. Sahib
Oosthuizen v. Oosthuizen's Est.
Oosthuizen v. Stanley
Oosthuysen v. Oosthuysen
Orangezicht Estates Ltd. v.
Cape Town Town Council
Orford, ex parte
Orlandini, ex parte
Orsmond v. Van Heerden
Osry v. Hirsch, Loubser & Co.
Otto v. Otto
Oudtshoom Town Council v.
Smith
Owen v. Fine ,
[1927] A.D. 310 .. . . 10, 338
(1882) 2 S.C. 122 .. .. 190
[1941] C.P.D. 15 .. 41,422
[1926] O.P.D. 223 . . . . 380
[1928] O.P.D. 218 . . . . 388
[1933] O.P.D. 122 . . . . 378
[1918] A.D. 470 274
[1939] N.P.D. 327 . . . . 161
[1910] N.P.D. 87 .... 89
[1905] T.H. 16 449
(1901) 11 C.T.R. 275
(1898) 15 S.C. 344
[1940] C.P.D. 537
[1942] T.P.D. 324
[1928] S.W.A. 116
[1930] N.P.D. 260
(1907) 28 N.L.R. 625
[1903] T.S. 688 . .
[1938] A.D. 322 . .
[1868] Buch. 51 ..
(1906) 23 S.C. 297
[1920] C.P.D. 367
[1931] O.P.D. 141
[1930] T.P.D. 723
[1922] C.P.D. 531
[1930] W.L.D. 251
.. ..178
.. ..313
.. ..330
.. ..173
.. ..262
.. ..427
.. 166
.. ..307
43, 329 ,330
.. ..353
.. ..154
. . . . 74
.. ..376
.. ..304
.. ..206
88
[1911] C.P.D. 558 .. .. 276
1943(1)P.H., B.34[W.L.D.] 59
Paiges v. Van Ryn Gold Mines
Est. Ltd
Palipane v. Taldena
Papendorp, ex parte
Parak v. Reynhardt & Co.
Paramanathan v. Saravana-
muttu
Parampalam v. Arunachalam
Parker v. Est. Fletcher
Parker v. Reed
Paruk v. Glendale Est. Co. . .
Pate v. Pate
Paterson, ex parte Est
Paterson's Exors. v. Webster,
Steel & Co
Pathescope Union of S. A. v.
Mallinick .
[1920] A.D. 600 250
(1929) 31 Ceylon N.L.R. 196 378
[1932] C.P.D. 167 .... 71
[1930] N.P.D. 254 . . . . 200
(1928) 30 Ceylon N.L.R. 188 395
(1927) 29 Ceylon N.L.R. 289 291
[1932] C.P.D. 202 . . . . 355
(1904) 21 S.C. 496 .. .. 10
[1924] N.P.D. 1 206
[1915] A.C. 1100 .. ..312
[1942] C.P.D. 541 .... 97
(1881) 1 S.C. 350 .. .. 247
[1927] A.D. 292 230
TABLE OF CASES
Paton v. Paton
Patz v. Salzburg
Payn v. Lokwe . .
Peacock v. Hodges
Pearce v. De Jager
Peard v. Rennie &
Pearl Assurance Co.
Govt.
Pearl Assurance Co. v. Govt. of
the Union of S. A.
[1929] T.P.D. 776
[1907] T.S. 526 ..
[1912] E.D.L. 33. .
.. 59
.. 238
. . 449
;es
;er
& Sons
Co. v. Union
[1876] Buch. 65 ..
[1924] C.P.D. 455
(1895) 16 N.L.R. 175
[19331 A.D. 277 .
168, 169
.. 318
.. 216
. 268
[1934] A.C. 570; [1934] A.D.
560 . 268
Pedris v. Batcha
(1924) 26 Ceylon N.L.R.
89 153
Peiris v. Village Committee,
Paluwa
(1938) 40 Ceylon N.L.R.
54 169
Pentecost v. Cape Meat Supply
Co
[1933] C.P.D. 472
. . 282
Pentz v. Col. Govt
(1891) 8 S.C. 34 ..
. . 166
Pepler v. Liebenberg
[1928] C.P.D. 266
.. 432
Perera v. Perera
[1901] A.C. 354 ..
.. 363
Perera v. Silva
(1935) 37 Ceylon N.L.R.
157 193
Perera v. Sobana
(1884) 6 Ceylon S.C.C. 6
I . . 165
Perera v. Tissera
(1933) 35 Ceylon N.L.R.
257 234
Peria Carpen v. Herft
(1886) 7 S.C.C. 182 ..
.. 259
Perlman v. Zoutendyk
[1934] C.P.D. 151
.. 325
Peters, Flamman & Co. v. Kok-
stad Municipality
[1919] A.D. 427 ..
.. 280
Petersen v. Jajbhay
[1940] T.P.D. 182
.. 236
Petersen Ltd. v. Inag African
Industrial Co
[1934] C.P.D. 141
.. 275
Pettersen v. Yates
[1928] N.P.D. 453
..317
Pharo v. Stephan
[1917] A.D. 1 . .
.. 129
Pheasant v. Warne
[1922] A.D. 481 ..
119,220
Philip v. Metropolitan Ry. Co.
(1893) 10 S.C. 52
.. 448
Philips v. Brooks
[1919] 2 K.B. 243
.. 230
Philips Ltd. v. Vermouth
[1932] C.P.D. 377
.. 319
Phillips (Est.) v, Comm. for
Inland Revenue
[1942] A.D. 35 . .
97, 289
Phillips v. Hearne & Co.
[1937] T.P.D. 61
.. 195
Phillips v. S. A. Ind. Order of
Mechanics
[1916] C.P.D. 61
.. 153
Phillips & Gordon v. Adams . .
[1923] E.D.L. 104
.. 198
Philpott v. Whittal, Elston &
Crosby & Co
[1907] E.D.C. 193
.. 339
Pienaar v. Pienaar's Curator
[1930] O.P.D. 171
.. 119
Pieters & Co. v. Salomon
[1911] A.D. 138 .. ..
.. 220
Pieterse, N. O., ex parte
[1933] S.W.A 4 . .
.. 362
Pistorius, ex parte
[1920] T.P.D. 297
.. 182
Pleat v. van Staden
[1921] O.P.D. 91.. ..
41, 422
Pocklington v. Cowey & Son
(1885) 6 N.L.R. 118 . .
.. 429
Podisingho v. Jaguhamy
(1923) 26 Ceylon N.L.R.
87 161
Polemis, In re
[1921] 3 K.B. 560
.. 342
Policansky Bros. v. Policansky
[1935] A.D. 39 . .
.. 337
Hi
TABLE OF CASES
Port Elizabeth Harbour Board
v. Makie, Dunn & Co.
Post v. Post
Postmaster-General v. Van Nie-
kerk
Potgieter v. Bellingan
Potgieter v. Zietsman
Potter & Potter v. Rand Town-
ships Registrar
Poulett Peerage Case . .
Poynton v. Cran
Preston v. Luyt
Pretoria Hebrew Congregation
Trustees, ex parte
Pretoria Munic. v. Bon Accord
Irrigation Board
Pretoria Munic. v. Esterhuizen
Pretorius, ex parte
Pretorius v. African Gate &
Fence Works Ltd
Pretorius v. Hack
Pretorius v. Van Zyl
Priest v. Charles
Princess Est. v. Registrar of
Mining Titles
Prinsloo's Curators v. Crafford
Provincial Admin. (O.F.S.) v.
John Adams & Co
Pugh v, Pugh
Pulle v. Candoe
Pulle v. Pulle
Punchi Banda v, Perera
(1897) 14S.C. 469
[1931] N.P.D. 117
[1918] C.P.D. 378
[1940] E.D.L. 264
[1914] E.D.L. 32..
[1945] A.D. 277 . .
[1903] A.C. 395 . .
[1910] A.D. 205
[1911] E.D.L. 298
[1922] T.P.D. 296
[1923] T.P.D. 115
[1928] T.P.D. 678
[1920] T.P.D. 297
[1939] A.D. 571 . .
[1925] T.P.D. 643
[1927] O.P.D. 226
[1935] A.D. 147 . .
[1911] T.P.D. 1066
[1905] T.S. 669 . .
. 221
.. ..319
.. ..641
.. ..185
.. ..289
. . . . 32
272, 302, 303
.. ..333
.. ..291
. . . . 155
.. ..339
. . . . 99
. . . . 326
. . 65, 432
.. ..346
.. ..243
,. ..392
53,95, 119
[1929] O.P.D. 29 130
[1910] T.S. 792 93
(1875) Ramanathan, 1872-6,
p. 189 . . . . 259
(1893) 2 Ceylon S.C.R. 105 353
(1928) 30 Ceylon N.L.R. 355 143
Quadling v. Quadling
Queen v. Koning
Queenstown Assurance Co.
Wood's Trustee
Q
[1937] N.P.D. 319
(1900) 17 S.C. 541
(1887) 5 S.C. 327
88
47
199
Rabot v. Da Silva
Radlof v. Ralph
Rainforth v. Brown
Ramalingam v. Ramalingam
Rama Narotam v. Natha Dul-
labh .. ..
Ramanathan v. Saleem
Rampersad v. Goberdun
R
[1909] A.C. 376 .. . . 28, 54
[1917] E.D.L. 168 .... 52
[1937] S.R. 269 215
(1933) 35 Ceylon N.L.R. 174
87,89
[1914] N.P.D. 227 . . . . 314
(1940) 42 Ceylon N.L.R. 80 392
[1929] N.P.D. 32
168, 169, 177, 342
TABLE OF CASES
liii
Rand Furnishing Co. v. Hey-
denrych [1929] T.P.D. 583
.. ..195
Rapson v. Putterill . . . . [1913] A.D. 417 . .
.. ..363
Ras v. Vermeulen [1927] O.P.D. 5 . .
.. ..307
Raubenheimer v. Exors. of Van
Breda .. .... .. (1880) Foord 111
.. ..406
Read v. Pyper [1935] S.W.A. 16
.. ..344
Receiver of Revenue, Pretoria,
v. Hancke [1915] A.D. 64 . .
347, 363, 393
394, 395
Reddy v. Chinasamy . . . . [1932] N.P.D. 461
. . . . 70
Reddy v. Durban Corporation [1939] A.D. 293 . .
.. ..341
Redgrave v. Hurd (1881) 20 Ch.D. 1.
.. ..231
Reed Bros. v. Ford . . . . [1923] T.P.D. 150
138,
197,198,319
Reeders & Wepener v. Johannes-
burg Town Council . . [1907] T.S. 647 . .
.. ..308
Reed's Trustee v. Reed . . . . (1885) 5 E.D.C. 23
.. ..204
Reese v. Registrar of Deeds . . [1938] C.P.D. 459
.. ..380
Registrar of Deeds (Natal) v.
Est. Shaw [1928] A.D. 425 . .
.. ..354
Reid v. Admors. Est. Reid . . [1932] W.L.D. 30
. . . . 355
Reid & Co. v. Federal Supply Co. (1907) 24 S.C. 102
.. ..303
Reinhold & Co. v. Van Oudt-
shoorn [1931] T.P.D. 382
.. ..195
Reis v. Gilloway's Exors. . . (1834) 1 Menz. 186
. . . . 72
Reioomel v. Ramsay . . . . [1920] T.P.D. 371
67,
430, 431, 432
Rens, In re , . (1880) Foord 92
.. ..105
Retief v. Hamerslach .. .. (1884) 1 S.A.R. 171
.. ..433
Retief v. Louw [1874] Buch. 165
. . . . 155
Reuter v. Yates [1904] T.S. 855 . .
.. ..258
Rex v. Blaauw [1934] S.W.A. 3 . .
. . 423
Rex v. Christian [1924] A.D. 101 . .
. . . . 14
Rex v. Detody [1926] A.D. 198 . .
.. .. 10
Rex v. Gillett [1929] A.D. 364 . .
.. ..240
Rex v. Fitzgerald [1926] N.P.D. 445
. . . . 42
Rex v. Harrison [1922] A.D. 320 . .
. . 8, 9, 27
Rex v. Mabula [1927] A.D. 159 . .
.. .. 132
Rex v. Nel [1921] A.D. 339 . .
.. ..214
Rex v. Paterson [1907] T.S. 619 . .
. . . . 423
Rex v. Sacks [1943] A.D. 413 . .
8, 27
Rex v. Seebloem [1912] T.P.D. 30
.. ..236
Rex v. Stamp (1878) 1 Kotz<§ 63
.. ..304
Rex v. Zillah .. [1911] C.P.D. 643
.. ..304
Reyne, Est. v. Reyne . . . . [1930] O.P.D. 80. .
.. ..119
Reyneke v. Reyneke . . . . [1927] O.P.D. 130
33, 96
Rhode v. Minister of Defence [1943] C.P.D. 40
. . . . 48
Rhodesia Rlys. v. Comm. of
Taxes [1925] A.D. 438 ..
.. ..312
Richards, Slater & Co. v. Fuller
& Co (1880) 1 E.D.C. 1
.. ..261
liv
TABLE- OF CASES
Richmond v. Chadwick
Richter v. Du Plooy
Richter v. Mack
Richter v. Transvaal Govt. . .
Richter v. Wagenaar
Ridler v. Gartner
Ridley v. Marais
Ritchken's Exors. v. Ritchken
Robb v. Mealey's Exor
Robert v. Ettlinger
Roberts v. Booy
Roberts & Letts v. Fynn
Robinson, In re
Robinson v. Randfontein Ests.
G. M. Co
Robinson v. Randfontein Ests.
G. M. Co
Roddy v. Ohlsson's Breweries
Roff & Co. v. Mosely . .
Rolfes, Nebel & Co. v. Zweigen-
haft
Rood v. Wallach
Roodepoort &c. G. M. Co. v.
Du Toit
Roorda v. Cohn
Rooth v. The State . .
Roscoe, ex parte
Rose v. Brewer
Rose & Frank Co. v. Crompton
Rosen v. Rand Townships
Rosenbaum v. Margolis
Rosenberg v. Dry's Exors.
Rossiter v. Barclay's Bank . .
Rowe v. Rowe
Rowel Mudaliyar v. Pieris
Royston v. Radebe
Rubens v. Rubens
Rubidge v. McCabe
Rubin v. Botha
Rudolph v. Lyons
Ruperti's Trustee v. Ruperti . .
Russell v. Russell
Russo, In re
Rutowitz's Flour Mills v. The
Master
Ryan v. Mutual Tontine Assoc.
Ryan & Burton v. Thornton
Rykclief's Heirs v. Rykclief's
Exors
Rylands v. Fletcher
N.P.D. 92
O.P.D. 117
A.D. 201 . .
T.S. 146 . .
1 Menz. 262
T.P.D. 249
A.D. 5
W.L.D. 17
16 S.C. 133
W.L.D. 28
4 E.D.C. 22
A.D. 23 . .
1 Roscoe 411
329, 342
. . 135
.. 344
.. 316
31,52
.. 173
.. 447
.. 43
.. 359
.. 191
.. 259
.. 434
. 455
[1921] A.D. 168
215, 223, 226, 300, 441
[1925] A.D. 173 .
[1907] T.S. 125 .
[1925] T.P.D. 101
[1903] T.S. 185 .
[1904] T.S. 187 .
.. ..239
.. ..339
.. ..234
253, 308, 309
. 226
[1928] A.D. 66 204
[1903] T.H. 279 227
(1888) 2 S.A.R. 259 . . 217, 218
[1938] C.P.D. 126 .... 93
[1933] C.P.D. 49 . . . . 344
[1923] 2 K.B. 261 . . . . 223
[1939] W.L.D. 5 . . . . 133
1944(1)P.H.,B. 33[W.L.D.] 336
[1911] A.D. 679 .. .. 347,395
[1933] T.P.D. 375 .... 37
[1922] W.L.D. 43 .... 87
(1895) 1 Ceylon N.L.R. 81. . 129
[1914] A.D. 430 227
(1909) 26 S.C. 617 .. .. 95
[1913] A.D. 433 169
[1911] A.D. 568 .. .. 307,452
[1930] T.P.D. 85 . . . . 241
(1885) 4 S.C. 22 .. .. 81, 197
[1924] A.C. 687 32
(1896) 13 S.C. 185 .... 34
[1934] T.P.D. 163 . . . . 318
[1893] 1 Ch. 116 .... 270
[1912] E.D.L. 168 . . . . 259
(1896) 13 S.C. 64 .. ..387
(1868) L.R. 3 H.L. 330 153, 338
TABLE OF CASES
Iv
Sabapathi v. Huntley
Sabapathy v. Mohamed Yoosuf
Sadhananda Terunanse v. Sum-
anatissa
Sadie, ex parte
Sadie v. Standard Bank
St. Leger v. Town Council of
Cape Town
St. Marc v. Harvey
Sakazi v. Gurr
Salisbury Munic. v. Jooala f .
Sallis v. Jones
Salmon v. Lamb's Exor.
Salonchi v. Jayatu
Salz v. Waiggowsky
Salzmann v. Holmes
Samaradiwakara v. De Saram
Samarasinghe v. Chairman V. C.
Matara
Sained v. Segutamby
Saminathan Chetty v. Van der
Poorten
Sampson v. Union & Rhodesia
Wholesale Ltd
Sandeman v. Solomon
Sandilands v. Tompkins
Sandier v. Wholesale Coal Sup-
pliers Ltd
Sandrasegra v. Sinnatamby . .
Sangaramorthy v. Candappa
Saram v. Thiruchelvam
Sather v. Orr . . . . .» . .
Sauerlander v. Townsend
Sauerman v. English & Scottish
Law Life Assurance Assoc.
Sauerman v. Sauerman
Savory v. Baldochi
Scharff's Trustee v. Scharff . .
Scheidel v. The Master
Schein v. Joubert
Schein v. Schein
Scheuble, ex parte
Schierhout v. Min. of Justice . .
Schierhout v, Min. of Justice . .
Schierhout v. Union Govt.
Schlengemann v. Meyer, Brid-
gens & Co.
(1937) 39 Ceylon N.L.R. 396 332
(1935) 37 Ceylon N.L.R. 70 392
(1934) 36 Ceylon N.L.R. 422 121
[1940] A.D. 26 386
(1889) 7 S.C. 87 .. .. 294,295
(1895) 12 S.C. 249
.. 171
(1893) 10 S.C. 267
.. 239
[1906] T.S. 303 ..
.. 314
[1911] A.D. 178 .. ..
.. 154
[1936] P. 43 . .
.. 373
[1906] E.D.C. 351
177, 178
(1926) 27 Ceylon N.L.R.
366 377
[1919] W.L.D. 90
.. 81
[1914] A.D. 471 .. ..
.. 344
[1911] A.C. 753 .. ..
.. 385
(1932) 34 Ceylon N.L.R. 39 169
(1924) 25 Ceylon N.L.R. 481 28
(1932) 34 Ceylon N.L.R. 307 205
[1929]
(1907)
[1912]
[1941]
(1923)
(1932)
(1945)
[1938]
[1930]
(1898)
[1928]
[1907]
[1915]
[1936]
[1903]
[1924]
[1918]
[1925]
[1926]
[1926]
A.D. 468; [1933] A.C.
178 218,229,231,250
28 N.L.R. 140 235, 242
A.D. 171 337
A.D. 194 .... . . 267
25 Ceylon N.L.R. 139 178
33 Ceylon N.L.R. 361 395
46 Ceylon N.L.R. 145 355
A.D. 426 332
C.P.D. 55 . 296
15 S.C. 84
C.P.D. 20
T.S. 523 . .
T.P.D. 463
C.P.D. 287
T.S. 428 . .
W.L.D. 283
T.P.D. 158
A.D. 417 . .
A.D. 99 . .
A.D. 286 .
[1920] C.P.D. 494
.. 267
.. 88
.. 197
.. 143
.. 395
.. 450
.. 149
.. 372
.. 238
237, 449
250, 275
. 280
Ivi
TABLE OF CASES
Schnaar v. Jansen
Schneier & London Ltd. v.
Bennett
Schoeman v. Olivier
Schoeman v. Rafferty
Scholtz v. Faifer
Schultz v. Schultz
Schultz, N. O. v. Meyerson . .
Schuster v. Guether
Schutte v. Meyer's Assignee . .
Scott v. Sebright
Scott v. Sytner
Scriven v, Hindley
Scrutton v. Ehrlich
Seaville v. Colley
Secretary for Lands v. Jerome
Secretary, S. A. Assoc. v.
Mostert
Seedat's Exors. v. The Master
(Natal)
Segal v. Mazzur
Seggie v. Philip Bros
Sellar Bros. v. Clark
Sellasamy v. Kaliamma
Selohamy v. Goonewardene . .
Senekal, ex parte
Sercombe ^.Colonial MotorsLtd.
Serfontein v. Rodrick
Serrurier v. Langeveld
Shakinovsky v. Lawson
Shapiro v. Kotler & Rabinowitz
Shapiro v. Yutar
Sharp v. Dales
Sharp's Est. v. Scheepers
Shearer v. Shearer's Exors. . .
Sheffield v. Hart
Sher v. Allan
Shill v. Milner
Short, ex parte
Shorter & Co. v. Mohamed
Sichel v. de Wet
Sikiti v. Foley
Silberbauer v. Van Breda
Silbereisen Bros. v. Lamont . .
Silberman v. Hodkinson
Silke v. Goode
Sills, ex parte
Silva v. Balasuriya
Silva v. Mahammadu
[1924] N.P.D. 218
[1927]
(1907)
[1918]
[1910]
[1928]
[1933]
[1933]
[1927]
(1886)
(1891)
[1913]
[1908]
(1891)
[1922]
T.P.D. 346
24 S.C. 759
C.P.D. 485
T.P.D. 243
O.P.D. 155
W.L.D. 199
S.W.A. 19
C.P.D. 371
12 P.D. 21
9 S.C. 50 . .
3 K.B. 564
T.S. 300 . .
9 S.C. 39 . .
A.D. 102 .
.. 52
. . 217
.. 34
.. 59
165, 198
.. 90
. . 229
.. 236
. . 202
.. 95
257, 258
.. 220
.. 221
10, 248
. 138
[1873] Buch. 31 393
[1917]
[1920]
[1915]
(1893)
(1944)
(1928)
[1934]
[1929]
(1903)
(1828)
[1904]
[1935]
[1930]
[1935]
[1919]
[1911]
[1903]
[1929]
[1937]
[1928]
(1937)
(1885)
[1929]
(1866)
[1927]
[1927]
[1911]
[1928]
(1911)
A.D. 302 . .
C.P.D. 634
C.P.D. 292
10 S.C. 168
44 Ceylon N.L.R
61 T.L.R.
(P.O.).. ..
30 Ceylon N.L.R.
T.P.D. 131
N.P.D. 58
O.R.C. 51
1 Menz. 316 . .
T.S. 326 ..
W.L.D. 60
C.P.D. 92
N.P.D. 392
C.P.D. 26
C.P.D. 813
T.H. 460 ..
O.P.D. 137
A.D. 101 ..
T.P.D. 155
39 Ceylon N.L.R.
5 E.D.C. 58 . .
E.D.L. 286
5 S. 231 . .
T.P.D. 382
T.P.D. 562
T.P.D. 989
E.D.L. 278
14 Ceylon N.L.R.
(1916) 19 Ceylon N.L.R.
.. 53
.. 260
298, 299
.. 314
.76;
99
.. 355
112 184
.. 388
.. 195
.. 366
.. 317
449, 450
.. 260
304, 310
.. 39
.. 272
.. 373
.. 305
215, 300
271, 450
377, 388
113 50
.. 80
.. 58
.. 155
.. 267
.. 47
.. 236
85,86
452
28, 333
426 50
TABLE OF CASES
Ivii
Silva v. Ratnayake . .
Silva v. Silva
Silverton Ests
Syndicate
Sim v. The Master
Simleit v. Cunliffe
Sinnan Chetliar v.
Sinnetamby Chett
Sipondo v. Nongauza
Sivarasipillai ?
Skead v. Cok
Trust Co.
Slabber's Trustee
Exor.
Slade, ex parte
Slez v. Slez
Sloman v. Berkovitz
Smart v. S.A.R.
Smiles' Trustee
Smit v. Jacobs
Smit v. Russouw
Smit v. Smit
Smith v. Bard
Smith v. Clarkson
Smith v. De Smidt
Smith v. Dierks
Smith v. Elmore
Smith v. Farrellj
Smith v. Howse
Smith v. Hughes
Smith v. Lawrence
Smith v, Martin's
Smith v. Mathey
Smith v. Philips
Smith v. Smith
Smith v. Smith
Smith v. Smith
Smith v. Smith
Smith's Est. v. I
Smith's Trustee
Smits v. Pienaar
Smuts, ex parte
Smuts' Est. v. E
Snyman v. Basse
Snyman v. Mugg
Solomon v. Du Preez
Solomon v. Jearey
Solomon v. Solomon
Solomon v. Solomon
Solomon v. Van Leg
Solomon v. Van Zijl
ake
(1935) 37 Ceylon N.L.R.
245 235
(1908) 1 1 Ceylon N.L.R.
161 288
Co. v. Bellevue
[1904] T.S. 462
269, 448
ber . .
[1913] C.P.D. 187
.. 359
le
[1940] T.P.D. 67
.. 90
v. Mohideen . .
(1939) 41 Ceylon N.L.R.
225 392
itty v. De Livera [1917] A.C. 534 .. . .
.. 451
rauza
[1927] E.D.L. 255
.. 59
Anthonypillai
(1937) 37 Ceylon N.L.R.
47 291
ial Banking &
[1924] T.P.D. 497
46, 49
ee v. Neezer's
(1895) 12 S.C.' 163
245, 288
[1922] T.P.D. 220
. . 373
[1913] W.L.D. 109
. . 94
>vitz
(1891) 12 N.L.R. 216
.. 242
[1928] N.P.D. 361 . .
.. 330
v. Smiles
[1913] C.P.D. 739
.. 206
[1918] O.P.D. 30.. ..
.. 52
7
[1913] C.P.D. 847
.. 170
[1909] T.S. 1067
94
[1917] C.P.D. 616
427, 432
>n . . ....
[1925] A.D. 501 ..
.. 366
idt
[1937] T.P.D. 8 . .
.. 338
(1884) 3 S.C. 142
194, 195
[1938] T.P.D. 18
.. 344
y's Trustee . .
[1904] T.S. 949 ..
191, 207
(1835) 2Menz. 163 ..
250, 276
3
(1871) L.R. 6 Q.B. 597
.. 220
ice
[1929] N.P.D. 132
. . 345
's Exor
(1899) 16 S.C. 148
. . 148
T
[1926] O.P.D. 31.. ..
.. 359
[1931] O.P.D. 107
.. 431
[1914] A.D. 257 ..
.. 151
[1936] C.P.D. 125
.. 33
[1937] W.L.D. 126 . .
.. 89
[1943] C.P.D. 50
.. 87
Sst. Follett . .
[1942] A.D. 364 ..
-.. 379
v. Smith
[1927] A.D. 482 ..
.. 288
•
[1928] T.P.D. 450
.. 238
[1914] C.P.D. 1034 . .
.. 85
1st. Rust
[1923] C.P.D. 449
.. 394
an, N. O.
[1915] T.P.D. 368
.. 353
rlestone
[1935] C.P.D. 565
.. 173
Preez
[1920] C.P.D. 401
.. 337
ey
[1921] C.P.D. 108
.. 259
tnon
[1927] W.L.D. 330 . .
.. 88
mon & Hanna
[1903] T.S. 460 ..
.. 59
Leggelo
[1938] T.P.D. 75
.. 333
Zijl . .
(1908) 25 S.C. 974
. . 310
ywardene
(1928) 30 Ceylon N.L.R.
295 378
Iviii
TABLE OF CASES
S. A. Assoc. v. Mostert
S. A. Assoc. v. Van Staden . .
S. A. Bazaars Ltd. v. Nat.
Union of Distributive
Workers
S. A. Oil & Fat Industries v.
Park Rynie Whaling Co.
S. A. R. v, Conradie
S. A. R. v. Edwards . .
S. A. R. v. Est. Saunders
S. A. R. v. Nat. Bank of S. A.
Southern Life Assoc. of Africa
v. Wright
Soysa v. Soysa
Spangenberg, ex parte
Spencer v. Gostelow
Spendiff v. East London Daily
Despatch Ltd
Spies v. Hansford
Spies v. Spies
Spies' Exors. v. Beyers
Spurrier v. Coxwell
Stacy v. Sims
Standard Bank v. Du Plooy
Standard Bank v. Est. Van Ryn
Standard Bank v. Heydenrych
Standard Building Soc. v. Car-
toulis
S. B. Soc. v. Kellermann . .'
Stander v. Stander
Staples v. Marquard
Steenkamp, ex parte
Steenkamp v. Juriaanse
Steenkamp v. Marais
Steer's Est. v. Steer
Steinbach v. Schmidt
Stephens v. Liebner
Stern v. Schattel
Stevenson v. Alberts
Stewart's Trustee v. Uniondale
Munic
Steyn v. Davis & Darlow
Stigling v. Melck
Stiglingh v. French
Still v. Norton
Stilwell, In re
Stofberg v. Est. van Rooyen
Stone v. Stone
Strachan v. Prinsloo
Stratford's Trustees v. London
& S. A. Bank
[1869] Buch. 231
(1892) 9S.C. 95 .
[1939] N.P.D. 79
[1916] A.D. 400 .
[1922] A.D. 137 .
[1930] A.D. 3
[1931] A.D. 276 .
[1924] A.D. 704 .
.. 395
206, 434
.. 339
.. 300
.. 318
.. 338
.. 325
. 220
[1943] C.P.D. 15 . . . . 316
(1916) 19 Ceylon N.L.R. 314 119
(1907) 24S.C. 288 .. .. 412
[1920] A.D. 617 .. . . 27, 264
[1929] E.D.L. 113
.. ..331
[1940] T.P.D. 1 . .
.. ..247
(1846) 2Menz. 454
.. ..406
[1908] T.S. 473 . .
.. ..341
[1914] C.P.D. 83
.. ..198
[1917] C.P.D. 533
.. ..449
(1899) 16 S.C. 161
.. 222,230
[1925] A.D. 266 . .
.. ..237
[1907] A.C. 336; 3
Buch.
A.C. 145 .. . . 202
[1939] A.D. 510 . .
. . . . 44
[1930] T.P.D. 796
.. ..315
[1929] A.D. 349 . .
33, 96
[1919] C.P.D. 181
.. ..239
[1919] C.P.D. 112
. . . . 387
[1907] T.S. 980 . .
.. 267,329
(1908) 25 S.C. 483
.. ..380
[1923] C.P.D. 354
.. ..318
[1930] S.W.A. 8 . .
.. ..306
[1938] W.L.D. 95
.. ..290
[1935] C.P.D. 78
.. ..431
[1912] C.P.D. 698
68, 71
(1889) 7 S.C. 110
.. ..204
[1927] T.P.D. 651
.. ..231
[1935] C.P.D. 228
.. .. 31
(1892) 9 S.C. 386
.. ..257
(1838) 2 Menz. 209
.. ..276
(1831) 1 Menz. 537
.. ..194
[1928] O.P.D. 38..
.. ..216
[1917] C.P.D. 143
93, 94
[1925] T.P.D. 709
.. ..265
(1874) 3 E.D.C. 439
. 201
TABLE OF CASES
Strickland v. Strickland
Stride v. Reddin
Struben v. Cape Town Water-
works Co
Strydom v. Strydom's Trustee
Stuttaford & Co. v. Oberholzer
Subaida Umma v. Wodood . .
Sulaiman v. Amardien
Sullivan v. Sullivan
Sun Life Ins. Co. v. Kuranda
Surmon v. Surmon
Surveyor-General (Cape) v. Est.
De Villiers
Sutcliffe v. Sutcliffe
Sutherland v. Banwell
Sutter v. Brown
Swanepoel v. Van der Hoeven
Swanepoel v. Van der West-
huizen
Swanepoel v. Van Heerden . .
Swart v. Swart
[1908] A.C. 551
[1944] A.D. 162
lix
387
324
(1892) 9 S.C. 68 151
(1894) 11 S.C. 425 . . . . 384
[1921] C.P.D. 855 .... 48
(1927) 29 Ceyion N.L.R. 330 338
[1931] C.P.D. 509 . . . . 328
(1818) 2 Hagg. Con. 238 . . 95
[1924] A.D. 20 205
[1916] A.D. 47 .. .. 31,32
[1923] A.D. 594 . .
[1918] T.P.D. 686
[1938] A.D. 476 ...
[1926] A.D. 155 . .
[1878] Buch. 4 . .
[1930] T.P.D. 806
[1928] A.D. 15 . .
[1924] N.P.D. 104
129
336
326
331
165
282
207
92
Tait v. Wicht
Tanne v. Foggitt
Tarr, ex parte
Tarrant v. Marikar
Tatham v. Andree
Tauber v. Venter
Taylor v. Caldwell
Taylor v. Pirn
Taylor v. Taylor
Taylor N. O. v. Lucas N. O.
Texas Co. (S.A.) v. Cape Town
Munic
Thangamma v. Ponnambalam
Theron v. Gerber
Theron v. Schoombie
Theron v. Theron
Theron Ltd. v. Gross
Theunissen v. Fleischer, Wheel-
don & Munnik
Thienhans v. The Master
Thomas' Est. v. Kerr
Thompson v. Pullinger
Thornton v. Priest's Trustee . .
Thorpe's Exors. v. Thorpe's
Tutor
Tietze v. Woschnitzok
Timony & King v. King
Tiopaizi v. Bulawayo Munic.
(1890) 7 S.C. 158 .. .. 227
[1938] T.P.D. 43 . . 47, 421
[1941] C.P.D. 104 . . 370, 372
(1934) 36 Ceylon N.L.R. 145 241
(1863) 1 Moo. P.C.C. (N.S.)
386 191
[1938] E.D.L. 82 178
(1863) 3 B. & S. 826 .. ' .. 280
(1903) 24 N.L.R. 484 .. 367
[1928] W.L.D. 215 . . . . 90
[1937] T.P.D. 405 .... 39
[1926] A.D. 467 186
(1943) 43 Ceylon N.L.R. 265 347
[1918] E.D.L. 288 . . . . 202
(1897) 14 S.C. 192 296
[1924] A.D. 244 91
[1929] C.P.D. 345 . . . . 221
(1883) 3 E.D.C. 291 .. . . 285
[1938] C.P.D. 69 . . . . 366
(1903) 20 S.C. 354 .. .. 311
(1894) 1 O.R. 298 . . . . 450
[1932] C.P.D. 296 . . . . 314
(1886) 4 S.C. 488 . . . . 289
[1929] S.W.A. 39 . . . . 334
[1920] A.D. 133 288
[1923] A.D. 317 .. . . 44, 303
Ix
TABLE OF CASES
Tippett, ex parte
Tissera v. Tissera
Toerien v. Duncan
Toms v. Toms
Tonkin v. Van Heerden
Tothill v. Foster
Toy v. Blake
Tradesmen's Benefit Society v.
Du Preez
Tramway Workers Union v.
Heading
Transvaal & Rhodesian Ests.
Ltd. v. Golding
Transvaal Prov. Admin, v.
Coley
Traub v. Bloomberg
Tredgold v. Est. Arderne
Tregea v. Godart
Tregidga & Co. v. Sivewright
N. O
Trichardt v. Muller
Trimble v. Central News
Tshabalala v. Van der Merwe . .
Tshoba Colliery v. Tshoba Coal
Syndicate
Tucker v. Carruthers
Tuttv.Tutt
Twentyman v. Hewitt
[1942] C.P.D. 68 . . . . 360
(1940) 42 Ceylon N.L.R. 60 134
[1932] O.P.D. 141, 180 332, 340
[1920] T.P.D. 455 . . . . 90
[1935] N.P.D. 589 . . . . 170
[1925] T.P.D. 857 . . . . 331
[1923] C.P.D. 98 . . . . 319
(1887) 5 S.C. 269. . 245, 444, 445
[1938] A.D. 47 339
[1917] A.D. 18 . . . . 328, 343
[1925] A.D. 24 342
[1917] T.P.D. 276 . . . . 38
[1926] C.P.D. 25 . . . . 381
[1939] A.D. 16 363
(1897) 14 S.C. 86 .. ..319
[1915] T.P.D. 175 . . . . 264
[1934] A.D. 43 345
[1926] N.P.D. 75 . . . . 303
[1926] N.P.D. 526 . . . . 221
[1941] A.D. 251 284
[1929] C.P.D. 51 .... 10
(1833) 1 Menz. 156 .. .. 450
Umhlebi v. Umhlebi's Est. . .
Umlaas Wool Washing Co., In
re
Unie Volkpers Bpk. v. Rossouw
Union & Rhodesia Wholesale
Ltd. v. Sampson
Union Govt. v. De Koch N. O.
Union Govt. v. Fisher's Execu-
trix
Union Govt. v. Gowar
Union Govt. v. Hawkins,
Union Govt. v. Jordaan's Exor.
Union Govt. v. Larkan
Union Govt. v. Leask's Exors.
Union Govt. v. Lee
Union Govt. v. Marais
Union Govt. v, Nat. Bk. of S.A.
Union Govt. v. Olivier
Union Govt. v. Sykes
Union Govt. v. Tonkin
Union Govt. v. Vianini .
U
(1905) 19E.D.C. 237 .. .. 218
[1934] N.P.D. 18
[1943] A.D. 519 .
[1928] C.P.D. 452
[1918] A.D. 22 .
[1921]
[1915]
1944
[1916]
[1916]
[1918]
[1927]
[1920]
[1921]
[1916]
[1913]
[1918]
[1938]
T.P.D. 328
A.D. 426 .
(2)P.H.,J.
T.P.D. 411
A.D. 212 .
A.D. 447 .
A.D. 202 .
A.D. 240 .
A.D. 121 .
A.D. 74 .
A.D. 161 .
A.D. 533 .
A.D. 560 .
.. ..200
.. ..345
.. ..231
.. ..385
.. ..133
.. 233,347
10. [A.D.] 339
.. ..259
.. .. 85
. . . . 85
.. 329,330
.. ..151
324, 325, 345
377,378,387
.. 338,341
.. ..148
. 215
TABLE OF CASES Ixi
Union Govt. v. Warneke . . [1911] A.D. 657 42, 323, 329,
330, 336
Union Govt. v. Whittaker's Est. [1916] A.D. 194 148
Union Lighterage Co. v. London
Graving Dock Co [1902] 2 Ch. 557 175
United Building Soc. v. Law .. [1910] T.P.D. 369 .. ..206
United Building Soc. v. Lennon [1934] A.D. 149 153
United Building Soc. v. Smook-
ler's Trustees [1908] T.S. 623 . . 197, 198, 203
United Shoe Machinery Co. of
Canada v. Brunet . . . . [1909] A.C. 330 .. . . 229, 230
United S. A. Assoc. Ltd. v. Cohn [1904] T.S. 733 434
Urtel v. Jacobs [1920] C.P.D. 487 . . 346, 452
Uys, exparte .. [1929] T.P.D. 443 .. ..Ill
V
Valliammai v. Annammai . . (1900) 4 Ceylon N.L.R. 8 . . 425
Van Aardtv. Hartley's Trustees (1845) 2 Menz. 135 .. ..145
Van Biljon, ex parte . . . . [1934] O.P.D. 104 . . . . 362
Van Breda v. Jacobs . . . . [1921] A.D. 330 21
Van Breda v. Silberbauer . . (1869) L.R. 3 P.C. 84. . . . 155
Van Coller v. Henny . . . . [1929] C.P.D. 244 . . . . 355
Van den Bergh v. Polliack &
Co [1940] T.P.D. 237 . . . . 195
Van der Byl v. Hanbury .. (1882) 2 S.C. 80 450
Van der Byl & Co. v. Solomon [1877] Buch. 25 38, 47, 48, 49,
50,110,422
Van der Byl's Assignees v. Van
der Byl ' (1886) 5 S.C. 170 .. .. 96
Van der Byl's Est. w. Swanepoel [1927] A.D. 141 339
Van der Heever's Est. v. Grey-
ling (1907) 24 S.C. 414 .. ..249
Van der Merwe v. Franck . . (1885) 2 S.A.R. 26 . . . . 247
Van der Merwe v. Van der
Merwe's Executrix . . . . [1921] T.P.D. 9 . . . . 370, 384
Van der Merwe v. Van Wyk
N. O [1921] E.D.L. 298 . . 70, 182
Van der Merwe v. Webb . . (1883) 3 E.D.C. 97 . . . . 433
Van der Nest v. Van der Nest [1925] W.L.D. 12 .. .. 88
Van der Plank N.O. v. Otto . . [1912] A.D. 353 445
Van der Vyver v. De Wayer (1861) 4 Searle 27 . . . . 318
Van der Walt v. Van der Walt's
Exors (1896) 13 S.C. 336 . . . . 360
Van der Walt v. Registrar of
Deeds [1935] C.P.D. 463 . . . . 382
Van der Westhuizen v. Engel-
brecht [1942] O.P.D. 191 . . . . 59
Van der Westhuizen v. Rex . . [1924] T.P.D. 370 . . . . 42
Van der Westhuizen v. Velenski (1898) 15 S.C. 237 . . 448, 450
Van Diggelen v. Triggs .. .. [1911] S.R. 154 259
Van Dyk, ex parte [1939] C.P.D. 202 . . . . 105
Ixii
TABLE OF CASES
Van Dyk v. Van Dyk's Exors.
Van Eeden, ex parte
Van Eeden v. Kirstein
Van Heerden v. Coetzee
Van Heerden v. Pretorius
Van Jaareveld v. Van Jaars-
veld'e Est
Van Leggelo v. Argus Printing
Co
Van Misdorp, ex parte
Van Niekerk v. Wimble
Van Niekerk & Union Govt. «.
Carter
Van Noorden v. De Jongh
Van Noorden 's Est. v. Est. Van
Noorden
Van Oosten v. Van Oosten
Van Pletsen v. Henning
Van Reenen v. Board of Exors.
Van Reenen v. Glenlily
Van Reenen v. Van Reenen's
Est .,•_*..'
Van Rensburg v. Snyman
Van Rensburg v. Straughan . .
Van Rensburg v. Swersky Bros.
Van Rooyen v. Van Rooyen . .
Van Rooyen v. Werner
Van Ryn Wine & Spirit Co. v.
Chandos Bar
Van Schalkwijk v. Du Plessis
Van Schalkwyk v. Hugo
Van Schalkwyk Est. ex parte
Vanston v. Frost
Van Vliet's Collection Agency
v. Schreuder
Van Vuren v. Registrar of Deeds
Van Vuuren, ex parte
Van Wyk v. Leo
Van Zyl v. African Theatres
Ltd
Van Zyl v. Van Zyl . .
Vedeski v. Vedeski
Veerapillai v. Kantar
Venter, ex parte
Venter, ex parte
Venter v. De Burghersdorp
Stores
Venter v. Smit
Venter v. Venter
Vermaak v. Palmer
Vermaak v. Vermaak
(1890) 7 S.C. 194 . . . . 384
[1905] T.S. 151 378
(1880) Kotze 182 .. 67,426
[1914] A.D. 167 169
[1914] A.D. 69 169
[1938] T.P.D. 343 . . . . 240
[1935] T.P.D. 230 .. . . 342
[1928] C.P.D. 78 .. ..109
[1878] Buch. 190 . . . . 177
[1917] A.D. 359 129,130,161,140
(1892) 9 S.C. 296 .. .. 257
[1916] A.D. 175 . .
[1923] C.P.D. 409
[1913] A.D. 82 . .
[1875] Buch. 44 . .
[1936] C.P.D. 315
[1925] O.P.D. 239
[1927] O.P.D. 123
[1914] A.D. 317 . .
[1923] T.P.D. 255
[1927] C.P.D. 266
.. ..355
.. ..239
215, 233, 272
. . . . 362
.. ..339
.. ..394
.. ..333
.. ..346
.. ..430
88, 89
(1892) 9 S.C. 425 37, 38, 39, 102,
104, 255
[1928] T.P.D. 417 . . . . 220
(1900) 17 S.C. 454 . . 168, 177
(1880) Foord89 148
[1927] C.P.D. 268 .... 45
[1930] N.P.D. 121 . . . . 329
[1939] T.P.D. 265 . . . . 334
[1907] T.S. 289 186
[1937] T.P.D. 144 . . . . 388
[1909] T.S. 788 258
[1931] C.P.D. 61 . . 337, 338
[1925] T.P.D. 130 .... 94
[1923] W.L.D. 31 .. ..118
(1928) 30 Ceylon N.L.R. 121 379
[1920] O.P.D. 153 . . . . 379
[1934] T.P.D. 69 . . . . 183
[1915] C.P.D. 252 . . 41, 422
[1927] C.P.D. 30 . . . . 342
[1935] C.P.D. 27 . . . . 105
[1876] Buch. 25 .. . . 129, 155
[1929] O.P.D. 13 53
Heirs
Vermeulen's Execut
man
Vickerman, ex parte
Victoria Falls &
Power Co. v. C
laagte Mines
Viljoen v. Hillier
Viljoen v. Viljoen ,
Viljoen v. Visser
Viljoen's Exors v. T
Villet's Est. v. Villet's Est.
Vimpany v. Attridge
Vincent v. Vincent .
Visagie, ex parte
Visagie v. Muntz & Co.
Viviers v. Kilian
Voeges v. Voeges
Volshenk v. Van den Berg
Von Holdt v. Brewer
Von Ludwig, In re Est.
Vuurman v. Uni
prises Ltd.
Wagenaar v. Wagenaar
Walker v. Matterson
Walker v. Syfret N. O.
Walker v. Taylor
Walker v. Van Wezel
Walker v. Wales
Wallach's Ltd. v. Marsh
Wallach's Trustee v. Wallach
Wanigaratne v. Selohamy
Wanigatunga v . S
Ward, ex parte
Watermeyer v. Murray
Watermeyer's Exo
meyer's Exor.
Waterson v. May berry
Watson v. McHattie
Webb v Giddy . . .
Webb v. Langai
Webber v. Webber .
Webber's Exor. ex parte
Webster v. Bosanquet
Webster v. Ellison .
TABLE
OF CASES
Ixiii
^ermaak's
[1909] T.S. 679 ..
98, 353
ix v. Mool-
. .
[1911] A.D. 384 .. ..
.. 178
i
JL ranS Vaai
[1935] C.P.D. 429
.. 445
>ns. Lang-
[1915] A.D. 1 . . 266,
445, 448
[1904] T.S. 312 ..
.. 231
[1944] C.P.D. 137
52, 239
[1929] C.P.D. 473
.. 264
e Master
[1922] C.P.D. 208
.. 394
s Est. . .
[1939] C.P.D. 152
.. 392
[1927] C.P.D. 113
.. 372
[1914] A.D. 379 ..
92,94
[1940] C.P.D. 42
.. 388
o
[1921] C.P.D. 582
.. 142
[1927] A.D. 449 ..
.. 336
[1922] T.P.D. 299
.. 87
Berg . .
[1917] T.P.D. 321
.. 170
...
[1918] C.P.D. 163
.. 306
st
[1931] C.P.D. 488
.. 387
al Enter-
[1924] T.P.D. 488
237,238
W
ar
[1928] W.L.D. 306 . .
96, 288
. .
[1936] N.P.D. 495
.. 241
)
[1911] A.D. 141 .. ..
.. 250
[1934] W.L.D. 101 . .
.. 260
[1940] W.L.D. 66
.. 335
[1922] C.P.D. 49
.. 295
<sh " .' .'
[1928] T.P.D. 531
344, 345
Wallach
[1914] A.D. 202 ..
.. 445
amy
(1941) 42 Ceylon N.L.R.
353 289
) Appu . .
(1925) 27 Ceylon N.L.R.
50 130
[1928] C.P.D. 70
.. 386
lerborne
[1904] T.S. 340 ..
.. 342
tie Master
[1913] C P D 784
395
si's Trus-
. .
(1834) 3 Menz. 424 ..
.. 314
y •• -.
[1911] A.D. 61 .. ..
.. 216
v. Water -
[1870] Buch. 69
.. 258
JT ..
[1934] T.P.D. 210
.. 330
. .
(1885) 2 S.A.R. 28 . .
.. 204
(1878) 3 App. Cas. 908
.. 161
. .
(1884) 4 E.D.C. 68 . .
.. 327
. .
[1915] A.D. 239 . . 75,
, 87, 455
rte
(1902) 19S.C. 427
.. 362
/
[1912] A.C. 394 ..
.. 268
[1911] A.D. 73 .. 14,
194, 195
Ixiv
TABLE OF CASES
Weeks v. Amalgamated Agen-
cies Ltd
Weerasinghe v. Perera
Wege's Est. v. Strauss
Weinerlein v. Goch Buildings
Ltd
Welch v. Harris
Welgemoed v. Cohen
Wellappu v. Mudalihami
Wells v. Dean-Willcocks
Wells v. Du Preez
Wells v. S. A. Alumenite Co.
Welsford, Est. v. Est. Wright
Wentzel v. Wentzel
Wessels v. Wessels
Wessels, N. O. v. Uys
West Rand Estates Ltd. v.
New Zealand Insur. Co. . .
Western Alarm System (Pty)
Ltd. v. Coini & Co
Weyer v. Est. Weyer
Whelan v. Oosthuizen
Whelan v. Whelan
White v. Landsberg's Exors.
White Bros. v. Treasurer-Gen.
Whiting, Re Est
Whitlock v. Smith
Whittaker v. Roos & Bateman
Whittington v. Bowles
Wickremanayake v. The Times
of Ceylon
Widdicombe, In re
Wiener v. Est. McKenzie
Wijesiriwardene v. Gunasekera
Wijesooria v. Ibrahimsa
Wijeysinghe v. Velohamy
Wiley v. The Master
Wilhelm v. Norton
Wilhelm's Trustee v. Shepstone
Wilken v. Holloway
Wilken v. Kohler
Wilkinson v. Trevett
Wilkinson's Est. v. Wilkinson
Willenburg v. Willenburg
Willenburg v. Willenburg (1)
Willenburg v. Willenburg (2)
Williams, ex parte
Williams v. Robertson
Williams v. Rondebosch Foun-
tain Garage Co
[1920] A.D. 218 144
(1943) 43 Ceylon N.L.R. 575 170
[1932] A.D. 76 241
[1925] A.D. 282 .. .... 221
[1925] E.D.L. 298 . . . . 257
[1937] T.P.D. 134 . . . . 345
(1903) 6 Ceylon N.L.R. 233 288
[1924] C.P.D. 89 .. 53,95
(1906) 23 S.C. 284 .. .. 236
[1927] A.D. 69 238
[1930] O.P.D. 162 . . . . 381
[1913] A.D. 55 91
(1895) 12 S.C. 465 .. 89,92
[1924] O.P.D. 329 .... 61
[1925] A.D. 245
[1926] A.D. 173
[1944]
[1939]
[1937]
[1925]
[1918]
(1883)
[1910]
[1943]
[1912]
[1934]
(1937)
[1929]
[1923]
(1917)
(1910)
(1928)
[1926]
[1935]
(1878)
[1915]
[1913]
[1922]
(1907)
(1909)
(1909)
(1908)
[1924]
(1886)
C.P.D. 271
A.D. 126 ..
T.P.D. 304
W.L.D. 162 . .
C.P.D. 211
2 S.C. 322
T.P.D. 527
C.P.D. 321
A.D. 92 . .
E.D.L. 142 . .
39 Ceylon N.L.R.
N.P.D. 311 ..
C.P.D. 562
20 Ceylon N.L.R.
13 Ceylon N.L.R.
29 Ceylon N.L.R.
C.P.D. 97
E.D.L. 143
6 N.L.R. (O.S.) 1
C.P.D. 418
A.D. 135 ..
C.P.D. 393
24 S.C. 602
3Buch.A.C.409
26 S.C. 447
25 S.C. 894
E.D.L. 325
8 S.C.C. 36
[1929] C.P.D. 439
.. 272
.. 447
.. 337
.. 97
.. 275
.. 8»
.. 384
232, 233
.. 372
.. 344
.. 339
.. 335
547 332
.. 90
143, 239
92
234, 305
195 50
349 204
.. 292
168, 177
.. 258
.. 347
.. 227
.. 334
.. 360
39,58,59
.. 61
.. 58
.. 85
.. 11
. 237
TABLE OF CASES
Williams v. Williams
Williams v. Williams
Williams' Est. v. Molenschoot
Willoughby v. Me Wade
Willoughby's Cons. Co. v.
Copthall's Stores Ltd.
Wilson, Est. N. G. v. Est. L. J.
Wilson
Wilson & Simon v. Lazarus . .
Winn N. O. v. Oppenheimer . .
Winstanley v. Barrow
Wirths v. Albow Bros. & Van
Zyl
Witz, ex parte
Woeke, In re
Wolfson v. Crowe
Wolpert v. Steenkamp
Wood v. Davis
Wood v. Est. Fawcus
Woodhead Plant & Co. v. Gunn
Woods v. Walters
Woods v. Woods
Woodstock, &c. Councils v.
Smith
Woolmer v. Rees
Worcester Municipality v. Colo-
nial Govt.
Worthington v. Shagam
Worthington v. Wilson
Wright & Co. v. Col. Govt. . .
Wulfsohn v. Taylor
Wylde, Sir John's Will, In re
Wynn N. O. v. Oppenheimer. .
Wynne v. Est. Wynne
(1896) 13 S.C. 200
[1925] T.P.D. 538
[1939] C.P.D. 360
[1932] C.P.D. 66
[1913] A.D. 267 . .
[1918] A.D. 1
[1909] N.P.D. 447
[1921] O.P.D. 32. .
[1937] T.P.D. 91
[1937] A.D. 78 . .
Ixv
.. ..436
. . . . 33
.. ..347
.. .. 332
186, 250, 434
.. 173,307
... . . 97
.. ..300
. . . . 355
.. 353,355
[1922] S.W.A. 127 . . . . 285
[1941] W.L.D. 74 .... 74
(1832) 1 Menz. 554 .. .. 202
[1904] T.S. 682 317
[1917] A.D. 493 .. . . 264, 449
[1934] C.P.D. 250 38,47,49,110
[1935] C.P.D. 350 . . . . 374
(1894) 11 S.C. 4 .. 433,434
[1921] A.D. 303 217,269,448,449
[1922] N.P.D. 367 .... 37
(1909) 26 S.C. 681 . . . . 229
[1935] T.P.D. 319 . . . . 216
(1909) 3 Buch. App. Cas. 538
Xapa v. Ntsoko
300, 450
[1937] N.P.D. 376 . . . . 237
[1918] T.P.D. 104 . . . . 317
(1891) 8 S.C. 260 . . 247,249
[1928] T.P.D. 99 . . . . 312
[1873] Buch. 113 .. ..361
[1938] T.P.D. 359 . . . . 385
(1908) 25 S.C. 951 . . . . 374
X
[1919] E.D.L. 177 . . . . 142
Yates v. Aukland Park Sport-
ing Club & Roberts
Yates v. Dalton
Yates v. MacRae
Yeld v. Yeld
Yorkshire Insurance Co. v.
Barclay's Bank
Young, ex parte
Young v. Hutton
Young v. Kemsley
4901
[1915] W.L.D. 55 . . . . 250
[1938] E.D.L. 177 . . . . 216
[1929] T.P.D. 480 . . . . 344
[1919] C.P.D. 103 . . 94, 95
[1928] W.L.D. 199 . . . . 318
[1938] E.D.L. 300 . . . . 74
[1918] W.L.D. 90 . . . . 329
[1940] A.D. 258 333
Ixvi TABLE OF CASES
Young's Provision Stores v.
Van Ryneveld [1936] C.P.D. 87 . . . . 299
Z
Zandberg v. Van Zyl . . . . [1910] A.D. 302 192
Zelie v. Zelie [1944] C.P.D. 209 .... 87
Ziedeman v. Ziedeman . . . . (1838) 1 Menz. 238 . . 93, 96
Zweigenhaffc v. Rolfes, Nebel &
Co [1903] T.H. 242 .... 305
TABLE OF STATUTES
I. DUTCH
1452 Placaet of Philip, Duke of Burgundy, June 11 26, 1 59
1462 Instructie voor den Stadthouder ende Luyden van de
Kamer van den Rade, Art. 42 ... 5
147f Great Privilege of Mary of Burgundy, March 14 . 147
15 If Placaat of Charles V, January 22 . . . 26,159
152f Placaat, March 20 . . . . . . 364
1529 Placaat of Charles V, May 10 . . 6, 145, 146, 189
1531 Placaat, October 16 . . . .364
1540 Perpetual Edict of Charles V, October 4. . . 6, 60
Art. 2 . . . . .429
Art. 6 82
Art. 8 258
Art. 12 . . . . . 364
Art. 14 357
Art. 16 283
Art. 17 56, 58, 365
1560 Placaat, May 9 . . "'.'•.'. . . 145,190
156f Placaat of Philip II, February 21 . . . .317
1570 Code of Criminal Procedure of Philip II . . 6
1574 Placaat of Philip II, May 15 . . . .137
1580 Code of Civil Procedure 6
1580 Political Ordinance, April 1 . . . . 6
Art. 3 57, 60, 62
Arts. 5, 6, 7, 8, 10, 11 . . . 54, 55
Art. 13 *'i. 57
Arts. 19-29 400
Art. 29 '•'. . . . . 71,355
Art. 31 26, 159, 203
Art. 35 ; 190
Art. 37 189
1594 Interpretation of the Political Ordinance, May 13 399, 402
1598 Placaat der 40ste Penning, December 22. . 145,189
1599 Placaat op 't stuck van de Successien ab intestato,
December 18 . . . 402, 405, 409, 453, 455
1608 Placaat, May 1 27
1612 Placaat, March 6 145
1620 Resolutie van de Staten van Hollandt, September 15 130
1624 Placaat van de Staten van Hollandt ende West-
Vrieslandt, July 30 376
1629 Ordre van Regieringe, October 13 . . . 8, 407
1642 Old Statutes of Batavia .... 8,403
1651 Placaet, Jegens 't presenteren ende nemen van ver-
boden Giften ende Gaven, 1 July (States-General) 27
1656 Echt-Reglement van de Staten -Generaal, March 18
Art. 47 59
Art. 52 33
Art. 83 27
4901
e2
Ixviii TABLE OF STATUTES
1656 Echt-Reglement van de Staten-Generaal, March 18
Art. 85 54
Art. 90 27
1658 Placaet van de Staten van Hollandt tegens de Pachters
ende Bruyckers van de Landen, September 26 26, 305
Art. 9 27
Art. 10 306
Art. 11 196,306
Art. 13 307
Art. 14 ... .307
1661 Octrooi to the East India Company, January 10
402, 404, 408
Placaat, December 9, Art. 51 . . . .27
1665 Waerschouwinge van de Staten van Hollandt ende
West-Vrieslandt, February 5 . . . .26
1670 Placaet van de Staten van Hollandt ende West-Vries-
landt, July 23 388
1671 Resolutie van de Staten van Hollandt ende West-
Vrieslandt, March 18 357
1674 Placaet van de Staten van Hollandt ende West-
Vrieslandt, July 18 .... 27, 28
1677 Ordre der Hove, March 29 26
Waerschouwinge van de Staten van Hollandt ende
West-Vrieslandt, April 3 . . . 26, 159
1679 Ordre ende Reglement, November 29 . .27
1696 Placaet, February 24 26, 305
1715 Placaat teegens neemen van giften en gaven, 10
December (States -General) . . . .27
1732 Resolutie van de Staten van Holland, May 1 . . 150
Octrooi van de Berbice, December 6 ... 407
1744 Ordonnantie op het Middel van den veertigsten
penning, May 9, Arts. 9 and 19 . . .160
1751 Placaat van de Staaten van Holland, February 25 54, 365
1754 Placaat van de Staaten van Holland, March 7 . 27
1766 New Statutes of Batavia .... 8, 404
1774 Resolution of the States -General, October 4 (Laws of
Brit. Gui., vol. i, p. 1) . . 8, 407
1778 Placaat van de Staaten Generaal, August 10 . . 150
II. IMPERIAL
1670 Statute of Distribution (22 & 23 Car. 2, c. 10). . 412
1677 Statute of Frauds (29 Car. 2, c. 3) . . .227
1753 Lord Hardwicke's Act (26 Geo. 2, c. 33) . 52
1828 (British Guiana) Order in Council, December 15 . 6
1831 Letters Patent constituting the Colony of British
Guiana, March 4 (Laws of British Guiana, ed.
1905, p. 12) 11
1837 Wills Act (7 Will. 4 & 1 Viet., c. 26), Sec. 18 . . 373
1845 Gaming Act (8 & 9 Viet., c. 109) . . . .242
1893 Sale of Goods Act (56 & 57 Viet., c. 71) . . . 293
1882 Married Women's Property Act (45 & 46 Viet., c. 75) 443
1889 The Factor's Act (52 & 53 Viet., c. 45), Sec. 2 . . 435
TABLE OF STATUTES Ixix
1898 Southern Rhodesia Order in Council, October 20 . 13
1909 South Africa Act (9 Edw. 7, c. 9) . . . .13
1923 Southern Rhodesia (Annexation) Order-in-Council,
July 30 .13
Southern Rhodesia Constitution Letters Patent,
September 1 . ~. . . . . . 13
1926 Law of Property Act ( 15 Geo. 5, c. 20) . \ . 203
Sec. 40 (1) . . . . . .227
Sec. 177 (1) . '.. 373
Administration of Estates Act (15 Geo. 5, c. 23)
Sec. 46 412
1926 Legitimacy Act (16 & 17 Geo. 5, c. 60)
Sec. 1 (Sub-sec. 2) . . .35
1927 Auctions (Bidding) Agreements Act (17 & 18 Geo. 5,
c. 12) . . . . . . . .240
1929 Age of Marriage Act (19 & 20 Geo. 5, c. 36) . . 53
1937 Matrimonial Causes Act (1 Edw. 8 & 1 Geo. 6) :
Sec. 2 . . . • ' . . 88,89
Sec. 7 (d) . . - :...'.. . . 33
Sec. 8. f 91
1939 Marriage (Scotland) Act (2 & 3 Geo. 6, c. 34) . 63
1943 Law Reform (Frustrated Contracts) Act (6 & 7 Geo.
6, c. 40) 347
1945 Law Reform (Contributory Negligence) Act (8 & 9
Geo. 6, c. 28) '.•-.- . . . . 326
III. UNION OF SOUTH AFRICA
1910 Interpretation Act (No. 5), Sec. 5 . . -.. • >~ / • 261
1911 Public Debt Commissioners Act (No. 18) . $"< 110
Powers and Privileges of Parliament Act (No. 19) 332
1912 Irrigation and Conservation of Waters Act (No. 8),
Sec. 2 . ... . • . .129
Sec. 8 . . . . „ ' . 155
1913 Administration of Estates Act (No. 24):
Sec. 2 . . '•;.; . . .133
Sec. 30 . . . . . 105
Sec. 31 . in , . W ;"• . 109
Sec. 34 354
Sec. 54 : . . . /• . 38, 109
Sec. 56 , ••<• . . ... . 99
Sec. 61 Nfapg . . . • ' . . 354
Sec. 62 . . . •• .--*£••- . 133
Sec. 71 . . . • . ' 101, 104, 105
Sec. 72 . . '•-,.'.' L r.s • 101, 103
Sec. 73 . . . . '". 103, 105, 107
Sec. 76 ;:•>: . . !t<«j ft^fc . 104
Sec. 77 4"<!,-- "V • •- • 101, 105
Sec. 78 . . . *« . . 105
Sec. 80 . • . . t$fe R^n . 105
Sec. 81 . . . v,", . 105
Sec. 82 108
Ixx TABLE OF STATUTES
1913 Administration of Estates Act (No. 24):
Sec. 83 77, 106
Sec. 84 117
Sec. 85 108
Sec. 86 112
Sec. 87 112,188
Sec. 88 109
Sec. 89 113
Sec. 98 406
Sec. 107 104
Sees. 108-9 108
Sec. 110 108
1916 Removal or Modification of Restrictions on Im-
movable Property Act (No. 2) ... 388
Railways Act (No. 22), Sec. 18 (1) . . . 319
Insolvency Act (No. 32) :
Sec. 1 84
Sec. 84 202
Sec. 86 195
Sec. 87 201, 202
Mental Disorders Act (No. 38), Sec. 62 . . . 105
1917 Criminal Procedure and Evidence Act (No. 31),
Sec. 344 88
Magistrates Courts Act (No. 32), Sec. 59 . . 434
1919 Treaty of Peace and South -West Africa Mandate
Act (No. 49) 14
1920 Natal and Transvaal Marriage Law Amendment
Act (No. 11), Sees. 1, 3 . . . . 423,424
Appellate Division Act (No. 12) . . . 14
1921 Union Proclamation No. 1 . . . . .14
Marriage Law Amendment Act (No. 17) . .424
1922 Coinage Act (No. 31), Sec. 3 .... 256
1923 Aviation Act (No. 16), Sec. 9 . . . .128
Adoption of Children Act (No. 25) . 41, 413, 425
Insurance Act (No. 37):
Sec. 20 (a) 47
Sees. 23 ff. 84
1924 Removal or Modification of Restrictions on Immov-
able Property Act 1916 Amendment (No. 20) . 388
Births, Marriages, and Deaths Registration Amend-
ment Act (No. 17) Sec. 4 .... 35
1926 Insolvency Act 1916 Amendment Act (No. 29),
Sec. 29 195
Usury Act (No. 37), Sec. 2 .. . . . .259
Companies Act (No. 46) . . . . 121,313
Sec. 77 444
1932 Companies Law Amendment Act (No. 11) . . 121
Notarial Bonds (Natal) Act (No. 18) . . 200, 202
1934 Succession Act (No. 13) 412
Cape Statute Law Revision Act (No. 25) 10
Abolition of Quitrent Act (No. 54) . . .161
Building Societies Act (No. 62) . . . .122
TABLE OF STATUTES Ixxi
1935 Marriage Law Amendment Act (No. 8) . . .53
Sea-shore Act (No. 21) ..... ' . 129
Divorce Laws Amendment Act (No. 32) . .;,.. . 88
General Law Amendment Act (No. 46) Sec. 101,
Sub-Sec. 3 32
1936 Insolvency Act (No. 24) . , . . . 239
Sec. 20 (1) (a), Sec. 22 . -'... . . 251
Sees. 27, 28 . , .-. .. . . . 84
Sec. 33 .- . ..,-.... . . 199
Sees. 36, 37. . . . 294,311,434
Sec. 47 . . ... . .199
Sec. 84 . . . ; . . 196
Sec. 85 . . . r.. . 192, 196
Sec. 86 ...,<. . . . 201
Sec. 87 ... -. . . . ; . , 202
Sec. 98 . . 'in . . . .202
1937 The Children's Act (No. 31) . . 41, 413, 425
Abolition of Quitrent (Towns and Villages) Act
(No. 33) . . . . . . £„ 161
Deeds Registries Act (No. 47) :
Sec. 50 . . . < • . . 191
Sec. 51 . . ., . ... 187
Sec. 53 (1) . . . . . .201
Sees. 56, 57 . . . . 199, 204
Sec. 63 (1) . 185
Sec. 65 (1) ... . . .177
Sec. 67 .. ... . . . 184
Sees. 75 (1), 76 .. . . -. 174
Sees. 86-89 ... . 73, 74
Sec. 102 . . . 132, 160, 191
1939 Matrimonial Causes Jurisdiction Act (No. 22) . 455
Companies Amendment Act (No. 23) . . 121, 313
1943 Prescription Act (No. 18) . . 149,281,283,344
Sec. 2(1). . 50, 147, 148, 176, 184, 233,
299, 327
Sec. 3 .... 149, 208, 282
Sees. 6, 7, 9, 10 . . . . - . 282
Sec. 8 286
Sec. 13 148
Sec. 15 286
1945 Matrimonial Causes Jurisdiction Act (No. 35) . 456
IV. THE COLONY OF THE CAPE OF GOOD HOPE
1714 Resolution of the Governor in Council, June 19 . 406
1806 Articles of Capitulation of the Cape, January 18 . 9
1813 Sir John Cradock's Proclamation, August 6 . . 161
1829 Ord. No. 62 . . . . . . .44
1833 Ord. No. 105, Sec. 1 101
1838 Marriage Order-in-Council, September 7 . . 328
Sec. 17 . . . . . . 59
Sec. 19 . . . , . .52
1845 Ord. No. 12 12
Ixxii TABLE OF STATUTES
1845 Ord. No. 15, Sec. 3 358, 361
1860 Act No. 16 . . . . . . . .58
1861 Act No. 6, Sec. 4 283
Act No. 24 313
1865 Act No. 7, Sec. 106 147
1868 Act No. 11 364
1873 Act No. 26, Sec. 1 369
Sec. 2 98
1874 Act No. 23, Sec. 2 369
1875 Act No. 21 84
Sec. 2 ...... 73
1876 Act No. 22, Sec. 2 368
Sec. 3 . . . . . .366
Sec. 4 107
1878 Act No. 3, Sec. 1 357
1879 Act No. 8 (General Law Amendment) . . 23, 137
Sec. 7 305, 310
Sec. 8 . . ' . . . .234
1889 Act No. 36 434
1892 Act No. 40, Sec. 2 423
1893 Act No. 19, Sec. 54 316
1902 Act No. 36 242
V. NATAL
1844 Letters Patent, May 31 12
1846 Ord. No. 4 44
1856 Royal Charter, July 15 12
1863 Law No. 22, Sec. 2 69
Sec. 3 98, 369
Sec. 5 412
Sec. 7 72
1865 Law No. 1 313
1868 Law No. 2, Sec. 1 N 358
Sec. 4 354
Sec. 6 363
Sec. 7 107, 366
Sees. 8-10 371
1878 Law No. 25 242
1882 Law No. 14 72
1883 Law No. 13 89
1884 Law No. 12 160,227,317
Law No. 40 . 316
1885 Law No. 7, Sees. 1 & 2 369
Sec. 3 98
Law No. 9 318
1895 Law No. 22 434
1896 Act No. 39 12
1898 Act No. 45 424
1903 Act No. 37 12
1905 Act No. 3 338
TABLE OF STATUTES Ixxiii
VI. THE TRANSVAAL
1853 Volksraad Resolution, December 21, Art. 123 .. 44
1859 Volksraad Resolution, September 19 . . . 13
1871 Law No. 3, Sec. 4 . .-'.." .. . 55,423
Sec. 8 • . ' . . ' ; . .? . 61
1894 Law No. 13 . .. . . . V . 434
1901 Procl. No. 34 . .- . . , . . . 13
1902 Procl. No. 8, Sec. 2 . . . ' ., >> •, . 227
Sec. 29 . : ' . ... . 160
Sec. 30 . . . ' . . .227
Procl. No. 14, Sec. 17 . . . '>. . . . 13
Procl. No. 28, Sec. 126 . ... . . 369
Sec. 127 . . .•> . . .98
Sec. 128 369
1903 Ord. No. 14, Sec. 1 ... . . . .358
Sec. 2 . . . . . 368
Sec. 3 ... . . . .366
Sec. 4 107
Sec. 5 . . . ... 358
1904 Procl. No. 3 . . .' . . " ./" . 13
1907 Procl. No. 4 . . ' •, . . . . 13
1908 Act No. 26 . • . I . \ . . . . 283, 299
Act No. 35 . . . . . . . .183
1909 Act No. 36, Sec. 8 (1) . . ' .. ... . .313
VII. ORANGE FREE STATE
1899 Law No. 23 . >. > . . ,-. . . 84
Law No. 26, Sec. 13 33
1901 Law Book, Chap. Ixxxix, Sec. 7, Sec. 14 . . - . 44
Chap, xcii, Sec. 1 .• r • . . . 98
Sec. 2 .... 369
Sec. 3 .... 369
1902 Ord. No. 3, Sec. 1 . . . . . . 13
Ord. No. 5 . 23
Sec. 5 . . . . .1 305, 310
Sec. 6 234
1903 Ord. No. 31, Sees. 1 & 2 424
1904 Ord. No. 11, Sec. 1 358
Sec. 2 . . . ... 368
Sec. 3 . . ' . . . 366, 368
Ord. No. 11, Sec. 4 . . . ' . . .. .107
Sec. 5 .. , . . . . . .358
1906 Ord. No. 12, Sec. 49 . . . v . .227
Sec. 51 .. . , . . 160
VIII. CEYLON
1796 Capitulation of Colombo . . . . .11
1799 Proclamation of Governor Francis North, R.S.
cap. 9 . , . - Efepl • • i . • 10
Ixxiv TABLE OF STATUTES
1823 Regulation No. 15 (Lost Property), R.S. cap. 63 . 137
1840 Ord. No. 7 (Prevention of Frauds), R.S. cap. 57,
Sec. 2 .... 160, 174, 191, 227
Sec. 3 363
Sec. 5 371, 373
Sec. 9 . • -• . . . . .368
Sec. 10 366
Sec. 13 363
Sec. 21 312,317
1844 Ord. No. 21. Sec. 1 (The Wills' Ordinance), R.S. cap.
49 . . .... . .369
Sec. 2 . ' ." . . . .363
1847 Ord. No. 6 52
1852 Ord. No. 5 (The Civil Law Ordinance), R.S. cap. 66
11, 22
Sec. 3 . . . . . .259
Ord. No. 17, Sec. 1 191
1862 Ord. No. 4, Sec. 2, R.S. cap. 267 . . . . 137
1865 Ord. No. 7 (Age of Majority), R.S. cap. 53 .44
1866 Ord. No. 22, R.S. Cap. 66 ... 23, 121, 312, 319
1871 Ord. No. 22 (Prescription), R.S, cap. 55,
Sec. 3 . . . . . .148
Sec. 4 168
Sec. 11 50
1876 Ord. No. 11 (Entail and Settlement), R.S. cap. 54 377, 387
Ord. No. 15 (Matrimonial Rights and Inheritance),
R.S. cap. 47 . . . . . 453
Sec. 8 . . . . .69
Sec. 23 . . . . .84
Sec. 40 405
1887 Ord. No. 17, (Treasure Trove), R.S. cap. 147 . . 137
1890 Ord. No. 5 (The Gemming Ordinance), R.S. cap. 164 138
1891 Ord. No. 3, Sec. 2 (Treasure Trove), R.S. cap. 145 . 137
1895 Ord. No. 2 (Marriage Registration), Sec. 16 . . 53
Ord. No. 14 (Evidence Ordinance), R.S. cap. 11, Sec.
112 33
1896 Ord. No. 11 (Sale of Goods), R.S. cap. 70 . 23, 293
1907 Ord. No. 19 (Marriage Registration), R.S. cap. 95 . 63
Sec. 17 . . . . .425
Sec. 21 51
Sec. 22 35
Sec. 23 61
1909 Ord. No. 1 (Game Protection), R.S. cap. 326 . 136
1916 Ord. No. 19 (Hotel Keepers' Liability), R.S. cap. 63 319
1917 Ord. No. 9 (Trusts), R.S. cap. 72 . . . 387, 392
Ord. No. 26 (Lost Property), R.S., cap. 63 . .137
1918 Ord. No. 2 (The Money Lending Ordinance), R.S.
cap. 67 259
1923 Ord. No. 18 (Married Women's Property), R.S. cap.
46 . . . . ' . . . .23,65
Ord. No. 18, Sec. 29 . . ... . . 316
1926 Ord. No. 18 (Carriage of Goods by Sea), R.S. cap. 71 319
TABLE OF STATUTES Ixxv
1927 Ord. No. 21 (Mortgage), R.S. cap. 74, Sec. 3 . .191
Sec. 17 . . . . . .187
Ord. No. 23 (Registration of Documents), R.S. cap.
101 145
Sec. 3 . . . . . .133
Sec. 7 .". . . 145
Sec. 16 . . . . . . 174
Sec. 17 . . . *'':':$ .187
Sec. 18 .191
Ord. No. 25 (Bills of Exchange), R.S. cap. 68 . 22
Sec. 97 . . . . -.-.. . 259
1938 Ord. No. 51 (Companies) . . . .313
1939 Ord. No. 6 (Companies Law Amendment) . . 313
1941 No. 24 (Adoption of Children) . . 41
1942 Ord. No. 19 (Companies Law Amendment) . . 313
1943 No. 54 (Amending No. 24 of 1941) ... 41
IX. BRITISH GUIANA
1629 Order van Regieringe, October 13 . . - . 8,407
1732 Octrooi for Berbice, December 6 . . . 407, 408
1774 Resolutions of the States General, October 4 . 8,407
1803 Articles of Capitulation of Essequibo and Demerara,
September 18 . . . . .11
1828 Order in Council, December 15 •','•' . . . 6
1829 Rules of Criminal Procedure . . . 6
1831 Letters Patent constituting the Colony of British
Guiana, March 4 . . . . I. 11
1916 Civil Law of British Guiana Ordinance (No. 15) . 24
X. SOUTH AFRICAN PROTECTORATES
1884 Basutoland, Procl. of the High Commissioner, May 29 12
1904 Swaziland, Procl. of the High Commissioner, No. 3 . 13
1907 Swaziland, Procl. of the High Commissioner, No. 4 . 13
1909 Bechuanaland, Procl. of the High Commissioner, No. 36 12
XI. SOUTHERN RHODESIA
1898 Order in Council, October 20 . \ . . 13
1923 Order in Council, July 30 13
1928 Married Persons' Property Act (R.S. cap. 151) 69, 72
1929 Deceased Estates Succession Act (R.S. cap. 51) 373, 407
1935 Abolition of Quitrent Act (No. 16) . . .161
1938 Coinage Act No. 32, Sees. 13, 15 . . . . 256
1943 Matrimonial Causes Act (No. 20) :
Sec. 7 v '* £ . ... .89
Sec. 9 ...... 90
Sec. 12 . . ... .96
Sec. 14 32
Ixxvi TABLE OF STATUTES
REVISED STATUTES OF SOUTHERN RHODESIA
Cap. 27. Prescription 148, 149
Cap. 49. Wills 368
Cap. 187. Game 136
Cap. 228. Usury . . 259
XII. SOUTH-WEST AFRICA PROTECTORATE
1919 Administration of Justice Proclamation (No. 21) . 14
1920 Proclamation No. 31 423
ADDENDA
p. 234, n. 3, in fine. In Botha v. Assad [1945] T.P.D. 1 the Court
(Schreiner J. and Brebner A. J.) held that the doctrine of laesio
enormis does not apply to contracts of letting and hiring.
p. 266, n. 2. Add Jackie v. Meyer [1945] A.D. 354.
p. 326, n. 3. Add Pierce v. Hau Mon [1944] A.D. 175.
CORRIGENDUM
p. 381 n. 1 in fine, for
Est. Welsford v. Est. Welsford read Eat. Welsford v. Eat. Wright.
GENERAL INTRODUCTION
4901
GENERAL INTRODUCTION
The THE phrase 'Roman-Dutch Law' was invented by Simon
Dutch van Leeuwen,1 who employed it as the sub-title of his
Law: work entitled Paratitla Juris Novissimi, published at Ley-
den in 1652. Subsequently his larger and better known
treatise on the 'Roman-Dutch Law' was issued under that
name in the year 1664.
The system of law thus described is that which obtained
in the province of Holland2 from the middle of the fif-
teenth to the early years of the nineteenth century. Its
main principles were carried by the Dutch into their settle-
ments in the East and West Indies; and when some of
these, namely, the Cape of Good Hope, Ceylon, and part
of Guiana, at the end of the eighteenth and the beginning
of the nineteenth century, passed under the dominion of
the Crown of Great Britain, the old law was retained as the
common law of the territories which now became British
colonies. With the expansion of the British Empire in
South Africa, the sphere of the Roman-Dutch Law has
extended its boundaries, until the whole of the area com-
prised within the Union of South Africa, representing the
four former colonies of the Cape of Good Hope, Natal, the
Transvaal, and the Orange River, as well as the country
formerly administered by the British South Africa Com-
pany and now constituting a separate colony under the
name of Southern Rhodesia, has adopted this system as its
common law. This is the more remarkable since in Holland
itself and in the Dutch colonies of the present day the old
law has been replaced by codes ; so that the statutes and
text-books, which are still consulted and followed in the
1 See Journ. Comp. Leg., N.S., vol. xii, p. 548.
2 The student will not fail to remember that Holland was one
only of the seven provinces which, having declared their inde-
pendence of Spain (1581), combined to form the Republic of the
United Netherlands (p. 5, n. 4). The modern equivalent is the
'Kingdom of the Netherlands', and this is what we commonly
mean to-day when we speak of 'Holland'.
ROMAN-DUTCH LAW 3
above-mentioned British dominions, are seldom of practi-
cal interest in the land of their origin.1
Though to indicate in general terms the nature of the
Roman-Dutch Law is a matter of no great difficulty, pre-
cisely to define its extent in time or space is not so easy.
Derived from two sources, Germanic Custom and Roman its origin,
Law, the Roman-Dutch Law may be said to have been
anticipated so soon as the former of these incorporated ele-
ments derived from the latter. Undoubtedly such a process
was at work from very early times. Long before the Corpus
Juris of Justinian had been 'received' in Germany, the
Codex Theodosianus (A.D. 438) had left its mark upon
the customary laws of the country now comprised within
the limits of the kingdoms of Holland and Belgium.2 Later, and deve-
the Frankish Monarchy, the Church through the medium opm'
of its Canon Law,3 the Universities and the Courts of law
forged fresh links between Rome and Germany. The
general reception of the Roman Law in Germany and Hol-
land in the fifteenth and sixteenth centuries completed a
process which in various ways and through various chan-
nels had been at work for upwards of a thousand years.4
For many centuries after the dissolution of the Frankish
Empire (c. 900) there was no general legislation. Under
the rule of the Counts of Holland the law of that province
consisted principally in general and local customs supple-
mented to an uncertain degree by Roman Law.. The nu-
merous privileges (handvesten) wrung from the Counts by
the growing power of the towns only tended to complicate
the law by a multiplication of local anomalies.5 In such a
1 On codification in Holland see a note by Dr. W. R. Bisschop
in Journ. Comp. Leg., N.S., vol. iii, p. 109.
2 Van de Spiegel, Verhandeling over den O or sprang en de Historic
der Vaderlandsche Rechten, pp. 73-4.
3 Ibid. p. 110. For some remarks on the part played by the
Canon Law in the formation of the mature system of R.-D. L. see
Kotze, Van Leeuwen [2nd ed.], vol. i, pp. 468 ff.
4 This has been aptly described as the 'infiltration', in contrast
with the 'reception', of the Roman Law.
B This was particularly the case when, as usually happened, the
towns enjoyed the privilege of making local regulations (keuren).
Wessels, History of the Roman-Dutch Law, p. 210.
4 GENERAL INTRODUCTION
state of things it is not surprising that, when medieval in-
stitutions proved inadequate to meet the needs of a fuller
and more complex life, resort was made to the Roman
Law as to a system logical, coherent, and complete.1 This
was the realization in the Netherlands of the 'momentous
process' which scholars have described as 'the reception
of the Roman Law' in Northern Europe.2 Later, under
Spanish rule, came an era of constructive legislation ; but
by that time the reception of the Roman Law was already
assured.
Therecep- Prominent amongst the causes which stimulated the
Roman ° 'reception' of the Roman Law in this special sense was the
Law in the establishment of the Great Council at Mechlin3 in the year
lands; 1473 with jurisdiction over the provinces of the Nether-
lands then subject to the Duke of Burgundy. This Court,
which continued to exist until the War of Independence,4
did much to assimilate the law in the various provinces,
and thus exercised a jurisdiction comparable to that of the
Judicial Committee of the Privy Council or (in a narrower
field) of the Appellate Division of the Supreme Court of
South Africa at the present day. Nicolaus Everardus,5 one
of our earliest authorities for the Roman-Dutch Law, was
President of this Court in 1528.6 Perhaps we shall not be
wrong if we select the year of the institution of this tri-
1 Sir John Kotze in 26 S.A.L.J. (1909), pp. 407-8, and Kotze,
Van Leeuwen, vol. i, Appendix, pp. 459-60.
8 Vinogradoff, Roman Law in Medieval Europe (2nd ed., 1929),
p. 12.
8 The Great Council (De Groote Road) was instituted in the
year 1446 by Philip the Good, Duke of Burgundy and Count of
Holland. It was fixed at Mechlin by Charles the Bold in 1473, and
again by Philip the Fair in 1503 (Fruin, Geschiedenis der Staatsin-
stellingen in Nederland, p. 140). The Provincial Court of Holland
(Hof van Holland) also exercised an important influence in the
same direction. For a short history of these Courts see Kotze,
op. cit., pp. 478 ff.
4 Fruin, p. 261. Its place was taken, as regards Holland and
Zeeland only, by the Hooge Road van Holland (en Zeeland), estab-
lished in The Hague in 1581. Zeeland submitted to its jurisdiction
in 1587.
6 Kotze, 27 S.A.L.J. (1910), p. 29.
6 He had previously been President of the Court of Holland
from 1509.
ROMAN-DUTCH LAW 5
bunal as, approximately, the starting-point of the system
which we know by the name of the Roman-Dutch Law j1
but it was not until a century later that the Roman Law
established itself in the inferior Courts.2
The reception of the Roman Law was by no means unequal
equally complete in all the provinces of the Dutch Nether- m t.he
lands.3 It was most far-reaching in Friesland, least so in provinces.
Overijsel and Drente.4 The other provinces lay at various
points between these extremes. It follows that the laws of
no two provinces were precisely the same, though, no doubt, ,
the legal systems of the principal provinces exhibited a
general resemblance, and the law-books of one province
are frequently cited as authority for the law of another.
But when we speak of the Roman-Dutch Law we mean not
a law common to the whole of the United Netherlands,
but specifically the law peculiar to the Province of Holland.
If we ask to what extent the Roman Law was received The ex-
in the Netherlands in general and in the province of Holland reception*3
in particular, we get different answers from the partisans matter of
of rival schools.5 There are those who regard Grotius, Van versy.
Leeuwen, Voet, and the other romanists as traitors to the
1 Bijnkershoek (Observationes Juris Romani, in praefat.) and
Sir John Kotze attribute the definite reception of the Roman Law
in the Province of Holland to a legislative enactment of Charles
the Bold of the year 1462 (Instructie voor den Stadthouder ende
Luyden van de Kamer van den Rode, Art. 42, 3 G.P.B. 635), but
this relates to procedure only and cannot carry the burden which
has been put upon it. Dr. P. van Heijnsbergen, Verspreide Op-
stellen, Amsterdam, 1929, p. 295.
2 Kotze, op. cit., p. 464. 3 Kotze, op. cit., p. 467.
4 Drente was never admitted to representation in the States -
General, but enjoyed full provincial autonomy. Fruin, p. 258.
The seven Provinces represented in the States -General were
Holland, Zeeland, Friesland, Overijsel, Groningen, Gelderland,
and Utrecht. The reception of the Roman Law was very largely
due to the establishment of Courts of the modern type with
academically trained judges. This condition was wanting in
Overijsel and Drente.
5 See, on the whole subject, Modderman, De Receptie van net
Romeinsche Recht (Groningen, 1874); Kotze, 26 S.A.L.J. (1909),
pp. 398 ff. ; Holdsworth, A History of English Law, vol. iv, pp.
217 ff . ; Vinogradoff, Roman Law in Medieval Europe (2nd ed. by
Prof, de Zulueta, Oxford, 1929) ; A. S. de Blecourt, Kort Begrip
van het Oiid-Vaderlandsch Burgerlijk Recht (vijfde druk), pp. 31 ff.
6 GENERAL INTRODUCTION
law of their country, which, it is inferred, they enslaved to
an alien system. But they must have the credit of bringing
some order into chaos. No one disputes the fact of the re-
ception of the Roman Law. What is questioned is the
degree to which the reception went. Van der Linden sup-
plies the answer : 'In order to answer the question what is
the law in such and such a case we must first inquire
whether any general law of the land or any local ordinance
(plaatselijke keur), having the force of law, or any well-
established custom, can be found affecting it. The Roman
Law as a model of wisdom and equity is, in default of such
a law, accepted by us through custom in order to supply
this want.'1 The limits of this acceptance are defined by
Van der Keessel in a series of theses2 which the late Pro-
fessor Fockema Andreae accepted as substantially correct.3
Legisla- During the period of Spanish rule, legislation became
tion under active. Many useful measures were promulgated by
rule. Charles V, such as the Placaat of May 10, 1529,4 relating
to the transfer and hypothecation of immovable property,
and the Perpetual Edict of October 4, 1540.5 In 1570 his,
son Philip II issued a Code of Criminal Procedure,6 which
regulated the practice of the Dutch Colonies until super-
seded by the humaner provisions of the English Law.7
The Political Ordinance of April 1, 1580,8 must also be
mentioned as one of the formative elements of the modern
law. The Civil Procedure of the Courts was regulated by
another Ordinance of the same year and day.9
1 Van der Linden, Handboek (Juta's translation), p. 2. See also
Gr. 1. 2. 22; Van Leeuwen, 1. 1. 11.
2 V.d.K. 6-23.
8 Irileidinge tot de Hollandsche Rechts-geleerdheid, beschreven bij
Hugo de Groot, met aanteekeningen van Mr. S. J . Fockema Andreae,
Hoogleeraar te Leiden (derde uitgave), Arnhem, 1926, vol. ii, p. 12 ;
Kotze, ubi sup. at p. 508.
4 1 G.P.B. 374.
B 1 G.P.B. 311. Wessels (p. 218) summarizes its contents.
6 2 G.P.B. 1007 ; Wessels, p. 373.
7 It remained part of the Law of British Guiana until 1829,
when it was superseded by Rules of Criminal Procedure made
under the authority of an Order in Council of December 15, 1828.
8 1 G.P.B. 330. Wessels (p. 222) summarizes its contents.
• 2 G.P.B. 695. See Wessels, p. 186.
ROMAN-DUTCH LAW
The history of the Roman-Dutch Law is for our present The
purpose the history of the authorities from whom we de-
rive our knowledge of it. To these we shall presently refer. Law "»
In the home of its origin the Roman-Dutch Law as a separ-
ate system survived by a few years the dissolution of the
Republic of the United Netherlands. In 1809 it was super-
seded by the Napoleonic Codes, which in turn gave place
in 1838 to the existing codes in force in the Kingdom of the
Netherlands. Van der Linden, the latest writer on the old
law, was also the earliest writer on the new. When the old
system crumbled beneath his hands he left unfinished his
projected Supplement to Voet's Commentary upon the
Pandects,1 and, applying his tireless industry in a new
field, became to his countrymen the interpreter of the laws
of their conqueror.2 The existing Dutch Civil Code, how-
ever, in many respects reverts from the rules of the French
law to the earlier law of Holland.
Having said thus much of the Roman-Dutch Law in
general, we go on to speak more particularly of its history
in the Dutch Colonies and in those parts of the world
where this system still obtains. After that we shall speak
of the sources from which our knowledge of the Roman-
Dutch Law is derived.
The two great trading companies of East and West, the The
Dutch East India Company, incorporated in 1602, and
the Dutch West India Company, incorporated in 1621, Law in
carried the Roman-Dutch Law into their settlements. Colonies?
The Cape was occupied by Van Riebeek in 1652. The
maritime districts of Ceylon were won from the Portuguese
in 1656. The Dutch settlements upon the 'Wild Coast' of
South America, which came to be known as Guiana> date
from the early years of the seventeenth century. How far How far
the statutes of the mother country were in force in these statute
Colonies the evidence hardly allows us to say. On prin- Law was
in force.
1 Johannis Voet, Commentarii ad Pandectas tomus tertius, con-
tinens supplementum auctore Joanne van der Linden. Sectio prima,
a libro I usque ad XII Pandectarum, Trajecti ad Rhenum, 1793.
2 In his Beredeneerd register op het wetboek Napoleon, ingericht
voor het Koningrijk Holland (Amsterdam, 1809) and other works.
8 GENERAL INTRODUCTION
ciple they would not apply unless expressly declared to
be applicable, or at least unless locally promulgated j1 but
some may have been accepted by custom as part of the
common law.2 As regards laws of the patria passed sub-
sequently to the date of settlement it may be thought that
the burden of proof lies on him who alleges their applica-
tion. The States of Holland (i.e. the Provincial Legisla-
ture) were not competent to legislate for the Colonies.3
The States-General (i.e. the Federal Legislature of the
United Netherlands) seldom did so. The two Chartered
Companies of East and West acted through their Execu-
tive Committees, the Council of XVII and the Council of
X respectively, which, no doubt, influenced the course of
legislation in the several Colonies, but formally, the legisla-
tive authority in each case was the Governor-in-Council,
and, in the East Indies, the Governor-General, who from
Batavia issued rules for the government of the various
stations, which, if locally promulgated, had binding force
until superseded or forgotten.4 Failing the above and any
colonial custom having the force of law, recourse was had
to 'the laws statutes and customs of the United Nether-
lands' and, where these were silent, in the last resort to
the Law of Rome.5 It may be supposed, since the Dutch
1 As to the necessity of promulgation see Gr. 1.2. 1, and Groene-
wegen and Schorer, ad loc. : Van Leeuwen, 1. 3. 14; V.d.K. 1.
8 See Appendix to this chapter (infra, p. 26).
3 This does not exclude the acceptance of some enactments
of the States of Holland and their incorporation in the common
law of South Africa. Est. Heinamann v. Est. Heinamann [1919]
A.D. at p. 114 (de Villiers A.J.A.) ; Rex v. Harrison [1922] A.D. at
p. 330 (Innes C.J.) ; Rex v. Sacks [1943] A.D. at p. 422.
4 The collected edition of the Statutes of Batavia of 1642 seems
to have been promulgated at the Cape in 1715. Burge, Colonial
and Foreign Laws (New Edition), vol. i, p. 115. Governor van der
Parra's New Statutes of Batavia of 1766 were never recognized by
the States-General and had not strictly the force of law. (But see
'The New Statutes of India at the Cape', by J. L. W. Stock, 32
S.A.L.J. (1915), p. 328.) Neither of these collections was published
under the old regime. The law in force in the West Indies was
defined by the Ordre van Regieringe of October 13, 1629 (2 O.P.B.
1235; Burge, vol. i, p. 119), and later by the resolutions of the
States -General of October 4, 1774 (Laws of Brit. Gui., ed. 1905, vol.
i, p. 1 ; Burge, vol. i, pp. 121 ff.). 5 Burge, vol. i, p. 116.
ROMAN-DUTCH LAW 9
Colonies stood in no peculiar relation to the province of
Holland more than to any other province of the United
Netherlands, that even general customs of this province
had no preferential claim to acceptance in the Colonies.
In theory this is true. In practice the predominant partner
carried the day. In South Africa, at all events, there is a
presumption in favour of the admission of a general custom
of Holland rather than that of any other province as part
of the common law of the country.1
The Dutch settlements of the Cape of Good Hope, Cey- The
Ion, and Guiana passed into the hands of the British at
the end of the eighteenth and the beginning of the nine- Lawunder
teenth century. The Cape was taken from the Dutch in R"jg!
1795, given back in 1803, retaken in 1806, since when it («) At the
has remained part of the British Dominions.2 It does not
appear that any express stipulation was made upon the
occasion of either the first or the second cession for the re-
tention of the Roman-Dutch Law.3 Its continuance is the
expression of the settled principle of English law and policy
that colonies acquired by cession or by conquest retain
their old law, so long and so far as it remains unrepealed.
In a system derived from the Roman Law repeal may be
effected tacito consensu as well as alia postea lege lata ; so
1 Per Kotze J.P., in Fitzgerald v. Green [1911], E.D.L. at p. 493.
Dr. Bisschop (Burge, 2nd ed., vol. i, p. 91) directs attention to the
preponderating influence in the affairs of the Company of the
Chambers of Amsterdam and of Middelburg, and to the" fact that
the Company was held to be domiciled within the jurisdiction of
the Court of Holland. The same writer has observed elsewhere
that the colonial courts in most cases got their law, so far as it
was not comprised in local statutes and customs, from text-
books rather than from the original sources, with the result that
'the local law of the Netherlands — as far as it was not referred
to by writers on Roman-Dutch Law — would be ignored'. Law
Quarterly Review, vol. xxiv, p. 169.
2 The definitive cession to Great Britain was effected by the
Convention of London, 13 August 1814. British and Foreign State
Papers, 1814-15, p. 37.
3 But 'The Cape Articles of Capitulation, dated the 18th Janu-
ary, 1806, stipulated that the rights and privileges which the
inhabitants had theretofore enjoyed should be preserved to them.
Among those privileges the retention of their existing system of
law was undoubtedly included.' Rex v. Harrison, ubi sup.
10 GENERAL INTRODUCTION
that as regards the Cape Province we may state the
presumption to be that, except so far as they have been
abrogated by legislation or by the growth of a custom
inconsistent therewith, or by mere disuse, the laws which
obtained under the Dutch Government remain in force at
the present day.1 Custom, however, has made short work
with the pre-British statute law. The earliest collected
edition of the Cape statutes (1862) contains nine enact-
ments prior to 1806, the latest edition (1895) five, and now
there is a partial retention of two.2 The remainder of the
Dutch placaten (whether emanating from Batavia, or
locally enacted) have been abrogated by disuse. We are
speaking, of course, of statute law subsequent to 1652, the
date of the Dutch occupation of the Cape. The home legis-
lation prior to that date, unless inapplicable or abrogated
by disuse, may be regarded as forming part of the common
law of the Colony.
(6) in In Ceylon the continuance of the Roman-Dutch Law
Ceylon; was guaranteed by the Proclamation of Governor the
Honourable Francis North of September 23, 1799, which
declared that the administration of justice and police
should be henceforth and during His Majesty's pleasure
exercised by all courts of judicature, civil and criminal,
'according to the laws and institutions that subsisted
1 Per de Villiers C.J. in Seaville v. Colley (1891) 9 S.C. at p. 44:
'The conclusion at which I have arrived as to the obligatory nature
of the body of laws in force in this Colony at the date of the British
occupation in 1806 may be briefly stated. The presumption is that
every one of these laws, if not repealed by the local Legislature, is
still in force. This presumption will not, however, prevail in regard
to any rule of law which is inconsistent with South African usages '.
This principle applies alike to the statute law and to the common
law of Holland. See Parker v. Reed (1904) 21 S.C. 496 ; Machattie
v. Filmer (1894) 1 O.K. 305; Natal Bank v. Kuranda [1907] T.H.
155; Green v. Fitzgerald [1914] A.D. 88. In the last-named case
Innes J.A. said (at p. Ill): 'I do not think, however, that the
doctrine of the Roman-Dutch Law can be confined to cases where
contrary usage has been established; both in principle and on
authority mere desuetude must in certain circumstances be
sufficient.' See also Rex v. Detody [1926] A.D. at p. 223; O'Cal-
laghan N.O. v. Chaplin [1927] A.D. at p. 328 ; Tutt v. Tutt [1929]
C.P.D. at p. 53.
2 Act No. 25 of 1934.
ROMAN-DUTCH LAW 11
under the ancient government of the United Provinces',
subject to such deviations and alterations as have been or
shall be by lawful authority ordained and published.1 The
central portion of the island did not pass under British
rule until 1815, but the Dutch Law was applied to this
region also by Ord. No. 5 of 1852.2 In Guiana the existing (c) In
laws and usages were expressly retained in the articles of Guiana.
capitulation of Essequibo and Demerara dated September
18, 1803, and Berbice surrendered on the same terms a few
days later. A similar provision was contained in the Letters
Patent of March 4, 1831, by which the three settlements
were constituted a single colony under the name of British
Guiana.3
It results from what has been said that the foundation General
of the law of Cape Colony was the Dutch law as it existed re
in that settlement in the year 1806 ; that the law of Ceylon
is based upon the system administered in the island in
1796;4 and that the law of British Guiana rested upon a
substructure of Dutch laws and usages having authority
in the settlements of Essequibo, Demerara, and Berbice
in the year 1803.
It remains to speak of the geographical extension of the
Roman-Dutch Law in South Africa.
1 It has been doubted whether the Dutch ever applied their law
to the native races of the low country. But since the British occu-
pation the low-country Sinhalese have had no distinctive law of
their own, and have always been treated as subject to the Roman-
Dutch law.
2 This Ordinance extends to the Kandyan provinces certain
specified branches of the law of the Maritime Provinces, and
further enacts that if the Kandyan Law is silent on any matter
the law of the Maritime Provinces is to be applied. It says nothing
as to the general law applicable to Europeans or low-country
Sinhalese residing in the Kandyan provinces. The extension to
them of the Roman-Dutch Law in general seems to be the work of
judicial decisions (see Williams v. Robertson (1886) 8 S.C.C. 36).
3 Laws of B. Q. ed. 1905, vol. i, p. 12. For the history of the
Roman -Dutch Law in British Guiana see Report of the Common
Law Commission (Georgetown, Demerara, 1914) and 'Roman-
Dutch Law in British Guiana' (Journ. Comp. Leg., N.S., vol. xiv,
p. 11), by the present writer.
4 The capitulation of Colombo to the British is dated February
15 of that year.
12
GENERAL INTRODUCTION
Geograph-
ical exten-
sion of the
Roman-
Dutch
Law.
Natal.
Zululand.
Basuto-
land.
Bechuana-
land Pro-
tectorate.
So long as the boundaries of Cape Colony enlarged them-
selves by gradual and inevitable advance, so long the Dutch
law extended its sphere by the same natural process of ex-
pansion without express enactment. But before the middle
of the last century the era of annexation had begun.
Natal was annexed to the Cape by Letters Patent of
May 31, 1844, and this was followed by Cape Ordinance
No. 12 of 1845, establishing the Roman-Dutch Law in and
for the district of Natal. This remained the common law of
the Colony, which was called into existence as a separate
entity by Royal Charter of July 15, 1856; and now the
Natal Act No. 39 of 1896 provides (sec. 21) that: 'The
system, code, or body of laws commonly called the Roman-
Dutch law as accepted and administered by the legal tri-
bunals of the Colony of the Cape of Good Hope up to
August 27, 1845,1 and as modified by the Ordinances,
Laws, and Acts now in force, heretofore made or passed
in this Colony by the Governor or Legislature thereof, is
the law for the time being of the Colony of Natal, and of
His Majesty's subjects and ah1 others within the said
Colony.'
The law of Natal, with some reservations, obtains also
in Zululand, which became part of Natal on December 30,
1897.2
In Basutoland, by Proclamation of the High Commis-
sioner, dated May 29, 1884, the law to be administered
(save between natives) is, as nearly as the circumstances
of the country permit, the same as the law for the time
being in force in the Colony of the Cape of Good Hope ;
but Acts of the Cape Legislature passed after the date of
the Proclamation do not apply.
By Proclamation of the High Commissioner, No. 36 of
1909, the law of Cape Colony is to be administered, as far
as practicable, in the Bechuanaland Protectorate, to the
exclusion, however, of Cape statutes promulgated after
June 10, 1891.
1 This is the date from which the Cape Ordinance took effect.
a Natal Act No. 37, 1903.
ROMAN-DUTCH LAW 13
By the Southern Rhodesia Order in Council of October Southern
20, 1898, s. 49 (2), the law of Cape Colony as it stood on Rhodesia-
June 10, 1891, applies in Southern Rhodesia, except so
far as that law had been modified by any Order in Council,
Proclamation, Regulation or Ordinance in force at the
date of the commencement of the Order.1
In the Republics the Roman-Dutch law remained in Transvaal
force almost unaltered up to the date of annexation.2
It is continued in the Orange River Colony (now once Free
more the Free State) by Ordinance No. 3 of 1902, s. 1, and
in the Transvaal by Proclamation No. 14 of 1902, s. 17.
But in each of the new Colonies extensive alterations were
made so as to bring the law into closer harmony with the
system obtaining in the adjoining territories.
By Proclamation of the High Commissioner of February Swazi-
22, 1907, the Roman-Dutch common law, save in so far as land>
the same has been or shall be modified by statute, is law
in Swaziland.3
By the South Africa Act, 1909 (9 Edw. VII, c. 9), which The
took effect on May 31, 1910, the four Colonies of the Cape gjjjJJ of
of Good Hope, Natal, the Transvaal, and the Orange River Africa.
Colony4 were united in a Legislative Union under one
Government under the name of the Union of South Africa
(s. 4), and became original provinces of the Union under
1 The territories within the limits of the Southern Rhodesia
O. in C., 1898, were by the Southern Rhodesia (Annexation) O. in
C., dated July 30, 1923, annexed to the British Crown as from
September 12 of that year, and have since been known as the
Colony of Southern Rhodesia. The Southern Rhodesia Constitu-
tion Letters Patent of September 1, 1923, taking effect from
October 1, provide for the establishment of Responsible Govern-
ment, and define the constitution of the Colony.
2 A resolution of the Volksraad of the South African Republic
of September 19, 1859, gave statutory authority to the legal
treatise of Van der Linden, which failing, the commentaries of
Simon van Leeuwen and the Introduction of Hugo de Groot were
to be binding. This quaint enactment was repealed by Tr. Procl.
No. 34 of 1901.
3 And Transvaal Statute Law as it existed on October 15, 1904,
except so far as amended or altered. Procl. 3 of 1904; Procl. 4 of
1907.
4 On annexation to the British Crown (May 31, 1902), the
Orange Free State became the Orange River Colony.
14
GENERAL INTRODUCTION
The Pro-
tectorate
of South-
West
Africa.
The
sources
of the
Roman-
Dutch
Law.
I. Trea-
tises.
the names of Cape of Good Hope, Natal, Transvaal, and
Orange Free State respectively. Subject to the provisions
of the Act, all laws1 in force in the several Colonies at
the establishment of the Union are continued in force in
the respective provinces until repealed or amended by the
Parliament of the Union, or by the provincial councils in
matters in respect of which the power to make ordinances
is reserved or delegated to them (s. 135).
The latest extension of Roman-Dutch Law is to the
Mandated Territory, known as the Protectorate of South-
West Africa. By the Administration of Justice Proclama-
tion (No. 21 of) 1919, issued by the Administrator of the
Protectorate by virtue of powers delegated to him by the
Governor-General of the Union, the Roman-Dutch Law as
existing and applied in the province of the Cape of Good
Hope at the date of the coming into effect of this Pro-
clamation (January 1, 1920) shall from the said date be
the Common Law of the Protectorate, and all Laws within
the Protectorate in conflict therewith shall to the extent
of such conflict ... be repealed.2
The last portion of this introductory chapter relates to
the authentic sources of the Roman-Dutch Law, which are
also the primary sources of our knowledge of that system.
These are :
1. Treatises. 4. Opinions of Jurists.
2. Statute Law. 5. Custom.
3. Decisions of the Courts.
I. Treatises? The numerous works of the Dutch jurists,
1 'By the word Laws in that section the Legislature meant
Statutes, and never intended that the section should apply to
Judge-made Law.' Webster v. Ellison [1911] A.D. at p. 99 per
Solomon J.
2 Off. Gaz. of the Protectorate of S.-W. Africa, 1919, No. 25.
See also Union of S. A. Act No. 49 of 1919 and Union Procl. No. 1
of 1921. Act No. 12 of 1920 gives jurisdiction to the Appellate
Division to hear appeals from the High Court of the Protectorate.
All relevant documents are collected in 'The Laws of South-West
Africa, 1915-1922'. The constitutional and international status of
the mandated territory raised difficult questions. See Rex v. Chris-
tian [1924] A.D.' 101.
8 For a bibliography of the principal Roman-Dutch law books
ROMAN-DUTCH LAW 15
written in Dutch and Latin at various dates from the six-
teenth to the nineteenth centuries, are cited to-day as
authoritative statements of the law with which they deal.
A modern textbook has no such authority. The rules
therein expressed are merely opinions which counsel in
addressing the Court may, if he pleases, incorporate in his
argument, but which have no independent claim to atten-
tion, however eminent their author. The works of the
older writers, on the contrary, have a weight comparable
to that of the decisions of the Courts, or of the limited
number of 'books of authority' in English Law. They are
authentic statements of the law itself, and, as such, hold
their ground until shown to be wrong. Of course the
opinions of these writers are often at variance amongst
themselves or bear an archaic stamp. In such event the
Courts will adopt the view which is best supported by au-
thority or most consonant with reason ; or will decline to
follow any, if all the competing doctrines seem to be out of
harmony with the conditions of modern life ; or, again, will
take a rule of the old law, and explain or modify it in the
sense demanded by convenience.
The principal writers on the old law and their principal Writers of
works are the following : seven-
teenth
SEVENTEENTH CENTURY century.
H. DE GROOT (1583-1645). Inleiding tot de Hollandsche
RechtsgeleertheydCsGiavenhage, 1631) ; the same with notes
by Groenewegen (1644); the same with added and more
extensive notes by W. Schorer (1767).1 This is the best old
see The Commercial Laws of the World, vol. xv — South Africa —
pp. 14 ff. The South African Legal Bibliography of Mr. A. A.
Roberts, K.C. (Pretoria, 1942) is a mine of information and a
monument of industry.
1 In the early editions of Grotius the paragraphs are not num-
bered. Van Leeuwen cites Grotius by book, chapter, and the
initial words of the paragraphs, e.g. Grot., Introd., lib. I, cap. 5,
vers. Alle Mondigen. Voet makes the numeration of Groenewegen's
notes do duty for paragraphs. Thus: Hugo Grotius manuduct. ad
Jurisprud. Holl. Libr. I, cap. 5, num. 13 (= Gr. 1. 5. 9). The division
of the chapters into paragraphs was first employed in an edition of
the 'Inleydinge' published at Amsterdam by Jan Boom in 1727.
16 GENERAL INTRODUCTION
edition. The best modern edition is that with historical
notes by Fockema Andreae and (3rd ed.) van Apeldoorn.
There are translations by Charles Herbert (1845), Sir
A. F. S. Maasdorp (3rd ed. 1903), and R. W. Lee (1926).
AUNOLDUS VINNIUS ( 1 588-1 657 J.1 In IV libros Institutio-
num Imperialium Commentarius (1642). This well-known
work contains copious references to the jus hodiernum.
The best edition is that with notes by the Prussian jurist
Heineccius.
S. VAN GBOENEWEGEN VAN DEB, MADE (1613-52)
edited the Inleiding of Grotius in 1644. In 1649 he pro-
duced his well-known Tractatus de legibus abrogatis et
inusitatis in Hollandia vicinisque regionibus, in which he
goes through the Corpus Juris by book and title and con-
siders how far it has been received or disused in the
modern law.
SIMON VAN LEEUWEN (1625-82) published his Censura
Forensis in 1662 and his Roomsch Hollandsch Recht in
1664.2 The last-named work was an amplification of a
slighter treatise called Paratitla Juris Novissimi, pub-
lished in 1652 and again in 1656. The best edition of the
Censura Forensis is the edition of 1741, with notes by
Gerardus de Haas. The best edition of the Roomsch Hol-
landsch Recht is that with notes by C. W. Decker issued in
1780. This has been translated with additional notes by
the late Sir John Kotze.3
ULBIK HUBEB (1636-94) issued the first volume of his
Praelectiones Juris Civilis, containing his commentary on
the Institutes of Justinian, in the year 1678. This was
followed after a considerable interval by his commentary
1 Wessels, History of the Roman-Dutch Law, p. 294.
a The title-pages of this work and of its precursor, the Paratitla,
afford an interesting indication of the uncertainty of seventeenth
century spelling. The first edition of the Paratitla has for its sub
title Een kort begrip van het Rooms -Hollandts-Reght. In the second
edition this becomes Een Kort begrip van het Rooms -Hollands -Recht.
The first edition of the later work is described as Het Rooms-Hol-
lands-Regt. Lastly, in Decker's edition (1780) we have Roomsch
Hollandsch Recht, and this I have followed.
8 Second edition, 1921-3.
ROMAN-DUTCH LAW 17
on the Digest in two additional volumes. The best edition
is that of J. Le Plat of Louvain issued in 1766. The same
author published in 1686 his treatise entitled Heedens-
daegse Rechtsgeleertheyt, soo elders als in Frieslandt gebrui-
kelyk. The last-named work, though principally concerned
with the law of Friesland, not of Holland, is a valuable
contribution to the study of the Roman-Dutch Law. It
was edited after the author's death by his son ZACHABIAS
HUBEB, who, like his father, was a Judge of the Frisian
High Court.1
JOHANNES VOET (1647-1713). Commentarius ad Pan-
dectas. This work was published at The Hague and at .
Leyden in 1698 and 1704 in two volumes folio. It has gone
through very many editions. The best is the Paris edition
of A. Maurice of 1829, which is free from some of the mis-
prints which disfigure the folio editions. The whole of Voet
has not been systematically translated into English, but
translations varying in merit are procurable of many of the
separate titles.2 In 1793 Van der Linden published, in
folio, a Supplement to Voet's Commentary. It extends
only to Book xi of the Pandects. Amongst the lesser works
of Voet may be mentioned his Compendium of the Pan-
dects, which, though issued before the larger work, serves
the purpose of an analysis of it. A little book in Dutch
published in the eighteenth century under the name of De
beginselen des rechts is a translation from the Latin of
Voet's analysis of the Institutes (Elementa Juris), supple-
mented with a translation of those passages in Vinnius'
Commentary in which reference is made to the modern law.
EIGHTEENTH CENTURY
CORNELIS VAN BlJNKEBSHOEK (1673-1743) is beyond Writers
controversy the most eminent Dutch jurist of the eigh- °f ^e
teenth century. He was President of the Supreme Court teenth
century,
1 Translated into English by Mr. Justice Gane of the Supreme
Court of South Africa (Butterworth & Co., 1939).
2 There is an Italian translation printed in parallel columns
with the Latin text (Venezia, 1846). It is understood that Mr.
Justice Gane is making a translation into English of the whole work,
4901 0
18 GENERAL INTRODUCTION
of Holland, Zeeland, and West Friesland from 1724 until
his death. For our present jpurpose the most useful of his
works is the Quaestiones Juris Privati, published in Latin
in 1744, and in a Dutch translation in 1747. Of his notes
on decided cases entitled Observations Tumultuariae two
volumes have been published.1
Mention has been made of SCHOBEB'S edition of Grotius
(1767) and of DECKEB'S edition of Van Leeuwen (1780).
A Dutch translation of Schorer's notes on Grotius, which
contains additional matter supplied to the translator by
the author, appeared from the hand of J. E. AUSTEN in
1784-6. This is the edition referred to in the margin of
Professor Fockema Andreae's edition of Grotius.
A useful work was published by Van der Linden and
other jurists in 1776 under the name of Honderd Eechtsge-
leerde Observatien, dienende tot opheldering van verscheide
duistere, en tot nog toe voor het grootste gedeelte onbewezene
passagien uyt de Inleidinge tot de Hollandsche Eechtsge-
leerheid van wylen Mr. Hugo de Groot.
D. G. VAN DEB KEESSEL (1738-1816), a Professor at
Leyden, issued in the year 1800 his Theses Selectae juris
Hollandici et Zelandici ad supplendam Hugonis Grotii In-
troductionem ad Jurisprudentiam Hollandicam. The work
was reprinted in 1860. There is a translation by C. A.
Lorenz. The Dictata in which the author of the Theses
expanded and supported them still circulate in manuscript,
but have not been printed. There is a fine MS. copy in the
University Library at Leyden corrected by Van der Kees-
sel, and another with extensive additions from the author's
hand in the University Library at Utrecht. A type-script
of the Leyden MS. was presented to the Supreme Court
Library at Cape Town by the late Dr. C. H. van Zyl.
JOANNES VAN DEB LINDEN (1756-1835) is the last of the
old text-writers. In 1781 he published his Verhandeling
over de judicieele practijcq, which is still consulted. But
1 See 39 S.A.L.J. (1922), p. 291. The first volume, edited by
Professors Meijers and de Blecourt of Leyden and Bodenstein of
Stellenbosch, was published in 1926. A second volume appeared
in 1934.
ROMAN-DUTCH LAW 19
his best-known work is his introduction to Roman-Dutch
Law, issued in 1806 under the name of Regtsgeleerd, Prac-
ticaal, en Koopmans Handboek. The book is elementary,
but has enjoyed favour among students, particularly in
the translations of Sir Henry Juta and G. T. Morice.
There is an older translation by Jabez Henry (1828).
Another work by the same author which may be men-
tioned (besides his supplement to Voet referred to above)
is his Dutch translation of POTHIER on Obligations, with
short notes from his own hand (1804-6).
If the student wishes to supplement the above-men-
tioned list of books with a handy law dictionary he will
find BOEY'S Woorden-tolk sometimes useful. KERSTEMAN'S
larger work, Hollandsch Rechtsgeleert Woorden-Boek 1768,
and the supplementary volumes by Lucas Willem Kramp1
enjoy a reputation which is scarcely merited. The collec-
tion of pleadings by WILLEM VAN ALPHEN known by the
quaint name of Papegay (originally published in 1642) is
deservedly famous. If Van der Linden's work on Proce-
dure proves inadequate, reference may be made to PAUL
MERULA'S Manier van Procederen, the last and best edition
of which, under the names of Didericus Lulius and Joannes
van der Linden, was issued in the years 1781-3.
II. Statute Law. The enactments of the States-General n. Statute
and of the States of Holland and West Friesland2 are to Law<
be found in the ten folio volumes of the Groot Placaat Boek.
The statutes of Batavia are printed in VAN DEE, CHIJS,
Nederlandsch-Indisch Plakaat Boek. The pre-British stat-
utes of the Cape exist but have not been printed.
III. Decisions of the Courts. Many published volumes III. Deci-
of Decisions have come down to us and are a valuable ^ens
source of law. Particular mention may be made of the Courts.
Sententien en gewezen Zaken van den Hoogen en Provincialen
1 As to the authorship of the Aanhangsel to Kersteman's
Woorden-Boek see Journ. Comp. Leg., N.S., vol. xii, p. 549. It
consists largely of translations from Voet's Commentary.
2 This is the official description of the legislature of the Province
of Holland. West Friesland was annexed to Holland in the
thirteenth century.
20 GENERAL INTRODUCTION
Road in Holland, Zeeland en West- Vriesland, published by
JOANNES NAERANUS at Rotterdam in 1662; of the Utrius-
que Hollandiae, Zelandiae, Frisiaeque Curiae Decisiones of
CORNELIUS NEOSTADIUS, printed at the Hague in 1667;
and of the Decisiones Frisicae sive rerum in Suprema
Frisiorum Curia judicatarum libri V of JOHANNES A SANDE,
himself a Judge of the Court whose decisions he reports.
The Latin original of this work is dated 1634. There is also
a Dutch translation. These three volumes of Reports are
often cited by Voet. Van der Keessel frequently refers to
a volume entitled Decisien en Resolution van den Hove van
Holland, published at The Hague in 1751 j1 but this and
Van der Linden's Verzameling van merkwaardige Oewijsden
der Oerechts-hoven in Holland? published at Leyden in
1803, are rarely obtainable.
IV. Opin- IV. Opinions of Jurists. The numerous volumes of
Jurists Consultatien, Advysen, &c., are a very interesting and
characteristic feature of the Roman-Dutch system of juris-
prudence. It is enough here to refer more particularly to
the well-known collection entitled Consultatien, Advysen
en Advertissementen g eg even ende geschreven by verscheijden
treffelijke Rechtsgeleerden in Hollant end elders (commonly
known as the Hollandsche Consultatien), first published by
Naeranus at Rotterdam from 1645 to 1666,3 containing
1 The author of this collection has been identified by Professor
Meijers as Anthony Duyck, who was successively Registrar of the
Court of Holland (1602-16) and Member of the Hooge Raad
(1620-1). (Tijdschri/t voor Rechtsgeschiedenis, vol. i, p. 400.) Many
of the decisions had previously been published in Holl. Cons.,
vol. iii, part 2 (Amsterdamsche Derde Deel) and Holl. Cons., vol. vi.
-2 The Introduction to this volume contains some valuable
• observations by the compiler on the authority of decided cases.
In the same connexion reference may be made to Sir John Kotz6's
article on 'Judicial Precedent' in 34tS.A.L.J. (1917)rp. 280, and to
Kotze, Van Leeuwen, vol. i, p. 484. See also Moti & Co. v. Cassim's
Trustee [1924] A.D. at p. 741.
* Wessels, p. 243. There are two separate third volumes of the
Hollandsche Consultatien, known respectively as the Rotterdamsche
derde deel and the Amsterdamsche derde deel (the work of an inter-
loping publisher), commonly distinguished as iii (1) and iii (2)
(but Voet inverts the order). The additional Consultatien contained
in the Amsterdam volume were included by Naeranus in vol. vi.
ROMAN-DUTCH LAW 21
the opinions of Grotius and other eminent lawyers. The
opinions of Grotius, in particular, have been translated
and edited by D. P. de Bruyn (1894). Other collections
designed to supplement the above-named work were issued
at various dates during the eighteenth century.
V. Custom. This is in every country a source of law.1 V. Custom.
It is mentioned here more particularly because, as observed
above, it is through custom that the Roman Law found
its way into Holland,2 and it is as custom that it continues
to exist in the modern law. Without attempting a biblio-
graphy of the jus civile we may perhaps be allowed to
recommend the student to supply himself with the Momm-
sen-Kriiger-Schoell edition of the Corpus Juris. For a law
lexicon he will consult the older works of Calvin3 or Vicat4
or Heumann's Handlexicon,5 or the exhaustive Vocabu-
larium Jurisprudentiae Romanae in course of publication
under the auspices of the Savigny Foundation.
Such, then, are the sources of the Roman-Dutch Law, or Sources
such were its sources while it still flowed in an undivided modern
stream. They remain the sources of the modern law, la^.
supplemented by enactments of the local legislatures, de-
cisions of the Courts of law, and local authoritative custom.
The treatises and opinions of modern lawyers do not make
law, though they help the inquirer to find out what the
law is.
Amongst works on the modern law of South Africa the
following may be particularly mentioned: The Common
and in later editions are incorporated in vol. iii. (A. A. Roberts,
Legal Bibliography, p. 157.)
1 Gr. 1. 2. 21; Voet, 1. 3. 27 ff . ; Van Breda v. Jacobs [1921]
A.D. 330. For the cognate topic of 'trade usage ' or 'trade custom '
see Coutts v. Jacob [1927] E.D.L. 120; Crook v. Pedersen Ltd.
[1927] W.L.D. 62; Barnabas Plein & Co. v. Sol Jacobson & Son
[1928] A.D. 25.
3 Gr. 1. 2. 22 (door gewoonte als wetten aengenomen).
8 Calvinus J., Lexicon juridicum juris Caesarei simul et Canonici,
Geneva, 1670.
4 B. Philip Vicat, Vocabularium Juris utriusque, Lausanne,
1759.
6 Heumanns Handlexicon zu den Quellen des romischen Rechts
(9th ed., edited by Dr. E. Seckel), Jena, 1907, reprinted 1926.
22 GENERAL INTRODUCTION
Law of South Africa, by Dr. MANFRED NATHAN ; The Insti-
tutes of South African Law, by Sir A. F. S. MAASDORP ;
English and Roman-Dutch Law, by GEORGE T. MORICE ;
The Law of Contract in South Africa, by Chief Justice Sir
JOHN WESSELS, edited by Mr. Advocate A. A. ROBERTS ;
Principles of South African Law, by Professor GEORGE
WILLE. In recent years there has been an increasing
number of monographs on various branches of the law,
many of which are cited in this book.
For the Law of Ceylon the student may refer to The
Laws of Ceylon, by Mr. Justice PEREIRA (2nd ed., Colombo,
1913); The Laws of Ceylon by K. BALASINGHAM (1929-
37) in course of publication ; and to the earlier work entitled
Institutes of the Laws of Ceylon, by HENRY BYERLEY
THOMSON, a Puisne Judge of the Supreme Court of Ceylon,
published in 1866. Sir CHARLES MARSHALL'S Judgments,
the., of the Supreme Court of the Island of Ceylon, published
at Paris in 1839, furnishes a conspectus of the law of the
Colony as it existed in the first half of the last century.
Reception The reader who may use this book or one of the older
Sf11??, text-books mentioned above as an introduction to his
English
Law in the study of the modern law in South Africa or Ceylon must
168 ' bear in mind that just as the Roman-Dutch law of Holland
was drawn from different sources, so the law of these
countries, Roman-Dutch in origin, has been affected in
almost every department by the influence of English Law.
there- This has been the result partly of express enactment,
Mex^ress P^ly °f judicial decisions, partly of tacit acceptance.
enact- As examples of statutory introduction of the law of
Jn ' England, mention may be made of the Ceylon Ordinance
No. 5 of 1852, which enacts that the law of England is to
be observed in maritime matters and in respect of all con-
tracts and questions relating to bills of exchange, promis-
sory notes, and cheques j1 and of the Ceylon Ordinance No.
1 But see now Ord. No. 25 of 1927, 'An Ordinance to declare
the Law relating to Bills of Exchange, Cheques, and Promissory
Notes ', which repeals Ord. No. 5 of 1 852 pro tanto.
ROMAN-DUTCH LAW 23
22 of 1 866, which makes similar provisions with respect to
the law of partnerships, joint-stock companies, corpora-
tions, banks and banking, principals and agents, carriers
by land, life and fire insurance.
At the Cape the General Law Amendment Act No. 8 of
1879 introduced the English law: (s. 1) in all questions re-
lating to maritime and shipping law; and (s. 2) in all
questions of fire, life, and marine assurance, stoppage in
transitu, and bills of lading.1 But (s. 3) English statutes
passed subsequently to the date of the Act do not apply.
It would occupy too much space to speak of the numer- or imita-
ous statutes which follow more or less closely the language English
of English Acts of Parliament, and through this channel statute
admit rules and principles of the law of England. As
examples may be cited the Ceylon Sale of Goods Ordinance
No. 1 1 of 1896, the Ceylon Married Women's Property Ordi-
nance No. 18 of 1923, and the South African legislation on
Bills of Exchange and Companies. The numerous changes
produced by the statutory abolition of institutions of the
Roman-Dutch common law will be illustrated in the
course of this book.
Judicial decisions, whether of the local Courts or of the (6) judicial
Judicial Committee of the Privy Council, have done much ( 310ns;
to affect the development of the Roman-Dutch common
law. This is another channel through which the English
law has made its influence felt — an influence not directed
by any deliberate purpose, but none the less profound and
far-reaching in its effects.
Lastly, much of the English law has found its way in (c) tacit
by a process of silent and often unnoticed acceptance.
It would be easy to accumulate instances in every branch
of the law.2 But the student may better be left to draw
1 This section was made applicable to the O. F. S. by Ord. No. 5
of 1902.
3 Reference may be made to Sir John Wessels, History of the
Roman-Dutch Law, Part I, chap, xxxv; to Professor H. D. J.
Bodenstein, 'English Influences on the Common Law of South
Africa,' 32 S.A.L.J. (1915), p. 337; and to C. Graham Botha,
'Early Influence of the English Law upon the Roman -Dutch Law
in South Africa', 40 S.A.L.J. (1923), p. 396.
24 GENERAL INTRODUCTION
his own conclusions from the pages of the law reports and,
in course of time, from the practice of his profession.
The In conclusion, a few words will be permitted with regard
Dutch*1" *° *ne Pas* history, present condition, and future prospects
of the Roman-Dutch system within the British Empire.
British In South Africa, in Ceylon, and in British Guiana its for-
Empire. tunes have been widely different. Isolated from one
another and wholly disconnected from their common
source in the Netherlands, the legal systems of South
Africa, Ceylon, and British Guiana have pursued each its
separate course with very different results. In South
Africa the old law has maintained an unbroken tradition.
If it has been profoundly modified by the influence of
English Law, it retains an individual character. Not so in
British Guiana. There the Roman-Dutch Law, after lan-
guishing for rather more than a century under the British
Crown, has, at last, for most purposes, been replaced by
the Common Law of England. This is the effect of the
Civil Law of British Guiana Ordinance, 1916.1 Ceylon has
occupied an intermediate position. Here there are law
reports almost continuous since 1821, and the law has been
expounded by writers of ability. But the Dutch language
is no longer spoken in the island, and the Dutch element
in the law has passed into oblivion. Voet is the authority
most frequently cited. English Law has exercised a pre-
ponderating influence even in departments where in South
Africa the old law has maintained its ground.2 Though
Ceylon shows no disposition to follow the example of
British Guiana, it will not be denied that the future of
Roman-Dutch Law lies principally in South Africa.
The fu- What will that future be ? At present we get our know-
°f *ne law from statutes, from the decisions of the
Dutch l Edited with notes by Mr. Justice Dalton, of the Supreme Court
system of British Guiana (Georgetown, 1921). See also 'The Passing of
of Law. Roman-Dutch Law in British Guiana' by the same writer,
36 S.A.L.J. (1919), p. 4; and 'Roman-Dutch Law in British
Guiana' by J. E. Ledlie, Journ. Comp. Leg., N.S., vol. xvii, p. 210.
a Reference may be made to 'The Roman -Dutch Law in Ceylon
under the British Regime ' by the late Sir A. Wood Renton, in
49 S.A.L.J. (1932), p. 161.
ROMAN-DUTCH LAW 25
Courts, and from an extensive literature in Dutch and
Latin dating from the sixteenth to the early nineteenth
century. As the reader will find, use has been made of this
last-mentioned source in the following pages. But few
people have the leisure or inclination to become familiar
with these old books. For the practitioner, who makes an
occasional raid upon them for an immediate purpose, they
present every disadvantage. It has been said of the
Roman-Dutch Law of to-day that its text-books are anti-
quated and its weapons rusty. The reproach is well
founded, and those who recognize the substantial merits
of the system would wish to see it removed.
Happily time provides a remedy. The Parliament of the
Union of South Africa and the Appellate Division of the
Supreme Court, which hears appeals also from Southern
Rhodesia1 and from the Mandated Territory of South-West
Africa, are year by year producing a body of statutory and
judge -made law, in which the principles of the Roman-
Dutch Law are consolidated and developed. It may be
anticipated that under such auspices the Roman-Dutch
Law will assume a completeness and a symmetry which it
has not attained in previous ages. Meanwhile, unless codi-
fication is resorted to as a preferable alternative, it is to be
expected that the law of South Africa will follow the same
course as the law of Scotland and that recourse to the old
authorities will become increasingly infrequent as the
ground is more and more occupied by statute law and
decided cases.2
1 (Union) Act No. 18 of 1931.
2 Sir John Wessels, 'The Future of Roman -Dutch Law in South
Africa', 37 S.A.L.J. (1920) at p. 284; R. W. Lee, 'Roman-Dutch
Law in South Africa', 40 L.Q.R. (1924), p. 61.
APPENDIX
HOW FAR THE STATUTE LAW OF HOLLAND OBTAINS
IN SOUTH AFRICA AND CEYLON
IN In re Insolvent* Estate of London, Discount Bank v. Dawes
(1829), 1 Menz. at p. 388, the Court observed: 'When this
Colony was settled by the Dutch, the general principles and
rules of the law of Holland were introduced here, but by such
introduction of the law of Holland it did not follow that special
and local regulations should also be introduced; accordingly
the provisions of the Placaat of 5th February, 1665, as to the
payment of the 40th penny [3 G.P.B. 1005], have never been
part of the law of this Colony, because this tax has never been
imposed on the inhabitants of this Colony by any law pro-
mulgated by the legislative authorities within this Colony. In
like manner until a law had been passed here creating a public
register, the provisions of the Placaat of 1st February, 1580
( ? 1st April — 1 G.P.B. 330), were not in force or observance
here.'
In Herbert v. Anderson (1839), 2 Menz. 166, the following
Placaats were said to be merely fiscal and revenue laws of
Holland, which had never become or been made law in Cape
Colony, viz. Placaats, &c., of June 11, 1452 (3 G.P.B. 586),
January 22, 1515 (1 G.P.B. 363), April 1, 1580, Art. 31
(1 G.P.B. 337), March 29, 1677 (3 G.P.B. 672), April 3, 1677
(3 G.P.B. 1037). This decision was quoted with approval by
Kotze C.J. in Eckhardt v. Nolte (1885) 2 S.A.R. 48, who added
(at p. 52): 'From this it follows that the Placaats of [Septem-
ber 26] 1658 (2 G.P.B. 2515) and [February 24] 1696 (4 G.P.B.
465) and others in pari materia, merely renewing the earlier
Placaats, are likewise of no application at the present day.'
On the other hand, in De Vries v. Alexander (1880) Foord at
p. 47, de Villiers C. J., referring to Herbert v. Anderson, said:
'The Court could only have intended to confine their decision
to those portions of the Edicts [of 1515 and 1580] which are of
a fiscal or of a purely local nature. So far as they had been
incorporated in the general law of Holland, and were not
inapplicable here, they were equally incorporated in the law
of this Colony.' Applying this principle, the learned Chief
APPENDIX 27
Justice held that the 9th Art. of the Placaat of September 26,
1658 formed part of the law of Cape Colony. In this connexion
it should be borne in mind that 'a section or portion of aplacaat
may, as has often been decided by the Courts, continue to be of
force, while another portion may have ceased to have any
validity or have become obsolete ' (Kotze, Van Leeuwen, vol. i,
p. 497).
Since Union, the Appellate Division has on more than one
occasion pronounced against the continued validity of parts of
the old statute law ; notably in Est. Heinamann v. Heinamann
[1919] A.D. 99, in which the Court, by a majority, declared the
provisions of sec. 83 of the Echt-Reglement of the States- General
of March 18, 1656 (2 G.P.B. 2444), and of the Placaat van de
Staten van Hollandt ende West Vrieslandt of July 18, 1674
(3 G.P.B. 507), prohibiting intermarriage between persons
who have committed adultery together, to be no longer in
force, though, it seems, both of these enactments 'may fairly
be said to have been incorporated into the common law of
South Africa', per de ViUiers A.J.A. at p. 114. In Spencer v.
Gostelow [1920] A.D. 617 a like conclusion was come to with
regard to the Plakaten of May 1, 1608 (2 G.P.B. 2256), and
November 29, 1679 (3 G.P.B. 527), relating to domestic ser-
vants ; and in Rex v. Harrison [1922] A.D. 320 it was held that
the Placaat of the States of Holland of March 7, 1754 (teegen
het drukken en divulgeeren van Pasquillen, &c., 8 G.P.B. 570),
was not and never had been law at the Cape. Reference may
also be made to Muller v. Chadwick and Co. [1906] T.S. at p. 40
(Placaat of December 9, 1661, Art. 51, 2 G.P.B. 2775, held
inapplicable), and to Exparte Kerkhof [1924] T.P.D. 711 as to
the question whether sec. 90 of the Echt-Reglement forms part
of the law of South Africa.
In Rex v. Sacks [1943] A.D. at p. 422 Tindall J.A. said: 'The
question whether the Placaat of 1715 (Placaat teegens neemen
van giften en gaven, den 10 December, 1715, 5 G.P.B. 686)
forms part of the Roman-Dutch law in South Africa was not
raised before us ; counsel on both sides assumed that it does . . .
the Placaat of 1715 was passed by the States-General and it is
obviously one of general and not merely local application. It
will be noted that it makes special mention of the Dutch East
India Company. However [in any event] . . . the Placaat of
1 July 1651 of the States-General (1 G.P.B. 402) . . . having
28 APPENDIX
been promulgated before 1652 was part of the law of the Cape
of Good Hope.'
For Ceylon Law see Karonchihamy v. Angohamy (1904)
8 N.L.R. 1, in which Middleton J. and Sampayo A.J. (Mon-
creiff A.C.J. dissenting) held that the Placaat of July 18, 1674,
was not in force in Ceylon, and that it for those who assert
and rely upon the operation of a law enacted since the date
of the Dutch occupation of the island in 1656 to show beyond
all question that it operates and applies. See also Robot v.
de Silva [1909] A.C. 376, and authorities cited; Silva v.
Balasuriya (1911) 14 N.L.R. 452; Samed v. Segutamby (1924)
25 N.L.R. 481 ; Pereira, Laws of Cfylon, p. 12.
BOOK I
THE LAW OF PERSONS
BOOK I
INTRODUCTION
The Law THE law relating to persons occupies the first book of the
Persons- Institutes of Gaius and Justinian. The scope and meaning
what it of the phrase have been much discussed, with little result
save to show that the distribution of topics made in these
treatises between the law of persons and the law of things
is not logically defensible, or, at least, is not readily under-
stood. In this volume we include under the law of persons
the allied topics of: (1) the law of status ; (2) the law of the
consequences of status ; and (3) family law. The method
adopted will be to trace the legal life-history of human
beings from conception to the grave and to see how their
rights and duties are affected by certain conditions or
accidents of human life, such as birth, minority, marriage,
mental disease. To this will be added some remarks on
artificial or juristic persons. The subject will be treated
in chapters dealing with :
1. Birth, Sex, Legitimacy.
2. Parentage.
3. Minority.
4. Marriage.
5. Guardianship.
6. Unsoundness of mind — Prodigality.
7. Juristic persons.
BIRTH, SEX, LEGITIMACY
SECTION 1. — BIRTH
LEGAL personality, and with it capacity to have rights and Birth,
to be subject to duties, begins with the completion of
birth, subject however to the qualification that a child in
the womb is deemed already born when such a fiction is for
its advantage.1 Thus an unborn child may take under a
will,2 inherits ab intestato, and may have a right of action
in respect of his father's death.3
SECTION 2. — SEX
Sex, as such, is not a factor of importance in the sphere Sex.
of private law. There is a difference, however, in the age of
puberty, which for males is fixed at fourteen years, for
females at twelve. Further, there is a special rule of law by
which a woman cannot bind herself as surety unless she
expressly renounces the benefits which the law allows her.4
SECTION 3. — LEGITIMACY
A child is presumed to be legitimate, if conceived during Legiti-
marriage, or born during marriage (no matter how soon ma°y-
after its celebration), or if the mother was pregnant of the
child at any time during marriage.5 This presumption is
expressed in the maxim Pater is est quern nuptiae demon- Pater is
strant.6 The presumption of legitimacy is not irrebuttable,7 ^ ^®
1 Dig. 1. 5. 7; Gr. 1. 3. 4; Voet, 1. 5. 5; Elliot v. Lord Joicey demon-
[1935] A.C. 209 ; 53 L.Q.R. (1937), p. 19 (note by McGregor J.). strant.
2 Gr. 2. 16. 2 ; Voet, 28. 5. 12 ; Roll. Cons. i. 98. Or by gift, as in
French law (C.C. Art. 906) ?
8 Chisholm v. East Rand Mines [1909] T. H. 297.
4 Infra, p. 315.
8 Gr. 1. 12. 3 ; VanLeeuwen, 1.7. 2 ; Voet, 1. 6. 5 and 7 ; V.d.K. 169.
8 Dig. 2. 4. 5; Voet, 1. 6. 6; Richter v. Wagenaar (1829),
1 Menz. 262 ; Surmon v. Surmon [1926] A.D. 47 ; Stigling v. Melck
[1935] C.P.D. 228; (Ceylon) Amina Umma v. Nuhu Lebbe (1926)
30 N.L.R. 220.
7 The presumption in favour of legitimacy may be rebutted by
'clear and unimpeachable evidence'. Fitzgerald v. Green [1911]
E.D.L. at p. 462 ; Louw v. Louw [1933] C.P.D. 407.
32 THE LAW OF PERSONS
but if, in the circumstances, conception could have taken
place during marriage, it will, both in fact and in law, be
more difficult to displace the presumption than when the
facts point to conception before marriage. In the first
case neither husband nor wife will be heard to say that the
husband was not the father, ' unless (to quote Grotius)
there is evidence of incapacity to generate or of an absence
inconsistent with the period of gestation.'1 In the second
case the husband's evidence is admissible to prove non-
access before marriage.2 Whether conception took place
during marriage or not is decided with a view to all the
circumstances of the case, and in particular to the possible,
or probable, period of gestation. The old books, follow-
ing the Roman Law, say that a child will be supposed to
have been conceived during marriage if born between the
beginning of the seventh month after its celebration and
the beginning of the eleventh month after its dissolution
by death or divorce.3 Reckoned in days this means born
not less than 180 days after the celebration of the marriage
and not more than 300 days after its dissolution, the
month being arbitrarily taken to be equivalent to thirty
days.4 But the tendency of modern cases, at least as
1 Gr. 1. 12. 3; Surmon v. Surmon [1926] A.D. at p. 53. This is
what is meant when it is said that neither spouse may bastardize
the issue. But, now, the General Law Amendment Act, 1935,
sec. 101, subsec. 3, provides that 'for the purpose of rebutting the
presumption that a child to which a married woman has given
birth is the offspring of her husband' either spouse may give
evidence of non-access in any proceedings civil or criminal. This
abrogates Surmon v. Surmon, in which the Court reluctantly
followed Russell v. Russell [1924] A.C. 687 owing to a statutory
provision incorporating by reference English rules of evidence.
The Southern Rhodesia statute (Matrimonial Causes Act, No. 20
of 1943, sec. 14), says 'in any proceedings for divorce'.
a Voet, 1. 6. 5. The rule is the same in English law: The Poulett
Peerage Case [1903] A.C. 395 ; Russell v. Russell [1924] A.C. at p. 723.
8 Dig. 1. 5. 12 ; 38. 16. 3, 12 ; Gr. 1. 12. 3 ; Voet, 1. 6. 4 ; de Haas,
Nieuwe HolL Cons., Nos. 35, 36; Girard, p. 185.
* Savigny, System, iv. 340; Windscheid, i. 103 (c); V.d.K. 170
(Lee, Commentary, p. 56). These periods are adopted by the
French Code (Arts. 312, 315) and the Dutch Code (Arts. 305 ff.).
The German Code, Art. 1592, defines the period of conception
as extending from the 181st to the 302nd day (in each case in-
clusive) before the day of birth.
BIRTH, SEX, LEGITIMACY 33
regards the maximum period, is to rely mainly upon medi-
cal evidence.1 It must be noted that though birth during
marriage raises a presumption of legitimacy, if the hus-
band can prove sexual relations before marriage unknown
to him followed by pregnancy existing at the time of
marriage and not condoned by cohabitation or otherwise,
he is entitled to have the marriage declared null and void.2
To prevent difficult questions as to paternity, the Dutch
Law, following the Roman Law,3 prohibited re-marriage
within a certain time after a first husband's death.4 This
was called the widow's 'annus luctus' ; in Holland the
period of mourning (treur-tijd) varied in different places, Annus
with a preference for a term of six months.5 In the Roman luctus-
Law re-marriage within the year of mourning entailed
penal consequences. This was not the case in the Dutch
Law, and in the modern law the institution itself has
passed out of use.6 If a widow remarries within the period
of mourning and issue is born which may be attributed to
1 Williams v. Williams [1925] T.P.D. at p. 542. The books
contain cases in which unusually prolonged gestation was estab-
lished by evidence. Thus, in a case reported by Sande (Decis. Fris.
4. 8. 10), the husband died on August 10, 1631, and the child was
born on July 9, 1632, i.e. on the 334th day. In the English case of
Qaskill v. Gaskill [1921] P. 425 the period of gestation was 331
days. For Ceylon, see the Evidence Ordinance, No. 14 of 1895,
sec. 112. Is evidence admissible to show that a child born within
the minimum period was conceived in wedlock ? Windscheid,
i. 56 (b), note 3. The German Code, Art. 1592, admits contrary
proof as to the maximum, not as to the minimum, period.
2 Voet, 24. 2. 15; Horak v. Horak (1860) 3 Searle 389; Fietze v.
Fietze [1913] E.D.L. 170; Reyneke v. Eeyneke [1927] O.P.D. 130;
Smith v. Smith [1936] C.P.D. 125. It was not so in English Law.
Moss v. Moss [1897] P. 263. But the law has been brought into
line with the R.D.L. by the Matrimonial Causes Act, 1937,
sec. 7 (d). Stuprum unaccompanied by pregnancy at the time of
marriage is insufficient, Gabergas v. Oabergas [1921] E.D.L. 279;
even if there is illegitimate issue living at the time of the marriage,
Stander v. Stander [1929] A.D. 349.
3 Cod. 5. 9. 2. 4 Gr. 1. 5.' 3.
5 Fock. Andr. Bijdragen, vol. i, p. 167 ; V.d.K. 67.
6 A shadow of it remains in O.F.S. Law No. 26 of 1899, sec. 13,
which enacts that it shall not be lawful to solemnize the marriage
of a widower within three months of his wife's death, or of a
widow within 180 days of her husband's death. These periods are
taken from the Echt-Beglement of 1656, Art. 52 (2 G.P.B. 2440).
4901 T,
34
THE LAW OF PERSONS
Eene
moeder
maakt
geen
bastsard
Legiti-
mation.
either father, it is presumed to be the child of the second
husband.1
A bastard has no lawful father and therefore no rights
of succession ex parte paterna. But with the mother it is
different ; for 'eene moeder (aliter eene wijf ) maakt geen
bastaard', and therefore her illegitimate issue succeeds to
her and to her blood relations.2 Such was the opinion of
Grotius, though as regards these last Van der Linden
inclines to a contrary view.3
Illegitimate issue may be legitimated : (1) by subsequent
marriage ; (2) by an act of grace on the part of the Sove-
reign.4 The first of these modes alone obtains at the pre-
sent day.
In the Roman Law legitimation by subsequent marriage
was limited to the issue of concubinage. The Canon Law
allowed it in the case of all illegitimate children other than
the issue of adultery and incest, and this was followed by
the Roman-Dutch Law.5
1 Voet, 1. 6. 9; who gives amongst other reasons because 'ipse
incertitudinis auctor et causa est'. German Law (B.G.B. Art.
1600) assigns the child to the first husband, if born within 270
days of the dissolution of the first marriage.
2 Gr. 2. 27. 28 ; Van Leeuwen, 1. 7. 4; Anton. Matthaeus, Paroe-
miae, No. 1. It is questionable whether the Roman Law made any
distinction between simple bastards and adulterine or incestuous
bastards (Anton. Matth., ubi sup., sec. 9) ; nor was any such dis-
tinction made by the law of South Holland (V.d.K. 345), and
since the decision of the Appellate Division in Green v. Fitzgerald
[1914] A.D. 88 this may be taken to be the law of South Africa.
See Lord de Villiers C.J. at pp. 100-1.
8 V.d.L. 1. 10. 3. The question was much debated. See against
Grotius, Bijnkershoek, Quaest. Jur. Priv. lib. iii, cap. xi and
O.T. ii. 2017; for Grotius, Van der Vorm (Versterfrecht, ed.
Blondeel, pp. 212 ff.), and V.d.K. 342-5. The Cape Court has
adopted the more liberal view. Mogamat Jassiem v. The Master
(1891) 8 S.C. 259 ; In re Russo (1896) 13 S.C. 185. As to succession
to bastards see Van der Vorm, ubi sup., p. 237.
4 Gr. 1. 12. 9; Van Leeuwen, 1. 7. 5; Voet, 25. 7. 6 and 13;
V.d.K. 171-2.
6 Gr. 1. 12. 5; Van Leeuwen, 1. 7. 7; Voet, 25. 7. 8; V.d.L.
1. 4. 2. Writers on the modern Civil Law are not agreed in refusing
legitimation to the issue of an adulterous union (Windscheid, iii.
522 ; Vangerow, i. 255) ; and if such an exception exists, the
question further arises whether the law requires that marriage
between the parents must have been possible at the time of
BIRTH, SEX, LEGITIMACY 35
conception or at the time of birth. The Ontwerp van het Burgerlijk
Wetboek voor het Koningrijk der Nederlanden of 1820 (Art. 543),
and the Dutch Civil Code (Art. 327), adopt the former of these
alternatives. Kotze J., in Fitzgerald v. Green [1911] E.D.L. at
p. 472, and Van Zyl J., in Hoffman v. Est. Mechau [1922] C.P.D. at
p. 185, adopt the latter, and the English Legitimacy Act, 1926,
contains the proviso (sec. 1, subsec. 2)': 'Nothing in this Act shall
operate to legitimate a person whose father or mother was married
to a third person when the illegitimate person was born.' But the
(Union of South Africa) Births, Marriages and Deaths Registra-
tion Amendment Act, 1924, sec. 4, allows a child to be registered
as the legitimate child of parents who subsequently marry
'whether [the parents] could or could not have legally married
each other at the time of his birth'. In Ceylon illegitimate
children procreated between the same parties are legitimated by
subsequent marriage unless procreated in adultery (Ord. 19 of
1907, sec. 22). Incest is not mentioned, no doubt because marriage
is out of the question.
II
PARENTAGE
BIRTH implies parentage and the reciprocal duties of
parent and child. These may be considered under two
heads : (A) The parental power and its consequences ;
(B) The reciprocal duty of support.
A. The parental power and its consequences
The Parental power, or, as it is called, natural guardianship,
parental ^&s }jttle in common with the patria potestas of Roman
power and.
its conse- Law. Van der Linden writes :
' The power of parents over their children differs very much
among us from the extensive paternal power among the
Romans. It belongs not only to the father, but also to the
mother, and after the death of the father to the mother alone.
It consists in a general supervision of the maintenance and
education of their children and in the administration of their
property. It gives the parents the right of demanding from
their children due reverence and obedience to their orders, and
also in case of improper behaviour to inflict such moderate
chastisement as may tend to improvement. Parents may not
be sued by their children without leave of the Court, termed
venia agendi.1 No marriage can be contracted by children
without the consent of their parents. The parents are entitled
on their decease to provide for the guardianship of their
children.'2
Whatever is here said of children must be understood
to refer to minor children, for in the Roman-Dutch Law
parental power ceases when the child attains full age.3
The incidents of the parental power described by Van
der Linden may be developed as follows :
1. Cus- 1. Custody and Control. The custody, control, and
tody and education of children belong to the father, and after his
1 In the Cape Province venia agendi is abrogated by disuse.
Mare v. Mare [1910] C.P.D. 437.
8 V.d.L. 1. 4. 1 (Juta's translation).
* V.d.L. 1. 4. 3. Full age is now fixed by law at the twenty-first
birthday. Infra, p. 44.
PARENTAGE 37
death to the person named in his will.1 Failing such, the
mother takes the place of the father unless the Court sees
fit to direct otherwise.2 Re-marriage is not in itself a
ground of exclusion.3
2. Administration. During the lifetime of both parents, 2. Admini-
and in the modern law until the father's death,4 the stratlon;
management of a minor child's property belongs to the
father as natural guardian, except so far as the person
from whom such property is derived may have excluded
the father from the administration and appointed a cura-
tor nominate in his stead,5 or the Court for special reasons
may have taken the administration out of his hands ;6 and
as a general rule payment to the father as natural guardian
of moneys due to the child is a good payment.7 In the
event, however, of property coming to the child by inheri-
tance the parents must give notice to the proper authority,
who will inquire whether the administration of such pro-
perty requires a special guardian or not.8 The father may
1 Voet, 27. 2. 1; Van Rooyen v. Werner [1892] 9 S.C. 425
(where de Villiers C.J. reviews the whole subject of paternal and
maternal rights ; but the law has been modified by the Admini-
stration of Estates Act, 1913); Woods v. Woods [1922] N.P.D.
367 (conflicting claims of parents); Calitz v. Calitz [1939] A.D. 56
(paramount right of father to custody).
8 In re Dolphin (1894) 15 N.L.R. 343. * Voet, ubi sup.
4 In the old law the father's natural guardianship only partially
survived the death of the mother. He might apply to the Court
to be appointed guardian along with the guardian, if any, named
in the will of his deceased spouse. Except in this capacity a sur-
viving father had no competence either to represent his minor
son in Court or to administer his estate. Gr. 1. 7. 8-9; Voet,
26. 4. 4. But to-day 'the father is the natural guardian of his
legitimate children until they attain majority'. Van Rooyen v.
Werner, ubi sup. at p. 428.
5 Gr. 1. 6. 1. and Schorer ad loc.
6 The Master v. Castellani [1911] T.P.D. 763; Ex parte
Humphreys [1921] W.L.D. 74.
7 Rossiter v. Barclays Bank [1933] T.P.D. at p. 383.
8 Gr. ubi sup. ; V.d.K. 103. In S.A. the general rule is that an
executor must pay into the hands of the Master any money which
has become due from the estate to any minor ; but ' The survivor
of two spouses shall, in the absence of any provision to the contrary,
be entitled as natural guardian to receive from the executor and
retain for and on behalf of his minor child any sum of money due
to that child from the estate of the deceased spouse : provided that
38 THE LAW OF PERSONS
apply the income of property belonging to the child for
his maintenance, education, and other like purposes, in-
vest the surplus, and conclude contracts in due course of
administration.1 If the father is dead and has not appoint-
ed a testamentary guardian, the mother normally takes
his place as natural guardian,2 and the mother is natural
guardian of her illegitimate child.3 A minor child, while
unemancipated, is unable to contract without his father's
consent.4 Any contract concluded by him without such
consent is ipso jure void, and will not bind either the child
or the father5 except so far as either of them has been
enriched thereby, and if any payment has been made by
the minor under such contract, it is recoverable by the
condictio indebiti. If, however, the father allows the minor
to make a contract in the father's name or ratifies a con-
tract so made, the father is bound. This is simply a ques-
tion of the general law of principal and agent. So far and
so far only may a minor son bind his father by his con-
tracts.6
A father may indeed be held liable for necessaries sup-
plied to his child and this liability is not affected by
divorce. But it is a liability imposed by law and does not
imply a contractual obligation either of child or parent.7
A father may represent his son in Court and sue and
defend in the son's name,8 but if he does so without leave
from the Court he will be personally liable for costs if the
such sum has been secured by bond to the satisfaction of the
Master'. Administration of Estates Act, 1913, sec. 54.
1 Van Leeuwen, 1. 13. 2; Van der Byl & Co. v. Solomon [1877]
Buch. at p. 27 ; Wood v. Davies [1934] C.P.D. at p. 256.
2 Ex parte Fitzgerald [1923] W.L.D. 187.
3 Dhanabakium v. Subramanian [1943] A.D. at p. 166.
4 V.d.L. 1.4. 1.
6 Gr. 3. 1. 34. But as to ipso jure void see below p. 48. Nor is
a father liable for his son's delicts unless made so by statute.
V.d.K. Dictat. ad loc. ; Lee, Commentary, p. 226.
6 Voet, 15. 1. 11. This case must be carefully distinguished from
the case in which the father 'authorizes' (in the technical sense) or
subsequently ratifies the minor's contract (infra, pp. 46, 47).
7 Fillis v. Joubert Park Private Hospital [1939] T.P.D. 234.
8 Gr. 1. 6. 1 ; 3. 48. 10 ; Van Rooyen v. Werner, ubi sup. at p. 430 ;
Traub v. Bloomberg [1917] T.P.D. 276.
PARENTAGE 39
suit proves unsuccessful.1 Even the leave of the Court
affords no more than a, prima facie protection.2
3. Consent to marriage of minor children. The consent 3. Con-
of parents, or of a surviving parent, is necessary to the Carriage
marriage of minor children,3 and without it the marriage of minor
is null and void.4 Consent may be either express or im-
plied. It is implied if the father knows that the marriage
of the minor is about to take place and does not forbid it.5
Strictly, the mother's consent is also necessary, but in case
of disagreement the father's will prevails.6 Publication of
banns is presumptive evidence of consent, and a marriage
celebrated after publication of banns without objection by
the father is, in general, neither void nor voidable. But a
marriage celebrated after special licence without the
father's consent may be set aside at his instance,7 per-
haps only before the minor spouse attains majority.8 The
consent of grandparents is in no case necessary,9 nor is
any consent necessary to a second marriage under the age
of majority.10 The marriage cannot be impeached by a
minor spouse on the ground of absence of parental con-
sent.11
4. Right to provide testamentary guardians. This has 4. Right
been mentioned above, and will be further considered to .a?'
point
under the head of Guardianship. guardians ;
1 Bayne N. 0. v. Kanthack [1934] W.L.D. 13; Ex parte
Bloemfontein Town Council [1934] O.P.D. 11; Bellstedtw. South
African Railways [1936] C.P.D. at p. 412. But 'a father who
assists his minor child to bring an action is not a party to the
action, and, if it fails, he cannot be ordered to pay the costs'.
Sharp v. Dales [1935] N.P.D. 392.
2 Taylor N. O. v. Lucas N. O. [1937] T.P.D. 405.
3 Gr. 1. 5. 15, and Schorer, ad loc. ; Van Leeuwen, 1. 14. 6.
4 Voet, 23. 2. 11 ; V.d.K. 75; V.d.L. 1. 3. 6. More precisely it is
voidable at the suit of the aggrieved parent. Infra, p. 58.
5 Voet, 23. 2. 8.
6 Voet, 23. 2. 13; Schorer, ubi sup. At the Cape: 'He alone can
consent to their marriage.' Van Rooyen v. Werner, ubi sup. at
p. 429.
7 Johnson v. Mclntyre (1893) 10 S.C. 318.
8 28S.A.L.J. (1911), p. 478.
9 Voet, 23. 2. 15 ; V.d.L. 1.3. 6.
10 Van Leeuwen, 1. 14. 9; V.d.L., 1. 4. 3.
11 Willenburg v. Willenburg (1909) 3 Buch. A.C. 409.
40 THE LAW OF PERSONS
6. Rights 5. Rights in respect of minor children's property. Voet
of minor an(^ other writers, following the Roman Law, distinguish
children's peculium profecticium and peculium adventicium. The
y' first included property derived from the father or given to
the son with the intention of conferring a benefit on the
father. The second included any other property which
came to the son from an external source. By the Roman
Law the first belonged wholly to the father ; of the second,
which belonged to the son, the father had the usufruct.
But to-day contrary to the Roman Law a father may
make an effective gift of property to his unemancipated
son, thus putting it out of the reach of the father's credi-
tors,1 and the father has no usufruct of the adventicious
property unless this has been given to him by the person
from whom the property is derived or unless it is necessary
to use the property and apply its proceeds for the main-
tenance and upbringing of the child.2 Voet refers to the
head of peculium profecticium anything acquired by
children residing at home and supported by their parents,
whether acquired suis operis or ex re patris. Schorer is
to the same effect: 'What children acquire by their
labour and industry, while supported by their parents, is
acquired for their parents', being set off against the cost
of maintenance.3 This may be still law.
The distinction of peculium profecticium and peculium
adventicium is not wholly unimportant. It has been said
that 'the Court has always assumed greater powers in
dealing with the profecticious property of minors than in
the case of property accruing to a minor from some
stranger or for value'. Accordingly, in the case from which
this dictum is taken the Court authorized a re-settlement
of property varying the terms of a deed of donation made
by parents in favour of minor children.4
1 Infra, p. 288.
a Van Leeuwen, 1. 13. 2; Voet, 15. 1. 6; V.d.K. 105.
1 Gr. 1. 6. 1. and Schorer ad loc. ; Van Leeuwen, 2. 7. 7 ; Voet,
15. 1. 4; 25. 3. 14; V.d.K. 104; Chinnia v. Dunna [1940] N.P.D.
384. But see Groen., de leg. abr. ad Inst. 2. 9. 2.
4 Exparte Est. Gates [1919] C.P.D. 162.
PARENTAGE 41
Thus far of the incidents of the parental power. It
remains to see how it is acquired and lost.
Parental power is acquired by: (1) birth in lawful wed- How
lock; (2) legitimation by subsequent marriage;1 but not, power is
as amongst the Romans, by adoption.2 A child born out acquired.
of wedlock is in the power of the mother3 (eene moeder
maakt geen bastaard).
Parental power is determined by : (1) the death of parent How
or child; (2) majority;4 (3) marriage;5 (4) emancipation. mine(j.
This, Grotius says, 'takes place either in Court, or
tacitly, when a child is permitted to have a home of his
own and do business'.6 The first of these methods, which
may be described as express emancipation, consisted in
a declaration made by the father before the Court.7 It
was already disused in the eighteenth century, being re-
placed by venia aetatis.8 Tacit emancipation remains in
use,9 but, as interpreted by recent decisions of the Courts,
is merely a general and revocable licence of parent or
guardian authorizing contracts incidental to a particular
trade or business.10 This is not properly speaking eman-
cipation, and is not what the old writers mean when they
speak of tacit emancipation.
If a father becomes insane, his parental authority is in Effect of
suspense and passes to the mother or to a tutor or curator l
1 Supra, p. 34. &c-
2 Gr. 1. 6. 1 ; Voet, 1. 7. 7; V.d.L. 1. 4. 2. The Children's Act,
1937, replacing Act No. 25 of 1923, permits the adoption of
children under the conditions therein stated. For S.Rh. see Revised
Statutes, cap. 155, for Ceylon Ord. No. 24 of 1941 (amended by
Ord. No. 54 of 1943).
3 V.d.L. 1. 4. 2. 4 Voet, 1. 7. 15.
6 Gr. 1. 6. 4; Voet, 1. 7. 13. 6 Gr. ibid.
7 Voet, 1. 7. 11 ; Fock. And. Bijdragen, i. 28.
8 Deeker ad Van Leeuwen, 1. 13. 5; V.d.K. 107; V.d.L. 1. 4. 3,
n. 4; infra, p. 44.
9 Dama v. Bera [1910] T.P.D. 928; Venter v. De Burghersdorp
Stores [1915] C.P.D. 252; Pleat v. van Staden [1921] O.P.D. 91.
The two conditions mentioned by Gr. need not coexist. V.d.K.
Dictat. ad Gr. 1. 6. 4; Lee, Commentary, p. 37.
10 Ambaker v. African Meat Co. [1927] C.P.D. 326; Ex parts,
Keeve [1929] O.P.D. 19; Ochberg v. Ochberg's Est. [1941] C.P.D.
at p. 37; Ahmed v. Coovadia, 1944 (1) P.H., M. 17 [T.P.D.]. See
Appendix B.
42 THE LAW OF PERSONS
appointed by the Court. The same applies if the parent is
sentenced to a long term of imprisonment. Interdiction
for prodigality terminates or suspends the father's natural
guardianship for most purposes, but he remains competent
to give an effective consent to the marriage of minor
children. An insane parent is replaced for this purpose
by the Court.1
B. The reciprocal duty of support
The duty A father must support his children, i.e. must supply
port!P them with necessary food, clothing, shelter, medicine and
instruction.2
The duty extends to illegitimate3 as well as to legiti-
mate children. The father does not escape liability by the
fact that he has made other provision for a son, which the
son has lost or squandered.4
The mother likewise is liable together with the father
during his lifetime and solely after his death.5 In case of
divorce, both parents may be required to maintain the
children according to their means.6 The obligation of
support ceases if the children are able by their industry or
from their own means to support themselves, but may
revive even after full age, if their means again become
insufficient.7 The burden of proving that the child cannot
support himself and that the parent has sufficient means
lies upon the child.8 The old writers differ on the ques-
tion whether the duty of maintenance ends with the death
1 Gr. 1. 6. 5; V.d.K. Dictat. ad loc.; Lee, Commentary, p. 37;
infra, p. 59, n. 5.
2 Gr. 1. 9. 9 ; Van Leeuwen, 1. 13. 7 and 8 ; Voet, 25. 3. 4 and 5.
3 Voet, 25. 3. 5; Van der Westhuizen v. Rex [1924] T.P.D. at
p. 373, including incestuous and adulterine issue. As to assess-
ment of maintenance see A. v. M. [1930] W.L.D., 292. Is a
husband bound to maintain an illegitimate child born to his wife
before marriage ? Rex v. Fitzgerald [1926] N.P.D. 445.
4 Voet, 25. 3. 5.
6 Voet, 25. 3. 6; Union Oovt. v. Warneke [1911] A.D. at p. 668.
8 Van Leeuwen, 1. 15. 6; Voet, 25. 3. 6; Farrell v. Hankey
[1921] T.P.D. 590.
7 Voet, 25. 3. 14 and 15; In re Knoop [1893] 10 S.C. 198; Ex
parte Jordaan's Curator [1929] O.P.D. 168.
8 Grobler v. Union Oovt. [1923] T.P.D. 429.
PARENTAGE 43
of the parent or is transmitted to the heirs.1 The South
African Courts have preferred the latter view, holding that
the duty of educating and maintaining minor children is
'a debt resting upon the estate' of either parent post-
poned to other debts but preferred to legacies.2 If parents
have not adequate means the burden of maintenance
passes to grandparents, but if the grandchild is illegiti-
mate, to maternal grandparents alone.3
The duty of support is reciprocal. Children must main-
tain their indigent parents,4 and if they are minors or
insane the Court may charge the cost of maintenance upon
their estate.5 All this must be understood to be subject
to the primary duty of a husband to support his wife.
'Primarily the duty falls upon the husband, and it is only
when he is dead or unable to provide support that a right
to claim support from a parent, grandparent, child or
brother arises.'6
1 Voet, 25. 3. 18 ; Groen., de leg. abr. ad Dig. 34. 1. 16.
2 Eitchken's Exors. v. Ritchken [1924] W.L.D. 17 ; Davis' Tutor v.
Est. Davis [1925] W.L.D. 168; Goldman N.O. v. Est. Goldman
[1937] W.L.D. 64. The decisions seem to be limited (so far) to
W.L.D. In Ceylon it was held by the full bench in Lamahamy v.
Karunaratna (1921) 22 N.L.R. 289 that an action will not lie
against the administratrix of a deceased person's estate for
maintenance of such person's illegitimate child.
8 Voet, 25. 3. 7; Motan v. Joosub [1930] A.D. 61.
4 Voet, 25. 3. 8; Oosthuizen v. Stanley [1938] A.D. at pp.
327-8. A stepmother is not entitled to be supported by a .stepson.
Jacobs v. Cape Town Munic. [1935] C.P.D. 474. Is a husband
bound to support his wife's indigent parents ? Ford v. Allen
[1925] T.P.D. 5. As to support of brothers and sisters see
Oosthuizen v. Stanley at p. 331 and Miller v. Miller [1940] C.P.D.
at p. 469.
6 In re Knoop, ubi sup.
9 Miller v. Miller, ubi sup.
Ill
MINORITY
Minority. A MINOR by Roman-Dutch Law is a person of either sex
who has not completed the twenty-fifth year.1 For this
the twenty-first year has been substituted by statute.2 As
to the precise moment at which minority ends Voet makes
the following distinction. The last day of minority is
regarded as completed at the moment of its inception,
when it is to the minor's advantage that it should be so
considered ;3 but when the advantage lies the other way,
so as, e.g., to prolong the benefit of restitutio in integrum,
majority is not deemed to be attained until the very
minute arrives corresponding with the time of birth.4
Majority Majority may be accelerated by: (1) Venia aetatis;
(1) Venia
Venia aetatis is an anticipation of full age granted to a
petitioner by the Sovereign authority in the State.5 The
effect of venia aetatis (which is not given to males under
twenty or to females under eighteen years of age)6 is to
1 Dig. 4.4.1; Gr. 1. 7. 3; Voet, 4. 4. 1.
2 Cape Ord. 62, 1829, sec. 1 ; Natal Ord. No. 4 of 1846, sec. 2;
Transv. Volksraad Resolution of December, 1853, Art. 123;
O.F.S. Law Book of 1901, chap. 89, sec. 14; Southern Rhodesia,
R.S. cap. 26; Ceylon Ord. No. 7 of 1865, sec. 1.
3 Voet, 4. 4. 1.
4 Dig. 4. 4. 3, 3 ; Gr. 3. 48. 9 ; Cens. For. 1. 4. 43. 11 ; Voet 4. 4. 1 ;
44. 3. 1. In English Law full age is reached at the beginning of the
day before the twenty -first birthday (1 Blackst. Comm. 463 and
Christian's note), not so in Roman Law. Savigny, System, iv.
184. As to calculation of time in general and particularly in con-
tracts see Joubert v. Enslin [1910] A.D. 6; Tiopaizi v. Bulawayo
Munic. [1923] A.D. 317; Standard Bldg. Society v. Cartoulis
[1939] A.D. 510. For French Law see Planiol, i. 1616, for German
Law, B.G.B., Art. 187.
6 Voet 4. 4. 4 ; V.d.L. 1.4.3.
6 Cod. 2. 44 (45). 2; V.d.L., ubi sup. But see Van Leeuwen,
1. 16. 11. By the O.F.S. Law Book of 1901, chap. Ixxxix, sec. 7,
' The Court shall in no case recommend the granting of venia aetatis
if the petitioner is under the age of eighteen years'. As to the
circumstances in which the Court will recommend a grant, see
Exparte Akiki [1925] O.P.D. 211.
MINORITY 45
put an end to all the incapacities and privileges of minority
except that the alienation or hypothecation of immovables,
unless expressly included in the grant, can only be effected
after leave obtained from the Court. In this respect alone
minors who have obtained venia aetatis remain in the
position of other minors.1
Up to the present in South Africa the grant of venia
aetatis has been confined to the Orange Free State, where
it rests on statute. There seems to be no reason why this
useful institution should not be extended to the other
Provinces.2 It has remained in use in Ceylon.3
It is the practice to refer a petition for venia aetatis to
the Court for its report. But the Court has no independent
right to make the grant.4 At the Cape, however, the
Court has in several cases released a minor from tutelage
and authorized a payment to him from the Guardians'
Fund.5 In Holland similar powers were often vested in
the weesmeesters by the local keuren.6 This is not
venia aetatis, though it seems to come very near it.
Marriage puts an end to minority for all purposes,7 (2) Mar-
and it does not revive in the event of the dissolution of na&e-
the marriage before the ordinary age of majority.8 This
applies to both sexes indifferently.9
The next matter for consideration is the legal status and Legal
capacity of a minor. The subject is inadequately treated
in the text-books, but the following rules may be ex-
tracted from them.10
1 . If the child is so young that he does not know what
he is about, he is absolutely incapable of contracting at all,
1 Voet, 4. 4. 5. 2 Tydscrif, i. 197.
3 For form of grant now in use see Appendix A.
4 Non obstante, Gr. 1. 10. 3 (Lee, Commentary ad loc.) ; Exparte
Moolman [1903] T.S. 159.
8 In re Cachet (1898) 15 S.C. 5; Ex parte Louw [1920] C.P.D. 7 ;
Ex parte Est. Van Schalkwyk [1927] C.P.D. 268.
8 V.d.K. 161. 7 Voet, 4. 4. 6. 8 Voet, 4. 4. 9.
9 So advised by advocates practising at The Hague in 1711.
de Haas, Nieuwe Hollandsche Consultatien, no. 34. See V.d.K.
879 and Dictat. ad loc. ; Lee, Commentary, p. 359.
10 See further Appendix B and L. R. Caney, Minors' Contracts,
47 S.A.L.J. (1930), p. 180.
46 THE LAW OF PERSONS
with or without assistance, for, as Van Leeuwen says:
' All obligations must arise out of a free and full exercise
of the will. It cannot therefore take place where there
is a hindrance to the exercise of the will, as in the case of
lunatics and madmen, and young children, who are bound
neither by a promise nor acceptance.'1
2. If the child is old enough to understand the nature
of the transaction, he has intellectus but is still wanting
in judicium, and therefore cannot incur a valid obligation
without his parent's or guardian's consent. 'Municipal
law', says Grotius,2 'considers all obligations of minors3
invalid unless incurred through delict or in so far as they
may have been benefited.'
Such obligations are said to be ipsojure void, and there-
fore minors are ipso jure secure from any claims in respect
of them without the need of invoking the extraordinary
remedy of restitutio in integrum.4 The phrase 'ipso jure
void' must not, however, be taken too literally, for as will
be seen, such obligations are not so much void as voidable
at the minor's option.6
Cases in 3. A minor is bound by contracts duly made with the
minor fs consent of his parent or guardian,6 subject to his right in
bound by
contract. * Van Leeuwen, 4. 2. 2 (Kotz^'s TransL, vol. ii, p. 12). Voet
says (26. 8. 9): 'si infans seu septennio minor sit sic ut nullum
omnino queat consensum adhibere. ' Arg. Dig. 23. 1. 14.
2 Gr. 3. 1. 26. 3 i.e. unassisted.
4 Cens. For, 1. 4. 43. 2; De Beer v. Eat. De Beer [1916] C.P.D.
125. Proof of lesion is not required. Gantz v. Wagenaar (1828)
1 Menz. 92. For the Senatusconsultum Macedonianum forbidding
loans of money to filii-familias see below, p. 314, n. 4.
8 For Ceylon law herein see Pereira, The Laws of Ceylon, p.
185, and Fernando v. Fernando (19 16) 19 N. L. R. 193.
6 V.d.K. 128 and Dictat. ad loc. ; Lee, Commentary, p. 45;
Moolman v. Erasmus [1910] C.P.D. 79 ; Skead v. Colonial Banking
& Trust Co. [1924] T.P.D. 497. It makes no difference, says Voet
(26. 8. 1 in fin.), whether the tutor's authority is not given at all,
or is wrongly given, citing Dig. 26. 8. 2 : Nulla differentia est non
interveniat auctoritas tutoris an perperam adhibeatur. This
points to the rule 'in rem suam auctorem tutorem fieri non posse '.
Dig. 26. 8. 1 pr. What if a guardian unreasonably withholds his
consent ? Voet says (26. 8. 8) that he can be compelled to give it.
Perhaps this means to-day that the Court as upper guardian will
authorize the contract.
MINORITY 47
a fit case to claim relief by way of restitutio in integrum.
Ratification is equivalent to consent.1 Further, a father
and guardian, as we have seen or shall see hereafter, may
in due course of administration contract in the name of
the minor and bind him by such contract, subject however
to the same relief.2
4. A minor is bound, as mentioned by Grotius in the
passage above cited, so far as he has been enriched or
benefited by his contract.3 To this head may be referred
a minor's liability for necessaries, or for money borrowed
and expended on necessaries.4 The liability is quasi-con-
tractual,5 and rests upon the principle stated by Pomponius :
'Nam hoc natura aequum est neminem cum alterius de-
trimento fieri locupletiorem.'6
5. A contract entered into by a minor is good without
the tutor's consent, if the advantage is all on his side, and
there is no corresponding disadvantage or burden. This
results from the principle that without the authority of
his tutor a minor may improve his position, but cannot
make it worse.7 By an extension of this principle or of
the principle of enrichment minors have sometimes been
held liable ex contractu when the contract was plainly
beneficial, e.g. a contract of employment.8 But it is per-
haps safer to say that with one statutory exception9 a
minor can never unassisted bind himself by contract.10
1 Voet, 26. 8. 1 ad fin. ; Fouche v. Battenhausen & Co: [1939]
C.P.D. 228.
2 Gr. 3. 1.28; 1.8. 8; 3. 48. ]0;V.d.K. 133; Van der Byl & Co. v.
Solomon [1877] Buch. 25; Wood v. Davies [1934] C.P.D. 250;
infra, p. 113.
3 Gr. 1.8. 5; 3. 1.26 ; 3. 6.9 ;3. 30. 3; Voet, 26. 8. 2; VanLeeuwen,
1. 16. 8 ; Nelv.Divine,Hall & Co. (1890) 8 S.C. 16 ; DeBeerv. Est. De
Beer [1916] C.P.D. at p. 127; Tanne v. Foggitt [1938] T.P.D. 43.
4 Dig. 46. 3. 47, 1: Si necessariam sibi rem emit, quam necessario
de suo erat empturus. 8 Gr. 3. 30. 3.
6 Dig. 12. 6. 14; 23. 3. 6, 2; 50. 17. 206.
7 Inst. 1. 21 pr. ; Gr. 1. 8. 5; Voet, 26. 8. 2.
8 Queen v. Koning (1900) 17 S.C. 541; Fick v. Rex [1904]
O.R.C. 25; Silberman v. Hodkinson [1927] T.P.D. at p. 570.
9 By the Insurance Act, 1923, sec. 20 (a), a minor who has
attained the age of eighteen years may effect a policy on his
own life. 10 Tanne v. Foggitt, ubi sup.
48
THE LAW OF PERSONS
Are the
contracts
of an un-
assisted
minor
void or
merely
voidable ?
Liability
for de-
licts and
6. It has been said above that the phrase 'ipso jure
void' must not be taken too literally. This appears from
the fact that the other party to the contract is bound, if
the minor through his tutor, or the late minor after
majority on his own motion, takes steps to enforce the
contract.1 In other words, a contract entered into by a
minor, unassisted, may be ratified either during his minor-
ity with his tutor's assistance,2 or after its determination.3
Voet adds that if a minor seeks to enforce a contract
made by him without his tutor's authority, he may do so
only on condition that he himself performs his part.4
He further points out that an unassisted contract of a
minor always creates a natural obligation,5 and therefore
supports the collateral undertaking of a surety, provided
that the minor be upwards of seven years of age. But,
contrary to the rule usually applicable to such obligations,
the natural obligation of a minor does not exclude the
condictio indebiti.6 Accordingly, if the minor has made
a payment in pursuance of an unauthorized contract he
can get the money back. But, if he ratifies after full age,
his obligation is no longer merely natural, but civil, and
he must perform his part of the contract.7
7. A minor above the age of seven years is liable for his
delicts and crimes.8 With regard to delicts Voet says that
if there is wrongful intention the minor is always liable.
If, on the other hand, he has done injury through slight
or very slight fault (levi vd levissima culpa), without
wrongful purpose, he should be excused, or at least re-
lieved from punishment by restitutio in integrum.9
1 Gr. 3. 6. 9 ; Voet, 26. 8. 3. Conversely a father or guardian has
the right to repudiate a contract entered into by a minor without
his knowledge or consent, Rhode v. Minister of Defence [1943]
C.P.D. 40.
2 Voet, 26. 8. 1 ad fin.
3 Voet, 26. 8. 4 ad fin. and 4. 4. 44 ; Van der Byl & Co. v. Solomon
[1877] Buch. 25. Ratification may be inferred from conduct.
Stuttaford & Co. v. Oberholzer [1921] C.P.D. 855.
4 Voet, 26. 8. 3. 6 Windscheid, ii. 289 ; Girard, p. 682.
6 Dig. 12. 6. 29 and 41. 7 Voet, 26. 8. 4.
8 Gr. 1. 4. 1 ; 3. 1. 26; 3. 32. 19 (and Groen., ad loc.); 3. 48. 11.
9 Voet. 4. 4. 45.
MINORITY 49
8. In the sphere of property-law there is nothing to Property,
prevent a minor from acquiring ownership,1 but he cannot
alienate or charge his property2 without his parent's or
tutor's authority ; which in the case of the alienation or
hypothecation of immovables is not sufficient without an
order of Court.3
Minors under the age of puberty are incompetent to
make4 or to witness a will.5
9. Restitutio in integrum, which has been already men- Restitu-
tioned, is an extraordinary remedy, by which the Court
so far as possible restores the status quo ante. It is granted
to minors when it appears that they have suffered pre-
judice in consequence of their own acts,6 or of acts done
by their parents or guardians on their behalf.7 The bur-
den of proving prejudice rests, as a rule, upon the minor.8
This remedy is given in respect not only of contracts, but
also of alienation of property by donation or otherwise ;
of compromises; of judicial proceedings (e.g. when the
minor has failed to put in his pleadings in time),9 and even
in case of alienations sanctioned by the Court.10 The bene-
fit of restitution accorded to a minor devolves on death,11
but does not generally avail persons who have bound
1 Inst. 2. 8. 2; Dig. 41. 1. 11.
2 Gr. 1. 8. 5; 2. 48. 4; Van Leeuwen, 2. 7. 8; nor make a gift
mortis causa (Gr. 3. 2. 23 — from whom Schorer, ad loc., dissents) ;
nor discharge a debt by release (Gr. 3. 41. 8) ; or by novation.( Voet,
46. 2. 8) ; nor make a valid payment of a debt (Gr. 3. 39. 11) ; i.e.
he may recover the money if possible ; if this is impossible the
payment holds good (ibid.).
3 Voet, 26. 8. 5; 27. 9. 1 and 4; Breytenbach v. Frankel [1913]
A.D. 390. 4 Infra, p. 363. 6 Infra, p. 367.
6 Gr. 1. 8. 8 ; 3. 48. 9-13 ; Voet, 4. 4. 12 ff. Skead v. Col. Bkg. and
Trust Co. [1924] T.P.D. 497. It must be observed that restitution
is granted on the ground of prejudice inherent in the act which it
is sought to set aside, not of loss accidentally resulting from it, as
when a minor has entered into a contract for the purchase of a
horse, which is killed by accident next day. Dig. 4. 4. 11, 4. For
Ceylon see Bandara v. Elapatha (1922), 23 N.L.R. 411.
7 Gr. ubi sup. ; Van der Byl & Co. v. Solomon [1877] Buch. at
p. 29 ; Wood v. Davies [1934] C.P.D. 250.
8 Voet, 4. 4. 13. 9 Voet, 4. 4. 14 ff.
10 In re Nooitgedacht (1902) 23 N.L.R. 81; De Wet v. Bouwer
[1919] C.P.D. 43. u Voet, 4. 4. 38.
4901 TB
50 THE LAW OF PERSONS
themselves as sureties for a minor, therein differing from
other cases of restitution.1 Restitution is refused when a
minor has fraudulently misrepresented his age.2 It is
waived by ratification after full age, which may be ex-
press or implied.3 It is barred by the lapse of four4
(now three5) years after majority, or from the time after
full age when the late minor knew, or might have known,
of the laesio which entitled him to relief.6 A minor can-
not obtain restitution against marriage on the ground of
minority alone,7 nor against liability for crime or serious
delicts.8
1 Voet, 4. 4. 39.
2 Cod. 2. 42 (43) ; Voet, 4. 4. 43. Fouche v. Battenhausen & Co.
[1939] C.P.D. 228; (Ceylon) Wijesooria v. Ibrahimsa (1910)
13 N.L.R. 195. In this case the Court refused to set aside a sale
of immovable property, though made without sanction of the
court. See Shorter & Co. v. Mohamed (1937) 39 N.L.R. 113.
3 Voet, 4. 4. 44; Van der Byl & Co. v. Solomon [1877] Buch. 25.
4 Gr. 3. 48. 13;V.d.K. 900.
6 Prescription Act, 1943, sec. 3 (2); (Ceylon) Ord. No. 22 of
1871, sec. 11, Silva v. Mahammadu (1916) 19 N.L.R. 426.
6 Voet, 4. 1. 20.
7 Voet, 4. 4. ±5;Haupt v. Haupt (1897) 14 S.C. 39.
8 Voet, ibid.
IV
MARRIAGE
IN this chapter we shall consider: (1) the contract to
marry; (2) the legal requisites of marriage; (3) the legal
consequences of marriage ; (4) antenuptial contracts ; (5)
the dissolution of marriage ; (6) some miscellaneous matters
relating to marriage.
SECTION 1 — THE CONTRACT TO MARRY
Marriage1 is commonly preceded by espousals (sponsalia- The pro-
trouwbeloften), which constitute a binding contract be- marry?
tween the parties. No form is prescribed for the contract.2
Any persons competent to marry may validly engage
themselves.3 Conversely persons not competent to marry
cannot contract a valid engagement.4 This excludes boys
and girls below the age of marriage.5 If they have reached
that age but have not attained the age of majority they
may engage themselves with the consent of parents or
guardians.6 Failing such consent the engagement is
invalid.7 With it, the engagement is valid, subject however
in this case, as in other contracts of minors, to restitutio in
integrum on the ground of lesion ;8 from which it follows
that the engagements of minors are in no case con-
clusively binding unless and until ratified after full age.9
By the common law of Holland the consent of tutors was
not required, the place of the deceased parents in this
1 On the whole of this subject Van Apeldoorn, Geschiedenis van
het Nederlandsche Huwelijksrecht (Amsterdam 1925) may be use-
fully consulted, as well as Fockema Andreae, Het Oud-Nederlandsch
Burgerlijk Recht, vol. ii, chap, iv, and Bijdragen, Parts 1 and 2;
de Blecourt, Kort Begrip van het Oud-Vaderlandsch Recht, chap, ii ;
Wessels, History of the Roman-Dutch Law, Part ii, chap. iii.
2 Voet, 23. 1. 1. In Ceylon writing is required. Ord. No. 19 of
1907, sec. 21. 3 V.d.L. 1. 3. 2.
4 Voet, 23. 1. 2. 8 V.d.K. 52.
6 Greefv. Verraux (1829) 1 Menz. 151.
7 Voet, 23. 1. 20; Bijnk., O.T. i. 348.
8 Voet, 23. 1. 17; V.d.K. 61 ; supra, p. 49.
9 Gens. For. 1. 1. 11. 13.
52 THE LAW OF PERSONS
matter being taken by the relatives of the 'four quarters' j1
but in the later law the want of consent of tutors, no less
than of parents, was a sufficient ground for repudiation
of the contract by either party.2
An engagement lawfully contracted with the necessary
consents cannot be broken off without just cause.3 Under
the Roman-Dutch Law the Courts would decree specific
performance of the marriage contract,4 and even declare
a reluctant party married in absence.5 This practice is
disused in the modern law,6 but an action lies for damages
for breach of the contract to marry.7 The old books
enumerate the grounds which justify a repudiation of a
promise to marry. In the modern law the plea of justi-
fication for resiling from the contract is not so readily
admitted, since performance is no longer decreed.8
SECTION 2 — THE LEGAL REQUISITES OF MARRIAGE
Essentials Assuming the consent of the parties to be a necessary
riage. condition of marriage as of contracts in general we may
state the essentials of a valid marriage to be : (A) Capacity
to marry and to intermarry ; (B) Consent of parents ;
(C) Due observance of ceremonies. We deal with these
in order.
1 Infra, p. 102.
2 Loenius, Decis. 4; V.d.K. 53.
3 V.d.K. 60; V.d.L. 1. 3. 2.
4 The law was the same in England before Lord Hardwicke's
Act (1753).
6 Voet, 23. 1. 12; V.d.K. 57; (Cape) Richter v. Wagenaar (1829)
1 Menz. 262; (Ceylon) Dormiux v. Kriekenbeek (1821) Ramana-
than, 1820-33, p. 23. The Court would appoint a proxy to go
through the ceremony. Fockema Andreae, Oud-Nederlandsch Bur-
gerlijk Recht, vol. ii, p. 146; this was called 'met de handschoen
trouwen'.
6 (Cape) Marriage Order-in-Council of 7 Sept. 1838, sec. 19, in
force in the Colony from Feb. 1, 1839. In Ceylon the action to
compel marriage was abolished by Ord. No. 6 of 1847, sec. 30.
7 Radio/ v. Ralph [1917] E.D.L. 168; Smit v. Jacobs [1918]
O.P.D. 30; McCalman v. Thome [1934] N.P.D. 86 (measure of
damages). If the defendant was married at the time of the promise
the innocent party has an action not for breach of contract but for
injuria, Viljoen v. Viljoen [1944] C.P.D. 137.
• Schnaar v. Jansen [1924] N.P.D. 218.
MARRIAGE 53
A. Capacity to marry and to intermarry. The following A. Capa-
cannot contract a valid marriage:1 viz. those who are
(1) already married, (2) under marriageable age, (3) insane,
(4) impotent.
1. A man can have only one wife, a woman one hus-
band.2 The Courts refuse to recognize a foreign poly-
gamous marriage, i.e. a marriage the nature of which is
consistent with the husband marrying another wife during
its continuance. Whether he does so or not is beside the
question. But though such a marriage is invalid the
children will be held to be legitimate if they were so by
the law of their domicile at the time of birth.3
2. The age of marriage as by the Roman Law and the
Canon Law was the age of puberty, which was taken to be
fourteen for males, twelve for females. But now in South
Africa no boy under the age of eighteen years and no girl
under the age of sixteen years is capable of contracting a
valid marriage except with permission in writing of the
Minister of the Interior.4 In Ceylon the ages are sixteen
and twelve (for a daughter of European and burgher
parents fourteen).5 In England the age is now sixteen
for both sexes.6 The canonical age is now sixteen for males
and fourteen for females.7
3. Insanity is not a status. It is a question of fact in
each case whether a party to a marriage understood the
nature of the contract and was able to appreciate properly
its duties and responsibilities.8
4. Impotence renders the contract of marriage voidable,
not void.9
1 A valid marriage is a marriage which is neither void nor
voidable. 2 Gr. 1. 5. 2.
3 Seedats Exors. v. The Master (Natal) [1917] A.D. 302 ; Cheshire,
Private International Law (2), p. 381.
* Marriage Law Amendment Act, 1935.
5 Ord. No. 2 of 1895, see 16.
8 Age of Marriage Act, 1929. This extends to Scotland, not to
Northern Ireland.
7 Cod. Jur. Can. c. 1067.
8 Prinsloo's Curators v. Crafford [1905] T.S. 669; Vermaak v.
Vermaak [1929] O.P.D. 13.
9 Wells v. Dean-Willcocks [1924] C.P.D. 89.
54
THE LAW OF PERSONS
Capacity
to inter-
marry.
Intermarriage is forbidden between persons related to
one another within the prohibited degrees. By the law of
^_ Holland, as by the Canon Law, persons who had previously
committed adultery together might not intermarry,1 but
in the modern law this rule is abrogated by disuse.2
The books mention other impediments to marriage
which scarcely form part of the modern law. For instance,
the Roman Law3 prohibited marriage between a female
ward and her tutor or curator, or his son ; and this pro-
hibition, though considered to be obsolete by Van Leeu-
wen,4 Groenewegen,4 Voet,4 and others, was accepted as
existing law by Bijnkershoek,5 Van der Keessel,5 and Van
der Linden.5 In South Africa the marriage of a guardian
with his female ward requires the sanction of the Court.6
By the Roman and Roman-Dutch Law a ravisher might
not marry the woman whom he had ravished.7 The old
disqualifications on the ground of differences of religion8
are obsolete.
Marriage The law of prohibited degrees was defined for Holland
mitteT by the Political Ordinance of April 1, 1580,9 which for-
within the ^j^g marriage between: (1) ascendants and descendants,10
degrees, whether related by legitimate or illegitimate birth ;n (2) col-
I V.d.K. 70; V.d.L. 1. 3. 6.
a (Ceylon) Rabot v. de Silva [1909] A.C. 376; (South Africa)
Est. Heinamann v. Heinamann [1919] A.D. 99.
8 Dig. 23. 2. 62 and 64 ; Cod. lib. 5, tit. 6. But a tutor might
give his daughter in marriage to his ward. Dig. 23. 2. 64, 2.
4 Van Leeuwen, 1. 14. 13 and Cens. For. 1. 1. 13. 25; Groen. de
leg. abr. ad Cod. ubi sup. ; Voet, 23. 2. 25.
5 Bijnkershoek, Quaest Jur. Priv. lib. ii, cap. iii, p. 219; V.d.K.
74; V.d.L. 1. 3. 6. 8 1 Maasdorp, p. 22.
7 Cod. 9. 13. 1, 2; Voet, 23. 2. 26; Echt-Reglement van de
Staten-Generael, March 18, 1656, Art. 85 (2 G.P.B. 2444) ; Placaat
van de Staaten van Holland, Feb. 25, 1751 (8 G.P.B. 535).
Groenewegen, whose book first appeared in 1649, i.e. before the
Placaats, says (ad Cod. 9. 13. 1): Jure Canonico raptae raptori
nubere licet, et hoc jure utimur. Not so now by canon law.
Cod. jur. Can. c. 1074.
8 Voet, 23. 2. 26 ; V.d.K. 73 ; V.d.L. 1. 3. 6.
9 1 G.P.B. 330. The relevant articles of the P.O. are translated
by Maasdorp, Institutes of South African Law, vol. i, Appendix.
10 P.O., Art. 5; Gr. 1. 5. 6; Voet, 23. 2. 30.
II Groen. de leg. abr. ad Dig. 38. 10. 8 ; V.d.K. Dictat. adGr.l. 5. 6.
MARRIAGE 55
laterals of whom either is related to the common ancestor
in the first degree of descent, e.g. brother and sister, uncle
and niece, uncle and great-niece, nephew and aunt.1 In
the latter class no distinction is made between the whole
and the half blood, and in both classes the prohibition
extends to relations by marriage as well as to relations
by blood and within the same degrees ;2 that is to say,
since a man may not marry his sister or sister's daughter,
neither may he marry his sister-in-law or sister-in-law's
daughter ; and so with all the other prohibited degrees of
relationship. It must be observed that though relation-
ship by marriage is a disqualification within the prohi-
bited degrees, this rule has no application when more than
one marriage intervenes between the intending spouses.3
Thus by the Dutch law a man might not marry his de-
ceased wife's sister,4 but there was no reason why he should
not marry his deceased wife's brother's widow. In South
Africa and Ceylon the matter of prohibited degrees has in
part or in whole been regulated by statute.5
B. Consent of parents. In the oldest Germanic law the B. Con-
consent not alone of parents but also of other near rela-
tives was a necessary, or, at all events, usual, preliminary
of marriage. 'Intersunt parentes et propinqui,' says Taci-
tus, 'ac munera probant.'6 In Holland a case is cited as
late as the year 1422 in which the parents incurred a
penalty for having given their minor daughter in marriage
without the consent of relatives and of the authorities of
1 P.O., Arts. 6-7; Gr. 1. 5. 7-8; Voet, 23. 2. 31-2. In the
Transvaal only if the parties are within the third degree of rela-
tionship. Law No. 3 of 1871, sec. 4. This coincides with English
Law. Blackst. Comm. i. 435 (Christian's note). But it is believed
that men do not often marry their great-aunts.
2 P.O., Art. 8; Gr. 1. 5. 9. See on the whole subject, Loenius,
Decis., Cas. 7, pp. 39-62 ; Rechts. Obs., pt. 4, no. 3 ; Fudis v.
Whiley N. 0. [1934] C.P.D. 130.
3 In other words, my wife's affines are not my affmes so as to
bring them within the prohibited degrees. Voet, 23. 2. 33. These
impedimenta secundi generis, as they were called, were abolished
as early as 1215 by the fourth Lateran Council.
4 P.O., Art. 10. B See Appendix C.
6 Tacitus, Germania, cap. 18.
56 THE LAW OF PERSONS
the town.1 In the sixteenth century the matter was regu-
lated by two enactments: viz. the Perpetual Edict of
Charles V of October 4, 1540, and the Political Ordinance
of the States of Holland and West Friesland, of April 1,
1580.
The Perpetual Edict (Art. 17) runs as follows: — 2
The pro- 'And whereas, daily, many inconveniences are caused in our
visions of rea}m jn consequence of secret marriages, which are contracted
petual between young persons without the advice counsel and consent
Edict of of friends and relatives of both sides, we observing that accord -
1540 6r ' mS ^° ^G Precepts °f the written law such marriages are not
Art. 17. in accordance with honour and due obedience, and generally
come to a bitter end, Will, Ordain and Decree that in case any
one shall take upon himself to solicit or induce any young girl,
not exceeding the age of twenty years, by promise or otherwise,
contract marriage with her (sic), or in fact contract marriage
without the consent of the father or mother of the said girl, or
of the majority of the friends and relatives,3 in case she had no
father or mother, or of the judicial authorities of the place, such
man shall at no time be entitled to take or receive any douarie,
or other benefit (whether by way of contract before marriage,
by the custom of the country, by testament, gift, transfer,
cession, or otherwise in what manner soever) out of the goods
which the said girl may leave behind, even though he may,
after the marriage has been completed (na 't houwelijck vol-
bracht sijnde), obtain the consent of the father and mother, of
the aforesaid friends and relatives, or of the Court ; of which
circumstance we will that no regard should be had in this
matter. In like manner if any girl or woman take upon herself
to contract marriage with a young man not exceeding the age
of twenty-five years, without consent of father or mother, or of
the nearest friends and relatives, or of the judicial authorities of
the place, such woman shall never be entitled to take or acquire
1 Van Mieris, Groot Charterboek, vol. iv, p. 660.
2 1 O.P.B. 319; 1 Maasdorp, p. 363.
3 The original text reads 'van de meeste Vrienden ende Magen'.
Meeste seems to be a mistake for naeste, which occurs lower down.
The words 'Vrienden ende Magen' taken together mean 'rela-
tives' (so in English law an infant sues by his 'next friend'). The
reference is to the nearest relatives of the 'four quarters' (infra,
p. 102). The requirement of consent of relatives strikes an archaic
note. Even as early as the sixteenth century their place was being
taken by tutors testamentary or dative.
MARRIAGE 57
any douarie or other benefit out of the goods which such man
may leave behind (whether by way of contract of marriage,
by the custom of the country, by testament, gift, transfer or
cession, in what manner soever), even though she may, after
the marriage has been consummated (nae 't huwelick ghecon-
sommeert),1 obtain the consent of father or mother, of the afore-
said friends and relatives, or of the judicial authorities; of
which circumstance we will that no regard should be had.
Further, we forbid all our subjects to be present, to consent or
agree to such marriages made without the consent of the
judicial authorities, or to receive, entertain, or lodge in their
houses persons so married, under penalty of one hundred gold
Caroli or other severe punishment in the discretion of the
Court. We forbid also all Notaries to receive any antenuptial
contract or other promise to effect such marriage under pain
of deprivation of office and, moreover, of being punished at
discretion. Commanding all our officers and fiscals to take
good care to have this ordinance observed and maintained,
and to punish the contra veners of the same without favour or
dissimulation.'
The above enactment, it will be noticed, penalizes mar-
riages contracted without the necessary consents, without,
however, annulling them, which would have been (as it
still is2) contrary to the law of the Church. This further
step was taken by the Political Ordinance of April 1, The Pro-
1580, which by Art. 33 provides that banns shaU not be
granted or proclaimed if those who apply for the same are cal Ordin-
beneath the proper age, viz. twenty-five for young men, April0!,
and twenty for young women, unless they produce to the i580,Arts.
magistrate or minister of religion the consent of their
parents or the survivor of them (if they have any) ; and
by Art. 13 declares 'null and void and of no effect mar-
riages not contracted and celebrated' as required by the
Ordinance, and adds an express reservation of the pro-
visions of the Perpetual Edict relating to the marriage of
minors and the penalties therein contained.4 With regard
1 See V.d.K. 50, Lee, Commentary, p. 8.
2 Cod. jur. Can. c. 1034.
3 1 O.P.B. 331; Gr. 1. 5. 14-15; Voet, 23. 2. 11.
4 1 G.P.B. 334.
58 THE LAW OF PERSONS
The com- to the interpretation of these two enactments and their
effect of combined effect divergent views have been entertained,
these As regards minors who have parents or parent yet living
ments: the law seems plain. Such young persons can neither
(a) As re- engage themselves1 nor contract a valid marriage2 without
sent of °Q the consent of parents or parent.3 If both parents are
parents; living the consent of both is required, but in case of differ-
ence between them the will of the father as the head of
the family prevails over that of the mother.4 If the father
is dead the mother's consent is necessary, and sufficient,5
even though she has contracted a second marriage.6 Con-
sent may be express or tacit, the latter when a parent
knows of the intended marriage and does not forbid it.7
Indeed, in the absence of fraud on the part of one or both
of the spouses, publication of banns is deemed to be notice
to the parents, and a marriage thereafter concluded is
valid, even though, through carelessness on the part of the
marriage-officer or other person responsible, the parents
may in fact not have consented to the marriage or even
have known of it.8 In any event, ratification by the
parents or parent after marriage, so far as concerns the
validity of the marriage and the legitimacy of the children,
has the same effect as a previous consent ; but no ratifica-
tion after marriage9 can relieve from the penalties imposed
by the Perpetual Edict, this being expressly excluded by
the terms of the Edict.10 In the absence of consent or rati-
fication the marriage will be declared void at the instance
of the aggrieved parent, if he chooses to insist upon his
1 Voet, 23. 1. 20; V.d.L. 1. 3. 2.
2 Van Leeuwen, 1. 14. 6; V.d.K. 75; Willenburg v. Willenburg
(2) (1908) 25 S.C. at p. 910; (1,909) 3 Buch. A.C. 409.
3 Grandparents are not included. V.d.K. 77.
4 Voet, 23. 2. 13. 6 Ibid. 6 Voet, 23. 2. 14.
7 Foy v. Morkel [1929] W.L.D. 174.
8 Voet, 23. 2. 18 ad fin. ; Johnson v. Mclntyre (1893) 10 S.C. 318.
The presumption is not irrebuttable. Secus, when banns have
been proclaimed by a magistrate under (Cape) Act 16 of 1860.
Sikiti v. Foley [1929] E.D.L. 286.
9 After consummation of the marriage? Perpet. Ed. Art. 17;
supra, p. 57.
10 Voet, 23. 2. 19; V.d.K. 75.
MARRIAGE 59
right.1 But the marriage is not a void ab initio, and can-
not be avoided by the spouses or either of them merely
on the ground of the want of parental consent, nor (per-
haps) by a parent after the child has reached full age.2
Parental consent once given may be withdrawn before
marriage.3
If parents foolishly, frivolously, or in bad faith, withhold
their consent, it would seem just that the Court should
have power to override their veto. But only very pecu-
liar circumstances would justify overriding the parental
authority.4 An insane parent, so far as concerns consent,
is treated as non-existent, and the same consent, if any,
is required and sufficient as would be sufficient if he or
she were already dead.5
A minor who has married with consent, and who be-
comes widowed before reaching the usual limit of full age,
may re-marry without consent. Such at least was the
law in the province of Holland with regard to males and
females alike.6
Thus far we have spoken of the consent of parents or of or other
relatives.
1 Si rigido jure uti velit, Voet, 23. 2. 11 ; Johnson v. Mclntyre,
ubi sup. ; Solomon & Solomon v. Hanna [1903] T.S. 460 (action by
mother as natural guardian, the father being absent from the
country) ; Willenburg v. Willenburg (1909) 3 Buch. A.C. at p. 423 ;
Manton v. Manton (1909) 30 N.L.R, 387; Gerber v. Gerber [1928]
W.L.D. 800 ; Foy v. Morkel [1929] W.L.D. 174 (action by widowed
mother as natural guardian). Owen v. Fine, 1943 (1) P.H., B. 34
[W.L.D.].
2 Vander Westhuizen v. Engelbrecht [1942] O.P.D. 191, dissent-
ing from McKabe v. Moore [1909] E.D.C. 161.
3 Subject to appeal' to the Court. Schoeman v. Rafferty [1918]
C.P.D. 485; Sipondo v. Nongauza [1927] E.D.L. 255.
4 Voet, 23. 2. 22 ; Schorer ad Gr. 1. 5. 16 ; V.d.K. 76 ; HiMebrand
v. Hildebrand [1923] W.L.D. 151 ; Paton v. Paton [1929] T.P.D.
776; Mofuken v. Mtembu [1929] W.L.D. 82.
5 V.d.K. 82. At the Cape any person desirous of marriage to
whose marriage consent is necessary, but cannot be given or is
withheld, may apply by petition to the Chief Justice. Marr. O. in
C. 1838, sec. 17. For Transvaal see A. v. B. [1906] T.S. 958;
Ex parte Kropf [1936] W.L.D. 28.
6 Voet, 23. 2. 17; V.d.K. Dictat. ad Gr. 1. 5. 15; Lee, Commen-
tary, p. 15; supra, p. 45, n. 9. The Echt-Reglement of March 18,
1656 (2 G.P.B. 2439) contains an express provision to this effect
for the Generaliteyts Landen.
60 THE LAW OF PERSONS
a surviving parent. But what if both parents are dead ?
The Political Ordinance (Art. 3) does not require the con-
sent of relatives.1 Inasmuch, however, as Art. 17 saves the
operation of the penal clauses of the Perpetual Edict, it
seems that a marriage of minors whose parents are dead,
if contracted without the consent of friends and relatives,
or, if these disagree amongst themselves or unreasonably
withhold their consent, of the Court, though not void, is
penalized. This is the view of Grotius, who treats the con-
sent of the nearest relatives as necessary, if the penalty is
to be avoided, though he says that the marriage of minors
is not void by reason of its being prohibited by their guar-
dians or relatives.2 In the modern law relatives have no
locus standi in the matter, except so far as they may hap-
pen to be guardians.
(6) As re- The argument founded upon the language of the Per-
sent of°n" Petual Edict clearly fails as regards the consent of guar-
tutors. dians, for the Edict does not penalize marriages contracted
without such consent. In view of this fact it cannot be
said that the common law of Holland made the consent of
guardians a necessary condition of a valid marriage of a
minor whose parents were dead,3 nor, apart from general
or local legislation or custom having the force of law, can
the penalty of the Edict be extended to a case to which it
does not in terms apply.4 It is plain, however, from Van
der Keessel, that the consent of guardians or relatives, and
often of both, was very generally required by the local
statutes, if not for the validity of the marriage, at all
events for the avoidance of the penalty. On the other
hand, the law of Zeeland, which penalized and also an-
nulled marriages contracted without such consents, seems
to be mentioned as exceptional.5 In South Africa a mar-
1 Voet, 23. 2. 16; V.d.K. 77. 2 Gr. 1. 8. 3.
3 Gr. ubi sup. and Schorer ad loc. ; Van Leeuwen, 1. 14. 9;
Groen. de leg. abr. ad Cod. 5. 4. 8; Voet, 23. 2. 16; V.d.L. 1. 3. 6;
Bijnk. O.T. i. 46.
4 Van Leeuwen (ubi sup.) applies it, but with hesitation. In any
event consent of guardians will be easily inferred. Ibid.
8 V.d.K. 125-6.
MARRIAGE 61
riage contracted without consent of guardians has the
usual penal consequences, but is not void, or voidable at
the suit of the guardian.1
With regard, more particularly, to the statutory penalty, The statu-
it must be noticed that it attaches only to the person o
full age of either sex who inveigles a minor of the other not attach
sex into marriage. Such person is not allowed to take any SpOUse
benefit from the property of the minor spouse, whether w^° 1S a
present or future, whether by gift, legacy, inheritance, or
in any other way. One effect of this is that the major spouse
takes no advantage from the marriage by way of com-
munity of property, nor, where this exists, by antenuptial
contract ;2 and he acquires no right of control or adminis-
tration over the property of the wife, who retains the
administration in her own hands.3 But the minor spouse
is not penalized,4 so that the proprietary consequences of
the marriage will not be disturbed where they are for the
minor spouse's benefit.5 In the modern law minority in
1 Mostert v. The Master [1878] Buch. 83; Willenburg v. Willen-
burg (1) (1909) 26 S.C. at p. 453. In the Transvaal, by Law No. 3
of 1871, sec. 8, it is not lawful to solemnize the marriage of a minor,
if he or she cannot produce the consent of father or guardian.
For Ceylon see Ord. No. 19 of 1907, sec. 23. Interdicted prodigals
are in most respects in the same position as minors (Voet, 27. 10. 9),
but they can marry without the consent of their curators (Mitchell
v. Mitchell [1930] A.D. 217), and can give the required consent to
the marriage of their children. Supra, p. 55.
1 'The husband, whether he knew at the time or did not know
the lady to be a minor, can receive no benefit from such a marriage
and can have no control over her property.' Mostert v. The Master
ubi sup. at p. 85 per de Villiers C.J. But Anton. Matthaeus
(Paroem. no. 2, sec. 18) says: Igitur scientem, non etiam ignoran-
tem vel errantem, ea constitutio plectit.
3 Mostert' 's Trustees v. Mostert (1885) 4 S.C. 35 ; Wessels N. O. v.
Uys [1924] O.P.D. 329; Ex parte Nahass [1939] C.P.D. 173. But
there is old authority to the contrary. See Sentent. van den Hoog.
en Provincial. Raad., no. 158, a decision which, as V.d.K. says
(Dictat. ad Gr. 1. 8. 3), 'well deserves inspection'. It is regrettable
that in such cases the Court (it seems) will neither order a settle-
ment of the wife's money (Mostert v. The Master, at p. 84) ; nor
permit the parties to make a postnuptial settlement, Ex parte
Dicks [1915] T.P.D. 477. As to the power of the Court to order a
settlement, Loenius, Cos. 55, pp. 357-60 and Bijnk O.T. ii. 1047,
may be consulted. 4 Voet, 23. 2. 20.
6 Groen. de leg. abr. ubi sup.
62 THE LAW OF PERSONS
this connexion terminates for the male at twenty-one and
for the female, apparently, at the same age.1 If both parties
are minors, presumably the Court will try to find out
which of the two was the more guilty. Failing this the
community will stand.
By the Law of Holland consent of parents was required
even when the spouses were of full age, but such consent
was easily presumed and might not be unreasonably with-
held. If consent was withheld the Court determined
whether the grounds of refusal were sufficient.2 In the
modern law the consent of parents is not necessary when
the parties to the marriage are of full age.
C. The C. The formal requirements of marriage. Until the six-
recmire- teenth century the Canon Law, adopting the Roman rule
ments of Consensus facit nuptias, did not require any formal celebra-
tion of the marriage.3 It was enough that the parties per
verba de praesenti declared their intention here and now to
be husband and wife. The law of the Church was changed
by the Council of Trent (1545-63), which required that
marriage should be contracted in the presence of a parish
priest and at least two witnesses. This decree had no
authority in Holland4 after the adoption of the reformed
religion, but the legislature followed the example set by
the Church. The Political Ordinance of 1580 by Art. 3,5
besides giving statutory authority to the canonical prac-
tice of publication of banns (first enjoined by the fourth
Lateran Council in 1215), required further that the marriage
should be celebrated by a Minister of religion, or by the
Magistrate.
The text of the Political Ordinance runs as follows :
Political 'Those who after the publication of these presents shall
Desire to enter upon marriage shall be bound to appear before
1 If this is so, it is a singular instance of extensive interpretation
of a penal enactment. But perhaps we must regard the law of
South Africa as resting rather on custom than on the statute. The
pre-British law of the Cape fixed the ages at 21 and 18. J. de V.
Roos in 23 S.A.L.J. (1906), p. 249.
2 P.O., Art. 3 ; 1 Maasd., p. 356.
3 Gr. 1. 5. 16; Van Leeuwen, 1. 14. 3.
4 Fock. And., vol. ii, p. 137. B 1 G.P.B. 331.
MARRIAGE 63
the Magistrates or Ministers of Religion of the towns and
places of their residence, and there apply for the granting to
them of three Sunday or Market-day banns, to be made in the
Churches or from the Council-House or other places where
justice is administered, on three successive Sundays or Market-
days : which banns shall be granted and made to the end that
any one who wishes to advance any let or hindrance, whether
of blood, affinity or pre-contract of marriage, by reason of
which the marriage should not go forward, may do so. Pro-
vided, however, that the said banns shall not be granted or
made, if those who desire them are under age, that is to say
young men beneath the age of twenty-five, and young women
beneath the age of twenty, unless they show to the Magistrates
or Ministers the consent of their parents or of the survivor of
them (if they have any). . . . The said banns being made, if no
lawful objection has been offered to them, the parties shall
be married by the magistrates or Ministers according to the
ordinances in use in the Churches and which shall be communi-
cated to the Magistrates by the States aforesaid.'1
The later Dutch Law, following the example of the The
French, made a civil marriage indispensable, a religious ^ ei
ceremony being left to the option of the parties.2 The
principle that marriage is concluded by mere consent still
persists in many of the States of the American Union, and
persisted until 1940 in Scotland.3
With regard to the solemnization of marriage at the pre-
sent day the reader is referred to the statute law of the
several Provinces or Colonies.4
It may happen that two persons contract marriage Putative
under the belief that they are free to do so, while in fact mamage-
one or both of them is married already, or for some other
reason, such as near relationship, the conditions required
1 i.e. the Provincial legislature, the States of Holland and West
Friesland.
8 V.d.K. 84; V.d.L. 1. 3. 6 (ad fin.).
3 Marriage (Scotland) Act, 1939.
4 South Africa, 1 Maasdorp, chap, iv; Ceylon, Ord. No. 19 of
1907. As to presumption of marriage from cohabitation and
repute see Fitzgerald v. Green [1911] E.D.L. at pp. 449, 454-9;
Hairman v. Crawley [1923] O.P.D. 3 ; Nyokana v. Nyokana [1925]
N.P.D. 227 ; Ex parte Azar [1932] O.P.D. 107 ; Gavenas v. Gavenas
[1936] C.P.D. 132; Levine v. Levine [1939] C.P.D. 246.
64 THE LAW OF PERSONS
for a valid marriage do not exist. Such a marriage is
termed a putative marriage, which, by the law of South
Africa and of many other countries, but not of England,
has some of the effects of a valid marriage, and, in par-
ticular, the consequence that children born of the marriage
are deemed to be legitimate. If there is good faith on the
part of one of the parties only, the consequences of a
putative marriage enure for the benefit of that party only
and of the issue of the marriage.1 Thus, if persons within
the prohibited degrees innocently intermarry without an
antenuptial contract, they are deemed to be married in
community with the usual consequences so long as they
are ignorant of their relationship. If it is known to one,
unknown to the other, community continues so far as it
is advantageous to the innocent party.2
SECTION 3 — THE LEGAL CONSEQUENCES OF MARRIAGE
The legal The legal consequences of marriage may be considered,
quences of first, in relation to the personal status and capacity of
mamage: ^he wife; secondly, in respect of the property of the
spouses.
A. Effect A. Effect of marriage, on the personal status and capacity
riageasre- °f the wife. This consists principally in the marital power
gardsthe of ^he husband over the wife,3 with its consequences,
status and which are as follows :
capacity.
1. The wife acquires the rank or dignity of the husband,
which after the husband's death she retains durante vidui-
tate. She acquires also her husband's forum and domicile.4
1 V.d.K. 64, Lee, Commentary, p. 11; In re Booysen (1880)
Foord at p. 190; Berthiaume v. Dastous [1930] A.C. 79, appealed
to P.O. from the Province of Quebec. For Scots Law see Gloag
and Henderson (2), p. 529. As to the legitimacy of the children
see H. (wrongly called C.) v. C. [1929] T.P.D. 992. In later cases
the Court has declined to make a declaration of legitimacy when
the children were not represented. Lionel v. Hepworth [1933]
C.P.D. 481; Clarke v. Soffiantini, 1939 (1) P.H., B. 30 [C.P.D.] ;
Potgieter v. Bellingan [1940] E.D.L. 264.
2 Matthaeus, Paroem. ii, sec. 73 ; Voet, 23. 2. 89.
3 V.d.L. 1. 3. 7.
4 Voet, 23. 2. 40.
MARRIAGE 65
2. Though she may have been of full age before mar-
riage, on marriage she is deemed to be a minor under the
guardianship of her husband.1 Like a minor she has, in
general, no independent persona standi in judicio. She
cannot institute or defend an action in her own name.
Whether as plaintiff or defendant she must proceed by or
with the assistance of her husband.2
3. In the matter of contract a married woman is in
much the same position as a minor. She cannot, in general,
bind herself except by her husband's authority.3 But she
can incur a natural obligation which is a good foundation
for a contract of suretyship and excludes the condictio in-
debiti in case she has paid money in discharge of such
obligation after her husband's death.4 Contracts made
without her husband's authority being civilly void, neither
wife nor husband can be sued upon them either during the
marriage or after its determination. Subsequent ratifica-
tion by the husband has the same effect as antecedent
authority, and so, it seems, has tacit acquiescence in the
contract.5 The wife may confirm the contract after her
husband's death.6
4. There are cases in which a married woman's contracts
have full legal effect.7 Thus: (a) She may enter into a
unilateral contract which is solely to her advantage. Her
husband takes the benefit, and payment must be made to
him, not to his wife without his knowledge.8
1 Gr. 1. 5. 19; van Leeuwen, 1. 6. 7; Voet, 1. 7. 13; 23. 2. 41;
V.d.L. 1. 3. 7. V.d.L. says: 'De vrouw wordt door het huwelijk
minderjarig. ' Grotius more correctly says : ' werd ghehouden
voor onmondig.' As to husband's duty to support wife see
Gammon v. McClure [1925] C.P.D. 137 ; Miller v. Miller [1940]
C.P.D. at p. 469.
3 Gr. 1. 5. 22, 23 ; van Leeuwen, ubi sup. ; Voet, 5. 1. 14; 23. 2.
41 ; V.d.K. 95 ; 1 Maasdorp, p. 47. See Appendix D. In Ceylon
(Ord. No. 18 of 1923) a married woman may sue or be sued in all
respects as if she were a feme sole. The Ordinance is modelled
upon the English M.W.P. Acts.
3 Gr. 1. 5. 23; Voet, 23. 2. 42 ; Pretorius v. Hack [1925] T.P.D.
643. 4 V.d.K. 96. But see Voet, 12. 6. 19.
5 Voet, 23. 2. 42. A wife may contract as agent for her husband,
but that is another matter. * Voet, 23. 2. 43.
7 See Appendix D. 8 Voet, 23. 2. 44.
4901 -n,
66 THE LAW OF PERSONS
(6) Husband and wife are rendered liable by the wife's
contracts, though made without the husband's authority
or ratification, to the extent of their enrichment, that is
to the extent to which he or she has taken a benefit under
the contract.1
(c) A wife who is authorized or permitted by her hus-
band to carry on the business of a public trader binds her-
self, and (where there is community of goods or, at least,
of profit and loss) her husband, by her trade contracts.2
It makes no difference whether she is above or below the
normal limit of full age.3 The wife's authority to bind her-
self or her husband ceases if the husband has revoked his
consent. Such revocation must be communicated to third
parties and cannot be made to their prejudice in respect
of transactions already begun.4
(d) A wife may bind herself and her husband by con-
tracts incidental to the household.5 This authority results
from the wife's position as domestic manager and cannot
be taken from her except by judicial decree and public noti-
fication.6 Under the designation of 'necessaries' (which
does not by any means imply merely the bare neces-
sities of life) the modern law has enlarged the conception
of contracts incidental to the household to cover any
reasonable expenses or liabilities. It is for the judge to say
whether a particular contract falls within the permitted
1 Gr. 1. 5. 23 (ad fin.); Voet, 23. 2. 43 (ad fin.); V.d.L. 1. 3. 7;
Johnston v. Powell (1909) 26 S.C. 35; Forster v. Becker [1914]
E.D.L. 193; Karsten v. Foster [1914] C.P.D. 919.
2 Gr. 1. 5. 23; van Leeuwen, 1. 6. 8 and 2. 7. 8; Voet, 23. 2. 44
(ad init.) ; V.d.L. ubi sup. As to what constitutes a public trade
see Grobler v. Schmilg and Freedman [1923] A.D. 496.
3 Voet, loc. cit. * Voet, loc. cit.
6 Gr. ubi sup. ; van Leeuwen, ubi sup. ; Voet, 23. 2. 46. See
Appendix D. This is an old Germanic institution — Schlusselgewalt.
Stobbe, Deutsches Privatrecht, iv. 188.
6 Gr. ubi sup. : 't welck een man niet en kan beletten, ofte hy
most sijn vrouw oock dat bewint rechtelick verbieden, ende 't selve
doen afkondighen. The meaning of 'rechtelick ' appears from Voet
(23. 2. 46), who says: nisi hujuscemodi rei domesticae cura, ac circa
earn contrahendi licentia, ad mariti desiderium uxori publica magi-
stratus auctoritate justas ob causas interdicta sit. Does this hold
good to-day ?
MARRIAGE 67
class.1 Much depends upon the custom of the country, the
husband's condition and resources and the previous course
of dealing. It is all one whether the wife has purchased
goods for domestic use or borrowed money for the purpose
of doing so.2
(e) If the husband has deserted his wife and is absent
from the jurisdiction she may apply to the Court for leave
to acquire and hold property and to contract in her own
name.3
(/) In matrimonial causes a wife may in her own name
take proceedings against her husband or defend proceed-
ings taken by him against her. She may incur liability
for the cost of such proceedings and for incidental expenses,
and may defend in her own name an action brought against
her to enforce such liability.4
(g) Lastly, as will be seen later, a woman may by apt
words in her marriage contract retain the freedom of con-
tracting which she enjoyed before marriage.5
5. During the marriage the husband (if the marital
power is not excluded by antenuptial contract) administers
the joint property and property of the wife which has been
kept out of community. He may alienate it even by way
of gift or encumber it, as he pleases.6 The only limitation
which the law places upon his administration is that gifts
made in fraud of the wife or her estate may be called in
question.7 He is not accountable for his marital admini-
stration, nor can he be required to indemnify his wife or
1 Reloomel v. Ramsay [1920] T.P.D. 371.
2 Voet, ubi sup.
3 Sande, Decis. Fris. 2. 4. 4; Ex parte Hagemann (1909) 26 S.C.
503; Ex parte Male (1910) 20 C.T.R. 941; In re Beart [1912]
N.P.D. 65; Ex parte Abbott [1915] C.P.D. 544. The cases relate
principally to permission to take transfer of immovable property.
4 Van Eeden v. Kirstein (1880) Kotze, at p. 184; Barnett v.
Milnes [1928] N.P.D. 1.
5 Infra, p. 81.
6 Gr. 1. 5. 22; Schorer ad Gr. 2. 48. 2; Van Leeuwen 1. 6. 7;
Voet, 23. 5. 7; V.d.K. 92; Bijnk O.T. i. 727; power to lease,
Voet, 19. 2. 17.
7 Voet, 23. 2. 54 ; Van Leeuwen, ubi sup. ; Kemsley v. Kemsley
[1936] C.P.D. 518.
68 THE LAW OF PERSONS
her heirs for his negligence.1 The wife, on the other hand,
may not alienate or encumber her property without her
husband's consent unless in due course of trade or for
household expenses.2
6. Where there is community of goods, or at least of
profit and loss, the husband's contracts fall into the com-
munity and so far benefit or burden the wife.3 After the
dissolution of the marriage she is entitled pro semisse, and
liable pro semisse after recourse first had to the common
estate, and, if the common estate has been distributed, to
the estate of the husband.4 Similarly, the wife's contracts,
so far as she can validly contract, benefit and burden the
community. In this case it will be the husband who is
liable pro semisse after the dissolution of the marriage.5
7. Though, in general, a married woman is in the posi-
tion of a minor, in some respects she is not so favourably
situated. Thus, as remarked above, she cannot hold her
husband to account or claim restitutio in integrum from
contracts concluded by herself or by her husband in her
name.6
B. Effect B. Effect of marriage in respect of the property of the
of mar- spouses. By the law of Holland, in the absence of contract
nage on *.
the pro- to the contrary, marriage created ipso jure a community
the^ °f °^ g°°ds (communio bonorum — gemeenschap van goederen)
spouses, between the parties.7 The books describe it as a statutory
Com- community, which means, in effect, that it was an institu-
° ti°n °f native origin not derived from Roman Law.8 It is
1 Sande, Decis. Fris. 2. 4. 1 ; V.d.K. 91.
2 Gr. 1. 5. 23; Van Leeuwen, 2. 7. 8.
8 Infra, pp. 77 ff.
4 Gr. 2. 11. 17 ; 3. 1. 38, V.d.K. Dictat. ad loc., Lee, Commentary,
p. 227; Stevenson v. Alberts [1912] C.P.D. 698.
B Appendix D.
6 V.d.K. Dictat. ad Gr. 1. 5. 21 (citing Voet 4. 4. 51 ; 23. 2. 63) ;
Lee, Commentary, p. 22.
7 Gr. 2. 11. 8; Voet, 23. 4. 1 ; V.d.K. 216; Mograbi v. Mograbi
[1921] A.D. 274.
8 The medieval lawyers were in the habit of describing the
particular law of a town as its statute. Hence the intricate theory
of statutes in the Conflict of Laws. Expanding this usage, 'By
statutes the civilians mean . . . the whole municipal law of the
particular state from whatever cause arising ... in contradiction
MARRIAGE 69
also described as universal, for, with exceptions to be
mentioned, it covered all the property of the spouses and
was not limited as in other countries to acquired property
(to the exclusion of inherited property), or to a community
of profits, which is the form in which matrimonial com-
munity first comes into view in early Saxon and Prankish
sources.1
Community might be excluded in whole or in part by How ex-
antenuptial contract, and was excluded by law in the case c '
of minors marrying without the required consents. There
were besides certain kinds of property which did not fall
into community. In the Union of South Africa the law
remains substantially unaltered. In the absence of proof
of the contrary every marriage is presumed to be in com-
munity.2 In Ceylon and in Southern Rhodesia community
of goods is no longer a consequence of marriage.3
The following kinds of property are (or were) excluded Not ap-
from community, viz. (i) (by the old law) lands held by Certain0
feudal tenure ; (ii) property burdened with a fideicommis- kinds of
property.
to the Roman Law which they are accustomed to style by way of
eminence the common law, since it constitutes the general basis
of the jurisprudence of all continental Europe '. Story, Conflict of
Laws, sec. 12.
1 There were three principal types of community, together with
many varieties, viz. 1. Community of postnuptial acquisitions —
the Dutch community of profit and loss (infra, p. 76) ; 2. Com-
munity of movables (brought into marriage and after acquired) ;
3. Universal community. In the Northern Netherlands this last
(algeheele gemeenschap) prevailed in Holland, Zeeland, Utrecht,
Gelderland and most of Overijsel. It also occurred in many parts
of Germany and in Flanders. It is thought to have originated in
the towns in the later Middle Ages. Fock. And. O.N.B.R. ii. 170;
Bijdragen, ii. 109 ff. ; de B16court (5), pp. 106 &. It was re-intro-
duced into the Law of Holland (the Kingdom of the Netherlands)
by Art. 174 of the Burgerlijk Wetboek of 1838, now in force, which
put an end to the domination of the French Code (supra, p. 7).
2 Faure v. Tulbagh Divisional Council (1890) 8 S.C. 72.
8 Ceylon, Matrimonial Rights and Inheritance Ordinance, No. 15
of 1876, sec. 8; Southern Rhodesia Married Persons, Property
Act, 1928 (E.S. cap. 151). In Natal by Law No. 22 of 1863, sec.
2, community of goods does not attach to any spouses married
elsewhere than in South Africa unless the spouses by written
and registered agreement exempt themselves from this law.
Brown v. Brown [1921] A.D. 478.
70 THE LAW OF PERSONS
sum. The property itself does not fall into community
though the rents and profits accruing from it do so.1 The
same applies to property held in usufruct.2 (iii) It has
been said that jewels and other such things given by a
bridegroom to the bride on marriage3 and the clothes of
the spouses4 are (within limits) exempt from community,
but, however reasonable this proposition may be, there is
little, if any, authority for it. (iv) Finally, any person
who gives or bequeaths property to either spouse may ex-
pressly exclude it from community.5 Similarly, any specific
property may be kept out of community by antenuptial
contract, but in the absence of stipulation to the contrary
the proceeds of the sale of such property fall into com-
munity.6
What uni- With these exceptions the community comprises all the
property of the spouses,7 present and future, movable and
munity immovable, wherever situate,8 jura in personam as well
as jura in rem. The whole is under the administration of
the husband, who is described as head of the community.
Conversely, the liabilities of the spouses, whether ante-
nuptial or postnuptial, are charged upon the community
1 Gr. 2. 11. 10; Voet, 23. 2. 71 ; V.d.K. 221 ; Barnett v. Rudman
[1934] A.D. 203.
2 Van der Merwe v. Van Wyk N.O. [1921] E.D.L. 298.
3 Van Leeuwen, 4. 24. 13; Voet, 23. 2. 78; but see Reddy v.
Chinasamy [1932] N.P.D. 461.
* Arntzenius, Inst. Jur. Civil. Belg. pt. 2, tit. 4, sec. 18, refers
only to local statutes. Van Leeuwen (4. 24. 14) cites Costum. van
Antwerpen, xli. 53-4 ; Lee, Commentary, p. 100.
6 Erasmus v. Erasmus [1942] A.D. 265; Cuming v. Cuming,
1945 (1) P.H., G. 13 [A.D.]— a gift to the wife 'absolutely' held
in the circumstances to exclude community.
8 Voet, 23. 2. 79; Clement N.O. v. Banks [1920] E.D.L. 362.
Another case of relatively small importance is that in an action
by the wife for judicial separation and in proceedings to enforce
the order the husband's marital power is in abeyance and costs
awarded to the wife fall out of community. Comerma v. Comerma
[1938] T.P.D. 220.
7 Voet, 23. 4. 30; V.d.L. 1. 3. 8. The proverb says: 'Man
ende Wijf hebben geen verscheyden goet.' Matthaeus, Paroem,
no. 2.
8 Voet, 23. 2. 85 ; unless the lex situs requires a formal mode of
transfer in which case a personal action lies to compel transfer
accordingly. Chiwell v. Carlyon (1897) 14 S.C. at p. 66.
MARRIAGE . 71
and diminish the joint estate,1 and an antenuptial stipula-
tion to the contrary is void in law unless community of
goods is also excluded.2 A married woman, therefore, may
be utterly ruined by her husband's extravagance, but the
remedy is in her own hands, viz. to ask the Court to inter- Boedel-
dict the husband from the administration of the estate.3
Community begins when marriage begins, i.e. so soon as
the necessary rites or ceremonies have been performed ;4 When
it persists during its continuance and ends upon its dissolu-
tion. Thereupon the common fund is divided ipso jure begins
into two equal shares, one of which vests in the surviving ai
spouse, without regard to the amount which such spouse
may have contributed, the other of which vests in the
testamentary or intestate successors of the deceased.5 On
the dissolution of the community outstanding postnuptial
liabilities attach to the extent of one-half to each moiety
of the now divided estate.6 Antenuptial liabilities, on the
1 Die den man of de vrouw trouwt, trouwt ook de schulden.
Gr. 2. 11. 12; V.d.K. 222. 2 Voet, 23. 2. 80.
3 Gr. 1. 5. 24; Voet, 23. 2. 52;Rechts. Obs., pt. 4, no. 8; V.d.L.
1. 3. 7 (in fin,); Ex parte Papendorp [1932] C.P.D. 167. Grotius
speaks of boedelscheiding, but it is not now the practice to decree
a formal separation of goods. In the event of insanity the marital
power is suspended, not determined. V.d.K. 101. In such case the
wife may permit the husband's curator to administer her property,
or apply to the Court for power to administer it herself, or get
herself appointed curatrix bonis to her husband. V.d.K. Dictat.
ad Gr. 1. 5. 27 ; In re De Jager [1876] Buch. 228. She may not be
appointed curatrix of the person of her husband. Ibid.
4 Gr. 1. 5. 17; 2. 12. 5; Neostad., de pact, antenupt. Obs." 15-17;
Van Leeuwen, 4. 23. 3 ; V.d.K. 87.
5 Gr. 2. 11. 13. Children who have received advances must bring
them into collation for the benefit of the joint estate before division.
Gr. ibid.; P.O. Art. 29 (1 G.P.B. 336); V.d.K. 223; Jooste v.
Jooste's Exors. (1891) 8 S.C. 288; 1 Maasdorp, chap, xix; infra,
p. 358.
6 Gr. 1. 5. 22; V.d.K. 93 and 223. Creditors may sue the
husband or his heirs for the whole debt, the wife or her heirs for
half. Laing v. Le Roux [1921] C.P.D. at p. 748. But proceedings
may not be taken by creditors of the husband against the wife
until they have endeavoured to recover what is due to them from
the husband or his representatives. Stevenson v. Alberts [1912]
C.P.D. 698. The husband (or his heirs) may recover from the wife
(or her heirs) to the extent of one half. Gr. 2. 11. 17 ; Voet, 23. 2.
52 and 80.
72 THE LAW OF PERSONS
other hand, which have not been discharged during the
marriage, revert to the side from which they came.1
Apart from the events which put an end to the marriage,
community may be determined in Natal and Southern
Rhodesia, by postnuptial contract.2 In many places in
Holland, as in Germany,3 a married woman was allowed on
her husband's death to renounce the community and there-
by to escape further liability for his debts. It was custom-
ary for her to lay her keys on the coffin and to go out before
the bier with nothing about her but her everyday clothes
(some say in borrowed clothes).4 This was something like
the beneficium separationis allowed to the necessarius
heres in Roman Law.5 Reft of its ceremonial this repudia-
tion of the community has been recognized as an existing
institution in South Africa.6
SECTION 4 — ANTENUPTIAL CONTRACTS
No persons need marry in community unless they wish
to do so. It is always open to the spouses to exclude or
modify the common law by antenuptial contract.7 ' Ante-
1 Gr. 2. 11. 15; Van Leeuwen, 4. 23. 6; V.d.K. 224. According
to Voet (23. 2. 80), if the husband (or his heirs) has discharged
the whole of an antenuptial debt, he (or they) has (have) regressus
against the wife or her heirs in respect of one-half. Schorer (ad
Grot. 2. 11. 12) takes the same view. Van der Keessel (ubi sup.)
dissents. See Neostad., Observ, de pact, antenupt., nos. 12 and 13 ;
Loenius, Decis., case 99, and Boel's Excursus. For South African
Law see Reis v. Gilloway's Exors. (1834) 1 Menz. 186 ; Blatchford v.
Blatchford's Exors. (1861) 1 E.D.C. 365; Liquidators of Union
Bank v. Kiver (1891) 8 S.C. at p. 150.
2 In Natal (by Law No. 22 of 1863, sec. 7, as explained and
extended by Law 14 of 1882) the spouses may depart from the
community by postnuptial contract duly executed and registered,
Butter N.O. v. Linder [1925] N.P.D. 9 ; but this does not permit a
postnuptial exclusion of the jusmariti, Holdgatev.Moodley [1934]
N.P.D. 356. Similar provision in Southern Rhodesia. Married
Persons' Property Act, 1928, sec. 2; R.S. cap. 151, sec. 3.
8 Grimm, Deutsche Rechtsaltertumer (4), i. 243.
4 Gr. 2. 1 1. 18 and V.d.K. Dictat. ad loc. ; Lee, Commentary, p. 105.
6 Inst. 2. 19. 1.
6 Brink v. Louw (1842) 1 Menz. 210; Hem & Co. v. De Beer
[1913] T.P.D. at p. 726.
7 Gr. 2. 11. 8; V.d.K. 227; R. C. Elliott, Antenuptial Contracts,
45 S.A.L.J. (1928), pp. 181 and 320.
MARRIAGE 73
nuptial contracts, being of wide application, ' says Van Antenup-
der Keessel, ' can scarcely be otherwise defined than as tracts'-11
agreements between future spouses or other interested
persons regarding the terms or conditions by which the
marriage is to be regulated.'1 By the law of Holland it Is writing
was not absolutely necessary that the contract should be t^thelr^
in writing, but satisfactory proof and, therefore, the pre- validity ?
sence, at the least, of competent witnesses was necessary
if it was to affect creditors.2
In the practice of Cape Colony writing was invariably
employed, and by Act 21 of 1875, sec. 2, an antenuptial
contract, in order to be valid against creditors, had to be
executed before a notary and two witnesses (under-hand
documents not being entitled to registration) and registered
in the Deeds Registry Office, and a duplicate original or Registra-
notarial copy of the contract must be left in the Deeds
Registry for general information. tial con-
This Act and similar legislation in the other Provinces
are now superseded by the (Union) Deeds Registries Act
No. 47 of 1937 (replacing Act No. 13 of 1918), which pro-
vides :
Sec. 86. An antenuptial contract . . . executed after the
commencement of this Act, shall be registered in the
manner and within the time mentioned in section
eighty-seven, and unless so registered shall be of no
force or effect as against any person who is not a party
thereto.
Sec. 87 (1). An antenuptial contract executed in the
Union shall not be registered unless it has been attested
by a notary public and unless it has been tendered for
registration in a deeds registry within two months
after the date of its execution or within such extended
period as the Court may on application allow.
(2). An antenuptial contract executed outside the
Union shall not be registered unless it has been attested
1 V.d.K. 228.
2 V.d.K. 229 ; Holl. Cons. iv. 35 ; Fisher v. Malherbe & Eigg
[1912] W.L.D. 15.
74 THE LAW OF PERSONS
by a notary public or has been otherwise entered into
in accordance with the law of the place of execution
and unless it has been tendered for registration in a
deeds registry within six months after the date of its
execution ... or within such extended period as the
Court may on application allow.
Sec. 88. Notwithstanding the provisions of sections
eighty -six and eighty -seven the court may, subject to
such conditions as it may deem desirable, authorize
postnuptial execution of a notarial contract having
the effect of an antenuptial contract, if the terms
thereof were agreed upon between the intended
spouses before the marriage, and may order the regis-
tration, within a specified period, of any contract so
executed.1
The provisions of sees. 86 and 87 (supra) mutatis mutandis
apply in respect of the registration of postnuptial contracts
in the province of Natal (sec. 89).
It is to be noted that the absence of registration only
affects the validity of an antenuptial contract as regards
creditors. An unregistered contract cannot operate to
their prejudice so as to deprive them of any rights which
they would have in the absence of contract by the com-
mon law. As regards the parties, however, and persons
claiming through them, as well as others taking a benefit
under it, the contract holds good in the absence of registra-
tion and even (semble) though not reduced to writing.2
Who In this connexion it should be observed that the parties to
parties. an antenuptial contract may be not only the spouses but
also any relatives or others who may be disposed to exer-
cise any liberality towards them.3 In fact the contract
1 Ex parte Orford [1920] C.P.D. 367. Recent cases. Ex parte
Young [1938] E.D.L. 300 (leave refused); Ex parte Karbe [1939]
W.L.D. 351 (granted); Ex parte Witz [1941] W.L.D. 74 (granted);
Ex parte Bajie, 1941 (2), P.H. B. 66 [W.L.D.] (granted); Ex parte
Evans, 1942 (2), P.H. B. 73 [O.P.D.] (granted); Ex parte Chater
[1942] O.P.D. 106 (refused); Ex parte Jaffar, 1944 (1), P.H. B. 30
[C.P.D.] (granted). 2 Voet, 23. 4. 2 and 4.
3 Voet, 23. 4. 10-11.
MARRIAGE 75
often serves a double purpose: first, its obvious one, to
exclude or modify the incidents of marriage at the common
law; and secondly, to regulate the devolution after the
death of one or both of the spouses of the property con-
tributed to the marriage. In this latter event the contract
plays the part of what in English Law is called a marriage
settlement.
Generally speaking, any condition may be introduced What
into a marriage contract provided that it is not contrary ^msbe
to law or good morals.1 Some stipulations are disallowed inserted.
as contrary to the legal nature of marriage ; for example a
provision that donations shall be permitted or legacies not Certain
permitted between the spouses.2 Provisions to the effect: ^f^re
that the husband shall not change his domicile without his not per-
wife's consent ;3 or that the husband shall not represent m
his wife in Court, but that she shall have a persona standi
of her own,4 though condemned by Voet, are allowed by
Van der Keessel.5 The last of these indeed is so far from
being open to objection at the present day, that where
there is exclusion of community and of the marital power,
the wife has as full capacity to appear in Court, whether
as plaintiff or defendant, as if no marriage had taken place.6
A stipulation that a wife shall share in profits but not
in losses, though condemned by Grotius,7 is in Van der
Keessel's8 opinion free from objection.
To undertake a detailed discussion of the various ante- Permitted
nuptial stipulations which may be made is beyond our
scope. We shall indicate, however, the principles which into cer-
govern the interpretation of such agreements, and mention fined
classes.
1 Voet, 23. 4. 19; V.d.K. 228; V.d.L. 1. 3. 4.
2 Voet, ubi sup. ; Hall v. Hall's Trustee (1884) 3 S.C. 3.
8 Voet, ubi sup. and 5. 1. 101. See Webber v. Webber [1915] A.D.
at p. 241.
4 Voet, ubi sup. and 5. 1. 14-15.
6 V.d.K. 228 and Dictat. ad Gr. 2. 12. 3; Lee, Commentary,
p. 107.
6 Boyes v. Versigman [1879] Buch. 229. Infra, p. 81.
7 Gr. 2. 12. 9; Neostad., de pact, antenupt. Obs. 21 (in notis).
8 V.d.K. 249; for, as he says: creditoribus etiam nihil nocet,
cum lucrum intelligi nequeat, nisi damno prius deducto.
76 THE LAW OF PERSONS
the objects aimed at and the effect produced. So far as
they are directed to the modification or exclusion of the
common law they fall into well-defined groups according
as the exclusion is more or less complete ; and in this con-
nexion it must be remembered that antenuptial contracts
are strictly construed, and that the presumption is in
favour of the continuance of the common law in all cases
where its exclusion is not clearly expressed or implied.1
The consequences of marriage in community have been
seen to be mainly two: viz. community of goods (which
extends not only to goods brought into the marriage, but
also to subsequent acquisitions2 and profits), and the mari-
tal power. Any or all of these consequences may be ex-
cluded by antenuptial contract. Thus the parties may:
ofnar- ]_ Exclude («) community in respect of goods brought
rower or i • M. • • j -, ,, N
wider into the marriage, leaving it unimpaired as regards (6)
extent. postnuptial acquisitions, (c) profit and loss, and (d) the
marital power. Such is the effect of a stipulation which
does not exclude community of goods in terms, but pro-
vides that ' the goods brought into the marriage shall re-
turn to the side whence they came'.3
2. Exclude community of goods, whether (a) brought
into the marriage, or (6) after-acquired (other than 'pro-
fits'), leaving unimpaired (c) community of profit and loss,
and (d) the marital power.
3. Exclude community of goods whether (a) brought
into the marriage, or (6) after-acquired (not being profits),
and (c) community of profit and loss, leaving only (d) the
marital power.
4. Exclude all community (a), (6), and (c) and the mari-
tal power (d) as well.4
1 Gr. 2. 12. 11; V.d.K. 251. Van der Linden (1. 3. 4) gives
the clauses in common use in his time. See Burge, vol. iii, pp. 443 ff.
(1st ed. vol. i, pp. 321 ff.).
2 By 'subsequent acquisitions' is here meant 'subsequent
acquisitions' not referable to the head of profits. This will be
explained below.
8 Voet, 23. 4. 46.
4 A writer in 29 S.A.L.J. (1912) 37 criticizes the phrase
'exclusion of the marital power', and says 'It is certain that the
MARRIAGE 77
In speaking of the legal consequences of marriage (p. 68, In ante-
supra) we used the phrase ' community of goods ' in the contracts
sense of the universal community of the common law with 'corn-
all its consequences. This exists independently of contract. g00ds' is
But in antenuptial contracts the phrase acquires a nar- contrasted
Jr » i with com-
rower meaning, viz. community of goods whether (a) munity of
brought into the marriage, or (6) after-acquired (other P^* and
than 'profits'), but not (c) community of profit and loss.
Accordingly, where community of goods (alone) is ex-
cluded, the phrase is understood in the narrower sense,
and community of profit and loss is tacitly reserved ;* and,
conversely, where community of profit and loss is expressly
reserved, community of goods (in the narrower sense) is
tacitly excluded.2 It is necessary, therefore, to determine
with some precision the meaning of 'profits' or 'acquests', The mean-
as they are also called. Briefly, the phrase includes all^0£ts';
postnuptial acquisitions, which the law does not attribute what the
to one spouse alone. Thus it comprises: (1) the fruits3 and
other profits of property belonging to the community or
to either spouse severally, whether originally brought into
the marriage or acquired subsequently ; (2) profits accruing
from the work, labour, industry, or skill of either spouse ;4
(3) official and other salaries; (4) rights under contracts
concluded by the husband, or by the wife within the limits
which the law allows;5 (5) property purchased stante
matrimonio with common moneys,6 and even with the
money (including proceeds of the sale of the property) of
marital power . . . cannot be entirely excluded by an antenuptial
contract '. The phrase, however, is now statutory (Administration
of Estates Act, 1913, sec. 83 (2)), and means, I suppose, 'the
marital power which the husband by law possesses over the pro-
perty and the estate of his wife'. See Precedent of antenuptial
contract, Appendix A.
1 Gr. 2. 12. 11 ; Voet, 23. 4. 28. 2 Voet, ibid.
3 Gr. 2. 12. 12; Voet, 23. 4. 32; Clement N.O. v. Banks [1920]
E.D.L. 362 ; Muttunayagam v. Brito [1918] A.C. 895. The profits of
goods subject to fideicommissum are included under the term
'fruits' (Gr. 2. 11. 10); also the benefit of a usufruct. V.d.K. 253.
4 Voet, ubi sup.
6 Voet, 23. 4. 30 ; Sande, Decis. Fris. 2. 5. 6.
6 Voet, 23. 4. 33.
78 THE LAW OF PERSONS
one of the spouses ; except that in the last case the matter
must be adjusted between the spouses on the dissolution
of the marriage.1
what it On the other hand, the term ' profits ' does not include :
include. («) property which became due to one or other of the
spouses before marriage ;2 (6) accessions (e.g. by alluvion
or increased value or otherwise) to the separate property
of husband or wife; (c) inheritances, legacies, or gifts
accruing after the marriage to either spouse.3 With regard
to this last group difference of opinion existed whether it
fell within the definition of 'profits' or not. Most jurists
answered the question in the negative. Voet distinguishes
according as such acquisitions are derived from strangers
or from parents or relatives to whom there is a right of
intestate succession. In his view, in the first case they are
'profits', in the second not so.4 It is with regard, more
especially, to such acquisitions as these that it becomes
important to determine whether an antenuptial contract
falls within the second or the third of the four classes
mentioned above.
Community of profits involves also community of loss,
so that if either of these is named the other is taken to be
implied.5 As between themselves, indeed, the spouses may
make any terms they please, e.g. to share the profits, but
to throw all the losses on the husband's estate. But such
1 Voet, 23. 4. 35 ; i.e. the thing purchased is owned in common,
but the spouse with whose money it was purchased is credited as
against the other spouse with the money so expended. However,
property purchased stante matrimonio will not become common if
the husband intended to acquire it exclusively for himself or for
his wife. V.d.K. 254. Clothes are a case in point. Van Leeuwen,
4. 24. 14. See Bijnk. O.T, i. 727, where the question is discussed
utrum res stante matrimonio pecunia dotali empta censenda sit
dotalis necne.
2 Voet, 23. 4. 39 ; e.g. bought before marriage, delivered after
marriage. V.d.K. 254.
3 Anton. Matthaeus, Paroemiae, no. 3 (Erfnis is geen winste) ;
V.d.K. 252; Lee, Commentary, p. 113.
4 Voet, 23. 4. 43. Matthaeus (ubi sup., sees. 4-7) is of the same
opinion with regard to legacies, but holds that an inheritance never
comes under the head of 'profit'.
6 Gens. For. 1. 1. 12. 18; Voet, 23. 4. 48.
MARRIAGE 79
a clause will not avail against creditors who, where there
is community of profits, are entitled, at all events, to
enforce half the amount of their claim against the wife's
estate.1 What is
The word 'losses' is no less wide in its appli cation than under
the word 'profits'. Without attempting a complete enum- 'losses',
eration of possible cases of loss, it is enough to say that it
includes commercial losses which do not attach to the
separate property of one of the spouses only ;2 and liabilities
arising out of the postnuptial contracts of the husband,3
and of the wife so far as she is competent to contract.4
But the term 'losses' does not cover the antenuptial debts
or liabilities of either spouse,5 nor liabilities ex delicto,6
nor loss or deterioration of the separate property of either
spouse ;7 nor necessary expenses of an unusual character.8 Various
The above explanation will enable the reader to dis-
tinguish the effect of a clause excluding community of
1 Gens. For. 1. 1. 12. 11.
2 Voet, 23. 4. 49. 3 V.d.K. 93.
* Arntzenius, Inst. Jur. Civ, Belg. 2. 4. 26.
5 Voet, 23. 4. 50.
6 In other words, the joint estate is not chargeable, as between
the spouses, with pecuniary liabilities arising ex delicto. See Boel
ad Loen., no. 103, p. 670 ; V.d.K. 94, 225, and Lorenz ad V.d.K. 94 ;
Nathan, Common Law of S.A., vol. iii, pp. 1547-8; infra, p. 339.
See also Sande, Decis. Fris. 2. 5. 8; Voet, 23. 2. 56. It is not
clear that the exclusion of liability goes beyond fines, forfeitures,
&c., of a penal character, and extends to what we now call delicts.
7 Voet, 23. 4. 49 ; V.d.K. 257 ; Vervolg op de Holl. Cons. vol. ii,
no. 19 (contra, no. 33, in special circumstances) ; unless the loss or
deterioration in question is imputable to the fault of the other
spouse. Voet, 24. 3. 21. Useful and voluptuary expenses incurred
by one spouse in respect of the other's property must be made good
so far as the property is found at the dissolution of the marriage to
have been thereby increased in value. Voet, 25. 1. 3-4; V.d.K.
257, non obstante Gr. 2. 12. 15. Any excess of value over outlay
is reckoned as profit and accrues to the joint account of the spouses,
if community of profits is not excluded. Voet, ibid.
8 Impensae necessariae graviores. Voet, 25. I. 2; V.d.K., ubi
sup. Necessary expenses are such as are required to preserve
property from depreciation. Useful expenses increase the value of
the property, though their omission would not render it less valu-
able. Voluptuary expenses add to its amenity, but do not render
it more profitable — speciem ornant non fructum augent. Voet,
25. 1. 1-4; Lechoana v. Cloete [1925] A.D. at p. 547.
80 THE LAW OF PERSONS
antenup- goods only (class 2, supra], and of a clause excluding both
tract^'dis- community of goods and also community of profit and
tinguished loss (class 3, supra). The effect of a clause excluding com-
as jega s mun^y Qf gOO(js only is that the spouses are not liable
effects. to creditors for each other's antenuptial debts.1 On dis-
clusion of solution of marriage each of them is credited as between
r themselves with what he or she brought into the marriage,2
munity of
goods' plus his or her subsequent acquisitions not being 'profits',
y; plus half the net balance, if any, of profits over losses.
Each of them is debited with half the net balance, if
any, of losses over profits,3 and by consequence with half
the outstanding postnuptial debts. All this as between the
spouses. The creditors may, if they please, recover the
whole of their claim from the husband, in which case he has
the right of recourse against his wife to the extent of half.
They may also, if they choose, after the husband's death
recover one-half, but not more, directly from the wife.4
But a creditor who proceeds against the wife must aver
and prove that the claim has been duly lodged with the
person charged with the administration and distribution
of the common estate and has not been satisfied.5
If during the marriage the husband has applied his
wife's property in paying his own antenuptial debts, the
money so applied constitutes as between the spouses a first
charge6 upon the net balance, if any, of profits over losses ;
that is to say, the wife is first credited with it, and the
remainder of such balance is then divided between the
spouses. The wife cannot claim repayment until all post-
nuptial creditors have been fully satisfied.7
1 Voet, 23. 4. 50 (because postnuptial debts count as 'damnum',
antenuptial not) ; V.d.K. 255.
2 Gr. 2. 12. 14; Voet, 23. 4. 31; V.d.K. 256.
3 Voet, 23. 4. 48. 4 Gr. 1. 5. 22.
6 Faure v. Tulbagh Divisional Council (1890) 8 S.C. 72 ; and see
Sichel v. De Wet (1885) 5 E.D.C. 58.
6 Voet, 23. 4. 50. Voet says that in the absence of provision
to the contrary, the wife's property may stante matrimonio be
taken in execution for the husband's antenuptial debts. Van der
Keessel (Th. 255) dissents. But if done by the husband's direction
it seems to be a logical consequence of the marital power.
7 Voet, 24. 3. 21. But she may resume such of her property as
MARRIAGE 81
The effect of a clause excluding community both of (b) exclu-
goods and of profit and loss is that the spouses are not co°m-
liable to creditors for each other's debts, ante- or post- munity of
nuptial.1 On dissolution of the marriage each of them is ofprofiT
credited with what he or she brought into the marriage, andloss;
plus subsequent acquisitions from all sources whatever.
Lastly, by the exclusion of community of goods and of (c) exclu-
profit and loss and of the marital power (class 4, supra) 81on of
a wife is, as regards her property, in the same position as munity of
if the marriage had not taken place.2 She may contract, of profit
and, according to modern practice, sue and be sued in. her and loss
own name. If the husband has alienated her property marital
without her consent she may vindicate it from the alienee.3 P°wer-
From what has been said it is evident that nothing short Present
of the exclusion of all community and of the marital power day ,.
» practice.
affords a married woman an adequate protection against
her husband's liabilities, and this is in fact the only form
of antenuptial contract in use at the present day. A
woman is either married in community or stipulates for
the completest freedom.4
The antenuptial pacts above described have all been
directed to the exclusion or modification of the common
exists in specie on the dissolution of the marriage, subject to the
obligation of satisfying postnuptial creditors pro semisse. Neostad.,
de pact, antenupt. Obs. 9, note A ; and the husband is not entitled
to deduct expenses. Van Leeuwen, 4. 24. 13.
1 Except that the wife is liable even soluto matrimonio to
creditors pro semisse in respect of debts for household expenses
contracted by her husband (Voet, 23. 4. 52 ; Van Leeuwen, 4. 24. 3 ;
Neostad., de pact, antenupt. Obs. 9, note (d)), with a right of
regressus against the husband. V.d.K. 99. See Appendix D.
3 Kent v. Salmond [1910] T.S. at p. 642. So where the wife
reserved to herself free control over her property 'as fully and
effectually as if no marriage had taken place '. Ruperti's Trustee v.
Ruperti (1885) 4 S.C. 22. But a proviso that the wife shall retain
and possess all her estate as fully and effectually as if the marriage
did not take place does not exclude the marital, power. ' "Possess"
is not equivalent to "control".' Salz v. Waiggowsky [1919] W.L.D.
90; Du Toit v. Renison [1939] E.D.L. 101.
3 Voet, 23. 4. 21 and 23. 5. 7.
4 Approximately 70 per cent, of the European marriages in the
Union are still in community. The proportion of 'free' marriages
would no doubt be higher but for the cost of executing and
registering the contract.
4901 n
82
THE LAW OF PERSONS
Marriage
settle-
ments.
Morgen-
gave.
Provisions
of the
Perpetual
Edict of
October 4,
1540,
Art. 6.
law consequences of marriage. It remains to speak of
stipulations of another kind, namely, those which may be
described as 'settlements'. Under this head may be in-
cluded: (1) gifts made to one or other of the spouses, but
more especially to the wife, either by the husband or by
some third party, and taking effect immediately upon the
conclusion of the marriage ; (2) contracts whereby the wife
or husband is to receive something by way of gift at some
future date, usually upon the death of the other spouse ;
(3) provisions regulating the devolution of the property
brought into the marriage (or part of it) upon the dissolu-
tion of the marriage by death.
To gifts of the first kind the Dutch Law gave the name
of 'morgengave', a term applied originally to a gift by the
husband to the wife on the morning after marriage.1 A
provision which took effect on the death of the husband or
wife was known as 'douarie'.2 Prima facie there is no legal
objection to any such gift. The antenuptial pact which
creates it is, at all events, binding upon the spouses. If
made by third parties to either spouse, or by the wife to
the husband, or by the husband so as to confer rights on
the issue of the marriage, it would by the Dutch common
law be good against creditors. But when a husband made
a gift or promised a douarie to his wife the law was other-
wise ; for by statutory enactment her claim in this regard
was only allowed to take effect when her husband's credi-
tors had been satisfied. The law on this subject was con-
tained in the Perpetual Edict of Charles V of October 4,
1540, Art. 6, which runs as follows:3
'Item, whereas many merchants take upon themselves to
constitute in favour of their wives large dowers and excessive
gifts and profit on their goods, as well in order to contract a
marriage as to secure their goods with their aforesaid wives
1 Wessels, p. 463. Boey (Woordentolk) says: 'Morgengaav is
een gift die de Bruidegom aan de Braid gewoon is te doen des
anderen daags naa 't voltrokke huwelyk als een belooning van
haer Maagdom.' V.d.K. 258.
8 V.d.K. 259; V.d.L. 1. 3. 4; Wessels, ubi sup.
3 1 G.P.B. 316.
MARRIAGE 83
and children, and thereafter are found unable to pay and
satisfy their creditors, and wish their wives and widows to be
preferred before all creditors, to the great injury of the course
of commerce : We will and ordain that the aforesaid wives, who
henceforth shall contract marriage with merchants shall not
pretend to, have, or receive any dowry (douarie) or other
profit on the goods of their husbands, or take part or portion
in the profits made by the said husbands or during their
marriage [sic], although they may have been inherited or given
in feud,1 until such time as all the creditors of their aforesaid
husbands shall have been paid or satisfied ; whom we will in
this matter to be preferred before the aforesaid wives and
widows, saving to the latter their right of preference, to which
they are entitled by reason of their marriage portion brought
by them into the marriage or given to them or coming to them
by succession from their friends and relatives.'2
The effect of the Placaat was: (1) that, in general, no Its effect.
antenuptial contract could secure to a wife any property
of the husband in competition with creditors ; but (2) that,
if she was content, by antenuptial contract, to forgo all
advantage from the husband's estate, she might keep her
own property secure and unimpaired and enjoy in respect
of it a preference over creditors and a hypothec over her
husband's goods.3 But she could not have it both ways. If
she claimed to benefit financially by the marriage, she
must also take her share in its burdens. In order to secure
her property against creditors it was necessary that she
should be content to keep her estate entirely distinct from
that of her husband.
It must be observed, that though the Placaat speaks of
'merchants', it was never held to be so limited in its
application.4
If the practice before the passing of this measure oper-
ated in prejudice of creditors, the enactment has in modern
times been thought to be unduly oppressive to married
women.5 Accordingly, the law was in some of the colonies
1 Al waer 't soo dat sy ghe-erft oft beleent waren.
2 See In re Insolvent Estate Chiappini [1869] Buch. 143, where
the Dutch text is given. 8 Infra, p. 197.
4 V.d.K. 262. B Wessels, History, p. 464.
84
THE LAW OF PERSONS
Legisla-
tion on
marriage
settle-
ments in
South
Africa.
Stipula-
tions with
regard to
rights of
succession
upon
death.
altered by legislation in the direction of securing the
validity of settlements. Thus in the Cape Colony the sixth
article of the Perpetual Edict was repealed by Act 21 of
1875, which substituted other provisions in its place.1 It
was withdrawn from operation in all the Provinces of the
Union by sec. 1 of the Insolvency Act, 1916, and now the
Insolvency Act, 1936 provides:
Sec. 27. No immediate benefit under a duly registered
antenuptial contract given in good faith by a man to
his wife or any child to be born of the marriage shall
be set aside as a disposition without value, unless that
man's estate was sequestrated within two years of
the registration of that antenuptial contract.
An 'immediate benefit' shall mean a benefit given by a
transfer, delivery, payment, cession, pledge, or special
mortgage of property completed before the expiration
of a period of three months as from the date of the
marriage.2
Sec. 28 (2) excludes from a man's insolvent estate any
policy or policies of life insurance, not being an imme-
diate benefit as above defined, which a person before
or during marriage has in good faith effected in favour
of or ceded to or for the benefit of his wife or child or
both, at any time more than two years before the
sequestration of his estate, but not beyond the amount
of two thousand pounds, together with any bonus
claimable in respect thereof.3
Closely akin with, and sometimes indistinguishable from,
the settlements described in the preceding paragraphs are
pacts relating to future succession.4 These, as pointed out
by Voet, may relate either: (1) to the succession of the
1 It was repealed in O.F.S. by Law No. 23 of 1899, sec. 4, but
remained in force in the Transvaal and Natal. Declared to have
no operation in Ceylon by Ord. No. 15 of 1876, sec. 23.
2 See Mars, The Law of Insolvency, pp. 199 ff.
8 See also the Insurance Act, no. 37 of 1923, sees. 23 ff. and
45 S.A.L.J. (1928), p. 190, where the effect of these statutes is
considered.
4 Voet, 23. 4. 57 (sec. 58 in the Paris ed. In the folio ed. sec. 57 is
duplicated).
MARRIAGE 85
spouses to each other j1 or (2) to the succession of a third
party to the spouses ;2 or (3) to the succession to the chil-
dren of the marriage (particularly in the event of their
dying in childhood and therefore intestate) ;3 or (4) to the
succession to a third person who has become a party to
the antenuptial contract.4 Such agreements, though con-
demned by the Roman Law, were permitted by the law of
Holland, if they formed part of an antenuptial settlement,5
but not of any other act inter vivos*
This brings us to another topic. How far, if at all, can Can ante-
antenuptial contracts be revoked or modified by the sub- contracts
sequent act of one or more of the parties ? By act inter be re-
vivos they cannot be altered at all ;7 by testament, within n^0(iifie(d
limits, they may, provided such an intention is clearly by the
expressed or implied by the will.8 Of course, if property
has been contributed to the marriage by a parent or other
third party with an added provision that it is to revert to
the giver or to go to another specified person, it cannot
be affected by the testamentary dispositions of the
spouses.9 When the question relates to property brought
into the marriage by the spouses, and the antenuptial con-
1 V.d.K. 236-8. 2 V.d.K. 239-40.
3 V.d.K. 241-3. 4 V.d.K. 244-6.
6 Voet, 2. 14. 16.
6 Voet, 23. 4. 59 (60); infra, p. 241.
7 Neostad., de pact, antenupt. Obs. 4 (in notis) ; Voet, ubi sup. ;
V.d.K. 264. Ex parte Smuts [1914] C.P.D. at p. 1037; Union
Oovt. v. Larkan [1916] A.D. at p. 224 per Innes C.J. Note,
however, that 'the authorities do not lay down that upon
good cause being shown the parties cannot obtain an altera-
tion or revocation of their antenuptial contract through a judg-
ment of the Court. . . . Antenuptial contracts are not so
irrevocable that their provisions cannot upon just grounds appear-
ing to the Court be by it annulled or departed from.' Ex parte
Smuts, ubi sup. ; Ex parte Craggs [1915] T.P.D. 385 ; Ex parte De
Wet [1921] C.P.D. 812; Ex parte Williams [1924] E.D.L. 325;
Ex parte Board [1926] C.P.D. 201 ; Ex parte Bennet [1926] C.P.D.
436 ; Ex parte Mouton [1929] T.P.D. 406 ; Ex parte Coetzee 1930 (1)
P.H., B. 5 [O.P.D.]. But see Ex parte Balsillie [1928] C.P.D. 218;
Ex parte Sills [1928] E.D.L. 278.
8 Voet, 23. 4. 60 (61); Holl. Cons. iii. 185 (Grotius); Union
Oovt. v. Leask's Exors. [1918] A.D. at p. 449.
9 Voet, 23. 4. 61 (62). Secus if it is merely to revert 'to the side
whence it came '.
86 THE LAW OF PERSONS
Only by tract has provided for the succession of one to the other,
wiu alteration or revocation by will is permitted, but it must
be a mutual will of the spouses. Further, such a will is
merely 'ambulatory' in effect, i.e. revocable at any time
before death. Therefore, either spouse may by a subse-
quent will, without the concurrence or even knowledge of
the other, revoke so much of the joint will as concerns
himself or herself alone and revert to the dispositions con-
tained in the original contract. Indeed, even after the
death of the first spouse, the survivor has the same right
of repudiating the joint testament, conditionally, however,
upon declining all benefit under it.1 When the spouses
have by antenuptial contract provided that some third
person or persons shall succeed to the several shares on the
dissolution of the marriage, both spouses by mutual will
or either spouse by his or her separate will may freely
depart from this agreement.2 But the law is otherwise if
the intended successor was a party to the antenuptial
contract and acquired a contractual right under it.3
When the future succession to children was the subject of
the antenuptial pact, in Holland not only might the
spouses (or the survivor of them) alter the arrangement by
testament, but the children, having reached the age of
testamentary capacity, might do the like after their
parents' death. They might also freely alienate the pro-
perty by act inter vivos. This must be understood, of
course, only where there was no fideicommissum in favour
1 Voet, 23. 4. 62 (63); Van Leeuwen, 4. 24. 12; V.d.K. 265;
Bijnk. O.T. i. 341 ; Vervolg op de Holl. Cons. ii. 80 ; infra, p. 392.
2 Voet, 23. 4. 63 (64). Note the distinction between this case,
and the case mentioned above, providing for the succession of
the spouses inter se. This is binding as a contract, revocable
only by mutual consent (Ex parte Exors. Est. Everard [1938]
T.P.D. 190; Bullv. Executrix Est. Bull [1940] W.L.D. 133). But
a clause providing for the succession of a third party has merely
the effect of a testamentary disposition, 'cum in ordinandis
successionibus pacti non sit major vis quam testamenti', Bijnk.
O.T. ubi sup.
8 Voet, 23. 4. 64 (65). A tendency has recently developed to
regard the intended successors, e.g. children, born or unborn, as
acquiring rights as beneficiaries of a stipulatio alteri. Ex parte
Balsillie [1928] C.P.D. 218; Ex parte Sills [1928] E.D.C. 278.
MARRIAGE 87
of ulterior successors.1 When a third person has become
a party to the contract and has undertaken to leave his
own property in a particular way, such undertaking has
the force of a contract, and can only be revoked with the
consent of the other parties to the agreement.2
SECTION 5 — DISSOLUTION OF MARRIAGE — NULLITY
Divorce a vinculo matrimonii is decreed by the Court Divorce a
at the suit of one or other spouse on the ground of: ^tri-0
(1) adultery;3 or (2) malicious desertion;4 to which some monii.
authorities, by an extensive interpretation, add (3) sodo-
my;5 and (4) perpetual imprisonment.6 Relief will be
refused if the Court finds that : (a) the petitioner has during
the marriage been accessory to or connived at the adultery
complained of;7 or (b) the petitioner has condoned the
adultery complained of;8 or (c) the petition is presented or
prosecuted in collusion with either of the respondents ;9
and is usually refused (d) if the Court finds that the peti-
tioner has been guilty of adultery during the marriage.10
1 Gr. 2. 29. 3; Voet, 23. 4. 66 (67).
2 Voet, 23. 4. 67 (68).
3 Gr. 1. 5. 18; Van Leeuwen, 1. 15. 1 ; Voet. 24. 2. 5.
4 Voet, 24. 2. 9; Webber v. Webber [1915] A.D. 239; Morton v.
Morton [1934] C.P.D. 51; Ledimo v. Ledimo [1940] O.P.D. 65;
(Ceylon) Ramalingam v. Ramalingam (1933) 35 N.L.R. 174.
6 Schorer ad Gr. ubi sup. ; V.d.K. 88; V.d.L. 1. 3. 9; McGill v.
McOill [1926] N.P.D. 398.
6 V.d.K. 89; V.d.L. loc. cit. ; Jooste v. Jooste (1907) 24 S.C. 329;
Smith v. Smith [1943] C.P.D. 50; but not on the ground of an
indeterminate sentence (Voeges v. Voeges [1922] T.P.D. 299), or
of a sentence of ten years' imprisonment, five years of which had
expired, In re Gibson [1912] N.P.D. 204; where see comment on
Jooste' s case.
7 Hosier v. Hosier (1896) 13 S.C. 377; Bevan v. Bevan [1908]
T.H. 193.
8 Bell v. Bell [1909] T.S. 500; Rowe v. Rowe [1922] W.L.D. 43;
Elliott v. Elliott [1925] C.P.D. 286; C. v. C., 1943 (1) P.H., B. 26
[E.D.L.]; Henderson v. Henderson [1944] A.C. 49.
9 Malcolm v. Malcolm [1926] C.P.D. 235.
10 Voet, 24. 2. 6 ; Newood v. Newood [1939] C.P.D. 414; Mutter v.
Mutter [1941] C.P.D. 332. The Court has discretion to condone
plaintiff's adultery, but plaintiff must present a very strong case,
Chong v. Chong [1942] C.P.D. 192 ; Fernandez v. Fernandez [1943]
C.P.D. 363 ; Brownjohn v. Broumjohn 1944 (1) P.H., B. 15 [W.L.D] ;
Zelie v. Zelie [1944] C.P.D. 209.
88 THE LAW OF PERSONS
Undue delay in taking proceedings may justify the
inference that the adultery has been condoned, but is not
in itself a ground for withholding relief.1
The Divorce Laws Amendment Act, 1935, adds two
further grounds of divorce, viz. (5) incurable insanity
which has continued for a period of not less than seven
years ;2 and (6) imprisonment for not less than five years
after the prisoner has been declared an habitual criminal
under Act No. 31 of 1917, sec. 344.3
It must be noted that cruelty is not in South Africa (as
it now is in England)4 a ground for a decree of divorce, but
is an element to be taken into account in determining
whether the conduct of the defendant amounts to what is
called constructive desertion.5
When an action is brought for divorce on the ground of
malicious desertion the practice is to ask for an order for
restitution of conjugal rights, failing which for divorce.6
The Court has no power to dispense with the preliminary
order.7
1 Carey v. Carey [1931] C.P.D. 465.
2 In English Law five years. Matrimonial Causes Act, 1937,
sec. 2. In S. Rhodesia five years within the ten years immediately
preceding the commencement of the action for divorce. Matri-
monial Causes Act, 1943, sec. 4.
8 S. Rhodesia for five years within the last ten years. Ibid.
4 And in S. Rhodesia. Ibid.
6 i.e. conduct on the part of either spouse compelling the other
to go away. 44 S.A.L.J. (1927), p. 32; Whelan v. Whelan [1925]
W.L.D. 162; Solomon v. Solomon [1927] W.L.D. 330; Otto v. Otto
[1930] W.L.D. 251; O'Brien v. O'Brien [1938] W.L.D. 221;
Collins v. Collins [1939] W.L.D. 48; Post v.Po««[1931]N.P.D. 117.
Persistent refusal to cohabit. Quadlingv. Quadling [1937] N.P.D.
319.
6 Cape Rules of Court, 371 (Ingram and de Villiers, p. 98).
7 Aldred v. Aldred [1929] A.D. 356. The order will be made even
though defendant is detained in prison or in an inebriate reforma-
tory (Coningsby v. Coningsby [1923] C.P.D. 443; Van der Nest
v. Van der Nest [1925] W.L.D. 12; Sauerman v. Sauerman [1928]
C.P.D. 20) ; but will not necessarily be followed by a decree of
divorce (Hayes v. Hayes [1928] T.P.D. 618). A statement by a
plaintiff, who asks for an order of restitution, that even if the
defendant complies with the order he [she] will not receive back,
or go back to, the defendant is not in itself a ground for refusing
the order. It is a case in which the Court will exercise its dis-
cretion. Mitchell v. Mitchell [1922] C.P.D. 435; VanRooyenv. Van
MARRIAGE 89
In Natal a petition for divorce is not maintainable until
desertion has continued uninterruptedly for eighteen
months,1 and there are other peculiarities in the divorce
law of this Province.2 In the other Provinces 'length of
absence, although an ingredient in the case is not essential,
the Cape Supreme Court having in one case granted a
divorce after an absence of only six days'.3 In England
a petition for divorce may be presented to the High Court
on the ground that the respondent has deserted the
petitioner without cause for a period of at least three
years immediately preceding the presentation of the
petition.4
The guilty party to a divorce is penalized by loss of all
the advantages of the marriage, whether arising from
community of goods or from antenuptial contract, includ-
ing all benefits derived or to be derived from the marriage
by the guilty party,5 and the Court has no discretion to
refuse such an order, if demanded by the injured spouse.6
Rooyen [1927] C.P.D. 266; Murchie v. Murchie [1923] S.R. 116;
Duncan v. Duncan [1937] A.D. 310. As to malicious desertion in
general see 41 S.A.L.J. (1924), p. 38.
1 Law No. 13 of 1883 sec. 1 ; Breeds v. Breeds [1929] N.P.D. 122.
2 Mitchell v. Mitchell, ubi sup. at pp. 443-4.
8 1 Maasdorp, p. 106, citing Mostert v. Mostert (1854) 2 Searle
128 and Brown v. Brown [1905] T.S. 415.
4 Matrimonial Causes Act 1937, sec. 2; Bennett v. Bennett
[1939] P. 274. In S.Rh. a final order of divorce on this ground
may not be granted unless three years have elapsed since the date
of the marriage, and desertion has been continuous for six months.
For Ceylon see Goonewardene v. Wickremasinghe (1932) 34 N.L.R. 5 ;
Ramalingam v. Ramalingam (1933) 35 N.L.R. 174.
6 V.d.K. 88; Dawson v. Dawson (1892) 9 S.C. 446; Wessels v.
Wessels (1895) 12 S.C. at p. 470. When forfeiture is asked for the
proper order is division of the joint estate and forfeiture of all
benefits accruing from the side of the plaintiff by virtue of the
marriage in community ; which means that the defendant's
moiety will be reduced, and the plaintiff's moiety increased, by
any excess that the plaintiff may have contributed over the
contribution of the defendant. Contributions made during the
marriage are taken into account including the result of industry
and investment as well as benefactions from third persons. Smith
v. Smith [1937] W.L.D. 126 per Schreiner J. citing Ogle v. Ogle
[1910] N.P.D. 87 and other cases.
6 Murison v. Murison [1930] A.D. 157. Secus in S.Rh. Matri-
monial Causes Act, 1943, sec. 7.
90 THE LAW OF PERSONS
But the Court will not deprive the guilty party of the share
of the joint estate which he or she may have contributed.1
The innocent spouse is as a general rule entitled to the
custody of minor children, but the Court has a wide dis-
cretion and may grant the custody to the guilty party if
the welfare of the children requires it.2 The spouse who
is not awarded the custody has a right of reasonable access3
and may invoke the Court's intervention if it is alleged
that the right of control is not being exercised in the
interest of the children.4
The Court (semble) has no power to order a guilty husband
to maintain an innocent wife who has obtained a decree
of divorce against him.5
Divorced persons are free to marry again subject only
to statutory restrictions on marriage with a divorced wife's
sister and a divorced husband's brother.6
Prolonged In general, no absence of one of the spouses, however
lce> prolonged, entitles the other spouse to contract another
marriage, even though for purposes of administration the
Court may have presumed the absent spouse's death.7
If the other spouse re -marries, there is always the risk
that the marriage may be pronounced invalid in the event
1 Celliers v. Celliers [1904] T.S. 926; (Ceylon) De Silva v.
De Silva (1925) 27 N.L.R. 289.
2 Cronje v. Cranje [1907] T.S. 871; Klass v. Klass [1924]
W.L.D. 136; Cook v. Cook [1937] A.D. 154.
3 Lecler v. Grossman [1939] W.L.D. at p. 44 per Schreiner J.
4 Simleit v. Cunliffe [1940] T.P.D. 67.
6 Schultz v. Schultz [1928] O.P.D. 155; Taylor v. Taylor [1928]
W.L.D. 215; (Ceylon) Ebert v. Ebert (1939) 40 N.L.R. 388;
1 Maasdorp, p. 128. The order has, however, been made on several
occasions. Toms v. Toms [1920] C.P.D. 455 ; Miller v. Miller [1925]
E.D.L. at p. 126. The law of S.Rh. permits it. Matrimonial Causes
Act, 1943, sec. 9.
6 Appendix C.
7 In re Booysen (1880) Foord 187. As to the circumstances in
which the Court will make an order presuming death see In re
Widdicombe [1929] N.P.D. 311. In In re Cuthbert [1932] N.P.D.
615 a person had not been heard of for thirty years. The Court
declined to presume his death, but authorized the Master to pay
the children the shares which would have come to them ab
intestato, conditionally upon their giving security de restituendo.
For commorientes see Windscheid, i. 53; Ex parte Martienssen
[1944] C.P.D. 139.
MARRIAGE 91
of the absent spouse's return. This was the law in Holland,
with the qualification that the Court might with the con-
sent of all the parties concerned declare the first marriage
dissolved and permit the first husband to contract another
marriage.1 But for the Generaliteitslanden (that is the
lands under the control of the States-General and not of
any one of the Provinces) the Echt-ReglementofM.a,Tch 18,
1656, sec. 90, allowed a spouse whose husband or wife had
been absent for five years to apply to the Court for leave
to re-marry.2 It has been said that this enactment ' may
fairly be said to have been incorporated into the common
law of South Africa',3 but whether this article in particular
has been so incorporated remains undecided.4 It will be
remarked that this licence to re-marry does not proceed
upon a presumption of death and is distinct from a decree
of divorce on the ground of malicious desertion.5
Judicial separation a mensa et thoro is decreed by the Judicial
Court on the ground of cruelty or other unlawful conduct tion.
of the defendant rendering continued cohabitation dan-
gerous or intolerable,6 or of malicious desertion.7 The
1 Voet 23.2.99 in fin. ; Kersteman, Woordenboek sub voce
Dissolutie; Lee, Commentary, p. 11.
2 2 O.P.B. 2444.
3 Supra, p. 27.
4 See Est. Heinamann v. Est. Heinamann [1919] A.D. at p. 114:
Ex parts, Kerkhof [1924] T.P.D. 711 ; 12 Cape Law Journal (1895),
p. 165 ; Burge, 1st ed., vol. i, p. 151.
5 This1 appears clearly from the Ontwerp of 1920, sec. 422,
which says that a marriage is determined by: 1. The absence of
one of the spouses during ten years followed by another marriage
of the other spouse consequent upon a judicial decree. 2. Divorce.
3. Death. But in English Law the Court is now empowered
(Matrimonial Causes Act 1937, sec. 8) in such circumstances to
make a decree of presumption of death and of dissolution of the
marriage.
8 Gr. 1. 5. 20; Van Leeuwen, 1. 15. 3; Voet, 24. 2. 16; V.d.L.
1. 3. 9; Wentzel v. Wentzel [1913] A.D. 55; Theron v. Theron
[1924] A.D. 244 (pre-nuptial misconduct of such a character as
to render cohabitation unbearable) ; Ainsbury v. Ainsbury [1929]
A.D. 109; Cheek v. Cheek [1935] A.D. 336; Henry v. Henry [1935]
C.P.D. 224; Allen v. Allen [1935] C,P.D. 557.
7 Contrary to the practice when divorce is claimed on this
ground, the decree may be granted absolutely, without a pre-
liminary order for the restitution of conjugal rights. Johnstone v.
92 THE LAW OF PERSONS
result is to relieve the parties from the personal conse-
quences of marriage, but not to dissolve the marriage.
As regards the effect of such a decree upon the proprietary
rights of the spouses the Dutch authorities are by no
means agreed.1 In the modern practice the matter is very
much in the discretion of the Court. 'The marriage re-
mains in force with all its consequences except in so far as
any of them may be modified by the decree. . . . The
Court may determine as many of the incidents of the
marriage contract as the justice of the case requires.'2 An
order is usually made, if asked for, directing a division
of the common estate,3 or a rescission of any antenuptial
promise which the innocent spouse may have made of a
gift to take effect on his or her death, or at some other
future date, conditionally, however, on renunciation by
the innocent spouse of any corresponding advantage.4
The effect of such an order is to suspend the community,
and to free either spouse from liability for the other's debts
subsequently contracted.5 Further, if the husband be-
comes insolvent, the wife ranks as a preferred creditor for
half of the common estate.6 A decree of alimony for the
wife lies in the discretion of the Court.7
Johnstone [1917] A.D. 292; Aldred v. Aldred [1929] A.D. 356;
Duncan v. Duncan [1937] A.D. 310.
1 Schorer ad Gr. 1. 5. 20 ; Voet, 24. 2. 17 ; V.d.K. 90 ; 1 Maasdorp,
p. 88.
2 Weasels v. Wessels (1895) 12 S.C. at pp. 470-1.
8 But see Oerike v. Gerike (1900) 14 E.D.C. 113 ; Swart v. Swart
[1924]N.P.D. 104.
* Wessels v. Wessels, ubi sup. at p. 469 ; 1 Maasdorp, p. 89.
Forfeiture will be decreed of benefits not yet accrued, but not of
benefits already accrued such as a completed gift. Wessels v.
Wessels, at p. 470; Muller v. Mutter [1929] W.L.D. 161; even
though the contract has provided for the forfeiture of all benefits
in the event of the spouses becoming separated or living apart.
Gordon v. Gordon [1929] W.L.D. 165.
6 Neale v. Neale (1903) 20 S.C. 198 ; Levin v. Levin [1911] C.P.D.
1026; Vincent v. Vincent [1914] A.D. 379; Banks v. Clement N.O.
[1921] C.P.D. 197.
6 Luzmoor v. Luzmoor [1905] T.H. 74. 'To ascertain what this
half share amounts to, the debts of the common estate up to the
date of the order of the Court must, of course, be first deducted,
and she will be entitled to half of what remains.' Per Smith J.
7 Voet, 24. 2. 15; 24. 4. 18.
MARRIAGE 93
An order for separation is sometimes made in terms of Separa-
a consent paper to which the spouses are parties. But a a^e_y
decree will not be granted unless there is evidence which ment.
satisfies the Court that there are adequate grounds for the
separation.1 The better view seems to be that an extra-
judicial agreement to live apart has no legal effect, unless,
perhaps, to exclude an action for restitution of conjugal
rights until the agreement has been annuUed by a com-
petent Court.2 But if such agreement has been made for
just cause, or if the Court has decreed a separation a mensa
et thoro without giving any direction as to property, an
incidental or subsequent agreement may be approved by
the Court at the instance of the parties or in later conten-
tious proceedings, although it involves a donation be-
tween the spouses or an alteration of their proprietary
relations. Just cause means a cause which at the time of
the agreement would have been sufficient to ground a
decree for judicial separation.3 Until such agreement is
absorbed in a decree of judicial separation it is effective
only inter partes. It does not affect the rights of creditors.4
There is, no doubt, some inconvenience in determining
retrospectively, it may be many years later, whether a
just cause existed at the time of the agreement to separate,
and in some Transvaal cases the question has been ex-
cluded as irrelevant.5 Apparently, in this Province an
agreement to separate is prima facie valid, and will be
sustained, if, and so far as, it does not constitute a pro-
hibited donation between spouses6 or purport to alter
'the mutual proprietary relation whether of community
1 Du Preez v. Du Preez (1901) 18 S.C. 438; De Villiers v. De
Villiers [1920] C.P.D. 301.
2 Botha v. Botha (1848) 1 Menz. 259; Stone v. Stone [1917]
C.P.D. 143.
3 V.d.K. 90; Albertus v. Albert™' Exors. (1859) 3 Searle at pp.
212-13 ; Ex parte Roscoe [1938] C.P.D. 126 ; Lobley v. Lobley [1940]
C.P.D. 420.
4 Voet, 24. 2. 19 ; Ziedeman v. Ziedeman (1838) 1 Menz. 238.
6 Pugh v. Pugh [1910] T.S. 792; De Beer v. De Beer [1940]
T.P.D. 230.
6 Voet, 23. 4. 59 ; Albertus v. Albertus' Exors., ubi sup. at p. 212 ;
Pugh v. Pugh, ubi sup. at p. 802.
94
THE LAW OF PERSONS
Spes
reconcili-
ationis.
The
Court's
power to
recall a
decree.
of goods or the reverse fixed as at the time of marriage'.1
But it cannot be said that any consistent doctrine is yet
established by the decisions.2
Perhaps the better view is that a judicial order of separa-
tion must be set aside by the Court before either party
can sue for a restitution of conjugal rights ;3 that no order
for restitution may be made during the subsistence of an
extra-judicial agreement of separation ; and that claims for
cancellation of the agreement and for restitution cannot
be entertained in the same action.4
A decree of separation with or without division of pro-
perty is always provisional, being made, as the phrase is,
sub spe reconciliationis, in the hope that the parties will
be reconciled and come together again.5 This is why a
South African Court refused to recognize a Scottish decree
of separation expressed to take effect 'in all time coming'.6
If the spouses resume cohabitation the decree ceases to
operate.7
The Court must recall a decree of separation if the
parties desire it,8 and may do so in its discretion for any
sufficient cause. Thus, if one of the spouses has committed
adultery and the innocent party desires a divorce, the
Court has power to set aside a previous decree of separa-
tion together with any order as to the division of the joint
estate. This may be more advantageous to the innocent
1 Per Murray J., De Beer v. De Beer at p. 233 ; V.d.K. Dictat. ad
Gr. 3. 21. 11.
2 Danovich v. Danovich's Exors. [1919] T.P.D. 198 is incon-
clusive ; De Beer v. De Beer to some extent leaves the question open.
3 De Kock v. De Kock [1942] O.P.D. 140 (Yeld v. Yeld [1919]
C.P.D. 103 not followed).
4 Groblerv. Grobler [1943] O.P.D. 192. See also — judicial separa-
tion, Smit v. Smit [1909] T.S. 1067; Slez v. Slez [1913] W.L.D.
109 ; Grinker v. Grinker [1940] W.L.D. 236 — voluntary separation,
Stone v. Stone [1917] C.P.D. 143; Crisp v. Crisp [1934] W.L.D.
26 ; Moses v. Moses [1935] C.P.D. 24.
6 Schorer ad Gr. 1. 5. 20; Lee, Commentary, p. 20; Banks v.
Clement N.O. [1921] C.P.D. 197; Vincent v. Vincent [1914] A.D.
379; Levine v. Levine [1939] C.P.D. 97.
6 McNaught v. McNaught [1937] W.L.D. 103.
7 De Villiers v. De Villiers [1938] C.P.D. 565.
8 VanZyl v. Van Zyl [1925] T.P.D. 130.
MARRIAGE 95
spouse, who is entitled to ask for an order of forfeiture
by the guilty spouse of any proprietary benefits derived
from the marriage.1
The Court will make a decree of nullity when the essen- Decree of
tial conditions of a valid marriage are wanting and the n'
apparent 'marriage' was, therefore, void ab initio, or when
the marriage is voidable at the suit of one of the parties
to it or of a third party.
In particular the following grounds of nullity may be
specified : (1) mistake as to the nature of the ceremony, as
for example when one of the parties supposed it to be a
ceremony of espousals, not of marriage ;2 (2) mistake as
to the identity of the other party to the contract ;3 (3)
fraud or duress, if of a character to exclude genuine and
free consent;4 (4) insanity or arrested mental develop-
ment existing at the time of the ceremony ;5 (5) immaturity
(one or other parties below the age of marriage) ; (6) rela-
tionship within the prohibited degrees ; (7) serious irregu-
larity in the publication of banns, the issue of a licence, or
the celebration of the marriage ;6 (8) if the marriage was
bigamous.7
In the above cases the marriage is void ab initio. There
are other cases in which the marriage is not void, but
voidable, viz. (9) in case of impotency existing antece-
dently to the marriage and since continuing ;8 (10) in case
1 Yeld v. Yeld [1919] C.P.D. 103 ; Levine v. Levine, ubi sup.
2 Benjamin v. Salkinder (1908) 25 S.C. 512; Rubens v. Rubens
(1909) 26 S.C. 617; Kanatopsky v. Kanatopsky [1935] E.D.L. 308.
3 Voet, 23. 2. 6. Cod. jur. can. c. 1083.
4 Cod. jur. can. c. 1087. For English Law see Scott v. Sebright
(1886) 12 P.D. 21 ; Cooper v. Crane [1891] P. 369.
6 Prinsloo's Curators v. Crafford [1905] T.S. 669; Cowan v.
Beckworth, 1932 (1) P.H., B. 1 (D. & C.L.D.); Lange v. Lange,
1945 (1) P.H., B. 8 [A.D.]. Voet adds (23. 2. 6) si quis dum nuptias
contrahit per ebrietatem plane mentis impos sit. Cf. Sullivan v.
Sullivan (1818) 2 Hagg. Con. at p. 246 per Lord Stowell.
6 Foy v. Morkel [1929] W.L.D. 174.
7 Wells v. Dean-Willcocks [1924] C.P.D. at p. 90.
8 Voet 24. 2. 15 and 16; Wells v. Dean-Willcocks [1924] C.P.D.
89; Hunt v. Hunt [1940] W.L.D. 55; (Ceylon) Ounatileke v.
Mille Nona (1936) 38.N.L.R. 291 ; refusal to consummate, Burgers
v. Knight [1916] N.P.D. 399.
96 THE LAW OF PERSONS
of antenuptial stuprum followed by pregnancy of the wife
unknown to the husband at the time of marriage and not
subsequently condoned ;x (11) at the suit of a parent when
a minor has married without parental consent.2
SECTION 6 — MISCELLANEOUS MATTERS RELATING TO
MARRIAGE
In this section we deal with various matters relating
to marriage, not specially connected with one another.
These are: (A) Donations between spouses; (B) Boedel-
houderschap and continuation of community after the
death of one spouse ; (C) Second marriages.
A. Dona- (A) Donations between spouses. In the Roman Law
tween *" sucn gifts were prohibited by custom, and were regulated
spouses, by a senatusconsultum of A.D. 206.3 The rule passed
into the Roman-Dutch Law.4 It follows that a spouse-
donee has no dominium and cannot give a valid title to
third parties.5 But the prohibition does not affect reci-
procal or remuneratory gifts6 and must not be harshly
and unreasonably construed so as to apply to simple
offices of affection ;7 and any gift between spouses if validly
1 Voet, 24. 2. 15 ; Horak v. Horalc (1860) 3 Searle 389 ; Reyneke v.
Reyneke [1927] O.P.D. 130; Slander v. Stander [1929] A.D. 349;
supra, p. 33.
2 Supra, p. 58. For the grounds of a decree of nullity in S.Rh.
see Matrimonial Causes Act, 1943, sec. 12.
3 Dig. 24. 1. land 32 pr.
4 Gr. 3. 2. 9; Van Leeuwen, 4. 24. 14; Voet, 24. 1. 17; V.d.K.
486; Hall v. Hall's Trustee & Mitchell (1884) 3 S.C. 3; Van der
Byl's Assignees v. Van der Byl (1886) 5 S.C. at p. 176 ; Coulthard v.
Coulthard [1922] W.L.D. 13; Henley's Trustee v. Henley [1926]
N.P.D. 119. But there is no rule of law prohibiting contracts
between husband and wife not amounting to donations. Ziedeman
v. Ziedeman (1838) 1 Menz. 238 ; Albertus v. Albertus' Exors. (1859)
3 Searle 202. See 'The validity of pacts between husband and
wife' by Prof. H. D. J. Bodenstein, 34 S.A.L.J. (1917), p. 11
(commented upon 46 S.A.L.J. (1929), p. 149). Donations between
spouses are permitted in Ceylon. 6 Voet, 24. 1. 3.
• Voet, 24. 1. 10; Schorer ad Gr. 3. 2. 9;Exparte Bruton [1938]
C.P.D. 548.
7 Dig. 24. 1. 28, 2: non amare nee tanquam inter infestos jus
prohibitae donationis tractandum est, sed ut inter conjunctos
maximo affectu et solam inopiam timentes; Voet, 24. 1. 11;
Wagenaar v. Wagenaar [1928] W.L.D. 306.
MARRIAGE 97
executed, is confirmed by the death of the donor.1 Once
a donation is confirmed, the donee acquires the right to
keep the gift if it has been transferred, or to demand it, if
it has not. The gift may be revoked, and is ipso jure void
if the donee predeceases the donor,2 or the marriage has
been dissolved by divorce.3
(B) Boedelhouderschap. In ancient times the commu- B- Boe-
nity which existed between spouses was sometimes con- SchapU '
tinued between a surviving spouse and the issue of the
marriage, usually until the youngest child came of age.
This institution, known as boedelhouderschap, depended
upon local custom. It effected a general community
between the surviving parent on the one side and the
children on the other, but to the exclusion (generally) of
acquisitions by way of inheritance or gift.4
With the development of the system of Orphan Cham-
bers in the fifteenth and sixteenth centuries this automatic
community fell into disuse though it continued possible
(as it still is in South Africa)5 to produce the same result
by antenuptial contract, or by mutual will or by the
separate will of the predeceasing spouse. It must be re-
marked, however, that in South Africa it is the practice to
describe as boedelhouder — boedelhoudster — a surviving
spouse, whom the first dying has appointed guardian of
the minor children and administrator of the joint estate
during their minority. But this, without more, does not
amount to a continuation of the community or boedel-
houderschap properly so-called.6
In Holland another type of boedelhouderschap some-
1 Dig. 24. 1. 32, 2; Cod. 5. 16. 1; Voet, 24. 1. 4; if the donor
dies solvent, ibid, see 6. As to confirmation see Lee, Commentary,
p. 234 ; Est. Phillips v. Comm. for Inland Revenue [1942] A.D. 35 ;
Ex parte Est. Paterson [1942] C.P.D. 541.
2 Dig. 34. 5. 8 (9).
3 Est. Curtis v. Gronningsaeter [1942] C.P.D. 531.
4 Gr. 2. 13. 2 ; Lee, Commentary, p. 131 ; de Blecourt, pp. 118 ff.
6 Cloete v. Cloete's Trustees (1887) 5 S.C. 59; Natal Bank Ltd. v.
Rood's Heirs [1909] T.S. at pp. 258-9; [1910] A.C. at p. 583, [1910]
T.P.D. at p. 1365. For Natal see Est. N. G. Wilson v. Est. L. J.
Wilson (1909) N.P.D. 447.
8 Weyer v. Est. Weyer [1939] A.D. 126.
4901
98 THE LAW OF PERSONS
times occurred. It was penal in character and one-sided
in operation, and took place if the surviving parent being
at the same time guardian of the children failed to draw
up an inventory or make to them an assignment or buy out
their interest (noch aan dezelven bewijs, vertigting of uit-
koop doet). The consequence was that the community
continued between the survivor and the children for the
advantage of the latter who shared in profit, while all loss
fell upon the surviving parent.1
This penal boedelhouderschap is unknown to the law of
South Africa.
C. Second (C) Second marriages. In the Roman Law second mar-
marriages, riages entailed numerous penalties, which, says Van der
Linden, have not been adopted by us.2 He excepts from
this statement lex 6 of the relevant title in the Code,
which is called from its opening words the lex hac edictali*
It is an enactment of Leo and Anthemius of the year
A.D. 472, providing that no man or woman who remarries,
having children by a former marriage, may by gift inter
vivos or by will settle on the second spouse more than the
amount of the smallest portion bequeathed to any of the
children of the former marriage.4 A gift contrary to this
law is void to the extent of the excess, and the excess must
be equally divided among the children of the prior mar-
riage or marriages alone.
This enactment need not detain us further, since in the
modern law it has either never been received or has been
repealed by statute.5
The penal boedelhouderschap mentioned above was one
1 V.d.L. 1. 5. 4; Maxwell & Earp v. Est. Dreyer (1908) 25 S.C.
at p. 730; Vermaak's Exor. v. Vermaak's Heirs [1909] T.S. 679.
2 V.d.L. 1. 3. 10 ; and see Bijnk. O.T. i. 325.
3 Cod. 5. 9. 6 (de secundis nuptiis).
4 Van Leeuwen, 4. 24. 8. In the Dutch law the permitted
portion was termed filialeportie (or kindsgedeelte). Boey, Woorden-
tolk, sub voce.
6 Repealed in the Cape Province by Act 26 of 1873., sec. 2 ; in the
Transvaal by Procl. 28 of 1902, sec. 127 ; in the Free State by the
Law Book of 1901, chap, xcii, sec. 1 ; in Natal by Laws No. 22,
1863, sec. 3 (A) ; No. 7, 1885, sec. 3. In Ceylon the lex hac edictali
has, apparently, never been recognized.
MARRIAGE 99
application of a general rule which imposes upon the sur-
viving parent, before contracting another marriage, the
duty of paying or securing to the minor children of the
first marriage the shares due to them out of the estate of
the deceased.1
In South Africa this security took the form of a notarial
general bond over movables known as a Icinderbewijs?
but now this is only used, when the surviving parent is
unable to furnish the special hypothecation of immovable
property required by statute.3 A defaulting parent for-
feits for the benefit of the minor children a sum equal to
one fourth of his or her share in the joint estate, besides
incurring a statutory penalty of fine or imprisonment.4
1 Gr. 1. 9. 6-7; Voet, 23. 2. 100; V.d.K. 142 ff . ; V.d.L. 1. 5. 4.
Rechts. Obs., part 1, no. 15; Boey, Woordentolk, ad verb. Vertigting.
2 2 Maasdorp, p. 291 ; Maxwell & Earp v. Est. Dreyer, iibi sup.
8 Howard, Administration of Estates (6), p. 127.
4 Administration of Estates Act, 1913, sec. 56. Payment or
security is not required if the estate is of less value than one
hundred pounds. The duty of giving security cannot be remitted
by the will of the deceased spouse. Ex parte Pretorius [1920]
T.P.D. 297.
GUARDIANSHIP
Guar- IN the Institutes of Justinian under the titles of tutela
lp' and cura are considered two institutions designed by the
law for the protection of persons who, though not subject
to parental control, are nevertheless on account of imma-
turity of years or for other cause incompetent to be in all
respects their own masters. The first of these, tutela, re-
lated to young persons alone, and ended with puberty.
The second, in the case of young persons, extended from
the fourteenth (or twelfth) to the twenty-fifth birthday,
and was also applicable to the case of insane persons and
prodigals.
In Roman-Dutch Law there is one kind of minority
only, which, as we have seen, now ends by statute at
twenty-one. The distinction between tutela and cura of
minors has therefore disappeared.1 But the terms tutor and
curator are still retained to denote various cases of control.
In this chapter we consider: (1) the different kinds of
guardianship and how guardians are appointed ; (2) who
may be guardians ; (3) the powers, rights, and duties of
guardians ; (4) actions arising out of guardianship ; (5) how
guardianship ends.
SECTION 1 — THE KINDS OF GUARDIANS AND THE
APPOINTMENT OF GUARDIANS
The In the Roman Law three principal kinds of guardian
guardians. were recognized: (1) Tutores testamentarii, i.e. guardians
appointed to minors in power by the father or other male
ascendant; (2) Tutores legitimi, i.e. the nearest agnatic
(afterwards cognatic2) relatives of the minor, who acted
in default of testamentary appointment ; (3) Tutores da-
tivi, i.e. guardians appointed by the magistrate in default
of either of the first two classes.
1 Gr. 1. 7. 3 and Schorer ad loc. ; Voet, 27. 10. 1 ; V.d.K. 111.
2 Nov. 118, capp. 4-5 (A.D. 543).
GUARDIANSHIP 101
In early Germanic Law testamentary guardians were Tutors
unknown, but fathers sometimes, before their death, com-
mitted the care of their minor children to persons in whom
they confided j1 failing these, near relatives were considered
to be entitled to the guardianship ; failing these, again, an
appointment was made by the King, and in later times
by the Count or other sovereign authority, who also
claimed the prerogative of confirming guardians belonging
to either of the first-named classes. This prerogative right
was the source of the upper guardianship (opper-voogdij)
of minors, which in later Dutch Law and at the present
day is vested in the Court.
The Roman-Dutch Law here, as elsewhere, has worked
the principles of the Roman Law into the original fabric.
When in later times testaments came into use, testamen-
tary guardians began to be appointed, and the phrase was
taken to include guardians appointed whether in an ante-
nuptial settlement or by other judicial or notarial act
inter vivos? and that by the mother no less than by the
father of the minor children.3
A special variety of testamentary guardian was the Tutors
assumed or substituted guardian, i.e. a guardian named by assumed-
a testamentary guardian, by virtue of a special authority
conferred upon him in that behalf, to act either together4
with such testamentary guardian, or in substitution for
him, particularly in the event of his death.5
1 Rechts. Obs. pt. 4, no. 9 ; Fock. And., O.N.B.R., vol. ii, pp. 221ff .
2 Cf. Administration of Estates Act, 1913, sec. 72 (1).
8 Gr. 1. 7. 9 ; Van Leeuwen, 1. 16. 3 ; Voet, 26. 2. 5. But in South
Africa, by the Administration of Estates Act, 1913, sec. 71 (re-
enacting and amending Cape Ord. No. 105, 1833, sec. 1): 'It shall
not be lawful for any person except — (a) the father of a minor ; or
(6) the mother of a minor whose father is dead or has abandoned
the minor ; or (c) the mother of a minor to whom the custody of
such minor has been given by a competent court, by any will or
other deed to nominate any tutor or tutors to administer and
manage the estate or to take care of the person of that minor.'
This is without prejudice to the right to appoint a curator nominate.
4 Voet, 26. 2. 5 (magt van assumptie).
6 Magt van surrogatie of substitutie. Vide Boey, Woordentolk,
sub voce Voogdye; V.d.L. 1. 5. 7; Administration of Estates Act,
1913, sec. 77.
102 THE LAW OF PERSONS
Theguar- Failing testamentary guardians, the guardianship or
of^iood the appointment of guardians devolved upon the nearest
relations, relatives of the minor and, in particular, as Grotius tells
us, went to the 'four quarters' (vier vieren-deelen), i.e. to
the nearest of kin on the side of each of the four grand-
parents.1 'Afterwards, however,' he continues, 'it was
thought better that guardians should be appointed by
the authorities, that is, by the Court of Holland, by the
town and country Courts, or by the Orphan Chambers,
which are in several places charged with that duty, the
upper guardianship of orphans remaining, however, in the
Court. These authorities are accustomed and bound in
appointing guardians to consult the nearest relatives, and
to choose the guardian from among them so far as this
can be done with advantage to the wards.'
unknown The consequence of the change described by Grotius
modem was to extinguish the last survivals of the old guardianship
law- of blood-relations as a separate institution, so that Grotius
and Voet are able to speak of 'born' or 'lawful' guardians
as no longer recognized by the common law of Holland.2 All
Tutors guardians thenceforward were either — (1) testamentary;
or (2) appointed,3 and the intermediate class of 'legitimi
tutores' disappears. Over both of these classes, it is im-
portant to remember, subsists the upper guardianship of
the Sovereign exercised through the Courts of Justice.4
Orphan At this point something may conveniently be said
'about the Orphan Chambers. These were official boards
charged with the supervision of orphan children,5 which
so early as the middle of the fifteenth century were already
in existence in most of the towns of Holland.6 Their
1 Gr. 1. 7. 10. Sic vocantur quia ex quattuor avis et aviabus
descendant. V.d.K. Diktat, ad loc. But anciently the vier vieren-
deelen were the groups constituted by the four pairs of great -
grandparents and their descendants ; de B16court, p. 475.
2 Gr. 1. 7. 8; Voet, 26. 4. 4; V.d.K. 117.
3 Gr. 1. 7. 7; Voet, 26. 5. 5; V.d.L. 1. 5. 2.
4 Van Rooyen v. Werner (1892) 9 S.C. at p. 428.
6 i.e. of minor children who had lost one or both parents (Gr.
1. 7. 2) ; sometimes also of onbestorven kinderen (Gr. 1. 6. 1).
8 Fock. And. O.N.B.R. ii, 242; de Blecourt, p. 128.
GUARDIANSHIP 103
functions were variously defined by the keuren of the
towns. Strictly speaking, their authority was co-ordinate
merely with that of the testamentary guardian, but they
constantly tended to supervise,1 and sometimes to en-
croach upon,2 his functions. Thus in the town of Alkmaar,
testamentary guardians must be confirmed by the Orphan
Chamber, though as a rule such guardians did not require
confirmation.3 Consequently it was the common practice
of testators when appointing guardians to express in clear
terms their wish to exclude the Orphan Chamber from
interference with the estate.4 Even this did not always
produce the desired result.5
The word 'guardianship' is not free from ambiguity, is a sur-
for it implies sometimes guardianship of the person, some- 1^^.
times administration of the property, sometimes both, ipso jure
Where property alone is concerned the term 'curatorship' gua
may be employed. But it is not always easy to distinguish
the two functions, for control of the property tends to
imply control of the person. Guardianship certainly does
not exclude the parental power,6 but neither is it excluded
by it. A surviving parent was not, as such, guardian of
the property of his or her minor children,7 however much
parental power might imply control of the person. Accord-
ingly such parent, unless appointed by the deceased
1 Gr. 1. 9. 2. 2 Van Leeuwen, 1. 16. 3.
3 This is implied by Van Leeuwen, who mentions the case of
Alkmaar as exceptional ; but in Cens. For. 1. 1. 17. 3 he says: hodie
omnes omnino tutores ex inquisitione dantur aut confirmantur.
See Voet, 26. 3. 1 and 26. 7. 2 (ad fin.). It appears from Van der
Keessel (Th. 116) that the practice varied. In South Africa con-
firmation is always necessary (Administration of Estates Act,
1913, sec. 72), except that a father or mother does not require
letters of confirmation (sec. 73).
4 V.d.L. 1. 5. 2-3; V.d.K. 120.
6 Van Leeuwen, ubi sup. In South Africa Orphan Chambers
exist at the present day and the administration of estates is often
left to them, but they are not official and no longer appoint guar-
dians. They are in fact merely Trust Companies. The place of the
official Orphan Chamber has been taken by the Master of the
Supreme Court. 6 Gr. 1. 7. 8.
7 Gr. ubi sup. ; Voet, 26. 4. 4. But the parents had a prior claim
to be appointed, and usually were appointed, to act concurrently
with one or two other tutors dative. Gr. 1. 7. 11-12.
104 THE LAW OF PERSONS
spouse1 or by the Orphan Chamber or Court,2 could not
lawfully intermeddle with the estate.3 This seems some-
what harsti in the case of the father, who having been sole
administrator of the minor's property during the marriage,
might reasonably expect to continue to exercise the same
functions after his wife's death, at all events as regards
property not coming to the child ex parte materna. The
reasonableness of this claim is recognized by the law of
South Africa, which gives the father the exclusive control
of the person and also of the property of his minor children,
during the whole of his life, and even permits him to be-
stow equally extended powers upon guardians appointed
by his will.4 He may, in this way, exclude the surviving
mother from the guardianship during her lifetime5 and
from the power of appointing testamentary guardians to
act after her death.6
On the other hand, when no testamentary guardians
have been appointed she is solely entitled to the guardian-
ship to the exclusion of guardians dative.7
In South Africa the appointment of tutors dative is
vested in the Master of the Supreme Court, subject to
review by the Court.8 The same official confirms testa-
1 Voet, 26. 4. 4.
2 Gr. 1. 7. 10; Van Leeuwen, 1. 16. 2.
3 Gr. 1. 7. 8.
4 Van Rooyen v. Werner (1892) 9 S.C. 425.
5 Ibid., per de Villiers C.J. at p. 431, 'It is only on failure by the
father to appoint such tutors that the surviving mother acquires
her full rights.' But a deceased father cannot exclude the mother
except by appointing a testamentary guardian in her place. Voet,
26. 4. 2. The right to the custody of the children (supra, p. 37) must
be distinguished from the guardianship.
6 According to V.d.K. (Dictat. ad Grot. 1. 7. 9 and Th. 118)
a surviving mother even though not appointed guardian by her
husband's will may by her own will appoint co -guardians to act
with the guardians appointed by her husband. The Administra-
tion of Estates Act, 1913 (sec. 71), contemplates the appointment
of a tutor testamentary by the mother of a minor, whose father is
dead ; but leaves the position undefined in case the father's will has
made provision for the guardianship.
7 Van Rooyen v. Werner, ubi sup. ; Joffe & Co. v. Hoskins [1941]
A.D. 431.
8 Administration of Estates Act, 1913, sees. 76 and 107.
GUARDIANSHIP 105
mentary tutors,1 and supplies casual vacancies in case of
death, incapacity, or removal.2
A testamentary tutor, as we have seen, is appointed Curators
by parents only. But it is permitted to any person who n(
gives or bequeaths property to a minor or insane person
to direct at the same time that some specified person shall
administer it.3 A person so appointed is termed a curator
nominate,4 and if a curator nominate is expressly em-
powered to appoint another to act in that capacity, such Curators
other becomes (after confirmation) a curator assumed.5 assumed-
Curators dative are appointed by the Court (in South Curators
Africa upon the application of the Master or of some
person interested) to insane persons or prodigals,6 and the
master appoints curators dative to administer the pro-
perty of persons absent from the Union and not otherwise
represented.7 In case of minor disqualifications such as Curators
deafness, dumbness, or the like,8 the Court may appoint boms-
curators bonis whose functions will be limited by the
requirements of the particular case.9
1 Administration of Estates Act, 1913, sec. 73.
2 Ibid., sec. 78. s Voet, 26. 2. 5 ; V.d.K. 118 ; V.d.L. 1. 5. 2.
4 Ibid., sec. 71.
6 Ibid., sec. 77 (1).
6 1 Maasdorp, pp. 309, 311. Such persons were known as bejaerde
wezen (Gr. 1. 11. 1-4; Van Leeuwen, 1. 16. 13 ; Voet, 27. 10. 3 and
6 ; V.d.K. 164-5) or as Ho/3- or Stads -kinder en (V.d.L. 1. 5. 8).
7 Administration of Estates Act, 1913, sec. 80.
8 Gr. 1. 11. 2; In re Rens (1880) Foord 92; Ex parte Van Dyk
[1939] C.P.D. 202; Ex parte De Villiers [1943] W.L.D. 16. An
insane or prodigal wife is placed under the guardianship of her
husband; an insane or prodigal husband is not placed under the
custody of his wife, but his property may be. Gr. 1. 11. 7 ; V.d.K.
168. In re De Jager [1876] Buch. 228; Venter v. Venter [1935]
C.P.D. 27 ; Bloomfield v. Bloomfield [1942] C.P.D. 251. The marital
power is suspended by the husband's insanity. V.d.K. 101.
9 Voet, 27. 10. 13 ; 1 Maasdorp, p. 31 1. In the case of prodigality
also the modern practice is to appoint a curator bonis, whose func-
tions are limited to administering the estate. 'A curator bonis
deals with the estate of the person under curatorship and not with
his person.' Mitchell v. Mitchell [1930] A.D. at p. 223. For pro-
cedure see Ex parte Hartzenberg [1928] C.P.D. 385. There are cases
also in which the Master may appoint a curator bonis ad interim
(Adm. of Est. Act, 1913, sec. 30, sec. 81 (2)) ; and a similar appoint-
ment may be made by the Court under Act 38 of 1916 (Mental
Disorders Act), sec. 62 (1).
106 THE LAW OF PERSONS
Curators Curators ad litem are appointed to a minor or insane
5m' person or prodigal, for the purpose of bringing or defending
an action, when such minor has no other guardian or
curator, or when the guardian or curator is a party to
the litigation.1
The various kinds of guardian, then, are: (1) tutors
testamentary ; (2) tutors assumed ; (3) tutors dative ;
(4) curators nominate ; (5) curators assumed ; (6) curators
dative ; (7) curators bonis ; (8) curators ad litem ; and they
are appointed in the ways described.
SECTION 2 — WHO MAY BE GUARDIANS
Some Van der Linden says that some persons are prohibited
arTdis8 from being guardians, others may excuse themselves.2
qualified To the first class he assigns: (1) persons who are them-
selves subject to tutela or cura,3 with whom must be
guardians, incmcled all persons less than twenty-five (now twenty-
one) years of age, although majority may have been anti-
cipated by marriage or venia aetatis ;4 (2) women, except
a mother and grandmother, and they only so long as they
have not contracted a second marriage ;5 (3) creditors and
debtors of the minor, if the debt is considerable and the
Court sees fit to exclude them.6
To these the modern law adds : (4) any person who as
witness has attested the execution of a will which appoints
1 Van der Linden, Judic. Prac. 1. 8. 3.
2 V.d.L. 1. 5. 1. * Gr. 1. 7. 6.
4 Voet, 26. 1. 5; V.d.K. 112. Dhanabakium v. Subramanian
[1943] A.D. at p. 166. May a surviving spouse, though under age,
be guardian to his or her children ? Voet, 26. 4. 2 ; Holl. Cons. v.
213; Schorer ad Gr. 1. 7. 11.
6 Gr. 1. 7. 6 and 11 ; Voet, 26. 1. 2 ; V.d.K. 114. In South Africa,
by the Administration of Estates Act, 1913, sec. 83: (1) The pro-
visions of this Act in regard to the election and appointments of
tutors and curators shall apply to males and females; (2) Letters
of confirmation shall not, without the consent in writing of her
husband, be granted to a woman married in community of property
or to a woman married out of community of property when the
marital power of the husband is not excluded.
8 Grotius is silent on this point. Voet (26. 1. 5), Groenewegen
(ad Cod. 5. 34. 8) and van Leeuwen (Gens. For. 1. 1. 16. 19) agree
that there is no absolute disqualification. See also Sande, Decis.
Fris. 2. 9. 1.
GUARDIANSHIP 107
such person guardian, and the wife or husband of such
person.1
The second class includes: (1) soldiers;2 (2) persons others
already burdened with three guardianships ; (3) persons
upwards of seventy years of age ; (4) persons disqualified them-
by sickness or infirmity. This list is not exhaustive, nor
by the common law could anyone claim exemption as of
right. In fact, the whole matter lay in the discretion of
the Court.3 In South Africa excuses are unnecessary, for but in
guardianship is at the present day a voluntary office, Africa
which no one can be compelled to undertake against his guardian-
will.4 This marks a departure from the Roman-Dutch voluntary.
common law, according to which anyone who was named
guardian was bound to accept the office, unless excused, and
in case of unwillingness could be compelled to undertake
it by civil imprisonment.5
SECTION 3 — THE POWERS, RIGHTS, AND DUTIES
OF GUARDIANS
Without seeking to distinguish too exactly between the The
duties and the powers or rights of guardians, we may
classify their functions of whatever kind under the fol- of guar-
, . , n dians:
lowing heads.
1. The duty to find security. In Holland practice varied (l) To find
in different localities. Van der Linden says :6 'The practice 8e
of guardians finding security is in our law fairly out of
use, though where there are weighty reasons for doing so
1 Cape, Act No. 22 of 1876, sec. 4 ; Transvaal, Ord. No. 14 of
1903, sec. 4; O.F.S. Ord. No. 11 of 1904, sec. 4. In Natal there is
no such disqualification (see Law 2 of 1868, sec. 7). In Ceylon
there is no statutory provision. Voet adds to the disqualifications
mentioned in the text: (5) a person not subject to the jurisdiction
cannot be tutor dative (26. 5. 3); (6) persons prohibited by the
will of either parent (26. 1. 4).
2 Grotius (1.7. 6) says that soldiers cannot be guardians ; so also
Voet (26. 1. 4). Van der Keessel (Th. 113) and Van der Linden
(1. 5. 1) say that they are not disqualified, but may be excused.
3 Gr. 1. 7. 14; Voet, 27. 1. 12; V.d.K. 124.
4 1 Maasdorp, p. 313 ; Administration of Estates Act, 1913, sec.
73 (2).
6 Gr. 1. 7. 16; Van Leeuwen, 1. 16. 5; V.d.L. 1. 5. 1.
6 V.d.L. 1. 5. 3. Cf. Gr. 1. 9. 1 ; Voet, 26. 7. 2; V. d.K. 134.
108 THE LAW OF PERSONS
the Court may demand it.' But in South Africa, by the
Administration of Estates Act, 1913, sec. 82, every tutor
and every curator now gives security, except only a
testamentary tutor or a curator nominate when: (a) he
is the parent of the minor; or (6) has been nominated
by will executed before the commencement of the Act
(October 1, 1913), and has not been directed by the will
to find security ; or (c) has been nominated by will executed
after the commencement of the Act and the testator has
directed the Master to dispense with security ; or (d) the
Court otherwise directs.
(2) to 2. Inventory. Guardians must make a full inventory
invento" °^ ^e estate which they are to administer, or demand
an inventory from a surviving parent.1 In South Africa
every tutor and every curator must make such inventory
within thirty days2 of the date of his entering on office.
If a guardian fails herein, he is liable (besides other
penalties)3 to removal ; as he is, also, if he wilfully omits
items of credit or inserts false items of debt.4 A surviving
parent who, in preparing the inventory, fraudulently con-
ceals any property forfeits his or her interest therein.5
A similar inventory must be made by parent or guardian
in the event of any property coming to a minor from any
source whatever, e.g. by testament, either during the life-
time of both parents or after the death of one or both of
them.6 The inventory when complete must be delivered
to the Orphan Chamber,7 the place of which is taken in
South Africa by the Master of the Supreme Court.
(3) to 3. Securing minors' portions. The next duty of the
1 Gr. 1. 9. 3 and 8 ; Van Leeuwen, 1. 16. 6 ; Voet, 26. 7. 4 ; V.d.K.
135 ff. ; V.d.L. ubi sup. The first dying parent may not dispense
the survivor from the duty of preparing an inventory. V.d.K. 137.
2 Administration of Estates Act, 1913, sec. 85.
3 Ibid., sees. 108-9.
4 Voet, 26. 7. 5.
6 Gr. 1. 9. 4; V.d.K. 139; Administration of Estates Act, 1913,
sec. 110.
6 Gr. 1. 6. 1 and 1. 9. 5. If a curator nominate has been ap-
pointed to the property in question, the duty of making an inven-
tory falls on him and not on the parent. V.d.K. 140.
7 Gr. 1. 9. 3 and 8; V.d.K. 135 ff.
GUARDIANSHIP 109
guardian (and this is the object of the inventory) is, sub- minors'
ject to the control of the proper authority, to see that portlons;
within the time prescribed by the local statute and at
latest before proceeding to a second marriage the sur-
viving parent assigns to the minor children of the marriage
their shares in the joint estate,1 or at all events gives
security for future payment. This done, the guardian pro-
ceeds to deal with the property of the minors in his charge,
retaining it under his control as administrator, or placing
it in the hands of the proper authority, as required by law.2
4. Maintenance and education. All preliminaries being (4) to
properly settled, it is the duty of the guardian to provide ^^du"
for the maintenance and education3 of the ward according oate the
to the directions of the father or mother, and failing such,
to make suitable arrangements.4
The guardian must take care that his expenditure in
this regard keeps within the limits of the annual income
of the estate, unless in very special circumstances, which
should be made the subject of an application to the Court.5
1 Gr. 1. 9. 6; Voet, 23. 2. 100; supra, p. 99.
3 In S.A. moneys must be paid over to the Master, if not re-
quired for the immediate payment of the debts of the estate or the
immediate maintenance of the person to whom the money belongs,
and in the case of a tutor testamentary or curator nominate subject
to the terms of the will or deed. Adminstration of Estates Act,
1913, sec. 88. Securities must be deposited. Gr. 1. 9. 9. It must
be borne in mind that the guardian represents the minors, not the
deceased. He has no general duty of liquidating the estate. In the
modern law the estate of a deceased person vests for administration
and distribution in an executor, testamentary or dative (Ad-
ministration of Estates Act, 1913, sec. 31). Subject to the right of
the surviving spouse, in the absence of any provision to the con-
trary contained in the will of the first dying, as natural guardian
to receive from the executor and retain for and on behalf of his
minor child (on giving security) any sum of money due to that
child from the estate of the deceased spouse, it is the duty of the
executor to pay to the Master any money which has become due
from the estate to any minor (ibid., sec. 54). Ex parte Van Misdorp
[1928] C.P.D. 78.
3 Gr. 1. 9. 9; Voet, 26. 7. 1 and 6. Generally speaking a sur-
viving mother is entitled to the custody (V.d.K. 114), notwith-
standing a remarriage (Voet, 27. 2. 1).
4 Gr. ubi sup. ; Voet, 27. 2. 1.
6 Voet, 27. 2. 2.
110 THE LAW OF PERSONS
(5) to ad- 5. Administration of the ward's property.1 This includes
the general supervision and management of the minor's
estate, in which task the guardian must display the
diligence of a bonus paterfamilias.2 His expenditure must
be such as is demanded by the interest and credit of the
minor, regard being had to the value of the estate and
the minor's position in life.3 He must preserve and secure
the property,4 call in and enforce debts,5 invest in good
securities,6 and meet the minor's liabilities as they fall
due.7 When the guardianship comes to an end, the guar-
dian must wind up the business of his office, and is deemed
to remain guardian for the purpose.8 Where there are
more guardians than one, they need not all act; but,
whether he acts or not, each is responsible for the acts of
every other.9
(6) not to 6. Alienation of property. A guardian may, in due
hnmov- course of administration, sell10 or mortgage any movable
ables property under his charge. But the alienation or hypo-
leave of thecation of immovable property, except by leave of the
Court. Court,11 is prohibited. Such leave is only given after full
1 Gr. 1. 9. 11; Van Leeuwen, 1. 16. 8; V.d.L. 1. 5. 3.
2 Gr. 3. 26. 8; Voet, Compendium, 26. 7. 3; 27. 3. 4; V.d.L.
1. 5. 3. It seems that in R.L. he was not required to exhibit more
that the diligentia quam suis rebus. Buckland, Textbook, p. 157.
3 Voet, 26. 7. 6 ; 27. 2. 2.
4 Voet, 26. 7. 8. 8 Voet, ibid.
6 Gr. 1. 9. 10; 3. 26. 7; Van Leeuwen, 1. 16. 8; Voet, 26. 7. 10;
V.d.K. 153-5; Van der Byl & Co. v. Solomon [1877] Buch. at
p. 27 per de Villiers C.J. But now investments are usually made
by the Public Debt Commissioners under Act 18 of 191 1. Ex parte
The Master [1927] T.P.D. 117; Ex parte Lorentz N.O. [1928]
S.W.A. 153. The power of investment of natural guardians re-
mains unaffected. Wood v. Davies [1934] C.P.D. at p. 256.
7 Voet, 26. 7. 7.
8 Voet, 26. 7. 15. If the guardianship is determined by the
minor's death, the guardian must render accounts and make over
the property to his heir. V.d.K. 159.
9 Gr. 1. 9. 11 ; Voet, 26. 7. 1 ; V.d.L. 1. 5. 3 (ad fin.). Remunera-
tion of guardians, infra, p. 115.
10 Gr. 1. 8. 5; Voet, 27. 9. 4. Grotius adds: 'doch met kennisse
van de weeskamer daer de zelve niet en is uitgesloten.' Cf. V.d.K.
129.
11 Gr. 1. 8. 6; Voet, 27. 9. 1. Application must be made in the
first instance to the Court of the minor's domicile ; if the property
GUARDIANSHIP 111
inquiry, and it was usual to consult the nearest relatives.1
The measures proposed must be necessary for payment of
debts, maintenance, or marriage of the ward, or otherwise
to his manifest advantage.2 The word 'immovables' ex-
tends to such incorporeal rights as are commonly included
under the term immovable property, and to the cession
of rights of action relating to such property.3 Alienation
includes any act of the guardian whereby a real right of
the ward is in any way diminished, lost, or abandoned.4
Failing a judicial decree (where such is necessary) every-
thing that takes place in the course of, or incidentally to,
such alienation is ipso jure null and void.5 The same
applies if the decree is shown to have been obtained from
the Court by fraud.6
The prohibition of the sale of immovables is stated by
Grotius to extend to money put out at interest and rents.7
Van der Keessel says that the same rule ought to be laid
down in respect of public Dutch or foreign securities.8
Voet goes further and adds to the list all movables which
are not perishable in their nature (quae servando servari
possunt),9 as gold, silver, and jewellery, whereas perish-
able movables the guardian not only may sell, but must.10
By some local statutes of Holland even movables could not
be sold except by public auction and after notice to the
Orphan Chamber (unless this were expressly excluded).11
is situated in another jurisdiction, it may be necessary to apply to
the Court of the locus rei sitae as well. Voet, 27. 9. 5 ; Ex parte Uys
[1929] T.P.D. 443; Ex parte Ford [1940] W.L.D. 155. In Ceylon
it has been held that a power to mortgage cannot be conferred by
will. Girigorishamy v. Lebbe Marikar (1928) 30 N.L.R. 209.
1 Voet, 27. 9. 7; and the weeskamer. V.d.K. 131.
2 Voet, 27. 9. 7-8. 3 Voet, 27. 9. 2.
4 Voet, 27. 9. 3 ; Sande, de prohib. rerum alienat. 1. 1. 47. This
covers a lease in longum tempus. Breytenbach v. Frankel [1913]
A.D. at p. 402. But short leases are permitted and bind the ward
even after majority. Sande, Decis. Fris. 2. 9. 22; Voet, 19. 2. 17.
6 Gr. 1. 8. 6. 6 Voet, 27. 9. 9.
7 Renten ende pachten. Gr. 1. 8. 6.
8 V.d.K. 130. 9 Cf. Cod. 5. 37. 22, 6.
10 Voet, 27. 9. 1.
11 Gr. 1. 8. 5; Van Leeuwen, 1. 16. 8; V.d.K. 129; Rechts. Obs.
ii. 13.
112 THE LAW OF PERSONS
In the case of immovables too the sale must be by public
auction.1
South In South Africa by the Administration of Estates Act,
A f *
La"Cas to 1913, sec. 87, no tutor and no curator (other than a tutor
alienation testamentary or a curator nominate duly authorized
ables. thereto by the will or deed under which he has been
appointed) shall alienate or mortgage any immovable
property belonging to a minor unless the Court or, when
the Master is satisfied that the immovable property does
not exceed three hundred pounds in value, unless the
Master authorize the alienation or mortgage of such pro-
perty. But the Master may authorize the mortgage of im-
movable property belonging to a minor to an extent not
exceeding three hundred pounds, if satisfied that the
mortgage is necessary for the preservation or improvement
of the property, or for the payment of expenses necessarily
incurred in connexion therewith, or for the maintenance
or education of the minor. The same Act by sec. 86 saves
the common law as regards the powers and duties of
tutors except so far as they are affected by that Act.
Remedies The ward's remedies in respect of unauthorized aliena-
are two: against the tutor and against the alienee.
thorized Against the first he has the actio tutelae directa. From the
tion. second he may vindicate the property (together with all
fruits, if the defendant's possession is mala fide ; but if
it is bona fide, together with fruits existing at the time
of action brought). If, however, the purchase-money has
been received and applied to the minor's use, it must be
refunded with interest as a condition precedent of the
return of the property.2 A sale of immovable property
made by a minor without judicial decree and without his
guardian's authority cannot be impeached on behalf of
such minor, when the minor has falsely represented him-
self as of full age.3
Ratifica- An alienation void ab initio may be ratified on full age.
void alien- Ratification is express or tacit.4 When ratification has
1 Gr. 1. 8. 6; Van Leeuwen, 1. 16. 9. 2 Voet, 27. 9. 10.
3 Voet, 27. 9. 13 (ad fin.). 4 Voet, 27. 9. 14.
GUARDIANSHIP 113
taken place the transaction may, in Roman-Dutch Law,
still be rescinded on the ground of laesio enormis,1 but in
the Cape Province and in the Orange Free State this is no
longer law.2
7. Accounts. The guardian must render annual or other (7) Guar-
periodical accounts as required by law to the proper au- renders
thority.3 If the testator has remitted this duty, the Court accounts;
or other authority may none the less in its discretion
insist upon it.4
8. Representing the minor in Court. A minor has no (8) repre-
persona standi in judicio.5 He must therefore be repre- minor in
sented or assisted by his guardian in any proceedings to Court;
which he is a party, whether as plaintiff or defendant.6
If the guardian is himself a party to the proceedings the
ward obtains a curator ad litem.7 No doubtful action may
be brought by a guardian in the name of the ward with-
out previous sanction of the Court ;8 otherwise, if the ward
fails in the suit, the guardian will be ordered to pay the
costs himself.9 In all other matters of importance too,
says Van der Linden,10 the Court should be consulted.
9. Contracting in the name of the minor. Guardians have (9) con-
the right to contract on behalf of their wards, but must *^.cnsa^e
proceed with particular caution, otherwise they will be of the
liable in damages.11 By such contracts the wards acquire m
rights and incur liabilities. They may sue and be sued on
the contracts entered into by their guardians,12 saving,
1 Voet, ibid, (adfm.); Cod. 4. 44. 2 and 8.
2 See below, p. 234, n. 3.
3 Gr. 1. 9. 12; V.d.K. 120 and 157; Administration of Estates
Act, 1913, sec. 89. An exception is made in favour of a surviving
spouse 'to whom the predeceasing spouse has by will or other
lawful instrument entrusted the administration of their joint
estate during the minority of their children'.
4 Van Leeuwen, 1. 16. 6.
B Gr. 1. 7. 8; V.d.K. 127; V.d.L. 1. 5. 5.
8 Gr. 1. 8. 4; Voet, 26. 7. 12. 7 Gr. ubi sup.
8 Subsequent allowance affords the same protection. Botha
N.O. v. Tunbridge N.O. [1933] E.D.L. at p. 108.
9 Voet, ubi sup. 10 V.d.L. 1. 5. 3. Cf. Gr. 1. 9. 2.
11 Gr. 1. 8. 7; 3. 1. 30; Voet, 26. 9. 1-2.
12 Gr. 1. 8. 8; V.d.K. 133; and see Cod. 5. 39. Semble, if a guar-
dian contracting on behalf of his ward, has acted fraudently (or
4901 T
114 THE LAW OF PERSONS
however, their right to restitutio in integrum, if they have
been prejudiced thereby ; which right they must prosecute
within four (now three) years after attaining majority.1
It seems that a guardian who has contracted nomine pu-
pilli is himself alternatively liable to the other contracting
party ;2 though if the contract was a proper one, he will
be entitled to an indemnity from the estate. A ward is
not bound by a donation made by his guardian or by a
release of a manifest right.3
(10) 10. Authorizing the minor's acts. Finally, the guardian
£ke ° 5S 'interposes his authority', that is, assists and represents
minor's the minor in all transactions, and in particular, as has
been seen, represents him in Court. 'Authority ' in Roman
Law meant a present consent to and approval of what is
done by the ward, but in the modern law a subsequent
ratification will have the same effect as a contemporaneous
authority.4 Where there are several co-tutors the author-
ity of one alone is generally sufficient.5 If the guardian
withholds his authority the Court will in a fit case compel
it.6 A male or female minor upwards of fourteen or twelve
years of age requires no authority to make a will,7 nor is
a marriage contracted without authority of the guardian
invalid.8
Thus far the powers, rights, and duties of the guardians
of minors. Since the functions of the curators of lunatics
carelessly? Dig. 26. 7. 61), the ward is not liable, except: (1) to
the extent of his enrichment ; (2) in the absence of enrichment only
if the guardian is solvent, so that the ward can have recourse
against the guardian's estate ; and the ward can always free himself
by ceding his actions against the guardian. Gr. 3. 1. 30; Voet,
26. 9. 4.
1 Cod. 2. 52 (53). 7 pr. ; Voet, 44. 3. 6-7 ; supra, p. 49.
3 Voet, 26. 9. 3 ; but generally only during the continuance of
the guardianship. Cf. Cod. 5. 39. 1.
8 Gr. 3. 1. 30 and 3. 2. 7 ; unless it be a remuneratory donation.
Gr. 3. 2. 3. Guardians may make a novation in the name of their
wards, if for the wards' benefit (Voet. 46. 2. 8) and may com-
promise on behalf of their wards provided they do not thereby
effect an alienation of the wards' property. V.d.K. 517.
4 Voet, 26. 8. 1. 6 Voet, 26. 8. 7.
8 Voet, 26. 8. 8, i.e. moribus. It was otherwise jure civili. Dig.
26. 8. 17. 7 Gr. 1. 8. 2. 8 Gr. 1. 8. 3; supra, p. 61.
GUARDIANSHIP 115
and interdicted prodigals are generally similar,1 it is un-
necessary in an elementary treatise to make them the
subject of special discussion.
SECTION 4 — ACTIONS ARISING OUT OF GUARDIANSHIP
Two actions arise out of guardianship, the one by the The actio
ward against the guardian (actio tutelae directa), the other ^^ta
by the guardian against the ward (actio tutelae contraria). and con-
The first is available to the ward and his heirs2 against
the guardian and his heirs,3 and against each guardian in
solidum (saving that on satisfaction by one the others are
released), requiring him to render an account of his admini-
stration,4 to transfer everything which by virtue of the
guardianship has come under his control,5 and to make
good all losses caused to the minor by his bad management.
The contrary action lies for the guardian and his heirs6
against the ward and his heirs to be indemnified for
expenses and loss incidental to his office,7 and to recover a
reasonable recompense for his time and trouble.8
In the Roman Law these actions lay only after the
termination of the guardianship,9 but in the modern law
they may be brought during its continuance.10
The statement made above that each tutor is liable in Extent
solidum must be understood subject to the law as to the ^ian"*1
benefit of excussion and the benefit of division. Where liability.
one tutor alone has acted he must be sued before the
rest, who otherwise can plead the beneficium excussionis.
1 Gr. 1. 11. 5; Voet, 27. 10. 5 ff.
2 Voet, 27. 3. 4; also to the husband of a minor against her
former guardians and in some cases to creditors.
3 Voet, 27. 3. 5 ; or other successors. * Voet, 27. 3. 7.
5 Voet, 27. 3. 8; including claims arising excontractu. Gr. 3. 1. 38.
But the emancipated ward may sue in respect of such claims
without cession of the right of action. V.d.K. Dictat. ad loc. ;
Dig. 26. 9. 2. 6 Voet, 27. 4. 2.
7 Gr. 3. 26. 10; Voet, 27. 4. 3-7.
8 V.d.L. 1. 5. 6. In the Roman Law the office of tutor was
unpaid. Dig. 26. 7. 33, 3. In R.-D.L. a reasonable remuneration
was allowed except to parents. Gr. 1. 9. 11 ; Voet, 27. 4. 12. The
amount was usually fixed by local statutes. V.d.K. 156.
9 Dig. 27. 3. 4 pr. and 27. 4. 1. 3.
10 Groen. de leg. abr. ad Dig. 27. 3. 4.
116 THE LAW OF PERSONS
Where more than one tutor have acted, any one of the
acting tutors may be sued, but by pleading the beneficium
divisionis can divide his liability with the other tutors who
were solvent at the earliest time at which the pupil could
properly have sued. Where different duties of admini-
stration have been assigned by the testator, or the judi-
cial authority, between several tutors, each is, generally
speaking, liable only for his own particular sphere of duty.1
Other ac- In addition to the above actions the Roman Law gave
Roman various other remedies or securities to the minor, more
Law. particularly: (1) an action 'for separation of accounts'
(rationibus distrahendis) ;2 (2) an action against the magi-
strate by whom the guardian had been appointed ;3 (3)
the crimen suspecti4 for the removal of guardians on the
ground of misconduct actual or anticipated ; (4) a tacit
hypothec upon the guardian's estate.5
The action 'rationibus distrahendis', which was as old
as the Twelve Tables,6 applied only to those who during
their administration had carried off something from the
ward's estate.7 It lay for twice the value of the thing
taken. Voet seems to treat this remedy as still existing, but
Groenewegen says that the penalty of double was disused.8
In the Roman Law a subsidiary action lay in certain
cases against the magistrates, when the ward had failed to
obtain satisfaction from the guardian appointed by them.9
Whether this action subsisted in the Roman-Dutch Law
was much debated. Voet and others10 allowed it in case
1 Gr. 3. 26. 9; Voet, 27. 8. 6. 'With regard to losses occasioned
by omissions, all the guardians are liable in solidum, and, though
they may claim the benefit of division as between themselves, are
not entitled to the benefit of excussion.' 1 Maasdorp, p. 334;
Niekerk v. Niekerk (1830) 1 Menz. 452.
2 Dig. 27. 3. 1. 19; 27. 3. 2.
3 Dig. 27. 8. 1 ; Cod. 5. 75. 5. 4 Inst. 1. 26 pr.
6 Cod. 5. 37. 20 (Constantino, A.D. 314).
8 Dig. 26. 7. 55, 1. 7 Dig. 27. 3. 2.
8 Groen. de leg. abr. ad Dig. 27. 3. 2 and Cod. 9. 47 (rubric).
9 Inst. 1. 24. 2.
10 Van Leeuwen, 1. 16. 4, and Decker's note; Cens.For. 1. 1. 17.
4 ; Voet, 27. 8. 5 ; Groen. de leg. abr. ad Inst. 1. 24. 4 ; Vinnius, ibid. ;
V.d.K. 770.
GUARDIANSHIP 117
of fraud or gross negligence. But the Orphan Chamber,
at all events, was answerable for the moneys of minors
committed to its keeping.1
With regard to the removal of guardians the Court, as Removal
the upper guardian, has a wide discretion,2 which it may diaris^
exercise of its own motion or on the complaint of a co-
guardian or near relatives of the ward.3 Incapacity, dis-
honesty, or insolvency are the most frequent grounds of
removal. In South Africa the final order for sequestration
or assignment of the guardian's estate ipso facto determines
the office of tutor or curator, unless he shall have found
security to the satisfaction of the Master for due and faith-
ful performance of his duties.4
Lastly, wards had a legal or tacit hypothec over the The
property of their tutors or curators in respect of debts due ^*^£ .
to them arising out of the administration and to the extent pothec.
of loss attributable to the guardian's misconduct.5 By
statute this legal hypothec was abolished in the Transvaal
and materially restricted at the Cape ; since the Insolvency
Act, 1916, it has ceased throughout the Union to give any
preference on the estate of an insolvent.6
SECTION 5 — How GUARDIANSHIP ENDS
Guardianship is determined by the following events : viz. How
(1) the death of the minor; (2) the death of the guardian,7
in which case an assumed tutor (curator) (if any) or tutor
(curator) dative replaces him ; (3) majority, unless the Court
decides that the ward is to remain under guardianship
for some time longer ;8 (4) marriage, unless the Court for
weighty reasons orders that the guardianship is to con-
1 Decker ad Van Leeuwen, 1. 16. 4.
2 Voet, 26. 10. 2.
3 Gr. 1. 10. 4; The Master v. Edgecombe's Exors. [1910] T.S. at
p. 272.
4 Administration of Estates Act, 1913, sec. 84.
8 Gr. 2. 48. 16; Voet, 20. 2. 11 ff.; V.d.L. 1. 12. 2.
6 Infra, p. 197. 7 Gr. 1. 10. 1.
8 Gr. ubi sup. The age of majority was sometimes anticipated
by order of the pupillary magistrates, but this practice was re-
placed by grant of venia aetatis. V.d.K. 110.
118 THE LAW OF PERSONS
tinue either absolutely or with respect to the immovable
property of the ward;1 (5) venia aetatis;3 (6) arrival of
time or cessation of purpose, when the guardianship was
created for a limited time or purpose ;3 (7) removal4 or re-
lease of the guardian by the Court ; (8) absence of the ward5
for a prolonged period, such as furnishes a presumption
of death, in which case his property is divided amongst
testamentary or intestate heirs, security being given
for its return in the event of the ward's reappearance ;6 (9)
(in South Africa) the insolvency of the guardian7 and, so
far as concerns the property, of the ward.8
1 Gr. 1. 10. 2. In Vedeski v. Vedeski [1923] W.L.D. 31 Morice
A.J. held that where a woman had a curator bonis, appointed to
manage her affairs on the ground of her prodigality, the curator -
ship was not determined by her marriage in community.
2 Gr. 1. 10. 3. But this does not carry the right to alienate im-
movables except by leave of the Court. Supra, p. 45. According
to the modern practice the Court does not assume the power to
declare a minor to be a major in law, but the Cape Courts have
in several cases made an order releasing a minor from tutelage.
Supra, p. 45.
3 Gr. 1. 10. 6.
* Gr. 1. 10. 4; Voet, 26. 10. 1-4; V.d.K. 162; The Master v.
Edgecombe's Exors. [1910] T.S. 263.
6 Gr. 1. 10. 5, and Schorer's note; V.d.K. 163.
8 Supra, p. 90, n. 7.
7 Supra, p. 117. 8 1 Maasdorp, p. 340.
VI
UNSOUNDNESS OF MIND— PRODIGALITY
IN the last chapter we saw that curators dative are Unsound-
appointed by the Court for insane persons, and (after in- ne.ss of
terdiction) for prodigals. It is tempting to speak of un-
soundness of mind as constituting a status ; but it would
not be correct to do so, for mental unsoundness is not
necessarily permanent or constant, and the question which
must be answered is not, 'Has the man been declared
mad ? ' but, ' Was he, in fact, incapable of understanding
the particular transaction which is brought in issue ? n If
the answer is negative the transaction stands. This has
been applied to a marriage contracted by a man against
whom a lunacy order was still in force, who was found to
have been at the time of marriage of sound mind and full
understanding.2 In the contrary event the transaction is
wholly void3 for 'furiosus nullum negotium gerere potest, Furiosus
quia non intelligit quid agit'. The same principle applies ^gothim
to any other form of mental alienation.4 It is immaterial gerere
that the other party to the transaction was unaware of the po
condition of the person with whom he was dealing. The
rule, however, admits two qualifications : (1) 'The Roman- Qualifica-
Dutch law, while denying the capacity of an insane person th
to bind himself by contract, recognizes the equity of allow-
ing a person who has in good faith expended money on
1 Prinsloo's Curators bonis v. Crafford & Prinsloo [1905] T.S.
669; Pheasant v. Warne [1922] A.D. at p. 488; Est. Eehne v.
Rehne [1930] O.P.D. 80; Pienaar v. Pienaar's Curator [1930]
O.P.D. 171.
2 Prinsloo' s Curators v. Crafford, ubi sup. In English law a
lunatic so found by inquisition is incapable of marriage. Hailsham
xvi, sec. 844. This is perhaps the only case in which the law recog-
nizes a status of insanity.
3 Inst. 3. 19. 8; Gr. 3. 1. 19; (Ceylon) Soysa v. Soysa (1916) 19
N.L.R. 314.
4 As to drunkenness see Gr. 3. 14. 5 ; Voet, 18. 1. 4; Manning &
Wax v. Heathcote's Trustee [1915] E.D.L. 81 ; Essakow v. Galbraith
[1917] O.P.D. 53.
120 THE LAW OF PERSONS
behalf of a lunatic to have his expenses recouped. n (2)
' Where acts have been done on behalf of an insane person
by virtue of a power of attorney [or other mandate] given
by him before he was bereft of his reason, there are autho-
rities (such as Digest 46. 3. 32, and Pothier on Obligations,
sec. 81) from which it might be fairly inferred that want of
knowledge regarding the principal's change of condition
would protect persons dealing with the agent. The power
is revoked by reason of the insanity ; but if the power held
out the agent as a person with whom third parties might
contract as such until they receive notice of the revocation
of the authority, their knowledge of the insanity would
have an important bearing on their right to recover upon
a contract thus made. That would, however, be a very
different matter from saying that an agent appointed after
the insanity of the principal could, under the Roman-
Dutch law, validly bind such principal. '2
Inter- The condition of the prodigal after interdiction and
Puklic notification thereof may correctly be described as
a status. Until the interdict has been removed and the
removal notified he is for most purposes subject to the
same legal incapacities as a minor, and, like the minor,
can without his curator's authority enter into a contract
which is solely advantageous.3
1 Molyneux v. Natal Land and Colonization Co. [1905] A.C. 555 ;
in appeal from Natal (24 N.L.R. 259) per Sir Henry de Villiers, at
p. 569.
2 Ibid, at p. 563. The P.O. judgment in Appeal is reproduced in
26 N.L.R. 423.
3 Gr. 1. 11. 4; Voet, 27. 10. 6 seq. As to marriage and consent
to the marriage of their children vide supra, p. 61, n. 1.
VII
JURISTIC PERSONS
To enter upon a detailed discussion of this topic lies out- Juristic
side our scope. Not to speak of the fiscus (imperial trea-
sury) and municipalities, which belong principally to the
sphere of public law, the later Roman Law, more or less
consciously, attributed an artificial personality to: (1) Cor-
porations (corpora and universitates) ; (2) Foundations (piae
causae).1 These reappear in the Law of Holland.2 In the
modern law we no longer attribute personality to unincor-
porated foundations, the only personality which comes in
question being that of the trustees in whom the trust pro-
perty is vested;3 while the rights, duties, and powers of
corporations are most often denned by the terms of some
general or special statute.4 If on the one hand corporations, Corpora-
being persons, a,reprima facie capable of enjoying the same *}^:na.
rights and of incurring the same liabilities as natural per- ture and
sons, on the other hand this general proposition receives a capaci y>
necessary limitation both from the mere fact of their arti-
ficial personality and from the terms and objects of the
incorporation in each particular case. Within these limits,
a corporation may acquire, own, and possess property;
may contract ; may sue and be sued in courts of law. But
from the nature of the case it can only act through a body
1 Goudsmit, Pandecten-Systeem, vol. i, pp. 61 ff. ; Ruckland,
Textbook of Roman Law, p. 307 ; P. W. Duff, Personality in
Roman Law.
2 Fock. And., vol. i, p. 140; de Blecourt, pp. 89 ff.
8 In Ceylon the English law of corporations was introduced by
Ord. No. 22 of 1866. This left no place for the pia causa as a
distinct juristic entity. See Sadhananda Terunanse v. Sumanatissa
(1934) 36 Ceylon N.L.R. 422, where the statement in the text was
accepted as correct. For piae causae in the old law see Fock. And.,
O.N.B.R., vol. i, p. 147 ; and de Blecourt, p. 92. A legal persona
of this character constituted under German Law came in question
in Das Koniglich Preussisch-Brandenburgische Hausfideikommiss v.
The Administrator of South-West Africa and the Registrar of Deeds
[1928] S.W.A. 82.
4 See for S.A. The Companies Act (46 of) 1926, amended by
Acts No. 11 of 1932 and 23 of 1939.
122 THE LAW OF PERSONS
of individuals (its governing body) or through other per-
sons or groups of persons properly authorized, whether per-
manently or for the particular work in hand. Corporations
how derive their existence from the State, through being created
by a special act of the Legislature (or by the prerogative of
the Crown) or under the provisions of a general Act, as is
the case with most trading companies ; or through being
recognized by the Legislature without special creation.1
how dis- A corporation ceases to exist : (a) when it has been called
solved. jn^o existence for a limited time and that time has expired ;
(6) when all the individuals composing it (corporators) are
dead — if only one member survives it seems that the cor-
poration still continues in his person ;2 (c) when the mem-
bers (and in the absence of contrary provision the majority
of members voting) resolve that the corporation shall be
dissolved, provided that in the particular case such mode
of dissolution is not forbidden or excluded by law or by
the constitution of the corporation ; (d) when any other
event occurs which the law prescribes for the dissolution
of the corporation in question. With these few words on
the nature of corporations in general we leave the student
to pursue the subject, as he may find desirable, in the
system of law which particularly concerns him.
1 The decision in Morrison v. Standard Building Society [1932]
A.D. 229 does not go further than this. (Registered Building
Societies are now incorporated by the Building Societies Act,
1934, and no unregistered society may carry on business.) There
are, no doubt, other cases in which the Court has attributed some
of the consequences of juristic individuality to unincorporated
bodies, not too happily termed 'voluntary corporations'; thus,
lately, to 'The Salem Party of Settlers' (Ex parte Gardner [1940]
E.D.L. 175). In the present state of the law it is not possible to
say when an association is a 'voluntary corporation'. Prof.
Wille says that it becomes such 'by virtue of its having exercised,
for a substantial period, the essential characteristics of a corpora-
tion' (Principles, p. 113). But I have not found any suggestion
of this in Morrison's Case. See, further, Leschin v. Kovno Sick
Benefit Society [1936] W.L.D. 9.
9 Dig. 3. 4. 7, 2.
BOOK II
THE LAW OF PROPERTY
BOOK II
INTRODUCTION
The 'Law THE Roman institutional writers make the Law of Things
of Things . ^e second division of the Jus Privatum. Under this head
are included: (1) Ownership, and Modes of Acquisition;
(2) Proprietary rights less than ownership, such as Servi-
tudes ; (3) Inheritance ; (4) Obligations. What the common
element is which makes these topics all referable to one
branch of law is not at once apparent. Probably it is
ownership. ' The true point of contact between the various
res seems in reality to be the fact that whoever has a res
is actually or prospectively so much the better off. n Grotius
defines ' things ' as ' whatever is external to man and in any
way useful to man'.2 This, however, is not wide enough,
for 'thing' in its legal significance includes not merely
material things but also rights over material things ( jura
in re) and rights to services (jura in personam). Voet's
definition of res as ' everything of which the Courts take
cognizance'3 is perhaps to be preferred. It is, however,
unprofitable to labour to define what is scarcely definable.
In the following pages we follow modern practice and
treat as separate and principal divisions of the Law : the
Law of Property, the Law of Obligations, and the Law
of Succession. The subject of this Book is the Law of
Property, which will include ownership and real rights
connected with or derived from ownership. We shall speak
of: 1. The meaning of ownership; 2. The classification of
things; 3. How ownership is acquired; 4. The incidents
and kinds of ownership; 5. Possession; 6. Servitudes;
7. Mortgage or Hypothec.
1 Moyle, Justinian's Institutes, p. 187.
2 Gr. 2. 1. 3: Zaken noemen wy hier al wat daer is buiten den
mensch, den mensch eenichsints nut zijnde.
8 Voet (Elem. Jur. 2. 1. 1): Res est omne id de quo jus dicitur.
Jus namque dicitur inter personas, de rebus, auxilio actionum.
I
THE MEANING OF OWNERSHIP
DOMINION or Ownership is the relation protected by law in Dominion
which a man stands to a thing which he may : (a) possess, ^ip^™*
(6) use and enjoy, (c) alienate.1 The right to possess
implies the right to vindicate, that is, to recover possession
from a person who possesses without title to possess
derived from the owner. Grotius selects this right as the
most signal quality of ownership, which he says is the
relation to a thing by virtue of which a person not having
the possession may obtain the possession by legal process.2
This analysis of ownership is more particularly applicable
to the ownership of a material thing, and it is in this sense
that the word 'ownership' is used in this chapter. In an
extended sense the word is also applied to the analogous
relation in which a man stands to an incorporeal thing such
as patent-right or copyright, or to a universitas juris such
as inheritance.3 To constitute full ownership all the above-
mentioned rights must be exclusive. Where all these rights
are vested in one person to the exclusion of others he is
sole owner.4 Where all these rights are vested in two or
more persons to the exclusion of others they are co-owners.
If one or more of these rights is vested in one person, the
remainder in another or others, the ownership of each of
such persons is qualified or restricted.5 Thus, if you have
by contract or otherwise acquired the right to : (a) possess, puu
or (6) use, or (c) alienate, my property, my ownership is, ownership
BO far, restricted ; and ownership is, so far, vested not in qualified
me but in you. But since to speak of us both as owners
1 Holland, Jurisprudence, p. 210; V.d.L. 1. 7. 1.
2 Gr. 2. 3. 1.
3 Holland, Jurisprudence, p. 211. Properly speaking, the sub-
ject-matter of ownership is in all cases a right, but usage and
convenience permit us to speak of the ownership of a material
thing and to distinguish this both from the extensive sense of
ownership mentioned in the text, and from jura in re aliena
(servitudes, hypothec, &c.) and jura in personam (obligations).
4 Gr. 2. 3. 10. 8 Gr. 2. 3. 11; 2. 33. 1.
126 THE LAW OF PROPERTY
would be misleading, unless the degree of ownership of
each of us were on every occasion exactly specified, it is
usual to speak of one of us only as owner of the thing and
as having a restricted ownership in it, while the other
is spoken of as owner of the right, and as having a right
Jura in re of possession, a right of use and enjoyment, a right of
alienation, in or over the property of another. Hereupon
the question arises which of two or more such competitors
is to be regarded as owner, which not as owner. The
answer depends not so much on the extent of the right
or of the profit derived from it as on the consideration
where the residue of rights remains after the deduction
from full ownership of some specific right or rights of
greater or less extent. Thus, if I give you a right of way
over my field, clearly your right is specific and limited,
mine is unlimited and residuary.1 I therefore am owner,
you not. The same applies if you have the usufruct of
property, the residuary rights over which are vested in me,
or even if you have an inheritable right of the kind termed
emphyteusis.2 In all these cases the dominium remains in
me, but in the two last, being reduced to a mere shadow,
at all events for the time, it is bare ownership (nuda
proprietors), i.e. ownership stripped of its most valuable
incidents. All the above-mentioned rights, it must be
noted, whether greater or less, are rights of property, and
as such protected by appropriate remedies against all the
world ( jura in rem) ; but while the residuary right, how-
ever reduced, is a right of ownership (dominium — jus in re
propria), the specific rights, however extended, are rights
inferior to ownership (jura in re aliena). Such, at least, is
the analysis commonly accepted. Grotius, however, uses
the word eigendom (ownership) in a wider sense; for he
includes under it both dominium (stricto sensu) which he
distinguishes as voile eigendom — dominium plenum, and
jura in re aliena which he distinguishes as gebreckelicke
1 Gr. 2. 33. 5.
2 Gr. 2. 33. 1 ; Dig. 6. 3. 1 : Qui in perpetuum fundum fruendum
conduxerunt a municipibus, quamvis non efficiantur domini, &c.
THE MEANING OF OWNERSHIP 127
eigendom — dominium minus plenum* In the following
pages when we use the word ' ownership ' we mean either
complete ownership or the residuary right which remains
in a person after deduction from his ownership of specific
and limited portions of ownership vested in another or
others.
1 Gr. 2. 3. 9.
II
How
things
are classi-
fied.
Things as
objects of
owner-
ship.
THE CLASSIFICATION OF THINGS
WHEN we speak of the classification of things, we mean
their classification according to the legal system which
we are examining. In the Roman-Dutch system things
are classified, first, according to their relation to persons,
i.e. in regard to the question whether they are or are not
objects of ownership ; and secondly, according to their
nature, as corporeal and incorporeal, movable and immov-
able.1 The significance of these distinctions will appear
from the sequel.
THINGS AS OBJECTS OF OWNERSHIP. Justinian distin-
guishes things as (a) res communes, (6) res publicae, (c)
res universitatis, (d) res nullius, (e) res singulorum.2 These
categories have little scientific value, but will serve as a
basis of classification.
Res com-
munes
and res
publicae.
The air.
To the class of things common, i.e. common to all man-
kind, are referred the air, flowing water, the sea, and the
sea-shore.3 The class of things public includes harbours,4
public rivers or lakes,5 and public roads.6 In the Roman
view the above classes of things cannot be owned either
by individuals or by corporations. Thus, the air is not
susceptible of ownership, but it is not inconsistent with
this that a landowner has certain rights in respect of the
air incumbent on his land, so that, e.g. he may require his
neighbour not to project his building into it.7
1 Gr. 2. 1. 4.
2 Inst. 2. 1 pr. ; Gr. 2. 1. 16; Voet, 1. 8. 1 ; (a) (b) (c) and (d) are
said to be extra nostrum patrimonium, i.e. legally incapable of
being owned, or acquired by a private person. Other things are
in nostro patrimonio. Inst. loc. cit.
3 Inst. 2. 1. 1 ; Dig. 1. 8. 2; Gr. 2. 1. 17 and 21 ; Voet, 1. 8. 3.
4 Inst. 2. 1. 2.
5 Gr. 2. 1. 25-8; Van Leeuwen, 2. 1. 12.
6 'Herewegen.' Gr. 2. 35. 9; Gens. For. 1. 2. 14. 34; Stockmans,
Decis. Brabant, no. 85.
7 Gr. 2.1. 23; 2. 34. 8. As to aircraft see Act No. 16. of 1923, sec. 9.
CLASSIFICATION OF THINGS 129
The sea-shore is said to be res communis,1 but according The
to another and perhaps better view it was the property 8ea"sllore-
of the Roman people.2 In the modern law it is the property
of the Crown.3 The use is common to the people of the
State, so that every member of the community may use
it for any lawful purpose not inconsistent with the rights
of others.4 The sea-shore extends on the land side as far
as the highest winter flood.5
Rivers are either public or private. Public rivers are Public
such as flow perennially ;6 rivers which do not flow perenni- nvers-
ally are private. But a public river does not become private
merely from having dried up in one summer.7 Private
rivers are matter of private right and call for no further
reference in this place. Public rivers are publici juris. As
1 Inst. 2. 1. l.
2 Dig. 43. 8. 3 pr.
3 Survey or -General (Cape) v. Est. De Villiers [1923] A.D. at
p. 594 per Innes C.J. In South Africa the Sea-shore Act, 1935,
sec. 3(1) declares the Governor-General to be the owner of the
sea-shore. Sec. 13 reserves the rights of the public. For Ceylon
see Attorney -General v. Pitche (1892) 1 S.C.R. 11, and Rowel
Mudaliyar v. Pieris (1895) 1 N.L.R. 81.
4 This in Roman Law included the right of building ; and the
ground occupied became the property of the owner of the fabric,
but only for so long as the building stood. Dig. 1. 8. 6 pr. ; 41. 1.
14; Voet, 1. 8. 3.
6 Inst. 2. 1. 3; Dig. 50. 16. 96 and 112; Pharo v. Stephan [1917]
A.D. 1 ; (Ceylon) Fernandas. The Kalutar a Police (1943) 45 N.L.R.
49 ; and now in S.A. by statute : 'Sea-shore means the land situated
between low-water mark and high-water mark.' 'High -water
mark means the highest line reached by the sea during ordinary
storms occurring during the most stormy period of the year,
excluding exceptional or abnormal floods.' 'Low -water mark
means the lowest line to which the sea recedes during periods of
ordinary spring tides.' Sea-shore Act, 1935, sec. 1.
8 Dig. 43. 12. 1, 3.
7 Dig. 43. 12. 1. 2; Vermaak v. Palmer [1876] Buch. at p. 28;
De Wet v. Hiscock (1880) 1 E.D.C. at p. 257. In the (Union of
South Africa) Irrigation and Conservation of Waters Act, 1912,
public stream is denned (sec. 2) as 'a natural stream of water
which, when it flows, flows in a known and denned channel
(whether or not the channel is dry during any period) if the water
thereof is capable of being applied to the common use of the
riparian owners for the purposes of irrigation'; and 'a stream
which fulfils these conditions in part only of its course shall be
deemed to be a public stream as regards that part only'. See Van
Niekerk and Union Government v. Carter [1917] A.D. at p. 377.
4901
130 THE LAW OF PROPERTY
such they cannot be privately owned, but may be used and
enjoyed by all members of the community for navigation
or fishing.1 Amongst public rivers the Roman-Dutch Law,
following the feudal law, distinguished further between:
(1) navigable rivers and their tributaries, (2) other public
Regalia, rivers.2 The former class fell under the head of regalia,3 with
the result that fishing in navigable rivers and other inland
navigable waters was not permitted without licence from
Government.4 This distinction is of little or no importance
at the present time, for in the modern law the prerogative
of the Crown extends to all public rivers and streams.5
Whatever has been said as to the rights of the public in
public rivers must be understood subject to the qualification
that no person may exercise his right improperly to the
public detriment. Accordingly an interdict lies to prohibit
interference with navigation or the flow of the stream.6
1 Voet, 1. 8. 8.
2 This distinction appears already in the Roman Law in con-
nexion with the topic of leading water. Dig. 43. 12. 2; Voet,
1. 8. 9 (ad fin.).
3 Lib. Feud. II. 55 (56) (constitution of Frederick I of 1158);
Gudelinus, de jure novissimo, 5. 3. 5 ; Groen. de leg. abr. ad Inst.
2. 1. 2; Vinnius ad Inst. 2. 1. 2, sec. 3; Gr. 2. 1. 25-7; Huber,
Heedensdaegse Rechtsgeleertheyt, 2. 1. 17-19; Voet, 1. 8. 8 and 9
(ad fin.); 49. 14. 3.
4 Gr. 2. 1. 25-7; Van Leeuwen, 2. 1. 13; Voet, 1. 8. 9 ad Jin.;
41. 1. 6; but rod-fishing was allowed. Gr. 2. 1. 28. The right of
ferry (veer-recht) also was included under the head of regalia.
Provincial Administration (O.F.S.) v. John Adams and Co. [1929]
O.P.D. 29. On the subject of ferries reference may be made to
F. A. Holleman, Rechtsgeschiedenis der Heerlijke Veren in Holland,
a thesis presented for the degree of doctor juris, Leiden, 1928.
8 This seems a legitimate inference from Van Niekerk's case. By
Dutch Law regalia, speaking generally, were inalienable (Resolutie
van de Staten van Hollandt, 15 September, 1620, 3 G.P.B. 734);
and in this connexion the distinction indicated in the text may
still exist 'Without expressing any view upon the position of
navigable rivers it will be sufficient to say that the Crown may
validly include in a grant of land the bed of a non-navigable
public stream' (per Innes C.J. in Van Niekerk's Case at p. 373)
and 'when once property is shown to be riparian — that is, to run
up to the natural boundary of the river — then it lies upon him
who contests its extension to midstream to show that it stops at
the bank' (p. 376). For Ceylon see Wanigatunga v. Sinno Appu
(1925) 27 N.L.R. 50 (the bed of a public stream belongs to the
Crown). • Dig. 43, tits. 12 and 13.
CLASSIFICATION OF THINGS 131
The phrase res nullius is used in the Roman Law in Res
three distinct senses:1 (1) Res communes are said to be res nuUlus-
nullius and humani juris; (2) Res sacrae, religiosae and
sanctae (churches, graveyards, city walls) are res nullius
and divini or quasi divini juris ;2 (3) Things ownable, but
unowned, are res nullius3 and may be acquired by occupa-
tion. With regard to the second of these classes, which
alone here concerns us, it is sufficient to say that it has no
place in Roman-Dutch Law, since all the things comprised
in it are owned either by corporations or individuals or by
the State.4
Passing over things ownable, but unowned in fact, of Kesuni-
which we shall speak hereafter, we come to the last two Versi.tatl8»
•*• res sin.211*
classes in Justinian's division, viz. res universitatis and lorum.
res singulorum. The first class comprises things owned by
towns, villages, and similar societies or by corporations.5
The second class comprises things owned by individuals.
This distinction seems to be a distinction not of things,
but of persons, i.e. according as they are (a) artificial or
juristic persons; or (6) natural persons.
THINGS ACCORDING TO THEIR NATURE. Things are Things
further classified according to their nature as corporeal
and incorporeal.6 Corporeal things can be touched, e.g. nature:
land, houses, cattle, clothes.7 Incorporeal things consist andin-
in a right, as servitude, inheritance, obligations, debts, corporeal;
actions, rents.8
Again, things are divided into immovables and mov- immov-
ables.9 This is properly a classification of corporeal
things; but in law most incorporeal things are deemed
1 See Kotze's Van Leeuwen, vol. i, p. 148 (translator's note).
2 Voet, 1. 8. 1. 8 Inst. 2. 1. 12; Gr. 2. 1. 50-2.
4 Gr. 2. 1. 15 ; Van Leeuwen, 2. 1. 9 ; Groen. de leg. abr. ad Inst.
2. 1. 8 and 9; Cape Town Waterworks Co. v. Elders' Exors. (1890)
8 S.C. 9.
6 Gr. 2. 1. 31 ff. ; Voet, 1. 8. 10. The State (or what comes to the
same thing, the fiscus) may, of course, o wn property qua individual.
Property so owned is not properly speaking res publica. It is in
pecunia populi, not publico usui destinata. Dig. 18. 1. 6 pr. ; Gr. 2.
1. 40. 6 Gr. 2. 1. 9; Voet, 1. 8. 11.
7 Gr. 2. 1. 10. 8 Gr. 2. 1. 14; Voet, 1. 8. 18.
9 Gr. 2. 1. 10; Voet, 1. 8. 11.
132 THE LAW OF PROPERTY
to be comprised under immovables or movables.1 This
division, therefore, becomes the principal basis of classi-
fication. Where, however, the context requires it, in-
corporeal things form a third and separate class by
themselves.2 The class of things immovable comprises
not merely things physically immovable, but also some
movable and incorporeal things, which are deemed to be
immovable and are governed by the law of immovables.
The class of things movable comprises not merely things
physically movable, but also some incorporeal things
which are deemed to be movable and are governed by
What the law of movables. Immovable3 things and things
deemed to be immovable are: (1) land and houses;4
immov- (2) things naturally or artificially annexed to or associated
with land and houses5 (under this head fall growing
trees and fruits ; minerals, stones, &c. ; certain movables
annexed to houses even though temporarily removed;
certain movables not annexed to, but enjoyed along with,
land and houses or destined for perpetual use therewith) ;6
(3) praedial servitudes ;7 (4) personal servitudes over im-
movables ;8 (5) actions in rem directed to the recovery of
immovables ;9 (6) annual rents charged on land ;10and (7) in
the modern law, leases of immovable property so far as
they create rights in rem ;n (8) other real rights over land
1 Voet, 1. 8. 18; Ex parte Master of the Supreme Court [1906]
T.S. 563.
2 Voet, 1. 8. 29; V.d.K. 178-9; Ex parte CronwrighVs Exors.
[1938] C.P.D. 236.
3 Ontilbaer ofte onroerbaer; res immobiles. 4 Gr. 2. 1. 12.
6 Gr. 2. 1. 13 : Wat aerd- ofte naghel- vast is, werd ghehouden als
een gevolg van het ontilbare; Voet, 1. 8. 13-14. Rex v. Mabula
[1927] A.D. 159. Van Leeuwen (Gens. For. 1. 2. 1. 4) adds title-
deeds. For Ceylon see Brodie v. Attorney -General (1903) 7 N.L.R.
81. 6 Voet, ubi sup. 7 Voet, 1. 8. 20.
8 Voet, ibid. • Voet, 1. 8. 21. 10 Voet, 1. 8. 24.
11 Collins v. Hugo (1893) Hertzog 176 per Kotze J. ; Ex parte
Master of the Supreme Court [1906] T.S. 563; infra, p. 161. By
the Deeds Registries Act No. 47 of 1937, sec. 102, 'immovable
property' includes:
(a) Any registered lease of rights to minerals ; and (6) any
registered lease of land which, when entered into, was for a period
of not less than ten years or for the natural life of the lessee or any
other person mentioned in the lease, or which is renewable from
CLASSIFICATION OF THINGS 133
and houses.1 Mortgages, even of land, are classed as mov-
ables, the mortgage being considered as merely accessory
to a principal and personal obligation, whose nature it,
therefore, follows.2
Movable things and things deemed to be movable are : What
(1) all movable things except such as are deemed to be da^d^s
immovable ; (2) money, and rents accrued due3 (this movables.
includes money destined to be laid out in land,4 or arising
from the sale of land) ;5 (3) securities for money (including
mortgages of immovable property) ;6 (4) personal servi-
tudes over movables ;7 (5) actions in personam and actions
in rem directed to the recovery of movables ;8 (6) annual
rents not charged on land;9 (7) shares in a company;10
(8) all other property capable of classification as movable
or immovable and not specifically assigned to the class of
immovables. This includes most incorporeal rights other
than such as have already been mentioned.
The legal consequences and therefore also the impor- The im-
tance of the distinction of things as immovable or mov- P°^nce
able are principally the following:11 (1) in relation to the distinc-
Conflict of Laws immovables generally follow the lex loci
rei sitae, movables generally following the lex domicilii ;12 immov-
(2) immovables require special formalities of alienation or movables.
hypothecation ;13 (3) special rules apply to the alienation
time to time at the will of the lessee indefinitely or for periods
which together with the first period amount in all to not, less than
ten years. See also the definition of 'immovable property ' in Adm.
of Estates Act, 1913, sec. 2, and for Ceylon the definition of 'Land'
in Ord. No. 23 of 1927 (Registration of Documents Ordinance),
sec. 3.
1 Rosen v. Band Townships [1939] W.L.D. 5.
2 Voet, 1. 8. 27. Eaton v. Registrar of Deeds (1890) 7 S.C. at
p. 255 — perhaps not always. Union Govt. ; v. Fisher's Executrix
[1921] T.P.D. 328. 3 Voet, 1. 8. 22. * Voet, 1. 8. 15.
5 Voet, 1. 8. 16. 6 Voet, 1. 8. 27. 7 Voet, 1. 8. 20.
8 Voet, 1. 8. 21. According to Van der Keessel (Th. 179) an
action on a kusting-brief (infra, p. 203) is an immovable.
9 Voet, 1. 8. 24. 10 Act 46 of 1926, sec. 32 (1).
11 Voet, 1. 8. 30.
12 Paul Voet, De mobil. et immobil. natura, cap. xxiii, sees. 1 and 3.
13 Op. cit., cap. xix, sees. 3 and 4; as to transfer of immovables
out of an estate by an executor see Adm. of Est. Act, 1913, sec. 62.
134 THE LAW OF PROPERTY
of the immovable property of minors ;l (4) the process of
execution upon immovables differs from the process of
execution upon movables.2
The above distinctions, though a useful guide, are not in-
variably conclusive. A thing may, for instance, be treated
as immovable for some purposes but not for all. Thus a
mortgage of land, like a sale or other alienation, requires
to be solemnly executed and registered if it is to bind
third parties, and so far resembles immovable property,3
but is, nevertheless, as we have seen, in other respects
classed with movables.
Fixtures. As to things annexed to land or houses, or what are
commonly called fixtures, the question whether they have
become immovable through annexation by human agency
depends upon the circumstances of each case. 'The thing
must be in its nature capable of acceding to realty, there
must be some effective attachment (whether by mere
weight or by physical connexion), and there must be an
intention that it should remain permanently attached ' ;
and 'the intention required (in conjunction with annexa-
tion) to destroy the identity, to merge the title, or to
transfer the dominium of movable property must surely
be the intention of the owner'.4
1 Op. cit., cap. xviii, sec. 1 ; supra, pp. 49, 110.
2 Op. cit., cap. xx, sec. 7 ; Van der Linden, Verhandeling over de
Judicieele Practijcq, book iii, chap, vi; Nathan, Common Law of
South Africa, vol. iv, pp. 2206 ff. A judgment creditor must excuss
the movable property of his debtor before proceeding against the
immovables: Cape Rules of Court, Rule 36; Hart v. Lennox [1926]
W.L.D. 219. As to the incapacity of a guardian to take immovable
property under the will of his ward see below, p. 364. The dis-
tinction is also of importance in insolvency, in construing wills,
contracts and mortgages, and in determining the incidence of
transfer duty, rates and taxes.
8 Voet, 1. 8. 27.
4 Macdonald Ltd. v. Rodin N. 0. & Potchefstroom Dairies [1915]
A.D. at pp. 466-7 per Innes C.J. ; Gault v. Behrman [1936]
T.P.D. 37; (Ceylon) Tissera v. Tissera (1940) 42 N.L.R. 60.
Ill
HOW OWNERSHIP IS ACQUIRED
IN this chapter we deal with the acquisition and extinc- Modes of
tion of ownership in corporeal things and principally with *^^f "
the legal modes of acquisition of ownership, i.e. the pro- corporeal
cesses which, in law, make a thing mine. The modes of
acquiring and losing ownership of incorporeal things will
be considered in connexion with the various incorporeal
things of which we shall speak hereafter. The modes of
acquisition of corporeal things, i.e. of single things (rerum
singularum) — for with acquisition per universitatem we
are not now concerned — are principally the following: viz.
(1) occupation; (2) accession; (3) specification; (4) tradi-
tion or delivery; (5) prescription. We shall speak of these
in order. Since the Dutch treatment of modes of acquisi-
tion closely follows the Roman Law, we shall credit the
reader with a knowledge of the first title of the second
book of Justinian's Institutes and limit ourselves to re-
calling the heads of classification therein contained, and
to directing the attention to some particulars in which the
Roman-Dutch Law presents features of peculiar interest.
I. Occupation may be defined as the lawful seizing Occupa-
(with the intention of becoming owner) of an unowned tlon*
corporeal thing capable of ownership.1 This mode of ac-
quisition is applicable inter alia to: (1) wild beasts, birds,
and fishes ;2 (2) enemy goods ;3 (3) abandoned things (res
derelictae) ;4 and, in short, to every ownable thing which
either never has been owned or having once been owned
is owned no longer.5
With regard to wild animals the Dutch Law departed Wild
animals.
1 Voet, 41. 1. 2; Heinecc. Elem. Jur. Civ. ad Inst., sec. 342.
2 Inst. 2. 1. 12-16; Bichter v. Du Plooy [1921] O.P.D. 117;
Lament v. Heyns [1938] T.P.D. 22. Held by the Natal Court in
Dunn v. Bowyer [1926] N.P.D. 516 that a person who captures a
wild animal illegally does not become owner.
3 Inst. 2. 1. 17; Mshwakezele v. Guduka (1903) 18 S.C. 167.
4 Inst. 2. 1. 47. 6 Gr. 2. 1. 60.
136 THE LAW OF PROPERTY
in many particulars from the law of Rome. It is, however,
unnecessary to recall the obsolete feudal customs and
game laws which formed part of the old law.1 Such
matters are now regulated by legislation.2 One doubtful
point may be mentioned, viz. as to the ownership of
tamed animals which have lost the animus revertendi.3
According to several authorities they do not thereby re-
vert to their natural liberty, but remain the subject of
private ownership.4 Falcons and sparrow-hawks are cited
as examples. The instances given suggest that the rule
belongs to an order of ideas which has passed away.
Lost Things which have been lost by their owner remain his
prope y. prOper^y an(j cannot be acquired by occupation.5 A person
who takes them in bad faith commits theft.6 If after
proper inquiry the owner is not found, the finder of a
thing may retain it, but the full prescriptive period of
thirty years must elapse before he can claim to remain in
Wreckage, possession as owner.7 Wreckage is separately treated.
This Grotius tells us, 'used from of old to be regarded as
the private property of the Counts, but in view of the
increase of shipping in and about these lands the Count,
nobles, and towns decreed that every one might recover his
shipwrecked and lost property'.8 The claim must be made
within a year and six weeks,9 and the owner must bear
1 For which see Gr., book ii, chap. 4 ; Van Leeuwen, 2. 3. 2 ff .
They were swept away at the end of the eighteenth century (1795),
but fresh regulations were found necessary a few years later.
V.d.L. 1. 7. 2.
2 See e.g. Ceylon Ord. No. 1 of 1909, which amends and con-
solidates the law relating to the protection of game, wild beasts,
birds, reptiles, and fish. For the Union see Elaine's Consolidated
Index to Statute Law, sub voce 'Game', and for Southern Rhodesia
Revised Statutes, cap. 187.
3 Inst. 2. 1. 15; Dig. 41. 1. 5. 5; Gr. 2. 4. 13.
4 Cens. For. 1. 2. 3. 7 ; Voet, 41. 1. 7 ; Groen. de leg. abr. ad Inst.,
ubisup. Modern Codes (B.G.B. 960, Code Civil Suisse 719) follow
the Roman Law. 5 Voet, 41. 1. 9; V.d.K. 189; V.d.L. 1. 7. 2.
6 Inst. 2. 1. 48 (ad fin.). 7 Voet, ubi sup. ; V.d.k. 189.
8 Gr. 2. 4. 36. There was much legislation. Lee, Commentary,
ad loc.
9 So says Grotius, but further authority is wanting ; Rechts. Obs.,
pt. 4, no. 18. Gr. is followed by Vinnius (ad Inst. 2. 1. 47) and by
Schorer (ad Gr. 3. 27. 6), both of whom attribute this time limit to
HOW OWNERSHIP IS ACQUIRED 137
the cost of salvage.1 If the wreckage remains unclaimed,
it belongs not to the finder, but to the fiscus.2
Treasure in Roman Law went, as a rule, half to the Treasure.
finder, half to the owner of the land where it was found,3
and, therefore, if found by the owner of the land, wholly
to the finder. In Holland it was matter of contro-
versy whether treasure followed the rules of the Roman
Law or went to the Count or public chest. Grotius,4 who
is charged with official bias,5 leaves the question open.
Groenewegen decides against the Treasury ;6 and this view
has prevailed.7
Where several persons are interested in the same land,
e.g. as dominus and usufructuarius, mortgagor and mort-
gagee, vendor and purchaser (before delivery), the question
may well arise who is entitled to the owner's share.8 The
reader will find the matter considered by Voet in his com-
mentary, lib. xli, tit. 1.
Mines and precious stones should, on general principles, Mines and
belong to the owners of the soil, and that this was so by
Dutch Law is the opinion of Voet, expressed, however,
a Placaat of Philip II. If the reference is to the Placaat of May 15,
1574 (2 G.P.B. 2117) this is incorrect. The statement reappears
in Johnson & Irvin v. Mayston (1908) 29 N.L.R. at p. 701. It
may be open to question in S.A. whether matters relating to
wreck are governed by R.-D. L. or by English Law. See Cape Act
No. 8 of 1879; 2 Maasdorp, p. 45; Crooks & Co. v. Agricultural
Co-op. Union [1922] A.D. 423. l V.d.L. 1. 7. 2 (bergloon).
2 Grotius (ubi sup.) adds 'but may easily be redeemed '. See also
V.d.K. 193-7. For Ceylon Law see Ord. No. 4 of 1862, sec. 2;
Pereira, p. 343.
3 Inst. 2. 1. 39 ; Dig. 41. 1. 31, 1 ; 49. 14. 3, 10; Cod. lib. x, tit. 15.
4 Gr. 2. 4. 38.
5 He was appointed advocate fiscal in 1607 and pensionaris of
Rotterdam in 1613.
6 Groen. de leg. abr. ad Inst. 2. 1. 39, sec. 4.
7 Voet, 41. 1. 11; Vinnius ad Inst. 2. 1. 39 in fine; V.d.K. 198.
In Ceylon by Ord. No. 17 of 1887, sec. 2, all treasure trove is the
absolute property of His Majesty, and the person finding the same
is not, as of right, entitled to any portion thereof, but the Ord.
(as amended) provides for a reward to the finder. Treasure trove
is defined by Ord. No. 3 of 1891, sec. 2; found property, other
than treasure trove, goes half to the finder, half to the Treasury.
Regulation, No. 15 of 1823; Ord. No. 26 of 1917.
8 Voet, 41. 1. 12.
138 THE LAW OF PROPERTY
with no certain voice.1 In the modern law such matters
are regulated by statute.2
Accession. II. Accession is a mode of acquiring ownership whereby
a thing becomes the property of a person by being physi-
cally or intellectually associated with some other thing
of which such person is already owner.3 The thing which
accedes may either be previously unowned (res nullius) or
previously owned (res alicujus}. When two owned things
become united by accession it may be questioned which
of the two accedes to the other, i.e. which is principal,
which accessory. Grotius says that ' accession takes place
when of two things which are joined together the more
valuable draws to itself the less valuable'.4 But the test
adopted by Ulpian is better : ' Whenever we ask which of
two things cedes to the other, we look to see which is
applied to ornament the other';5 so that, e.g. precious
stones adhere to a silver plate in which they are set; or
we may say that the principal thing is the thing which
maintains its independent existence whether the other
thing is joined to it or not.6
Cases of Accession comprises inter alia the following modes of
lon- acquisition: viz. (1) alluvion;7 (2) island rising in a river;8
(3) change of river-bed ;9 (4) industrial attachment (ad-
junctio) ;10 (5) planting11 and sowing.12 Details will be
noticed only so far as the Roman-Dutch Law presents
features of peculiar interest. .
Alluvion. Alluvion is defined as a 'latent increment, whereby
something is added to land so slowly that it is impossible
1 Voet, 41. 1. 13, and see 49. 14. 3.
2 For Ceylon Law see Ord. No. 5. of 1890 and Pereira, p. 286.
3 Voet, 41. 1. 14; V.d.L. 1. 7. 2.
4 Gr. 2. 9. 1 ; A Mine Timber Co. v. Hlatwayo [1932] T.P.D. 337.
6 Dig. 34. 2. 19, 13.
8 Dig. 6. 1. 23, 5; 41. 1. 26 pr. 7 Inst. 2. 1. 20.
8 Inst. 2. 1. 22. 9 Inst. 2. 1. 23.
10 Inst. 2. 1. 26 (intextura) ; sees. 29 and 30 (inaedificatio) (John-
son & Co. v. Grand Hotel Co. [1907] O.R.C. at p. 50; Reed Bros. v.
Ford [1923] T.P.D. at p. 153) ; sec. 33 (scriptura) ; sec. 34 (pictura) ;
Cooper v. Jordan (1884) 4 E.D.C. 181 (wheels annexed to wagon).
11 Inst. 2. 1. 3.1 ; Secretary for Lands v. Jerome [1922] A.D. at
p. 117. 12 Inst. 2. 1. 32.
HOW OWNERSHIP IS ACQUIRED 139
to say how much is added at any one moment'.1 By the
Roman Law land so added by the wash of a river or stream
belonged to the owner of the land to which it adhered.2
In the Netherlands the law of alluvion was very un-
settled, and varied from province to province.3 According
to one view alluvion, being an incident of rivers, fell under
the head of regalia.4 'Certainly in South Holland,' says
Vinnius, 'no man was formerly found to claim this right
of increment as his own unless on the ground that the
right had been granted to him by the Count, or that the
land had been assigned to him to hold by the same right
as the Count had therein, that is, up to the river.'5 On
principle the claim of prerogative must be limited to
navigable public rivers, these alone falling under the head
of regalia.6 This limitation is not always expressed by the
Dutch writers, who lived in a land where all rivers are
navigable. The claim, whatever its extent, is not admitted
by Van Leeuwen,7 or by Voet8 except in the case of agri
limitati.9 Grotius declares the claim of the Count in this
case to be undoubted.10 . Beyond this he expresses no
certain opinion.
Another case of accession is that of an island rising in island
a public river. Here the claim of the Count is admitted by ™"^
the Dutch writers, who consider that the ownership of the
island follows the ownership of the stream.11 The result is
the same when a navigable public river wholly abandons
its course. The deserted river-bed belongs to the Crown.12
I Inst. 2. 1. 20. 2 Gr. 2. 9. 13; Voet, 41. 1. 15.
3 Gr. 2. 9. 18 ff. ; Van Leeuwen, 2. 4. 2.
4 Cens. For. 1. 2. 4. 12; Groen. de leg. abr. ad Inst. 2. 1. 23;
Bort, Tractaet van de Domeynen van Hollandt, cap. 5, sees. 16 ff.
6 Vinnius ad Inst. 2. 1. 20, sec. 2, following Gr. 2. 9. 26; Van
Leeuwen, 2. 4. 4. 6 But see above, p. 130.
7 Cens. For. ubi sup. 8 Voet, 41. 1. 28.
9 i.e. 'defined by straight lines, having no necessary relation to
natural features, as was usual in grants by the State.' Buckland,
p. 211. 10 Gr. 2. 9. 25.
II Voet, 41. 1. 17; Vinnius ad Inst. 2. 1. 22, sec. 7; Schorerod
Gr. 2. 9. 24 ; Van Leeuwen, 2. 4. 2.
12 Voet, 41. 1. 18: moribus nostris magis est ut alveus numinis
desertus fisco cedat. The same holds good of the beds of public
140 THE LAW OF PROPERTY
But a partially abandoned river-bed accedes to riparian
owners provided that they have the right of alluvion.1
Inunda- If land is covered by flood it does not therefore cease
to belong to its owner, who may resume possession when
the flood abates.2 In Holland, naturally, the legal conse-
quences of inundation were matter of serious interest. The
rule of the Roman Law, which left inundated lands the
property of their original owners, might have hindered
efforts at reclamation. Accordingly, the law provided that
if the land had continued under water for a whole period
of ten years, and the owner had not given any evident
indication of an intention to retain possession (which,
contrary to the Roman Law,3 he might do by fishing
merely), the land was held to be abandoned and to go to
the Count.4 It is scarcely necessary to add that inter-
mittent floods do not affect the ownership of property
Sand without evidence of abandonment.5 In Holland sand-
(^^* drift was by custom assimilated to flood, so that if land
had for a period of ten years remained unenclosed from
the waste and completely covered by sand it became by
lakes. Voet, 41. 1. 18. Of. 1 O.P.B. 1252 ; and see Bort, Domeynen
van Hollandt, cap. 5, sees. 38 ff.
1 Vinnius ad Inst. 2. 1. 23, sec. 3. The statement in the text
must be read in connexion with the decision in Van Niekerk &
Union Oovt. v. Carter [1917] A.D. 359 to the effect that property
bounded by a non -navigable stream must be presumed to extend
ad medium filum fluminis ; and that, though this presumption
may be rebutted, the mere facts that the diagram does not extend
beyond the bank and that the specified measurement is complete
without such extension are not, either singly or together, sufficient
to establish a rebuttal (per Innes C.J. at p. 378). As to navigable
rivers the Court refrained from expressing an opinion (supra,
p. 130, n. 5). It is interesting to note that 'the Roman-Dutch
Law that riparian owners only own to the edge of the stream is the
present law of New York. . . . The survival of this law has resulted
in litigation with reference to the bed of the Hudson River. '
Prof. H. Milton Colvin in Memoir es de V Academic Internationale de
Droit compare (Sirey, Paris, 1934, vol. ii, pt. ii, p. 136). The
Dutch were in occupation from 1624 to 1664.
2 Inst. 2. 1. 24.
3 Dig. 7. 4. 23. The text is not altogether in point, but it is cited
in this connexion.
4 Gr. 2. 9. 7; Voet, 41. 1. 19; Vinnius ad Inst. 2. 1. 24, sec. 2.
8 Gr. 2. 9. 8.
HOW OWNERSHIP IS ACQUIRED 141
accession the property of the owner of the adjoining waste
and sand-hills, i.e. usually the property of the fiscus.1
Another small difference between the Roman and the Inaedi-
Roman-Dutch Law may be noted in connexion with the c
rights of the owner of material which another person has
used for building his house.2 By a rule which dates from
the XII Tables, the last-named person, at all events if the
material was res furtiva, was answerable to the owner for
double value (actio de tigno juncto)* In Dutch Law the
double penalty was not admitted, but the owner of the
material had his action for damages.4
Voet brings acquisition of fruits under the general head Acquisi-
of accessio. It is more often treated as a distinct title. But fr°"t°
on a careful analysis it appears that the various cases of
acquisition of fruits cannot be referred to a single principle.
The usufructuary acquires by perceptio, i.e. by taking,
the emphyteuta and bona fide possessor by separatio, the
lessee by a kind of traditio.5
III. Specification is a separate mode of acquisition. Specifica-
The media sententia adopted by Justinian6 is an unsatis-
factory solution. The French code does better by discard-
ing the test of reducibility, and assigning the ownership
to the specificator, when the value of the work far exceeds
the value of the material.7
IV. Tradition or Delivery8 considered as a mode ofTradi-
acquisition may be described as a transfer of possession
of a corporeal thing under such circumstances that it
effects a transfer of ownership.9 Normally, tradition
implies a physical transference of possession from one
person to another. But this is not always so. The trans-
ference may have taken place already for some other
cause. Thus, I have lent you my watch. Now I give it
1 Gr. 2. 9. 6; Voet, 41. 1. 20. No ultimate authority has been
found for this statement. 2 Inst. 2. 1. 29-30.
3 Dig. 47. 3. 1; 24. 1. 63; 6. 1. 23, 6; 10. 4. 6.
4 Gr. 2. 10. 7 ; Groen. de leg. abr. ad Inst. 2. 1. 29 ; Voet, 47. 3. 2.
5 Girard, p. 344; Buckland, Textbook, p. 221.
8 Inst. 2. 1. 25. 7 C.C. Arts. 570, 571.
8 Leevering ofte opdrachte. Gr. 2. 5. 2.
• Voet, 41. 1. 34.
142 THE LAW OF PROPERTY
you.1 As a rule the ownership in a gift does not pass until
tradition. But here tradition has preceded and further
handing over is unnecessary. This is called 'brevi manu
traditio'.2 The same consequence follows if an agent who
holds goods for A receives directions to hold them for B.
' The effect of such change of custody is to constitute
delivery to such third person.'3 Conversely, I may agree
to remain in possession, not as owner any longer, but as
borrower, e.g. I give you my watch on condition that you
are to lend it me until next week. Technically, two trans-
ferences of possession are necessary, first to perfect the
gift, secondly to effect the loan. But the two cancel one
another, and I remain in physical possession, but under a
new right. This is called 'constitutum possessorium'.4 An
alleged agreement of the sort is regarded by the Courts
with some suspicion and disfavour. ' A process by which a
change of dominium may depend upon a mere change of
mental attitude is one the application of which should be
carefully scrutinized.'5 In both the above cases the tradi-
'Ficti- tion is said to be ' feigned ' or ' fictitious ' ; and so it is too
tradition, when there is no actual handing-over, but a thing is placed
in my sight or I am placed in sight of it, so that I may
easily take possession.' This is 'longa manu traditio'.6
Another kind of tradition is said to be symbolical, e.g.
when the keys of a warehouse are handed over (on the
spot ?), the building and its contents are deemed to pass.7
But there is nothing symbolical or fictitious about this
1 Inst. 2. 1. 44; Dig. 41. 2. 9, 5. Cf. Dig. 12. 1. 9, 9; 12. 1. 10.
2 Gr. 2. 5. 11 ; Voet, 41. 1. M;Meintjes v. Wilson [1927] O.P.D.
183
3 Court v. Mosenihal & Co. (1896) 13 S.C. at p. 153; B.G.B. 931.
4 This is still recognized in S.A. Goldinger's Trustee, v. Whitelaw
[1917] A.D. 66; Groenewald v. Van der Merwe [1917] A.D. 233;
Katz v. Dreyer's Trustee [1920] A.D. 454; Visagie v. Muntz & Co.
[1921] C.P.D. 582.
5 per Innes C.J. in Goldinger's Trustee v. Whitelaw & Son,
ubi sup. at p. 74.
6 Dig. 46. 3. 79 ; Groenewald v. Van der Merwe, ubi sup. at p. 239 ;
Xapa v. Ntsoko [1919] E.D.L. 177; Kaal Valley Supply Stores v.
Louw [1923] O.P.D. 60.
7 Inst. 2. 1. 45; Dig. 41. 1. 9, 6. Papinian (Dig. 18. 1. 74) says
'apud horrea'.
HOW OWNERSHIP IS ACQUIRED 143
process, for handing over the keys is the best means of
giving control over and therefore possession of the ware-
house and its contents.1 In other words, the possessor of
the keys is prima facie also possessor of the building.
Tradition will not operate as a means of acquiring Essentials
ownership (but only as a transfer of possession) unless °f0^^
the following conditions concur : mode of
1. The transferor must be owner, or at least act by
authority of the owner, viz. as his servant or agent.2
Ratification is equivalent to antecedent authority.
2. The transferor must have the intention of transferring
ownership3 ex justa causa.4 Such intention is absent when
a person transfers his own property in error, supposing
that it is the property of another person.5
3. The transferor must be legally competent to alienate.
Therefore a minor (generally speaking) or an interdicted
prodigal cannot pass ownership by tradition without the
authority of his tutor or curator.6
1 Savigny, Das Recht des Besitzes, book ii, sec. 16 ; C. H. Monro
on Dig. xli, 1, Appendix 1.
2 Inst. 2. 1. 42-3 ; Dig. 41. 1. 20 pr. ; Gr. 2. 5. 15 ; Van Leeuwen,
2. 7. 5; Voet, 41. 1. 35. Sometimes the authority is conferred by
law and not by act of party. ' Accidit aliquando ut qui dominus
non sit alienandae rei potestatem habeat' (Inst. 2. 8 pr.), as the
pledgee, or the guardian as administrator of his ward's property.
3 Inst. 2. 1. 40.
4 This means that the legal disposition intended is of such a kind
that the transfer of possession carries with it in law transfer of
ownership. Dig. 41. 1. 3 pr. : Nunquam nuda traditio transfert
dominium sed ita si venditio aut aliqua justa causa praecesserit
propter quam traditio sequeretur. See Beyers v. McKenzie (1880)
Foord at p. 127. The causa need not literally precede. It may be
simultaneous with the tradition.
5 Dig. 41. 1. 35: nemo errans rem suam amittit.
6 Supra, pp. 49 and 115. For prohibition of alienation in fraud
of creditors see Gr. 2. 5. 3 (ad fin.) and 4 ; Van Leeuwen, 2. 7. 8-9 ;
Voet, lib. xlii, tit. 8 (actio pauliana); V.d.K. 199-200; and the
learned judgment of Berwick D.J. (Ceylon), in Ramanathan,
1872-6, 7, p. 89 (repeated in 3 N.L.R. 282). More recent cases
— Punchi Banda v. Perera (1928) 30 N.L.R. 355 ; Deutrom v. Deu-
trom (1935) 37 N.L.R. 91. In the law of South Africa the ground
has been to a great extent covered by the Insolvency Acts, but
not to the exclusion of the common law remedy where applicable.
Scharff's Trustee v. Scharff [1915] T.P.D. at p. 476; Wiener v.
Est. McKenzie [1923] C.P.D. at p. 579; Mars, Insolvency, p. 220.
144 THE LAW OF PROPERTY
4. The thing transferred must be legally alienable by
delivery. This rules out things which cannot be owned
by individuals, and things which cannot be alienated by
this process.1
5. The transferee must have the intention of becoming,
and must be competent to become, owner in consequence
of the transfer.2
Transfer Thus far we have spoken of transfer in general, making
of immov- no distinction between movables and immovables. Nor
ables in
Roman- was any sucli distinction known to the later Roman Law.
Land and movables alike passed by delivery.3 But in
Roman-Dutch Law it was otherwise. Custom, in its many
varieties, demanded something more to perfect a title to
land.4 In parts of Holland, as of Germany,5 the con-
veyance was required by local law to be passed before the
Court of the district in which the land was situated.6 This
practice was made general and obligatory by a placaat of
1 Res incorporates. Dig. 41. 1. 43, 1.
2 Dig. 44. 7. 55: In omnibus rebus quae dominium transferunt,
concurrat oportet affectus ex utraque parte contrahentium. Cf.
Weeks v. Amalgamated Agencies Ltd. [1920] A.D. at p. 230. But
it was not necessary that the transferee should intend to become
owner by the causa, which was in the contemplation of the trans-
feror. Dig. 41. 1. 36. The special rules of law relating to the transfer
of ownership in things sold are considered in a later chapter.
3 i.e. when traditio superseded mancipatio in sale of lands.
But publicity was required and, in practice, a written instrument.
Buckland, Textbook, p. 231.
4 Fock. And., vol. i, pp. 192 ff. ; de Blecourt (5), pp. 225 ff.
6 Gierke, Deutsches Privatrecht, ii. 271.
8 Gr. 2. 5. 13; Voet, 41. 1. 38; V.d.K. 202; Rechts. Obs., pt. 3,
no. 32. In the old law the person making cession of the land
symbolized the transfer by handing over a sod or twig, later by
handing over or throwing from him a straw (halm). Fock. And.,
vol. i, p. 192. The handing over of the title-deeds sometimes served
the same purpose. Ibid. This process (called 'overdracht' or
'transport') passed the property, though not followed by entry
on the land. Ibid., p. 195, n. 1. The history of land transfer in
R.-D. L. is considered by the Ceylon S.C. in Appuhamy v. Appu-
hamy (1880) 3 S.C.C. 61. In this Colony: 'Traditio whether actual
or symbolic is no longer necessary for the consummation of a sale
of immovable property and has been replaced by the delivery
of the deed' per Bertram C.J. in Gunatilleke v. Fernando (1919)
21 N.L.R. at p. 265 ; confirmed in appeal to P.C. [1921] 2 A.C. 357 ;
22 N.L.R. 385.
HOW OWNERSHIP IS ACQUIRED 145
the Emperor Charles V of May 10, 1529,1 which enacts Placaatof
that 'henceforth no one shall presume to sell, charge, ofMayio
convey, alienate, or hypothecate any houses, lands, plots 1629.
of ground, tithes, tijnsen (infra, p. 157), or other immov-
able property except before the Judge and in the place
where the goods are situated '. All sales, &c., which do not
comply with this provision are to be null and of no effect.
An exception is permitted in the case of feuds, which may
be granted in the feudal Court according to ancient custom.
Later placaats of the States of Holland imposed a duty of The duty
the fortieth penny (2^ per cent.) on all transfers for value2 ^^e
(half to be paid by the seller, half by the purchaser), and penny,
the Political Ordinance of April 1, 1580 (Art. 37), further
required registration in the land-book.3 Failing com- Registra-
pliance with either of these conditions, the transaction was tlon'
null and void.4 This continued to be the law until the fall
of the Dutch Republic, and it remains in its essential
features the law of land-transfers at the present day.5 In The Deeds
South Africa the only important change that has taken ^f^uta
place consists in the creation of a Deeds Registry, which Africa,
supervises all transfers of land and exercises the functions
formally vested in the Court.6
It should be noted that, though transfers which fail to
1 1 G.P.B. 374; Gr. ubi sup.-, Gens. For. 1. 2. 7. 6; Voet, 41. 1.
38-42. 2 1 G.P.B. 1953.
3 1 G.P.B. 339. A similar provision is contained in the reissue
of the Placaat of 1598, dated March 6, 1612, 1 G.P.B. 1957 and
1961. Registration seems to have been first enjoined by a" Placaat
of May 9, 1560 (2 G.P.B. 759 and 1402).
4 Art. 13 of the Placaat (reissue of 6 March, 1612). 1 G.P.B.
1957.
8 British Guiana, together with other archaic usages, retained
the practice of transfer coram judice. For Ceylon see Registration
of Documents Ordinance, No. 23 of 1927, by sec. 7 of which an
unregistered instrument is void as against all parties claiming an
adverse interest thereto on valuable consideration by virtue of
any subsequent instrument, which is duly registered. As to the
effect of an unregistered deed see Ceylon Exports Ltd. v. Abey-
sundere (1933) 35 N.L.R. at p. 430.
6 For the law of South Africa herein see Harris v. Buissinne's
Trustee (1840) 2 Menz. 105 ; Van Aardt v. Hartley's Trustees (1845)
2 Menz. 135; Melck, Exor. of Burger v. David (1840) 3 Menz. 468;
Wessels, History, pp. 498-9.
4901 T.
146 THE LAW OF PROPERTY
Between comply with the provisions of the Placaats of 1529 and
parties an 1598 are declared to be null and void, the transaction is
informal jn fac^ only avoided as against third persons, whether
holds purchasers or creditors. As between the parties them-
good. selves the contract holds good,1 and the risk passes to the
purchaser,2 but until the solemn conveyance takes place the
ownership remains where it was.3 In South Africa owner-
ship passes ' at the moment that delivery of the property
is given to [the purchaser], and that delivery occurs at the
moment his name is entered on the register as the new
dominus of the property'.4
Prescrip- y. Prescription. This means acquisition of ownership
tion : in . . T -11 i
the latest by long-continued possession. It will be remembered that
Roman Justinian fused the civil law institution of usucapion and
the provincial institution of long-time-possession or pre-
scription, and provided that possession of movables for
three years, of immovables for ten years inter praesentes,
for twenty years inter absentes (this meant that so long as
the parties were not resident in the same district the
prescriptive period was doubled), if originating in just title
and acquired in good faith made the possessor owner. The
thing possessed must not have been stolen or possessed by
violence. Possession for thirty years of movables or im-
movables, if accompanied in its inception by good faith,
though not originating in a just title, made the possessor
owner, even of a res furtiva, but not of a res vi possessa.
The commentators call this longissimi temporis praescriptio.
in the in the Netherlands the whole subject of prescription
lands. was involved in the greatest uncertainty, according as
local practice approached to or receded from the Roman
Law.5 The situation was further complicated by the
1 Neostad, Supr. Cur. Decis., no. 70 ; 2 Maasdorp, p. 87.
2 Neostad, Decis. van den Hove, no. 32.
8 Bijnk, O.T. i. 764, 810; Harris v. Buissinne's Trustee, ubi
sup. ; Lee, Commentary, p. 82.
4 Breytenbach v. Van Wijk [1923] A.D. at p. 547. But registra-
tion is not necessarily conclusive as to ownership, e.g. in case of
marriage in community, or where a statute regulates the owner-
ship of land. Collin v. Toffie [1944] A.D. at p. 463.
6 Gr. 2. 7. 5; Fock. And., vol. ii, pp. 123 £E.
HOW OWNERSHIP IS ACQUIRED 147
presence of two new terms of prescription,1 a shorter
period of a year and a day (which meant in practice a year
and six weeks),2 and a longer period of a third of a century
(which meant in practice thirty-three years and four
months and, as some add, three or four days).3
The first of these was of Germanic origin.4 We shall The
" *! f
meet with it again in connexion with the possessory I*5" r °
remedy known as 'complainte'.5 Independently of this it and a
fell out of use after the middle of the seventeenth century.6 ay'
The prescription of a third of a century — in origin, it The
would seem, merely a variant from the thirty years' pre- a thkd of
scription of the Theodosian Code7 — came eventually to be a century
the usual term of prescription, at all events for immovable movables.
property.8 The 'Great Privilege' granted by Mary of
Burgundy of March 14, 14769 (Art. 47), fixes the period of
prescription for immovables (leenen ende erffelijcke goeden)
at a third of a century,10 and the same term is met with
in numerous documents of the sixteenth century side by
side with the shorter and longer periods of the Roman Law.
After Grotius pronounced in its favour it was generally ac-
cepted as the proper term of prescription for immovables.11
With regard to movables Grotius expresses no final opinion. The
Groenewegen, whose book was published in 1649, sa
that the period of prescription is a third of a century for years for
immovables, but thirty years for movables.12 mova e8'
At the Cape the period of prescription was thirty years Prescrip-
alike for movable and immovable property, the first by g^JJ1
common law, the second by statute, and this is now Africa,
general throughout the Union.13
1 Gr. 2. 7. 6 ff. 2 Voet, 44. 3. 4.
3 Matthaeus, Paroemiae, no. 9, sec. 1.
4 Fock. And., vol. ii, p. 124. B Infra, p. 163.
6 Voet, 44. 3. 8 (ad fin.); V.d.K. 208.
7 Cod. Theodos., lib. iv, tit. 14; Cod. 7. 39. 3 (A.D. 424) ; Van de
Spiegel, Oor sprang en historic der Vaderlandsche Rechten, pp. 129-
30.
8 Gr. 2. 7. 8; Groen. de leg. abr. ad Cod. liv. vii, tit. 39; Van
Leeuwen, 2. 8. 5; Cens. For. 1. 2. 10. 11. 9 2 G.P.B. 671.
10 See Gr. 2. 7. 8. n V.d.K. 206.
12 Groen. de leg. abr. ad Cod. 7. 39, sec. 3.
13 Cape Act 7 of 1865, sec. 106 ; 2 Maasdorp, p. 93 ; Prescription
148 THE LAW OF PROPERTY
Good Some other points in the law of prescription are less
just title doubtful. Contrary to the Roman Law the Roman-Dutch
unneces- Law requires neither good faith nor just title.1 All that is
required is that the possession or quasi-possession of the
person claiming by prescription shall be 'peaceable, open
and as of right' (nee vi nee clam, nee precario),2 and
but uninterrupted.2 Interruption (usurpatiof is either: (1)
mustSbe°n natural> i-e- physical, or (2) judicial, i.e. by instituting
undis- proceedings to enforce an adverse claim.4 Physical inter-
ruption, as negativing continued possession, is an absolute
bar to prescription ; judicial interruption prevents its run-
ning against the person who institutes the proceedings.5
In calculating the period of prescription, the possession of
the predecessor in title, if adverse to the original owner,
may be reckoned (conjunctio temporum) without any dis-
Against tinction of good or bad faith in either party.6 Prescription
generally runs against the Crown, provided that the pro-
perty claimed by this mode of acquisition is such as the
Crown can alienate and a private person can own.7 Time
does not run against minors or madmen and other such
persons, who are deemed to be minors and are subjected
to guardianship ; nor against persons who are absent
Act, 1943, sec. 2 (1); and in Southern Rhodesia (R.S. cap. 27,
sec. 14). For Ceylon, see Ord. No. 22 of 1871, sec. 3, 'The effect
of the Ordinance is to sweep away all the Roman-Dutch Law
relating to the acquisition of immovable property by prescription
except as regards the property of the Crown.' Pereira, p. 384.
1 Voet, 44. 3. 9 ; Anton. Matthaeus, Paroemiae, no. 9, sees. 2-3 ;
V.d.K. 207.
2 Jones v. Town Council of Cape Town (1896) 13 S.C. at p. 50;
Smith v. Martin's Exor. (1899) 16 S.C. at p. 151; Kareiga Baptist
Church Trustees v. Webber (1903) 17 E.D.C. 105; De Beer v. Van
der Merwe [1923] A.D. at p. 384.
3 Van Schalkwyk v. Hugo (1880) Foord 89 ; De Klerk v. Pienaar
(1899) 16 S.C. 370.
4 Voet, 41. 3. 17. Extrajudicial demand is insufficient for the
purpose. Ibid., sec. 20.
6 Voet, 41. 3. 20: tantum in eorum cedit utilitatem qui litem
movendo vigilarunt sibi ; cum res inter alios acta aliis nee prosit
nee noceat. 6 Voet, 44. 3. 9.
7 Voet, 44. 3. 11; Union Govt. v. Estate Whittaker [1916] A.D.
194: Union Govt. v. Tonkin [1918] A.D. 533; Prescription Act,
1943, sec. 13.
HOW OWNERSHIP IS ACQUIRED 149
because of war or on other public business j1 nor against
those who are disqualified from asserting their rights ; and
therefore not against a fideicommissary whose right is
suspended by a condition, if the fiduciary alienates the
property which is the subject of the fideicommissum before
the condition is fulfilled;2 nor against a married woman
whose husband has improperly alienated dotal property.3
The effect of prescription is to vest the ownership of Effect of
the property in question in the possessor, so that he can ]^cnp"
vindicate it, if he subsequently loses possession, from the
original owner as well as from third parties.
From the acquisitive prescription above described the Extinc-
reader must distinguish what is called extinctive prescrip- tlv? Pre"
f scription
tion, i.e. the rendering unenforceable of a right by the or limita-
lapse of time,4 in other words, limitation of actions. If an ^tkms
owner seeks to recover his property, the possessor may
contest his claim in limine by pleading that he has not
brought his action in time. The time is the same as that
required for acquisitive prescription (now thirty years) ; so
that in relation to property the same period bars the
remedy, and when the conditions of acquisitive prescrip-
tion are present, transfers the right.5
The modes of extinction of ownership may be briefly HOW
dismissed ; they correspond, in general, to the modes of p
acquisition. Such are: 1. Dereliction or abandonment of
possession ; loss of possession of an animal ferae naturae ;6
2. Accession (when it effects a transfer of ownership) ;
3. Tradition; 4. Prescription: to which may be added
5. Expropriation by competent authority, e.g. when land
is taken for some public purpose ;7 and 6. Forfeiture for
1 Gr. 2.1.2; Voet, 44. 3. 9, citing Anton. Matthaeus, Paroemiae,
no. 9, sees. 22-3; Schein v. Schein [1924] W.L.D. 283.
2 See De Jager v. Scheepers (1880) Foord, 120.
8 Voet, 44. 3. 11. The Prescription Act, 1943, like the Southern
Rhodesia Act (R.S. cap. 27), has nothing to say on the subject
of suspension of acquisitive prescription.
4 Prescription Act, 1943, sec. 3(1).
e For limitation of actions see below, pp. 281 ff.
8 Gr. 2. 32. 3-4; V.d.L. 1. 7. 4.
7 Gr. 2. 32. 7.
150 THE LAW OF PROPERTY
crime. In the time of Grotius property might be declared
forfeit by judicial sentence.1 But all forfeitures for crime
were abolished in Holland by Resolution of the States of
Holland of May 1, 1732,2 and in the Colonies by Publica-
tion of the States-General of August 10, 1778.3
1 Gr. 2. 32. 6.
2 6 O.P.B. 577 ; Rechts. Obs., pt. 1, no. 50.
3 9 G.P.B. 458 ; Cape Statutes, vol. i, p. 2.
IV
THE INCIDENTS AND KINDS OF OWNERSHIP
WE have spoken of the nature of ownership, and of the Subject-
distinction between full ownership and the limited rights ^gter o
carved out of another's ownership, which are commonly chapter,
known as jura in re aliena. In the present chapter we
speak of the incidents of ownership and more particularly
of the kinds of ownership in land.
SECTION I. THE INCIDENTS OF OWNERSHIP IN
GENERAL
It is a common saying that a man may do what he The
will with his own. The proverb has an element of truth,
Ownership comprises rights of possession, user, and aliena- ship in
tion ;l and all these rights are limited only by the duty geni
which the law imposes upon all to have due regard to the
rights of each according to the maxim 'male jure nostro
uti non debemus '.
But what is ' male uti ', and what use of land is regarded What is
in law as an injury to another ? It is not possible to give a 0^ne^"s "
general answer except that a landowner may do what he duty to-
pleases so long as he does nothing which can be referred to neigh-
a recognized head of legal wrong. Thus, it may be very tour ?
annoying to you that I should build a house with windows
looking out over your garden, but apart from servitude you
have no lawful ground of complaint or legal remedy. Again,
if I sink a well in my field, the result may be that, owing to
the interception of percolating underground water, the well
in your field will run dry. But you are without redress.2
1 Supra, p. 125.
2 Dig. 39. 2. 24, 12 ; Gr. 2. 34. 27 ; Voet, 8. 3. 6 ; Struben v. Cape
Town Waterworks Co. (1892) 9 S.C. 68 ; Smith v. Smith [1914] A.D.
257 ; Union Govt. v. Marais [1920] A.D. 240 ; provided that I acted
sine animo nocendi vicino ? Dig. 39. 3. 1, 12 ; Voet, 39. 3. 4 ; Union
Govt. v. Marais, ubi sup. at p. 247, where, however, the question
was left 'entirely open'; Kirah v. Pincus [1927] T.P.D. 199.
152 THE LAW OF PROPERTY
It would be otherwise if I interfered with the flow of a
defined underground stream.1
What then, apart from interruption of servitude, are the
wrongs for which -a landowner may obtain redress from
his neighbour ? or, to repeat the question in other words,
what are the duties which one landowner owes to an ad-
joining landowner ? They are mainly three : viz. (1) not to
disturb his possession ; (2) not to interfere wrongfully with
his enjoyment ; (3) not to cause a subsidence of his land or
interrupt the accustomed flow of a stream.
1. Not to (1)1 must not disturb my neighbour's possession. This
his pos- I should do, for example, if I constructed a building on my
session; land so that some part of it projected above his land, for
this would be an interference with his right to build as
high as he pleases upon his own land.2 A like wrong is
committed if I allow my trees to spread their branches over
the boundary.
' By the common law every one may build or plant trees on
his own land, even though his neighbour's light or view may be
obstructed thereby; but no one may by that law allow his
trees to overhang the ground of a neighbour ; and the latter
may cause whatever so overhangs his ground to be cut down,3
and if he does not do so, he is entitled to the fruits which hang
over. '4
1 2 Maasdorp, p. 120; Juta, Water Rights, pp. 5 ff. ; Breyten
Collieries Ltd. v. Dennil [1913] T.P.D. at p. 269.
2 Gr. 2. 1. 23 and 2. 34, sees. 4, 8, 11, 19, 23. 'Quia ejus est
caelum cujus est solum', Schorer ad Gr. 2. 1. 23.
3 Voet, lib. xliii, tit. 27. The same principle applies to intruding
roots. Bingham v. Johannesburg City Council [1934] W.L.D. 180.
As to the ownership of severed branches see De Villiers v. 0' Sullivan
(1883) 2 S.C. 251. Action for damages caused by overhanging tree
blown down by high wind does not lie without proof of negligence ;
(Ceylon) Jinasena v. Engeltina (1919)21 N.L.R. 444. For nuisance
caused by falling leaves see Kirsh v. Pincus, ubi sup.
4 Gr. 2. 34. 21 ; Voet, lib. xliii, tit. 28. Secus jure civili; Groen.
de leg. abr. ad Dig., lib. xliii, tit. 28. Neither Groenewegen nor Voet
bears out the statement in the text that the neighbour may take
hanging fruits. They both speak of fructus decidentes. Huber
(2. 6. 20, 5. 6. 10), for Friesland, denies the right.
In like manner I may not, apart from servitude, allow the drip
from my eaves to fall on another's land (Gr. 2. 34. 11), nor dis-
charge water over another's land, Gr. 2. 34. 16.
INCIDENTS OF OWNERSHIP 153
(2) I must not interfere wrongfully with my neighbour's 2. not to
enjoyment. This is a topic to which the Roman and ^ng^
Roman-Dutch lawyers give little attention. In the modern faEy with
law, which is largely derived from English precedents, the ment^°
Court will intervene by interdict to prohibit any dis-
turbance of my neighbour's enjoyment which amounts to
a nuisance. What this is, depends upon the circumstances
and scarcely admits of definition.1 The safest guide in such
matters is to be found not in any attempted generalization
of principle, but in the practice of the Courts in dealing with
other cases similar in character. Another test is afforded
by the law of servitudes. An interference with enjoyment
which can be justified as a servitude will often, in the
absence of servitude, be found to constitute a nuisance.1
(3) I must not cause a subsidence of my neighbour's 3. not to
land or interrupt the accustomed flow of a stream2 which ^nce'cr
passes from my land to his. As regards the first of these interrupt
duties, the law is that though I am free to dig in my own
land I must not do so in such a way as to let down my
neighbour's soil. In other words, he has a right to vertical
and lateral support of his soil by mine.3 This right exists
jure naturae without any servitude. It extends to land
which has been built upon and the buildings upon it.4
1 'Such an act is known as a nuisance, a term adopted from
the English law, which in this respect is practically the same as
our law', Wille, Principles, p. 156; McKerron, The Law of Delict,
p. 215 ; infra, p. 328. In Roman Law the owner's remedy was the
actio negatoria denying the servitude. Windscheid, i. 198, n. 8.
As to the application of the principle of Rylands v. Fletcher (1868)
L.R. 3. H.L. 330 to Roman-Dutch Law see below, p. 338, n. 4.
2 Or of storm-water, Herzenberg Mullne Ltd. v. Cape Town
Council [1926] C.P.D. 451.
3 London & S. A. Exploration Co. v. Rouliot (1890) 8 S.C. 75;
Johannesburg Muncipal Council v. Robinson Gold Mining Co.
[1923] W.L.D. 99.
* Phillips v. 8. A. Independent Order of Mechanics [1916] C.P.D.
61. But, surely, some regard must be had to the character of the
buildings and of the soil. Coronation Collieries Co. v. Malan [1911]
T.P.D. at pp. 591-2. In United Building Soc. v. Lennon [1934]
A.D. 149, damages were claimed in consequence of the demolition
of a neighbouring building, but no right of support was asserted
or proved. Right of support for buildings (semble) is not known
in Ceylon. Pedris v. Batcha (1924) 26 N.L.R. 89.
154
THE LAW OF PROPERTY
Water-
rights.
When
a private
stream
becomes
public.
With respect to the flow of a stream whether above or
under ground1 the lower riparian proprietor is entitled to
have the stream reach his land unimpaired in quality
and in quantity, subject only to the upper proprietor's
right of reasonable user and enjoyment. As to quality, he
is entitled to an interdict against any material pollution
of the stream.2 As to quantity, the upper proprietor's
right of use and enjoyment is construed in the sense that he
may: (1) take as much water as is reasonably necessary for
the support of animal life upon his property, and do so
even, if need be, to the exhaustion of the stream (primary
use) ; (2) take water for agricultural purposes, but only
so far as he can do so with due regard to the rights of
lower proprietors to do the same (secondary use) ; and
(3) subject thereto and upon like conditions take water for
mechanical and industrial purposes (tertiary use).3
These rules, it must be remembered, apply only to public
streams. The owner of a private stream may arrest it on
his own land and diminish its volume to any extent he
pleases. The same may be said of rainwater.4 But an
owner may not divert it from its course to the prejudice of
a lower proprietor. If he does so he may be sued in the
actio aquae pluviae arcendae (the action 'for keeping off
rainwater').5 The maxim dien water deert die water keert—
'if water hurts you, you may turn it away'6- — must be
understood subject to this important limitation. Indeed,
the phrase is misleading, for it merely means that water
may be allowed to take its natural course.7
If a stream rises in a man's land, it is in its inception
private and may be dealt with as such ; but if it has con-
tinued to flow in a defined channel for a considerable
1 2 Maasdorp, p. 131.
2 Salisbury Municipality v. Jooala [1911] A.D. at p. 185 per de
Villiers C.J. See also Orangezicht Estates Ltd. v. Cape Town Town
Council (1906) 23 S.C. 297 and Juta, Water Rights, pp. 179 ff. The
extent of the lower proprietor's right to complain of contamination
has not been exactly defined. 3 2 Maasdorp, pp. 136 ff.
4 Gr. 2. 34. 14.
6 Cape Town Council v. Penning [1917] A.D. 315.
6 Gr. 2. 35. 17. 7 Dig. 39. 3. 1, 11.
INCIDENTS OF OWNERSHIP 155
length of time (which in South Africa is taken to be thirty
years) over adjoining land, the stream becomes public and
the usual incidents of public streams attach to it.1
Just as a lower proprietor has rights against an upper
proprietor, so he owes him duties. He must receive such
water as in the ordinary course of nature flows on to it
from the upper level,2 and must not by turning it off or in
any other way injure the upper proprietor's user of his
land.
In the preceding paragraphs we have been speaking of The
the limits which the law places upon an owner's rights
of use and enjoyment. Another question of practical im- vindi-
portance relates to the limits which the law places upon
an owner's right of recovering his lost possession, his jus
vindicandi. The first topic is principally concerned with
the use of land. The second topic is principally, but not
exclusively, concerned with the recovery of movables. It
has been said above that the jus vindicandi is an incident
of ownership. In the Roman Law the principle was general
and applied alike to immovable and to movable property
— ubi rem meam invenio, ibi vindico. But as regards mov-
ables, in the Netherlands the rule of the Roman Law came
into sharp conflict with a contrary rule derived from the
customary law of some of the German tribes, namely, that
movable property cannot be followed into the hands of a
third person : Hand muss Hand wahren — mobilia non habent
sequelam — meubelen en hebben geen gevolg — possession vaut
titre.3 In the law of Holland, according to the prevailing
1 The Irrigation Act (8 of) 1912, sec. 8; Retief v. Louw (1855)
[1874] Buch. 165; Silberbauer v. Van Breda (1866) 5 S. 231 ; Van
Breda v. Silberbauer (1869) L.R. 3 P.O. 84; Municipality of
Frenchhoek v. Hugo (1883) 2 S.C. 230; Commissioners of French
Hoek v. Hugo (1885) 10 App. Ca. 336, 3. S.C. 346; Vermaak v.
Palmer [1876] Buch. 25; Pretoria Municipality v. Bon Accord
Irrigation Board [1923] T.P.D. 115; Juta, Water Rights, pp. 41 ff. ;
2 Maasdorp, p. 130.
2 De Villiers v. Galloway [1943] A.D. at p. 444.
3 The proposition that the old Germanic law did not allow an
owner, who had voluntarily parted with the possession, to reclaim
his movable property from a third party has not passed unchal-
lenged. de Btecourt (Kort Begrip (5), p. 207) concludes: Veiliger
156 THE LAW OF PROPERTY
opinion, the victory was on the side of the Roman doctrine,
but subject to some qualifications and exceptions. In the
modern law the owner's right of vindicating his property
from a possessor who cannot show a good title as against
the owner is in principle undoubted,1 but again subject to
exceptions, which, as might be expected, are not the same
as in the law of Holland. Exceptions which in the old law
were based upon a special statute or local custom find no
place in the modern law. It was questioned whether sales
in a public market fell under this head. On the other hand
the rules of negotiability are better defined to-day than
they were in the eighteenth century, and the circumstances
in which an owner cannot assert a title against a bona
fide holder for value are consequently better ascertained.
Finally, notions derived from the rules of English equity
have certainly in Ceylon, and almost certainly in South
Africa, made an impression on the modern law. A fuller
consideration of these important questions is reserved for
an appendix.2
SECTION II. THE KINDS OF OWNERSHIP OF LAND
In what In this section we speak of what is commonly called
ways land lan(i tenure, i.e. of the different kinds of ownership of land
may be recognized by law. In England all land is held by feudal
tenure mediately or immediately of the King, who is
'Sovereign Lord, or Lord Paramount, either mediate or
immediate, of all and every parcel of land within the
Feudal Realm'.3 In Holland feuds (leen-goed) existed side by side
alodial w^h lands held allodially (eigen-goed). Feudal lands were
owner- governed by the rules of the feudal law (leen-recht), which
Holland. was administered by feudal Courts (leen-gerechteri). Allo-
dial lands were owned according to the ordinary principles
gaat men met te zeggen dat men in de germaansche landen zeer
uiteenloopende regelingen aantrof.
1 As to what must be proved by a plaintiff in a vindicatory
action see Gruenewald v. Mathias [1925] S.W.A. 117.
2 Appendix E.
3 Co. Litt. 65, a; 2 Bl. Comm. 53. 'Every acre of land is techni-
cally held of the Crown', Cheshire, The Modern Law of Real Pro-
perty (4th ed.), p. 72.
INCIDENTS OF OWNERSHIP 157
of the common law and subject to the jurisdiction of
the ordinary Courts. The principal difference between
these two kinds of ownership is that feuds are always held
by the landowner as tenant of another, while allodial
property is owned, like movables, by an absolute and
independent title.
In Dutch law feuds (leenen) were always held on con- Leenen.
dition of military service.1 This continued in theory to
be the case until the end of the Republic, except where
the land had been allodialized.2 There was nothing in
Dutch law precisely corresponding to the English tenure in
free and common socage. But there existed from ancient
times an institution which in many respects approached
to socage tenure, though it exhibited also analogies with
copyhold and leasehold. This was variously known as
tijnsrecht or cijnsrecht (census right) or erfpacht (hereditary Cijnsrecht
lease), erfhuur (hereditary hire), and by other like names.3 rent™
It was a grant of land for an indefinite or limited period tenure,
subject to the payment of an annual rent (cyns — census).
Originally the grantor was regarded as owner of the land,
the grantee merely as having a jus in re aliena. Later, the
position was reversed. The grantee became the owner,
with free rights of alienation inter vivos or by will, in de-
fault of which the land passed to his heirs by intestate
succession.4 The grantor, on the other hand, was now con-
sidered to have merely a rent-charge upon the land, which
the grantee might, as a rule, redeem. On the other hand,
the grantee must maintain the land, i.e. was liable for
waste, and if the rent fell into arrear for a period which,
under romanist influences, was often fixed at three years,
or in case of other failure of duty, he incurred a forfeiture.
This mode of land tenure was not identical with the
1 Fock. And., vol. i, pp. 309-10.
2 Ibid., pp. 309-10; Gr. 2. 43. 5. The duty of military service
was, however, disused by the seventeenth century. Gr. 2. 41. 44;
Van Leeuwen, 2. 14. 13.
3 Fock. And., vol. i, p. 320.
4 It tended to become, and in the sixteenth century usually was,
hereditary and perpetual. Ibid., p. 325. Grotius (2. 40. 2) describes
erfpacht-recht as 'erffelicke tocht'.
158
THE LAW OF PROPERTY
Not the
same as
emphy-
teusis.
Villein
tenure in
Holland.
Usufruct.
Lease of
land,
in early
law was
merely
contrac-
tual.
Koop
breekt
huur.
But, later,
conferred
a real
right.
emphyteusis of the Roman Law, nor, it seems, derived
from it. There can be no doubt, however, that it was
influenced in its development by the rules of Roman Law.
Even Grotius,1 still more the distinctively romanist writers
of the seventeenth and eighteenth centuries, fail to dis-
tinguish between the native and the exotic institution.2
In addition to the above-mentioned modes of land-
holding, villein tenure, which was always associated with
villein status, played an important part in the old law.
It did not survive the revolutionary influences of the end
of the eighteenth century.3 This institution, therefore,
however interesting historically, need not detain us, since
it has no counterpart in the modern law.
The life-interest in land (lijf-tocht — usufruct} will be con-
sidered in a later chapter.
It remains to speak of the contract of hire of land, so
far as it affects the proprietary rights of the parties. In
the Roman Law a lease of land was purely contractual in
character, and gave no right against third parties. Thus,
if the lessor sold the land, the purchaser, though aware of
the lease, was not bound by it. This principle prevailed
in some parts of Holland (at all events as regards short
leases) and found expression in the proverb, Koop breekt
huur (Sale breaks hire).4 The reason was that leases,
being mere contracts, required no solemnity and conse-
quently did not transfer any proprietary interest or affect
third parties.5 Elsewhere and later the rule was reversed,
Breekt koop geen huur (Sale breaks no hire), Huur gaat voor
koop (Hire goes before sale) ; with the result that the hirer
1 Gr. 2. 40. 2. a e.g. Van Leeuwen, 2. 10. 2.
3 Fock. And., vol. i, p. 52. 4 Ibid., p. 345.
5 Cf. Voet, 19. 2. 1. No general rule can be laid down as regards
Holland and the other Provinces of the Netherlands. Custom
varied both before and after the reception ; de Blecourt (5), p. 271.
For Germany see Gierke, Deutsches Privatrecht, ii. 200, n. 55 ;
iii. 512 ff. The maxim huur gaat voor koop does not apply to all
contracts of letting and hiring. It is 'a concise statement of the
effect of custom and legislation upon leases of lands and houses'.
Graham v. Local and Overseas Investments (Ply] Ltd. [1942] A.D. at
p. 110, per Watermeyer J.A.
INCIDENTS OF OWNERSHIP 159
could make good his right to the land against any third Huur gaat
person to whom his landlord might have sold it. In this vc
sense the law is laid down by Grotius,1 with the qualifica-
tion, however, that a lessee of land has no such right unless
his lease is in writing,2 passed before Schepenen (coram
lege loci) or under the hand of the lessor.3 Groenewegen
goes further, for besides regarding writing as of the essence
of all leases of lands4 (but not of houses),5 he requires that
a lease ad longum tempus, i.e. for ten years and upwards,
should be executed coram lege loci, if it is to prevail against
a purchaser.6 The reason is that a lease ad longum tempus
is in effect an alienation and demands the same solem-
nity of execution.7 According to Groenewegen, then: (1) Groene-
a short lease of land, if in writing, holds good against a
purchaser; (2) a short lease of houses holds good against a of the law
purchaser even without writing ; (3) a long lease of land
or houses holds good against a purchaser if executed
coram lege loci, otherwise not.8 In South Africa, with
1 Gr. 2. 44. 9 ; Van Leeuwen, 4. 21. 7 ; Voet, 19. 2. 17 ; De Wet v.
Union Govt. [1934] A.D. 59. 2 Gr. ubi sup. and 3. 19. 3.
1 'By publijcke instrumenten ofte d' eygen handt van den
Eygenaar' is the language of the Pol. Ord. 1580 (Art. 31), which
Grotius purports to follow. See next note. His own words (3. 19. 3)
are: 'Zonder schepenkennisse ofte schrift by den eighenaer
gheteickent.'
4 Groen. de leg. abr. ad Cod. 4. 65. 24, sec. 1. As authorities for
this proposition, reference is made to the Placaat of Philip Duke of
Burgundy of June 11, 1452 (3 O.P.B. 586), the Placaat of Charles V
of January 22, 1515 (1 G.P.B. 363), and the Pol. Ord. 1580, Art. 31
(1 G.P.B. 337). These enactments, however, relate not to- original
leases but to nahuyr. They are therefore no authority for the pro-
position advanced in the text. See V.d.K. 672.
5 Groen. ubi sup., sec. 2, non obstante Holl. Cons., vol. i, no. 262.
Van der Keessel (Th. 670) agrees. Voet, however (19. 2. 2), and
Decker (ad Van Leeuwen, 4. 21. 3) consider that the Edict of the
States of Holland and West Friesland of April 3, 1677 (3 G.P.B.
1037), settled the law in the sense that leases of both lands and
houses must be in writing. Van der Linden (1. 15. 11), though
relying on a later statute, agrees with this statement of the law.
6 Ad Cod. 4. 65. 9.
7 Groen., loc. cit. Voet (19. 2. 1) expresses with some hesitation
the same opinion . Van Leeuwen (4.21.9) pronounces the other way.
8 Groen. ad Gr. 3. 19. 9, where he says : 'It being well understood
that in no case can immovable property be let for more than ten
years unless the written lease (huurcedulle) is passed before the
160
THE LAW OF PROPERTY
Leases in statutory exceptions, the validity of a lease as between
Africa. the parties is independent of the presence or absence of
writing, and a lease which is good between the parties is
also good as against persons claiming through the lessor
by lucrative title.1 As regards purchasers and creditors
the law is otherwise. A short lease is absolutely valid
against them ;2 a long lease only if registered against the
title, or if the purchase was made or the credit given with
knowledge of the lease.3 Such is the general law, but there
are statutory variations. In the Transvaal a lease of land
for ten years or upwards has no effect even between the
parties, unless notarially executed,4 and the law is the same
in the Free State except that the period has been held to
be twenty-five years.5 In Natal any contract to grant or
take a lease or sublease of immovable property or of any
interest therein for a period exceeding two years from the
time of making such contract, or for the cession of any
such lease or sublease having then more than two years
to run, must, unless there has been part performance, be
evidenced by writing.6 Over the whole of South Africa
Court of the place where the property is situated.' For Ceylon see
Ord. No. 7 of 1840, sec. 2.
1 Semble, Canavan & Rivas v. The New Transvaal Gold Farms
Ltd, [1904] T.S. 136; Exor. Est. Komen v. De Heer (1907) 28
N.L.R. 577 ; Komen v. De Heer (1908) 29 N.L.R. 237.
2 Herbert v. Anderson (1839) 2 Menz. 166; Green v. Griffiths
(1886) 4 S.C. 346; De Wet v. Union Govt. [1934] A.D. 59; whether
the purchaser knew of the lease or not. Ibid, at p. 73.
3 An unregistered lease in longum tempus holds good, in any
event, up to ten years. Komen v. De Heer, ubi sup.
4 Procl. No. 8 of 1902, sec. 29 (1). The reader should consult the
section. See Cohen v. Van der Westhuizen [1912] A.D. 519.
6 Ord. 12 of 1906, sec. 51 ; Fichardt v. Webb (1889) 6 C.L.J. 258.
This term is taken from an Ordonnantie op het middel van den
veertigsten penning of the States of Holland dated May 9, 1744
(7 G.P.B. 1441). But this enactment has been held not to be in
force at the Cape (Maynard v. Usher (1845) 2 Menz. 170); in the
Transvaal (Canavan & Rivas v. The New Transvaal Gold Farms
Ltd., ubi sup.) ; in Natal (Exor. Est. Komen v. De Heer, ubi sup.).
Doubtless the rule is now general in South Africa that a lease in
longum tempus means a lease for ten years or upwards. Compare
the definition of immovable property in the Deeds Registries Act,
1937 (supra, p. 132, n. 11).
8 Law No. 12, 1884, sees. l(c) and 2; Cole v. Stuart [1940] A.D. 399.
INCIDENTS OF OWNERSHIP 161
no distinction exists as to requirements of form and of
registration between leases of land and leases of houses.
From what has been said it is plain that in the modern In the
law, as in the later stages of the Roman-Dutch Law of ^ ®ra
Holland, a lease creates not only contractual rights as lease is
between the parties, but also proprietary rights, which tenure.0
the lessee can, within the limits above stated, make good
against all the world. We are justified, therefore, in re-
garding a lease as a species of ownership in land.1
It does not fall within the scope of this work to describe Land
in detail the systems of land tenure existing at the present
day. We will merely observe that in South Africa besides
(1) freehold, and (2) leasehold, (3) perpetual quitrent
tenure of lands held from Government was introduced
into Cape Colony by Sir John Cradock's Proclamation of
1813, and exists also in various forms in the other
provinces.2 Recent statutes have extinguished the liability
to pay quitrent, while leaving the nature of the tenure
unaffected.3
1 Green v. Griffiths (1886) 4 S'.C. at p. 350. In Johannesburg Muni-
cipal Council*?. Rand Townships Registrar [1910] T.P.D. at p. 1320,
Wessels J. said: 'The lessee, therefore, by the Roman-Dutch
law acquired a jus in re aliena and also a jus in rem to the land
leased ; but that jus in rem was not of the nature of ownership,
for it only lasted so long as the lease existed.' Perhaps this is a
question of words rather than of substance. A lease is at all events
gebreckelicke eigendom. The 'effect [of a lease in longum tempus]
is to dispose of a portion of the dominium\ Solomon J. in Breyten-
bach v. Frankel [1913] A.D. at p. 402.
2 See Van Niekerk and Union Govt. v. Carter, 1917 A.D. at
p. 379. Quitrent tenure is not in use except in Government
grants, and is regulated by statute. In the Transvaal and O.F.S.
'the tenure is practically ownership subject to higher taxation'
(Morice, Eng. & Roman-Dutch Law (2nd ed.), p. 47). The
history of quitrent tenure at the Cape is traced in De Villiers v.
Cape Divis. Council [1875] Buch. 50, and further elucidated in
Cape Govt. v. Freer (1886) 4 S.C. 313, where the learned C.J. said
'the grantee really became the owner of the land. ... The Crown
ceased to have any proprietary rights. ' For O.F.S. see Webb v.
Giddy (1878) 3 A.C. 908 ; for Natal, Odendaal v. Registrar of Deeds
[1939] N.P.D. 327; for Ceylon, Podisingho v. Jaguhamy (1923)
26 N.L.R. 87.
3 Abolition of Quitrent Act, 1934; Abolition of Quitrent (Towns
and Villages Act) 1937. In Southern Rhodesia quitrent was
abolished by Act, No. 16 of 1935 with the same reservation.
4901
The WHATEVER theory of possession may have existed in the
theory of native law of the Netherlands, the Roman-Dutch writers
posses-
sion, repeat the Roman Law doctrine as they understood it.
The short chapter which Grotius devotes to the subject
reflects merely the views of the civilians.1 Since they are
accessible from other sources it is unnecessary to recall
them. But the case is different with the remedies which the
Law of Holland afforded for the protection of possession.
These, though they present some necessary analogies with
the Roman interdicts, were remotely, if at all, connected
with them. The text-book writers, none the less, commonly
assign to them a Roman origin and distinguish them as
directed to obtaining, retaining, and recovering possession,
applying the Roman classification to which they do not
readily lend themselves. In the modern law they have
ceased to exist as separate institutions. Their historical
importance, however, entitles them to some brief attention.
Posses The Dutch Law afforded three principal remedies for the
remedies protection of possession (with some others of less general
application). These were Maintenue, Complainte, and
Spolie. They came into Holland from France by way of
Flanders under the influence of Burgundian jurists of the
fifteenth century.2 The process of the Court which the
plaintiff invoked was called a mandament or writ, and the
various remedies are distinguished as mandament van
maintenue, mandament van complainte, and mandament
van spolie. This last has a remoter origin in the actio
spolii of the Canon Law.3 We shall give a short account
of each of these possessory actions.4
1 Gr. lib. ii, cap. ii. 2 de Blecourt, p. 200.
8 Decretum Gratiani, c. 3, cap. 3, qu. 1 : redintegranda sunt omnia
expoliatis vel ejectis episcopis. Hence the name 'redintegranda'
by which this action was also known.
4 For fuller discussion see Fock. And., vol. i, pp. 218 ff. ; de B16-
court, pp. 200 ff.
POSSESSION 163
1. Maintenue. Any person disturbed in his possession Main-
might address a petition either to the Hof or to the Hooge
Raad praying for a mandament whereby he should be
maintained, confirmed, and (so far as necessary) let into
the possession or quasi-possession of the Lands and other
Goods in question, and ordering the defendant to in-
demnify him for all past disturbance and to abstain from
the like in future.1 In case of opposition suppliant asked
for interim possession (rei credentia — recredentie), which was
granted in the discretion of the Court subject to his giving
security to compensate the other party for mesne profits
in the event of the case being ultimately decided in the
other party's favour.2 To entitle the suppliant to the
mandament two conditions alone were necessary: (a)
possession, (6) disturbance.3 The defendant might defeat
the plaintiff's case by showing that his possession was
aut vi aut clam aut precario ab adversario (the plea of
vicious possession). Proof of positive disturbance was
not essential. The mandament would be granted even in
case of apprehended disturbance — propter metum oppo-
sitionis habendae et turbationis faciendae.4 In case of
serious threats of violence proceeding from powerful per-
sons a process was granted called the mandament van
Sauvegarde.5 But this was not so much a possessory
remedy as a procedure with a criminal sanction designed
for the protection of person or property against appre-
hended violence.
2. Complainte. This was a summary process designed to Com-
afford provisional relief. The conditions of the writ were Plainte'
more stringent than in the case of maintenue. The suppliant
must show: (a) that he had possessed, (6) quietly and
peaceably, (c) for a year and a day, (d) ouster or distur-
bance within the year next before action brought. Accord-
ing to circumstances he prayed to be maintained in, or
1 For the formula of request see Papegay, chap, xv (ed. 1740,
vol. i, p. 113). 3 Bijnk, O.T. i. 276, 305.
3 Fock. And., vol. i, p. 218 ; V.d.L. Judic. Pract., book ii, chap. xx.
4 Bort, Tractaetvan Complaincte, tit. 1, sec. 32.
5 Bort, loc. cit., sees. 26-30; V.d.L., op. cit., 4. 5. 21.
164 THE LAW OF PROPERTY
restored to possession.1 The vitia possessions might be
pleaded as a defence.
The procedure took the form of an inquiry in loco con-
ducted by one or two Judges delegated for the purpose. If
they were satisfied that the plaintiff had established his
case, they ordered restablissement, that is restoration of
the status quo. If not so satisfied they made no order.
This, properly speaking, concluded the procedure in com-
plainte. If the defeated party carried the matter no
further, the controversy was at an end. The further pro-
ceedings, if any, were in maintenue. De Blecourt says that
maintenue was the last stage in the procedure of com-
plainte.2 It would, perhaps, be more informative to say
that complainte was a preliminary, but not a necessary
preliminary, of proceedings in maintenue. It was a pre-
lude to a drama. Often the performance ended with the
prelude. More often the prelude was omitted.
Spolie. 3. Spolie. This was a process directed to recovery of pos-
session. The plaintiff had to prove: (a) possession, (6) dis-
possession. The only defence was denial of the facts
alleged, for spoliatus ante omnia restituendus est.3 The
plea of vicious possession was not admitted. The remedy
asked for was restoration and compensation and to be
reinstated in possession.4 In spite of its apparent attrac-
tiveness this remedy was seldom invoked, perhaps because
it merely promised reinstatement and did not decide even
provisionally the right to remain in possession.
Iinmissie. There was another possessory remedy of more limited
application. This was the mandament van immissie, by
which an heir or legatee obtained possession of the whole
or part of a deceased person's estate. The procedure was
the same as in maintenue, with which it was commonly
combined in a petition for maintenue and ' if need be ' for
1 Fock. And., vol. i, p. 219 ; de Btecourt, p. 201 ; V.d.L., op. cit.,
book ii, chap. 21.
2 de Blecourt, p. 203.
8 Fock. And., vol. i, p. 218 ; de Blecourt, p. 201 ; V.d.L., op. cit.,
book ii, chap. 22.
4 Papegay, chap, xiv (vol. i, p. 112).
POSSESSION 165
immissie.1 In the lower Courts there was a similar pro-
cedure termed inleiding*
From what has been said it is apparent that maintenue Possession
alone, or in combination with other remedies, occupied a movables.
cardinal position in possessory procedure. In practice all
these proceedings were confined to claims relating to the
possession of land or the quasi-possession of rights appur-
tenant to immovable property. They were not in general
a means of getting or retaining possession of movables.3
Such questions were litigated in the lower Courts.
The question remains, what was the character of the What
possession which the law undertook to protect ? It is not
clear whether possessory remedies were available to one is pro-
who possessed nomine alieno, for example, as depositary,
mandatory, or lessee. But it is certain that in some cases
they were given to protect possession which did not satisfy
the conditions of possession ad interdicta in the sense of
the Roman Law.
In the modern law of South Africa possession is secured The
by interdict and by the so-called spoliation order, based
upon the principle spoliatus ante omnia restituendus est,
which, however, seems to have more analogy with maintenue
than with spolie. It is given not merely to the possessor in
the strictest sense, but to a trustee,4 or lessee,5 and to any
other person who holds by lawful title ' with the intention
of securing some benefit for himself as against the owner ',6
such as a borrower, and, perhaps, to any other person in
actual control.7 But in any case the Court will require
1 V.d.L., op. cit., book ii, chap. 20.
2 de Blecourt, p. 203.
3 de Blecourt, p. 202, no. 1 ; Bijnk, O.T. ii. 1059.
4 Abdul Azeez v. Abdul Rahiman [1911] A.C. 746.
5 Swanepoel v. Van der Hoeven [1878] Buch. 4; Nino Bonino v.
De Lange [1906] T.S. 120. So in Ceylon, Perera v. Sobana (1884)
6 S.C.C. 61 ; Pereira, pp. 544 ff.
6 Scholtz v. Faifer [1910] T.P.D. 243; Meyer v. Olendinning
[1939] C.P.D. 84. Cf. Mandelkoom v. Strauss [1942] C.P.D. at
p. 497.
7 Thatsachliche Gewalt, B.O.B. 854, 860 ; maitrise effective, Code
Civil Suisse, 919. In Meyer v. Glendinning, ubi sup., at p. 95,
Davis, J., after referring to Savigny, who says (On Possession,
166 THE LAW OF PROPERTY
clear proof of possession. It is not enough to make out a
prima facie case which might justify an interdict.1
In the alternative a plaintiff may bring an action to
recover possession and damages or damages for distur-
bance.2
Perry's translation, p. 409) that the true purpose of this summary
remedy is ' to prevent breaches of the peace', and to Menochius
(De Recup. Poss. Remed. Tit. 17, par. 21), continued: 'the author
does not, as many of the moderns would appear to do, extend in
this passage even this form of action to any and every detentor.
As to whether they are right in so doing I particularly desire to
decide nothing.'
1 Mandelkoorn v. Strauss, ubi sup.
2 Pentz v. Col. Govt. (1891) 8 S.C. 34; Koenigsberg & Co. v.
Robinson G.M. Co. [1905] T.H. 90; Miller v. Harris [1912] C.P.D.
203; Omar v. Sahib (1907) 28 N.L.R. 625.
[Dr. T. W. Price of Trinity Hall has given me valuable assistance
in revising this chapter, but, of course, I am solely responsible
for what is said. It is to be hoped that his thesis on The Posses-
sory Remedies in Roman-Dutch Law will soon be published.]
VI
SERVITUDES
THE next class of jura in re are Servitudes.1 A servitude Servi-
is a real right enjoyed by one person over or in respect iv ea'
of the property of another, whereby the latter is required
to suffer the former to do, or himself to abstain from
doing, something upon such property for the former's
advantage. The person for whose benefit such right is
constituted may either enjoy it as incidental to and in-
separable from immovable property of which he is owner,
or may enjoy it personally and without reference to any
property of which he is owner. In the first case the right
is termed a real or praedial servitude ; in the second case it
is termed a personal servitude. But all servitudes, real or
personal, are real rights, which can be made good against
all the world.2
In the case of real servitudes, the land in respect of which Real or
the right is enjoyed is termed the praedium dominans, g™^. a
the land over which the right is exercised is termed the tudes.
praedium serviens. Real or praedial servitudes exist for
the benefit of lands and houses, and the burden of them
is imposed on lands or houses. Personal servitudes exist
for the benefit of persons, and are enjoyed in respect of
movable as well as of immovable property. When the
word servitude is used without qualification it is usually
a real servitude that is meant.
A real servitude is a fragment of the ownership of an
immovable detached from the residue of ownership and
vested in the owner of an adjoining immovable as acces-
sory to such ownership and for the advantage of such
1 For a fuller treatment of the subject of servitudes the recently
published work of C. G. Hall and E. A. Kellaway, Juta & Co.,
Cape Town, may be consulted; and see the valuable note in
Kotze, Van Leeuwen, vol. i, pp. 302 ff.
a Ex parte Geldenhuys [1926] O.P.D. at p. 163; Qalant v.
Mahonga [1922] E.D.L. at p. 79.
168 THE LAW OF PROPERTY
immovable. Though ownership is thus divided and vested
in two persons, the detached fragment is, as a rule, rela-
tively insignificant in comparison with what remains. It
seems natural, therefore, to speak of the person to whom
the residue belongs as owner of the land, while the person
in whom the detached right is vested is said to have a
jus in re aliena.1 Personal servitudes of the usual type
approach more nearly to ownership and have little in
common with real servitudes except the name. For the
present we confine our attention to real servitudes.
Real servitudes are distinguished as rustic and urban.
The distinction has regard to the character of the dominant
tenement. Servitudes attached to land are rustic, servi-
tudes attached to buildings are urban.2
Rustic The following are the principal rustic servitudes3 (veld-
aervi- i jT
tudes. dienswaerheden).
1. RIGHTS OF WAY: (a) for walking and riding (iter)
which the Dutch writers subdivide into foot-path (voet-
pad)* and bridle-path (rij-pad) ;5 (6) for driving cattle as
well as for going on foot and horse-back, and for light
vehicles (actus — dreef) ;6 (c) for all kinds of traffic including
laden wagons (via — weg) ;7 to which may be added (d) a
way of necessity (nood-weg), i.e. a way to be used only
for the harvest, for carrying a corpse to burial, or other
necessary purpose,8 or a way giving necessary access to a
public road.9 The right to use a trek-path over the land
1 Gr. 2. 33. 1.
2 Voet, 8. 1. 3-4; Girard, p. 387; Buckland, p. 262. Is a right
of way attached to a house rustic or urban ? Opinions differ. See
Lee, Elements of Roman Law, sec. 227.
8 See Fock. And., vol. i, pp. 275 ff.
4 Gr. 2. 35. 2; Van Leeuwen, 2. 21. 2.
6 Gr. 2. 35. 3; Van Leeuwen, 2. 21. 3; Voet, 8. 3. 1.
6 Gr. 2. 35. 4; Van Leeuwen, 2. 21. 4; Voet, 8. 3. 2; Breda's
Exors. v. Mills (1883) 2 S.C. 189.
7 Gr. 2. 35. 5; Van Leeuwen, 2. 21. 5; Voet, 8. 3. 3.
8 Gr. 2. 35. 7 ; Voet, 8. 3. 4.
9 Gr. 2. 35. 8 and 11; Van Leeuwen, 2. 21. 7; Voet, ubi sup.
Peacock v. Hodges [1876] Buch. 65; Van Schalkwijk v. Du Plessis
(1900) 17 S.C. 454; Neilsonv. Mahoud [1925] E.D.L. 26;Ramper-
sad v. Goberdun [1929] N.P.D. 32 ; Wilhelm v. Norton [1935] E.D.L.
143; (Ceylon) Fernando v. Fernando (1929) 31 N.L.R. 107.
SERVITUDES 169
of another is a larger right than any of the above and is
peculiar to South Africa.1
All rights of way must be exercised so as to burden
the servient property as little as possible,2 and the owner
of the dominant property must keep strictly within the
terms of the servitude.3 On the other hand the grant of a
right of way (as of any other servitude) implies a grant of
everything which is necessary for its reasonable exercise.4
The principles by which the direction of a way is to be
determined have been stated as follows. When a servi-
tude of way is constituted simpliciter, acil. without precise
definition, 'the owner of the dominant tenement has (in
the first instance) the election where to lay the line, which
he must however exercise civiliter.5 If he has once exer-
cised his election, he cannot afterwards change. But the
owner of the servient tenement has the right to do so,
provided the new route is as convenient as the old one.'
The case is otherwise when the servitude has been pre-
cisely defined ah initio. In this case it can only be altered
by mutual consent.6
2. WATER RIGHTS : viz. right of leading water over or
out of another's land (aquae ductus—water-leiding) ;7 right
of discharging water on to another's land (water-lozing) ;8
right of drawing water from another's private stream, well,
or cistern (aquae haustus— water-haling) ;9 right of watering
1 Van Heerden v. Pretorius [1914] A.D. 69. For public ways
(which are either via publica or via vicinalis) see Peacock v
Hodges, ubi sup.; Eampersad v. Goberdun, ubi sup.; (Ceylon)
Samarasinghe v. Chairman V.C. Matara (1932) 34 N.L.R. 39-
Pe^ris v. Village Committee, Paluwa (1938) 40 N.L.R. 54.
1 'Alle servituten van pad en weg moesten "te minster schade
en te naaster lage" worden gebruikt.' Fock. And., vol. i p 276 •
Gr. 2. 35. 6 ; Van Leeuwen, 2. 21. 6.
3 Van Heerden v. Coetzee [1914] A.D. at p. 172.
4 Voet 8. 4. lQ;Lategan v. Union Oovt. [1937] C.P.D at p 202
Dig. 8. 1. 9.
6 Gardens Estate Ltd. v. Lewis [1920] A.D. 144, per de Villiers
A.J.A. at p. 150. Cf. Rubidge v. McCabe [1913] A.D 433
7 Gr.2. 35. 14; Voet, 8. 3.6.
Gr. 2. 35. 16; Van Leeuwen, 2. 21. 15.
9 Gr. 2. 35. 13 ; Voet, 8. 3. 7. The person who enjoys such right
may by usage be required to join in keeping the well, &c., in repair.
170 THE LAW OF PROPERTY
cattle (pecoris ad aquam appulsus) j1 right of access to
water over another's land (water -gang)?
3. Right of taking sand out of another's soil or of taking
lime and having a lime-kiln on another's land.3
4. Right of pasture.4
The above list is not exhaustive. Other real servitudes
may be created in any of the recognized ways provided
that they are of such a nature as to benefit the dominant
estate, and in other respects satisfy the legal conditions
of servitudes.5
The following are urban servitudes :
Urban 1. My right to require my neighbour to support the
tudes. weight of my house or wall ( jus oneris ferendi — muurbe-
zwaring).6 A peculiarity of this servitude is that, contrary
to the general rule, it entails an active duty of keeping in
repair. But if the owner of the servient tenement abandons
it, the duty of repair ceases.
2. My right to drive timber, &c., into my neighbour's
wall (jus tigni immittendi — inbalcking ofte inanckering).7
3. My right to have a balcony or other thing projecting
over my neighbour's land (jus tigni projiciendi vd prote-
gendi).8 This case differs from the last in respect of the
1 Gr. 2. 35. 19; Van Leeuwen, 2. 21. 14; Voet, 8. 3. 11, and see
Smit v. Riiasouw [1913] C.P.D. 847. Grotius adds "t recht om te
varen door een anders water', which Maasdorp renders 'the right of
ford' ; but it seems rather to be what Voet (loc. cit.) calls 'jus navi-
gandi per alterius lacum perpetuum ad nostra praedia'. Dig.
8. 3. 23, 1. See also Van Leeuwen, 2. 21. 17 ; and Gens. For. 1. 2.
14. 41. 2 Van Leeuwen, 2. 21. 13.
3 Jus arenae fodiendae, jus calcis coquendae, &c. Voet, 8. 3. 11.
4 Voet, 8. 3. 10. As to the effect of a grant of free grazing
(vrije vee-weide) see Volshenk v. Van den Berg [1917] T.P.D. 321 ;
Badenhorst v. Jouhert [1920] T.P.D. 100. Free wood (vrije hout),
Volshenk v. Van den Berg, ubi sup.
6 Voet, 8. 3. 12. Such as a right to use a threshing floor (Ceylon)
Weerasinghe v. Perera (1943) 43 N.L.R., 575. Restrictive covenants
entered into by a purchaser of land may operate by way of servi-
tude after registration. Alexander v.Johns [1912] A.D. 393; Flats
Ltd. v. Transvaal Consolidated Land Co. [1920] T.P.D. 146;
Tonkin v. Van Heerden [1935] N.P.D. 589.
6 Gr. 2. 34. 3 ; Van Leeuwen, 2. 20. 2 ; Voet, 8. 2. 1.
7 Gr. 2. 34. 7 ; Van Leeuwen, 2. 20. 6 ; Voet, 8. 2. 2.
8 Van Leeuwen, 2. 20. 7 ; Voet, 8. 2. 3.
SERVITUDES 171
remedy if a servitude is exercised without right. In the
former case the person whose land is encroached upon
may remove the obstruction ; in the latter case he must
proceed by way of action.1
4. My right to require you not to raise the height of
your buildings (jus altius non tollendi — belet van hoger
timmering)? Scarcely distinguishable from this is my
right that you shall not interfere with my lights (servitus
ne luminibus officiatur — vrij licht).s If we are to adhere in
this matter to the Roman Law the last-named right merely
goes to the length of prohibiting interference with access
of light to upper windows. In this respect it is more
limited in scope than the jus altius non tollendi. On the
other hand, obstruction of light by trees would be an
interference with the second right, but not with the first.4
Another allied right is the right of prospect5 (vrij gezicht),
which seems, in Roman Law, to have implied access of
light not only to upper but to lower windows as well.6 In
this case, too, I am entitled to require that my light shall
not be intercepted by trees.
5. My right to discharge the water from my eaves or
1 Dig. 9. 2. 29, 1 ; Voet, 8. 1. 4.
2 Gr. 2. 34. 18 ; Van Leeuwen, 2. 20. 12 ; Voet, 8. 2. 8. The con-
trary servitude altius tollendi is variously explained. See Voet,
8. 2. 5-7.
8 Gr. 2. 34. 20; Van Leeuwen, 2. 20. 13; Voet, 8. 2. 11. A
general servitude of light according to Voet (loc. cit.) includes
future lights as well as present lights. But whether this is so or not
depends upon the terms of the grant. St. Leger v. Town Council of
Cape Town (1895) 12 S.C. 249.
4 A neighbour may cut overhanging branches. Gr. 2. 34. 21;
supra, p. 152.
6 Gr. 2. 34. 20; Van Leeuwen, 2. 20. 14; Voet, 8. 2. 12. Grotius
adds (2. 34. 22) 'veinster-recht, i.e. 't recht om een veinster te
hebben hangende ofte opgaende over eens anders grond ' ; or, as
Voet (8. 2. 9) puts it, 'jus aperiendi fenestram pendulam supra
aream alterius'. Gezichtverbod is my right to prohibit you from
exercising a right of prospect over my land. Gr. 2. 34. 27. Jus
luminum or jus luminis immittendi is my right to open lights or
windows in your wall. Dig. 8. 2. 4 ; Voet, 8. 2. 9. Jus luminis non
aperiendi is my right to require that you shall not open lights in
your wall. Voet, 8. 2. 10.
6 Latior pleniorque de prospectu quam de luminibus servitus.
Voet, 8. 2. 12.
172 THE LAW OF PROPERTY
spout on to your land (jus stillicidii vel fluminis — drop] -,1
or my contrary right to require you to discharge such water
on to my land (drop-vang).z
6. My right to have an artificial drain passing through or
over your land (jus cloacae mittendae — goot-recht).3
How We pass to the modes of acquiring servitudes. Grotius
tudesare says *na* servitudes are acquired by: (1) agreement
acquired, followed by acquiescence on the part of the owner of the
servient property ;4 (2) last will ;5 (3) prescription ;6 (4)
implied grant ;7 and Voet adds (5) judicial decree.8
For the modern law it will be more convenient to dis-
tinguish titles and modes of acquisition. A person may
become entitled to a servitude : (a) by grant or contract ;
(6) by last will; (c) by judicial decree. A servitude is
acquired principally by registered grant or by prescription.
I.Regis- I. Registered grant. When Grotius speaks of ' agreement
erant followed by acquiescence' he evidently has in view the
quasi-tradition of the later Roman Law. Traditio plane
et patientia servitutium inducet officium praetoris9 —
'There is no doubt that delivery of servitudes and ac-
quiescence in them will constitute sufficient ground for
the aid of the praetor.' Consistently with this he advised
in an opinion reported in the Hollandsche Consultatien
that by the general usage of Holland servitudes were con-
stituted underhand and not before the Court.10 But later
commentators on the Law of Holland maintained against
Grotius that the constitution of a servitude required the
same solemnities as a transfer of land,11 and this is the
modern law :
1 Gr. 2. 3'4. 10 ; Van Leeuwen, 2. 20. 8.
2 Gr. 2. 34. 13 ; Van Leeuwen, 2. 20. 9 ; Voet, 8. 2. 13. This sup-
posed servitude seems to rest upon a misinterpretation of the
texts of the Roman Law.
3 Gr. 2. 34. 24 ; Goot-recht — 't recht om een goot te hebben leg-
ghende ofte uitkomende op eens anders grond. Voet, 8. 2. 14 ; Dig.
8. 1. 7 ; Voet (loc. cit.) mentions many other servitudes of less fre-
quent occurrence. 4 Gr. 2. 36. 2.
5 Gr. 2. 36. 3. • Gr. 2. 36. 4. 7 Gr. 2. 36. 6.
8 Voet, 8. 4. 2. ' Dig. 8. 3. 1, 2. 10 Holl. Cons.iii. 316.
11 Groen. ad Gr. 2. 36. 2; Voet, 8. 4. 1 ; Van Leeuwen, 2. 19. 2;
V.d.K. 369.
SERVITUDES 173
'Now a servitude, like any other real right, may be acquired
by agreement. Such an agreement, however, though binding
on the contracting parties, does not by itself vest the legal
title to the servitude in the beneficiary, any more than a con-
tract of sale of land passes the dominium to the buyer. The
right of the beneficiary is to claim performance of the contract
by delivery of the servitude, which must be effected coram
lege loci by an entry made in the Register and endorsed upon
the title deeds of the servient property.'1
Another way in which a person may be entitled to a Right or
servitude is under a last will. The will does not create the
servitude but gives the beneficiary the right to require the
executor to constitute a servitude in his favour.2
Perhaps the same may be said of a judicial decree. The
Court having ascertained that a litigant is entitled to a
servitude will usually order registration. It is the registra-
tion which constitutes the servitude.3
Pending registration, the right of the beneficiary under
the will in the first case or of the successful litigant in the
second case, is inchoate, a jus ad rem, not a jus in re.
Though, however, registration is necessary to constitute Unregis-
a servitude, an unregistered title to a servitude is effective
not merely between the parties immediately concerned,
but also against any person who acquires the property or
a right over it with knowledge of the unregistered title,
or by lucrative title.4 But knowledge must be clearly
proved. It is not enough to show that the registered owner
may have been put upon inquiry. It must be shown that
in the circumstances it would be a fraud on his part to
retain the property free of the servitude.5 'The doctrine
of constructive notice must be adopted, if at all, with very
great caution.'6 The Courts have been very properly
1 Willoughby's Consolidated Co. v. CopthalVs Stores Ltd. [1918]
A.D. at p. 16 per Innes, C.J.
2 2 Maasd., p. 254. 3 Ibid. 253.
4 Willoughby's Consolidated Co. V. CopthalVs Stores Ltd., ubi sup. ;
Heidelberg Munic. v. Uys (1898) 15 S.C. 156; Ridler v. Gartner
[1920] T.P.D. 249 ; Oliver v. Matzner [1942] T.P.D. at p. 330.
6 Judd v. Fourie (1881) 2 E.D.C. 41 ; Ridler v. Gartner at p. 260 ;
Snyman v. Mugglestone [1935] C.P.D. at p. 569.
6 Erasmus v. Du Toit, [1910] T.P.D. 1037 per de Villiers, J.P.
174
THE LAW OF PROPERTY
Grant of
servitude ;
how
made.
Crown
grants.
Servitudes
in Ceylon.
2. Pre-
scription.
reluctant to admit any derogation from the principle
that real rights are created and transferred by registered
deed.
The same considerations apply to a judgment creditor
proceeding to a sale in execution of the servient property.
An unregistered servitude affords no protection, if the
creditor has given credit to his debtor in ignorance of its
existence.1
A grant of a servitude is effected by means of a deed
executed by the owners of the dominant and servient
tenements and attested by a notary public.2 It may also
be an incident of a transfer of land, when a servitude is
imposed on3 or in favour of the land transferred in favour
of or on other land registered in the name of the trans-
feror.4 The registration against the title of the servient
land constitutes the servitude.
A Crown grant of a servitude is sui generis. Since Crown
lands are not on the register it lies with the Crown to
create a servitude over them in any way it pleases.5
In Ceylon a servitude is constituted by a notarial instru-
ment which must be registered, but there is no provi-
sion for registering the servitude against the title to the
servient land.6
II. Prescription. A servitude may be acquired by un-
contested open enjoyment adverse to the owner (nee vi,
nee clam, nee precario) and continuous for the period
defined by law.
(1) Uncontested, i.e. without resistance or protest on the
part of the owner (nee vi) ; (2) Open (nee clam). The owner
need not have known that the servitude was being exer-
cised against him,7 but he must have had the means
1 Voet, 8. 4. 1 ; Juddv. Fourie (1881) 2 E.D.C. 41.
2 Deeds Registries Act, 1937, sec. 75 (1).
3 This is the so-called deductio servitutis of Roman Law.
Sohm, ed. Ledlie, p. 343, n. 1.
4 Deeds Registries Act, 1937, sec. 76.
6 Braunschweig V.M. Board v. Union Govt. [1917] E.D.L.
186.
8 Ords. No. 7 of 1840, sec. 2; No. 23 of 1927, sec. 16.
7 Voet, 8. 4. 4; Seciis Vkmius, Select. Quaest. i. 31.
SERVITUDES .> 175
of knowing. A right of servitude to an underground drain
cannot be acquired without proof of knowledge.1
(3) Adverse (nee precario). Clearly the enjoyment would
not be adverse if exercised by permission. But, further,
the enjoyment must from its nature be adverse.2 Suppose
you have for many years refrained from building on your
land, and I have in consequence enjoyed an access of light.
This gives me no right to demand that you shall not build.
My enjoyment has been meraefacultatis — matter of fact, not
of law. You were free to build or not as you pleased. So, if
for a number of years an upper riparian owner, having, as
such, a right to reduce the volume of the stream within the
limits and for the purposes permitted by law, has, in fact,
allowed a lower proprietor to enjoy an uninterrupted flow of
water, the lower proprietor has not thereby acquired any
right that this state of things shall continue for his benefit.3
The position would be different in both these cases if the one
proprietor had refrained from exercising his proprietary
right in deference to the other's claim of right to have him
do so, and had so refrained during the whole currency of the
term of prescription. What is here said applies to negative
servitudes only. An affirmative servitude is from its nature
adverse to the proprietor over whose land it is exercised.
(4) Continuous. The enjoyment of the servitude must
be uninterrupted. Thus a claim to a servitude of grazing
was held to fail when it appeared that it had been inter-
rupted by vis major for a period of three months.4 What
constitutes an interruption depends upon the nature of
the servitude. Some servitudes are in their nature inter-
mittent and 'a break in the enjoyment may be merely the
manner in which the servitude was being enjoyed'.5
1 Cf. Dalton v. Angus (1881) 6 App. Gas. at p. 827; Union
Lighterage Co. v. London Graving Dock Co. [1902] 2 Ch. 557;
Liverpool Corp. v. Coghill [1918] 1 Ch. 307; Halsbury, xi. 537.
2 De Beer v. Van der Merwe [1923] A.D. at p. 384.
3 Jordaan v. Winkelman [1879] Buch. 79.
4 Boshoffv. Reinhold [1920] A.D. 29 ; De Beer v. Van der Merwe
[1923] A.D. 378.
6 Voet, 8. 4. 17 ; Boshoff v. Reinhold, ubi sup. at p. 33 ; Head v.
Du Toit [1932] C.P.D. 287.
176 THE LAW OF PROPERTY
5. For the period defined by law. In the Dutch Law this
was a third of a century.1 A Cape Act (No. 7 of 1865,
sec. 106) substituted thirty years, and this is now general
throughout the Union.2
Though the full period of prescription is necessary to
constitute a servitude, it does not follow that the Court
will always order the removal of a structure which has
been maintained for a shorter period in derogation of
another's right. Thus, by the keuren of Delft and other
towns a building which had stood for a year and a day3
without protest (onbeklaagt) was thereby sufficiently pre-
scribed, i.e. its removal would not be decreed; but the
owner of the land was entitled to compensation in
damages.4 In the modern law the Court will, in its discre-
tion, order removal or require the encroaching party to
take transfer of the encroached upon land and of so much
more as may have been rendered useless to the owner
by the encroachment and to pay a reasonable sum as
damages.5
According to Voet, to make good a claim to a servitude
by prescription, bona fides is necessary, though Justus
titulus is not.6 But the analogy of the general law of
prescription suggests that neither the one nor the other is
needed.7
Vetustas. Closely resembling prescription, but distinguishable from
it is immemorial user (vetustas), which notwithstanding
Maasdorp's statement to the contrary8 may constitute
a claim to a private servitude. For particulars reference
may be made to the writer's edition of Grotius.9
1 Gr. 2. 36. 4.
2 Prescription Act, 1943, sec. 2.
3 i.e. for a year, six weeks and three days. Anton. Matthaeus,
Paroem. No. ix, sec. 17.
4 Gr. 2. 36. 5 and Groen. ad loc. ; Groen. de leg. abr. ad Cod.
3. 34. 1-2. Bijnkershoek (O.T. ii. 1695) insists that such keuren
do not make ./MS commune.
6 Cape Town Munic. v. Fletcher [1936] C.P.D. at p. 352;
(Ceylon) Gnanaprakasam v. Mariapillai (1937) 39 N.L.R. 406.
6 Voet, 8. 4. 4.
7 Cf. Anton. Matthaeus, Paroem. no. ix, sees. 2, 3.
8 Vol. 2, p. 252. 9 Vol. ii, pp. 190 ff.
SERVITUDES 177
For the reasons given above we do not include last will
and judicial decree in the list of modes of acquisition of
servitudes. Be it added, for the sake of completeness, that
servitudes may be created by statute.1
Another possibility is an implied grant. According to Implied
Grotius, when the owner of two houses has used one of S^11*-
them in a way which, if the other house had not belonged
to him, would have been in effect the exercise of a servi-
tude and the ownership is thereafter severed, each house
retains its privileges and burdens as before.2 Voet does
not admit this consequence, unless a servitude is consti-
tuted, expressly or by the use of some formula which has
the same effect, and this view has prevailed.3 The con-
troversy is as old as the glossators. A servitude of this
character is said to be constituted destinations patris-
familias. The phrase has passed into the French, and the
principle into the Dutch, Code.4
A way of necessity, or at least the right to demand it, Way of
may be said to arise by operation of law. If the parties necessity-
cannot come to an agreement it will be determined by the
Court or other competent authority, as in Natal by the
Road Board.5
In South Africa rights commonly described as public Public
servitudes were formerly reserved in Government grants
in favour of the public generally, or some portion of it.
Such are rights of outspan, of cutting fuel, and of using
trek-paths. They have been recognized in many cases as
binding upon the grantee and his successors in title.6
1 Wille, Principles, p. 173. 2 Gr. 2. 36. 6.
3 e.g. uti mine sunt, Voet, 19. 1. 6. See Bijnk. O.T. i. 482, and
the exhaustive discussion of Kotze, J.P. (adopting Voet's view) in
Salmon v. Lamb's Exor, [1906] E.D.C. 351.
4 La destination du pere de famille vaut titre a 1'egard des servi-
tudes continues et apparentes. C.C. Art. 692; B.W.B. Art. 747.
5 Voet, 8. 3. 4; VanSchalkwyk v. DuPlessis (1900) 17 S.C. 454;
Rampersad v. Goberdun [1929] N.P.D. 32; Wilhelm v. Norton
[1935] E.D.L. 143; Mazista Slate Quarries Ltd. v. Oosthuizen
[1943] T.P.D. 28.
8 Meintjes v. Oberholzer (1859) 3 Searle 265; Van Niekerk v.
Wimble [1878] Buch. 190 ; 2 Maasdorp, pp. 231 ff. ; Deeds Registries
Act, 1937, sec. 65 (1).
4901
178 THE LAW OF PROPERTY
Dedica- In English Law public rights of way may be created by
public. dedication to the public.1 This is probably unknown to the
law of South Africa,2 as it is to the law of Ceylon unless
effected by deed of grant.3
How Praedial servitudes are lost by:
servi-18 1- Merger,4 when the servient and the dominant land
tudesare meet in the same hand; in accordance with the maxim
'nulli res sua servit'.5 If the circumstances are such that
the 'confusion' is permanent, the servitude is altogether
gone ; if the union of ownership is merely temporary, as
would be the case if the ownership of the two lands was
not 'perdurable' (to borrow a phrase from English Law),
the servitude would be in suspense.6
2. Release,7 which may be either: (a) express; or (b)
tacit ; as by acquiescing in some act of the owner of the
servient land which is inconsistent with the continued
existence of the servitude.8
3. Determination of the grantor's interest in the
servient land.9
4. Non-user for the third of a hundred years.10
5. Sale of land by public auction in pursuance of a
judicial sequestration. In such case persons claiming
rights of servitude, &c., are given an opportunity of assert-
ing them, and if they fail to do so cannot afterwards make
them good against a purchaser.11
1 Halsbury, xvi. 217.
2 London & 8. A. Exploration Co. v. Kimberley Town Council
(1882) 1 H.C.G. 136; Lissack & Co. v. Sigma Building Co. (1897)
4 O.K. 213; Tauber v. Venter [1938] E.D.L. 82.
3 Sandrasegra v. Sinnatamby (1923) 25 N.L.R. 139.
4 Dig. 8. 6. 1 ; Gr. 2. 37. 2 ; Van Leeuwen, 2. 22. 1 ; Voet, 8. 6. 2.
8 Dig. 8. 2. 26 ; Secus B.G.B. 889 ; Swiss C.C. 733, 735.
6 Schorer, ad Gr. 2. 36. 6; Voet, 8. 6. 3; 19. 1. 6; Salmon v.
Lamb's Exor., ubi sup. 7 Gr. 2. 37. 3 ; Voet, 8. 6. 5.
8 Gr. 2. 37. 4; Van Leeuwen, 2. 22. 3 ; Voet, ubi sup.', Edmeades
v. Scheepers (1881) 1 S.C. 334; Vermeulen's Executrix v. Moolman
[1911] A.D. at p. 409.
9 Gr. 2. 37. 6 ; Van Leeuwen, 2. 22. 5 ; Voet, 8. 6. 13.
10 Gr. 2. 37. 7 ; Van Leeuwen, 2. 28. 4 ; Voet, 8. 8. 7 ; in the Cape
Province for thirty years. Ohlsson's Cape Breweries v. Thompson
(1901) 11 C.T.R. 275; Brawn v. Powrie (1903) 13 C.T.R. 464.
11 Voet, 8. 8. 14; Holl. Cons., ii, 6.
SERVITUDES 179
6. Destruction of the dominant or servient property,
e.g. if either is swept away by the sea. But land is generally
indestructible, and if buildings are rebuilt a servitude
revives, even if the prescriptive period has meanwhile
elapsed.1
Certain rules apply to all praedial servitudes : Rules of
1. There can be no praedial servitude without a domi- appHca-
nant and a servient land ; which last must be near enough tion to
to the first to be useful to it, but not necessarily con-
tiguous.2 tudes-
2. There cannot be a servitude over a servitude.3
'Servitus servitutis esse non potest.'4
3. The extent of the servitude may not exceed what is
required for the convenience of the dominant land.5
4. The duty laid upon the owner of the servient land
must, with the exception of the jus oneris ferendi, be a
duty to forbear, not to do. 'Servitutium non ea natura
est ut aliquid faciat quis, veluti viridia tollat aut amoen-
iorem prospectum praestet, aut in hoc ut in suo pingat, sed
ut aliquid patiatur aut non faciat.'6 But modern codes
depart from the principle in the sense that an active duty
may be attached to the servitude.7
5. A servitude must be capable of perpetual duration.
Therefore, a lessee of land (even if the lease is for a long
term of years) cannot acquire a servitude by prescription.
It can only be acquired by a dominus, or by an emphy-
teuta or superficiarius, who, though not owners, have an
1 Gr. 2. 37. 5 ; Van Leeuwen 2. 22. 6 ; Voet, 8. 6. 4.
12 Voet, 8. 4. 19. 8 Voet, 8. 4. 7.
4 Dig. 33. 2. 1.
6 Voet, 8. 4. 13. Hence a real servitude cannot consist in a mere
amenity or personal enjoyment. Dig. 8. 1. 8 pr. : Ut pomum
decerpere liceat et ut spatiari et ut cenare in alieno possimus
servitus imponi non potest. Cf. Voet, 8. 4. 15.
6 Dig. 8. 1. 15, 1. 'It is not of the nature of servitudes that a
man should [have to] do anything ; for instance remove shrubs so
as to [read ut for aut] afford a more pleasing view, or, with the
same object, paint something on his own ground ; but only that he
should submit to something being done or abstain from doing
something' (Monro's translation); Voet, 8. 4. 17.
7 e.g. Code Civil Suisse, Art. 730.
180
THE LAW OF PROPERTY
Personal
tudes
Place in
arranged
Grotius.
interest which, if nothing occurs to destroy it, may last
for ever, or by a bona fide possessor.1 The allied rule that
a servitude must have a perpetual cause is somewhat
obscure. It seems to mean that the thing over which the
right is claimed, as well as the right exercised, must from
their nature be capable of perpetual continuance, and not
depend merely upon the act of man. But the limits of the
rule are ill defined; and it may be doubted whether it
forms part of the modern law.2
PERSONAL SERVITUDES
The principal personal servitudes in Roman Law were
usufruct and use. The corresponding institutions in Dutch
Law are lijftocht and bruick. To describe these as servi-
tudes is, perhaps, to make too great a concession to Roman
terminology. Grotius departs from the arrangement of
*^e R°man Law. From full ownership he distinguishes
proprietary rights less than ownership, which he describes
comprehensively as 'gerechtigheden'.3 These, again, are
either connected with the ownership of land or not so
connected.4 To the first of these sub-classes alone he
accords the name of servitudes (erfdienstbaerheden).5 For
the second sub -class he has no distinctive name. It
includes such various rights as: (1) usufruct;6 (2) use;7
(3) feuds ;8 (4) hereditary leases ;9 (5) tithes ;10 (6) mort-
gages ;n and some others.12 Such an arrangement is, per-
haps, better suited to a treatise on jurisprudence than to
the exposition of a system of positive law. In this book
we have already mentioned feuds and hereditary leases
1 City Deep Ltd. v. McCalgan [1924] W.L.D. 276.
2 Dig. 8. 2. 28: Omnes servitutes praediorum perpetuas causas
habere debent. See illustrations given in the text ; and for the
modern law Voet, 8. 4. 17; Groen., de leg. abr. ad Dig., ad loc. ;
Windscheid, i, 209, n. 7. Even in the Roman Law the exercise of
a servitude might be limited to certain times of the day or to
alternate days. Dig. 8. 1. 4, 2 and 5, 1.
8 Gr. 2. 33. 1-2, and see Table iv to lib. ii, cap. i.
4 Erfaenhangig, onerfaenhangig. 5 Gr. 2. 33. 3.
' Gr., lib. ii, cap. xxxix. 7 Cap. xliv.
8 Capp. xli-xliii. * Cap. xl. 10 Cap. xlv.
11 Cap. xlviii. " Capp. xlvi-xlvii.
PERSONAL SERVITUDES 181
under the head of ownership of land. Tithes we omit as
having no place in the modern law. Mortgages form the
subject of our next chapter. Of the above-mentioned
rights, therefore, usufruct and use alone remain to be
considered in this place.
In Roman Law usufruct meant 'the right to enjoy the Usufruct,
property of another and to take the fruits, but not to
destroy it, or fundamentally alter its character'.1 It was
usually for the life of the person entitled,2 sometimes for
a fixed or ascertainable period terminable on death.3 A
usufruct may be constituted over immovable or movable
property or both.4 Things which are consumed in the use
are not, properly speaking, the subject of usufruct, but
may be the subject of a quasi-usufruct.5 The same may
be said of a usufruct of debts (nomina). The usufructuary
may call in the debt, and use the money, but the capital
sum must be made good when the usufruct expires.6 A
usufruct may be constituted of the whole of the grantor's
estate.7 In this event it is usually created by testament
or antenuptial contract.
The rights and powers of a usufructuary are : Eights
1. As the name indicates, to use the property and to and
* J powers
take its fruits8 as owner ; of the
2. To possess the property and to recover possession
from the dominus or from a third party ;9
3. To alienate the right of use and enjoyment, but only
Inst. 2. 4 pr. ; Buckland, Textbook, p. 268.
Gr. 2. 39. 1 ; Voet, 7. 4. 1. 3 Voet, 7. 1. 5; 7. 4. 13.
Gr. 2. 39. 2 ; Voet, 7. 1. 14. 6 Inst. 2. 4. 2 ; Gr. 2. 39. 20.
Dig. 7. 5. 3 ; Girard, p. 390. 7 Voet, ubi sup.
Fructus are distinguished as natural, industrial, and civil ;
and as pendentes (necdum a solo separati), exstantes (qui jam a solo
separati asservantur), consumpti and percipiendi (qui licet percepti
non sint, honeste tamen a diligente patrefamilias percipi potue-
runt). Voet, 41. 1. 28. Fructus civiles, such as rents of houses
which accrue from day to day, are apportioned between usufruc-
tuary and dominus. Gr. 2. 39. 13 ; Voet, 7. 1. 30.
9 Dig. 7. 1. 60 ; Voet, 7. 1. 32. The usufructuary had not posses-
sion in the strict sense (Inst. 2. 9. 4) ; but generally, in so far as he
'had rights to the enjoyment of the property as against the owner
and all other men, he could use the same actions and interdicts
as the owner'. Hunter, Roman Law (3rd ed.), p. 409.
182 THE LAW OF PROPERTY
for the term of the usufruct.1 If, however, the property
held in usufruct is let on hire to a third party, the lessee
must be allowed a reasonable time after the determination
of the usufruct to look out for other accommodation ;2
4. To give the property in pledge or mortgage and to
suffer it to be taken in execution, but only to the extent
of his usufructuary interest.3
In the absence of special circumstances a usufructuary
is not entitled to claim compensation for improvements.4
Duties of The duties of the usufructuary are :
the usu- i rj>o frame an inventory of the property comprised in
the usufruct. In Roman Law this was advisable, but not
compulsory.5 In Roman-Dutch Law it may be compelled ;6
2. To give security to the dominus: (a) for the use
and cultivation of the property in a husbandlike manner ;
(6) for its restoration in proper condition upon the ter-
mination of the usufruct.7
The duty of giving security cannot be remitted to the
usufructuary by the last will of the settlor;8 though it
1 Dig. 7. 1. 12, 2; Voet, loc. cit. This seems clear, though the
text in the Institutes (2. 4. 3) 'nam extraneo cedendo nihil
agitur ', has given unnecessary difficulty. Van Leeuwen says quite
correctly (Gens. For. 1. 2. 15. 25): 'Sic ut usufructus cessione ex-
traneo facta non tarn ipsum jus usufructus quam fructuum per-
ceptionis commoditas translata videatur.' See Van der Merwe v.
Van Wyk N.O. [1912] E.D.L. 298, and 40 S.A.L.J. (1923), p. 148.
2 Voet, loc. cit. ; Holl. Cons. iv. 51. 3 Voet, loc. cit.
* Brunsdon's Est. v. Brunsdon's Est. [1920] C.P.D. at p. 172,
per Kotze, J., dissenting from Schorer ad Gr. 2. 39. 13.
8 Dig. 7. 9. 1, 4. 6 Voet, 7. 9. 2.
7 Gr. 2. 39. 3; Van Leeuwen, 2. 9. 10; V.d.L. 1. 11. 5; 1. 14. 10;
Dig. 7. 9. 1 pr. ; Ex parte Newberry [1924] O.P.D. at p. 223. If a
usufructuary has failed to give security, when called upon to do
so, he is not entitled to the fruits, which in that case are imputed
to capital. Neostad. Decis. Supr. Cur. no. 33 (in fin.); secus, if
security has not been demanded. Decis. en Resolut. van den Hove,
no. 354 ; Holl. Cons. vi. 326 ; V.d.K. Dictat. ad Gr. loc. cit.
8 Gr., ubi sup. and Schorer's note (Dissent. Groen. de leg, abr.
ad Cod. 3. 33. 4); Voet, ubi sup.; V.d.K. 371. Why not? The
reasons given are irrelevant, or extremely feeble, as that the
usufructuary may be tempted to waste the property (Gaill, ii.
145, § 2). In any event, parents are not bound to find security for
property given to their children by last will or act inter vivos sub-
ject to a usufruct in their favour. Voet, 7. 9. 7 ; Ex parte Pistorius
£1920] T.P.D. 297; Ex parte Newberry [1924] O.P.D. 219.
PERSONAL SERVITUDES 183
may be remitted by one who grants a usufruct by act inter
vivos, and by the heir of a testator, who has constituted
a usufruct by his will.1 The security may be demanded
by the dominus at any time during the currency of the
usufruct ;2
3. To keep in repair at his own cost and to meet all
ordinary expenses, but extraordinary expenses may be
charged against the dominus ;3
4. To pay all usual taxes and outgoings charged on the
land;4
5. Not to commit waste by felling timber,5 destroying
houses,6 and the like. The permitted uses of timber are
similar to those recognized by English Law. Undergrowth
may be cut. Trees may be felled on timber estates in due
course of husbandry,7 wood may be taken for vine-posts
or necessary repairs. If large trees are thrown down by
the wind they belong not to the usufructuary but to the
dominus ;8
6. Generally, to exercise all his rights with the care of a
bonus paterfamilias.9
The duties and rights of the dominus are the counterpart The duties
of the rights and duties of the usufructuary. Thus, on the *f th£ghtS
dominus.
1 Voet, 7. 9. 9. 2 Voet, 7. 9. 11.
3 Gr. 2. 39. 6; Van Leeuwen, 2. 9. 10; Voet, 7. 1. 36; Ex parte
Est. Meintjes (1907) 17 C.T.R. at p. 453.
4 Van Leeuwen, 2. 9. 11 ; Voet, 7. 1. 37.
5 Gr. 2. 39. 7: Een lijffcochter mag geen boomen afhouden dan
die houbaer zijn. Houbaer is a translation of caedua, i.e. quae
succisa rursus ex stirpibus aut radicibus renascitur. Dig. 50. 16.
30 pr. The usufructuary may work or open mines, but, as a rule,
must restore to the dominus the value of the minerals taken
and may be required to give security for such restoration. Van
Leeuwen, 2. 9. 4; The Master v. African Mines Corp. Ltd.
[1907] T.S. 925. In the Transvaal this right no longer exists in
consequence of the Precious and Base Metals Act (35 of 1908)
Ex parte Venter [1934] T.P.D. 69. Apparently it is not waste to
change the course of husbandry. Voet, 7. 1. 24; Dig. 7. 1. 13, 5,
and Gothofredus, ad loc.
6 Voet, 7. 1.21. Ameliorating waste. Ibid.
7 Schorer ad Gr., ubi sup.
8 Voet, 7. 1. 22 ; and therefore the usufructuary was not bound
to replace them. Dig. 7. 1. 59 pr. ; Voet, ibid.
• Voet, 7. 1. 41.
184
THE LAW OF PROPERTY
one hand, he may not prevent, hinder, or diminish the
right of use and enjoyment ; may not, for example, burden
land held in usufruct with a real servitude without the con-
sent of the usufructuary.1 On the other hand, he retains
all such rights as are properly incident to his reversion,
such as the right of alienating the property, by sale or
gift, subject, of course, to the usufruct.2
Howusu- Grotius says that usufruct is acquired by: (1) Agree-
acquired ment followed by acquiescence on the part of the dominus ;3
(2) last will;4 (3) prescription of a third of a century;6
(4) judicial decree.6
For the first we should perhaps substitute delivery of
movables and registration of immovables, for as Van der
Keessel points out, there is no need here to have recourse
to quasi-tradition (as in the case of praedial servitudes),
for usufruct per se entitles the usufructuary to the actual
possession of the subject-matter.7 A last will does not vest
the usufruct in the legatee, but entitles him to call for it.8
A usufruct may also be reserved in a deed of transfer of
land.9
Usufruct is determined by: (1) death of the usufruc-
tuary,10 or during his life-time by the expiry of the time
for which the usufruct was granted, or by a resolutive con-
dition.11 When the usufructuary is a corporation the event
corresponding to natural death is the dissolution of the
corporation, or the effluxion of one hundred years from
the date of the inception of the usufruct.12 The heirs of the
usufructuary have no right to remove standing crops, but
1 Voet, 7. 1. 20. But 'jure civili nee consentiente fructuario'.
2 Voet, ubi sup. * Gr. 2. 39. 8; Voet, 7. 1. 7.
4 Gr. 2. 39. 9.
B Gr. 2. 39. 11; (Ceylon) Selohamy v. Ooonewardene (1928) 30
N.L.R. 112. In South Africa now thirty years, Prescription Act,
1943, sec. 2.
6 Gr. 2. 39. 12. Jure civili also in certain cases (5) by operation
of law. Voet, 7. 1. 6.
7 V.d.K. Dictat. ad Gr. 2. 39. 8; Lee, Commentary, p. 199.
8 Supra, p. 173. 9 Deeds Registries Act, 1937, sec. 67.
10 Gr. 2. 39. 13; Voet, 7. 4. 1. " Voet, 7. 4. 11-13.
12 Gr. 3. 39. 15 ; Voet, 7. 4. 1 ; Johannesburg Municipality v.
Transvaal Cold Storage Co. [1907] T.S. at p. 729.
How
deter-
mined.
PERSONAL SERVITUDES 185
are entitled to be re-imbursed the cost of sowing and
cultivation.1 Rents are apportioned between the heirs of
the usufructuary (or the usufructuary) and the dominus ;2
(2) merger; when the usufructuary becomes owner (con-
solidatio), or the usufruct reverts to the owner by cession,
or abandonment*;3 (3) non-user for one-third of a century
or, as some say, thirty years ;4 (4) complete, but not partial,
destruction or change of form of the subject-matter of the
usufruct.5
Usus or bruick is a lesser right than usufruct, but, like Usus.
it, is usually a life interest.6 Its incidents are the same as
in the Roman Law. Closely akin to usus is habitatio (recht
van bewoning over een huis), but, unlike usus, it includes
the right of letting the house on hire.7
Grotius refers to the same legal category the right of
grazing on common-lands and the hereditary right of
fishing in another's water.8
Use, in general, is constituted and determined by the
same modes as usufruct.9
In addition to the above there are what the commen- Anoma-
tators call irregular or anomalous personal servitudes,10
1 Voet, 7. 1. 28 in fine.
2 Gr. 2. 39. 13 ; Lee, Commentary, p. 200 ; Voet, 7. 1. 30.
8 Inst. 2. 4. 3 ; Gr. 2. 39. 16, 17 ; Voet, 7. 4. 2. 3 ; Dig. 7. 1. 64 and 65.
4 Gr. 2. 39, 18 ; Voet, 7. 4. 6. Usufruct is not lost by 'abuse ', the
dominus being sufficiently protected by the cautio fructuaria. The
Institutes indeed say (2. 4. 3) 'finitur usufructus non utendo per
modum', which has given some difficulty to the commentators.
Vinnius (ad loc., sec. 2) and Voet (7. 4. 5) admit this mode of
determination in certain cases. Heineccius ad Vinn. (ubi sup.)
explains it away. In English Law if a life-tenant purported to
alienate the fee simple he forfeited his interest. There is no clear
evidence of a corresponding rule in R.-D.L. Gens. For. 1. 2. 15. 25 ;
Voet, 7. 4. 4. But see Groen. ad Gr. 2. 39. 16 and Van Leeuwen,
2. 9. 14.
8 Gr. 2. 39. 14; Voet, 7. 4. 8 and 9. But may revive: Voet,
7. 4. 10.
6 Gr. 2. 44. 6; Voet, 7. 8. 3; Potgieter v. Zietsman [1914] E.D.L. 32.
7 Gr. 2. 44. 8; Galant v. Mahonga [1922] E.D.L. 69; Arend v.
Est. Nakiba [1927] C.P.D. 8. These rights are seldom met with
at the present day, 2 Maasdorp, p. 197.
8 Gr. 2. 44. 7. 9 Gr. 2. 44. 10 ; Voet, 7. 8. 3.
10 Gliick, ix. 19. They are not touched by the Deeds Registries
Act, 1937, sec. 63 (1).
186 THE LAW OF PROPERTY
which are created when a right of way or other normally
praedial servitude is granted to a person as such for life
and not to the owner of adjoining property in perpetuity.1
Such rights are generally inalienable. But a grant of
mineral rights 'constituted in favour of the beneficiary
personally, and not in his capacity as owner of another
property, would be in the nature of a personal servitude,
but freely assignable and passing to his heirs'.2 These
rights ' are peculiar to the circumstances of the country,
and do not readily fall under any of the classes of real
rights discussed by the commentators'.3
1 Voet, 8. 1. 4; Willoughby's Consolidated Co. v. Copthall Stores
[1913] A.D. at p. 281 ; Texas Co. (S. A.) Ltd. v. Cape Town Munic.
[1926] A.D. 467.
2 Van Vuren v. Registrar of Deeds [1907] T.S. at p. 294.
3 Lazarus & Jackson v. Wessels [1903] T.S. at p. 510. As to the
relation of the grantee of mineral rights to the owner of the
surface see Nolte v. Johannesburg Consolidated Investment Co. Ltd.
[1943] A.D. 295.
VII
MORTGAGE OR HYPOTHEC
MORTGAGE1 is defined by Grotius as a 'right over another's The
natu
mortgage.
property which serves to secure an obligation'.2 The per- nature of
son who creates the mortgage is termed the mortgagor,
the person in whose favour it is created is termed the
mortgagee.
The obligation intended to be secured may be either
civil or natural, provided that it is not one which the civil
law disapproves.3 A person may create a mortgage to
secure his own obligation or anyone else's, but there can
be no mortgage where there is no principal obligation.4
Anything may be mortgaged which belongs to the mort-
gagor whether in full or qualified ownership,5 and whether
such property be movable or immovable, corporeal or in-
corporeal, in possession or consisting in a right of action.6
A mortgage of a specific thing imports a mortgage of the
fruits7 and other accessories.8 Generally speaking, a man
cannot mortgage what does not belong to him,9 but a
1 The term 'mortgage', derived from English law, is now in
common use as a synonym for 'hypothec', though the tendency,
perhaps, is to speak of express mortgages and of tacit hypothecs.
2 Gr. 2. 48. 1 : gerechtigheid over eens anders zaeck dienende tot
zeeckerheid van inschuld. By 'gerechtigheid' Grotius means a
proprietary right less than ownership. Gr. 2. 33. 1.
8 Voet, 20. 1. 18. Mortgages are frequently made to secure
future advances as well as existing liabilities. A mortgage of this
kind is known as a 'covering bond'. See Deeds Registries Act,
1937, sec. 51, and Wille, Mortgage and Pledge in South Africa, p. 92 ;
and for Ceylon, Ord. No. 21 of 1927, sec. 17.
4 Kilburn v. Est. Kilburn [1931] A.D. 501.
6 Gr. 2. 48. 2. Grotius (sec. 3), founding on the Roman Law,
says that the mortgage of urban servitudes and of agricultural
instruments is forbidden, but Schorer dissents.
6 Voet, 20. 3. 1. See National Bank of S. A. v. Cohen's Trustee
[191 1] A.D. at p. 250. A mortgage itself may be mortgaged by the
mortgagee to secure a debt due from himself (sub -mortgage). Van
Leeuwen, 4. 13. 6.
7 Voet, 20. 1. 3; Barclay's Bank v. The Master [1934] C.P.D.
413. 8 Voet, 20. 1. 4.
9 Voet, 20. 3. 3. As between mortgagor and mortgagee the
188 THE LAW OF PROPERTY
husband by virtue of his marital administration, may
mortgage the property of his wife, even though com-
munity of goods has been excluded j1 and pawnbrokers,
according to some authorities, were not required to restore
to the true owner things pawned with them by a non-
owner, except on terms of payment of the debt for security
of which the pawn was given.2 Further, a thing may be
effectually mortgaged by a non-owner if the owner con-
sents or afterwards ratifies the transaction; or if the
mortgagor afterwards becomes owner.3 But this last de-
parture from the rule has no application to a special
mortgage of immovables.4
The immovable property of a minor may not be mort-
gaged without a judicial decree.5
Classifies- Mortgages are either: (1) conventional (or express), or
mart ^) ^S9^ (or tacit) ;6 and each of these may be either
gages. general or special, according as the mortgage attaches to
all the mortgagor's property (immovable or movable or
both), future as well as present, or to some specific thing
or collection of things, as a flock of sheep or all the goods in
a shop.7 In this last case the mortgage covers the flock or
stock in trade as it may from time to time be constituted.
Conventional mortgages, as the name implies, are created
by agreement. Tacit mortgages arise by operation of law.
The phrase judicial mortgage (pignus praetorium vel
transaction holds good, but not to the prejudice of the owner.
V.d.K. 539.
1 Voet, 20. 3. 7 ; Roll. Cons. i. 151.
2 Voet, ubi sup. ; Schorer ad Gr. 2. 48. 2 ; Van Leeuwen, 4. 13. 4 ;
Groen. de leg. abr. ad Cod. 8. 16. But see Muller v. Chadwick & Co.
[1906] T.S. 30.
3 Dig. 13. 7. 41; Voet, 20. 3. 4. For other cases see Voet,
20. 3. 7.
4 Voet, 20. 3. 6. In the modern law 'the mortgage of immovable
property without the consent of the owner is rendered practically
impossible by our system of registration'. Wille, Mortgage and
Pledge, p. 56.
6 Decker ad Van Leeuwen, 4. 12. 4; Administration of Estates
Act, 1913, sec. 87; supra, p. 49. For other cases in which
mortgage is not permitted see Decker's note.
6 Gr. 2. 48. 7.
7 Voet, 20. 1. 2.
MORTGAGE OR HYPOTHEC 189
judiciale) is also in use, meaning an attachment of goods in
execution of a judgment.1
In Roman Law a mortgage was created by agreement Mortgage
with or without transfer of possession. If, to secure a Law?man
debt, a thing, movable or immovable, was transferred into
the possession of the creditor, the transaction was a pledge
(pignus). If a charge over property was created with-
out transfer of possession, the transaction was properly
described as a hypothec. But in common usage these
terms were interchangeable.2 No formal words were re-
quired to create a mortgage. All that was needed was
the agreement of the parties, which might be expressed
verbally or in writing. In the later law an instrument
executed publicly or subscribed by three witnesses was
preferred to other mortgages.3
In the Roman-Dutch Law the matter was not so simple. Mortgage
We must distinguish : (a) special mortgages of immovables ; p^*™811"
(6) special mortgages of movables accompanied by deli- Law.
very (pledges) ; (c) general mortgages and special mortgages
of movables unaccompanied by delivery ; (d) mortgages of
rights (res incorporales).
(a) Special mortgages of immovables were required by a Special
Placaat of Charles V of May 10, 1529, to be executed by ™£%&se
solemn writing passed ' before the Judge and in the place movables.
where the goods are situate'.4 There was a duty of 2£ per
cent, of the amount of the loan (duty of the fortieth
penny) ;5 and the transaction had to be registered in the
land-book.6 All these conditions were indispensable, if the
1 Kotze, Van Leeuwen, vol. ii, p. 656; Liquidators Union and
Rhodesia Wholesale Ltd. v. Brown & Co. [1922] A.D. 549; Hum-
phreys v. Pickles [1925] A.D. 471.
2 Dig. 20. 1. 5, 1 (Marcianus): Inter pignus et hypothecam
tantum nominis sonus differt.
3 Cod. 8. 17 (18). 11, 1.
4 1 G.P.B. 374; supra, p. 145.
8 Placaat der 40ste Penning, December 22, 1598, as reissued
1632 (1 G.P.B. 1953). The duty was, however, imposed before
that date, for it is already mentioned by Grotius (2. 48. 30), whose
work was written in 1620 and published in 1631. See Boel ad
Loen., p. 118.
• P.O., 1580, Art. 37 (1 G.P.B. 339). It should be noted that the
190 THE LAW OF PROPERTY
mortgage was to affect third parties, i.e. to bind the
property.1 It was immaterial whether possession was or
was not transferred to the creditor.2
Pledge of (6) A special mortgage of movables accompanied by
3' delivery, i.e. a pledge (pigmis — pand ter minne) was
effected by handing over the property to the creditor to
hold as a security.3 To the validity of a pledge transfer of
possession was essential.4 An agreement, therefore, which
allowed the pledgor to retain the thing precario or as a
loan or deposit, or on hire from the pledgee, rendered the
pledge invalid, being looked upon as a fraud upon the law,
which insists upon delivery as an essential element in the
transaction.5
General (c) A general mortgage was constituted either by a
general clause added to a special mortgage, or by a general
bond. If the general bond related to immovables the law
required it to be passed before a Judge, who might be any
Judge in the Province of Holland.6
Mortgage A general bond of movables was generally executed
ables°V before a notary. The same applied to a special bond of
without movables unaccompanied by delivery.7
(d) Mortgages of rights (res incorporales) were effected
ofrights. by agreement, which might, or might not, be accompanied
by cession of the right to the creditor.8
Mortgages In South Africa the law remains substantially the same.
Africa* A special mortgage of immovables is constituted by a
reference in that article is to the Placaat of May 9, 1560 (2 G.P.B.
759 and 1402), not to the Placaat of 1529.
1 Gr. 2. 48. 30. V.d.K. ad loc. (Lee, Commentary, p. 215) holds
that omission of registration did not entail the penalty of nullity.
2 Gr. 2. 48. 33.
3 Gr. 2.48. 27; V.d.L. 1. 12. 3.
4 But brevi manu traditio may be sufficient. O'Callaghan's
Assignees v. Cavanagh (1882) 2 S.C. 122.
8 Voet, 20. 1. l2;Holl. Cons. iii. 174, 470; V.d.K. 536; Goldin-
ger's Trustee v. Whitelaw [1917] A.D. at pp. 79, 89 ; Goosen's Trus-
tees v. Goosen (1884) 3 E.D.C. at p. 387.
6 P.O. Art. 35 ; Gr. 2. 48. 23 ; Voet, 20. 1.10; V.d.K. 428.
7 Gr. 2. 48. 23 and 28 ; V.d.K. ad loc. (Lee, Commentary, p. 212) ;
Van Leeuwen, 4. 13. 20 and Kotze, ad loc.
8 Voet, 20. 3. 1 ; 20. 1. 17 ; National Bank of S. A. Ltd. v. Cohen's
Trustee [1911] A.D. at p. 250.
MORTGAGE OR HYPOTHEC 191
bond, known as a 'mortgage bond',1 executed before, and
attested by, the Registrar of Deeds, who has replaced the
Judge for the purpose, and registered against the title
deeds of the property.2 General mortgages of immovables
are no longer in use. Mortgages of movables (apart from
pledge), special or general, are effected by notarial bond,
and to give them a preference in insolvency must be
registered.3 A mortgage of a res incorporalis, such as a
right of action, is effected by cession : 'An incorporeal right
is by its nature not susceptible of physical delivery, but
the pledger must do some act to show that he divests
himself of that right and vests it in the pledgee for the
purpose of holding it as a security.'4
In Ceylon conventional general mortgages have been in Ceylon,
abolished by statute.5 A special mortgage of immovables
must be executed before a notary and two witnesses or a
District Judge, &c., and be registered.6 A special mortgage
of movables must be effected by actual delivery or by
writing duly registered (bill of sale).7
Before leaving this branch of our subject it is to be NO special
remarked that no special form of words is necessary for the ^™iaof
creation of a mortgage. Whether the words used are apt required,
to create a mortgage is a question of intention and con-
struction. It sometimes happens that what in essence is a
mortgage is disguised in terms appropriate to sale or some Disguised
other contract. But the Courts will always go behind the m
form to ascertain the essential nature of the transaction,
1 Deeds Registries Act, 1937, sec. 102.
2 Harris v. Buwinne's Trustee (1840) 2 Menz. at p. 108; Deeds
Registries Act, 1937, sec. 50.
3 Francis v. Savage & Hill (1882) 1 S.A.R. 33; Hare v. Heaths
Trustee (1884) 3 S.C. 32 ; 2 Maasdorp, p. 281.
4 Smith v. Family's Trustee [1904] T.S. at p. 955 ; National Bank
of 8. A. Ltd. v. Cohen's Trustee [1911] A.D. at p. 251 ; Robert v.
Ettlinger [1937] W.L.D. 28. As to what is necessary to constitute
a cession of a right, see p. 247 infra.
5 Ord. No. 8 of 1871, sec. 1; re-enacted, Ord. No. 21 of 1927,
sec. 3.
9 Ord. No. 7 of 1840, sec. 2 ; Ord. No. 17 of 1852, sec. 1.
7 Ord. No. 21 of 1871 ; Ord. No. 23 of 1927, sec. 18 ; Mohamad v.
Eastern Bank ( 1931 ) 33 N.L.R. 73. For the older law of Ceylon see
Tatham v. Andree (1863) 1 Moo. P.C.C. (N.S.) 386.
192
THE LAW OF PROPERTY
Contract
to create
a mort-
gage in
futuro.
Tacit
hypo-
thecs.
and, if this is found upon its true construction to be a
mortgage, will pronounce it to be so. This is an appli-
cation of the maxim — Plus valet quod agitur quam quod
simulate concipitur.1
An agreement to constitute a mortgage in futuro, e.g. to
give a movable as a pledge to secure a present or future
debt, bears the same relation to a mortgage as a contract
to sell bears to a sale perfected by delivery. If such an
agreement satisfies the requirements of the law as to form
and in all other respects the Courts will give effect to it
directly, by decreeing specific performance, or indirectly,
by interdict, and in any event by an action for damages
against the party in default. This is part of the general
law of contract, and does not call for any further notice in
this place. It must be remarked, however, that an alienee
with notice is in no better position than if the mortgage
had been actually implemented.2
We pass to tacit hypothecs. Many such are mentioned
in the books, of which some were peculiar to the law of
Holland, but most were a legacy from the Roman Law,
which in the later Empire, and particularly under Justi-
nian, multiplied these embarrassing clogs on property:
some of these are inapplicable to modern conditions. Many
were abolished by pre-Union legislation in one or other of
the colonies, and to-day none of them except the land-
lord's hypothec confers a preference in insolvency. This
provision of the Insolvency Act3 does not positively
abolish tacit hypothecs in general, for the statute leaves
untouched the hypothecary creditor's right (if it still
exists) of following the property into third hands4 and his
right of preference where there is no insolvency, as in an
1 Cod. 4. 22; Voet, 13. 7. 1 ; Zandberg v. van Zyl [1910] A.D.
at p. 309; National Bank of S. A. v. Cohen's Trustee [1911] A.D. at
p. 242 ; Anderson v. Kaplan [1931] C.P.D. 50; Bhaijee v. Khoja
[1937] A.D. 246 ; Commrs. of Customs v. Randies Bros. [1941] A.D.
369.
2 Cato v. Alion & Helps [1922] N.P.D. 469 ; De Jager v. Sisana
[1930] A.D. at p. 84.
3 Insolvency Act, 1936, sec. 85 (1).
4 Infra, p. 200.
MORTGAGE OR HYPOTHEC 193
Admiralty action in rem.1 But in practice these hypothecs
have little, if any value, except the landlord's hypothec,
which calls for particular attention.
In the later Roman Law a landlord, to secure the rent The land-
due to him, had a tacit hypothec over movables brought
on to the leased premises (invecta et illata) in the case of a
house, and in the case of an agricultural tenancy over the
fruits and crops.2 The Roman-Dutch Law took this over,
extending the tacit hypothec over invecta et illata to
every description of tenancy.3 This hypothec in principle
requires two conditions: (1) the goods must be on the Two con-
premises ; (2) they must be the property of the tenant. '
But each of these conditions admits of some qualification.
1. As regards the first, the removal of the goods from the l. The
premises usually extinguishes the hypothec. The only ^°^Sjje
way to prevent this is for the landlord to obtain from the on the
Court a judicial sequestration of the property while it is on pl
the premises, or an arrest of the property in the very act
of removal. The law as stated by Voet in the following
passage still holds good : —
'We must remember that now with us and in many other
countries the right of tacit pledge in the "invecta et illata" of
a tenement, whether rural or urban, has no force unless they
are sequestered (praecludantur) by public authority while they
are still in the tenement ; or, unless, when the tenant removes
them, they are seized (arresto detineantur) by a vigilant creditor
in the very act of removal, in which case the things which had
been begun to be transferred, but had not yet reached the
place destined for their concealment, are to be taken back to
the land ; . . . which sequestration (pmeclusio) by our usages
not only confirms (firmat) the lessor's right of hypothec, but
also gives him a preference, though by the Roman Law he
seems to have been entitled only to a simple hypothec ; and by
the law of Amsterdam only the rent for one year besides the
current year has preference.'4
1 Crooks & Co. v. Agricultural Coop. Union [1922] A.D. 423.
2 Dig. 2. 14. 4 pr. ; 20. 4. and 7 ; also for waste to a house — si
deteriorem habitationem fecerit culpa suainquilinus. Dig. 20. 2. 2.
3 Gr. 2. 48. 17 ; Voet, 20. 2. 2-3 ; V.d.K. 423.
4 Voet, 20. 2. 3 (Berwick's translation) ; (Ceylon) Perera v. Silva
(1935) 37N.L.R. 157.
O
4901
194 THE LAW OF PROPERTY
In this passage Voet speaks of the possibility of seizure in
the very act of removal ; and Grotius says that the lessor
preserves his right if he proceeds against the property
'immediately, while it is being removed from the ground'.
The limits which the law puts upon this right were con-
sidered in Webster v. Elison [1911] A.D. 73. The Natal
Quick Court had developed a doctrine of so-called 'quick pur-
pursuit. suit'5 according to which 'if the landlord proceeds ex-
peditiously, or with sufficient celerity, he is entitled to an
order for the attachment and return of the goods to the
leased premises'. But the Appellate Division refused to
endorse this doctrine. By the law of South Africa the
utmost indulgence allowed to the landlord is to arrest the
goods 'in process of removal or while in transit to their new
destination' (Innes J. at p. 90). If the tenant has removed
the goods after an order of attachment, the Court will
order him to return them to the premises for the purpose of
giving effect to the attachment.1 But even in this case (it
seems) a bonafide purchaser wiU have acquired a good title.2
The land- it is not the case, however, according to modern prac-
ference^6 tice, that the landlord's hypothec requires a judicial arrest
to make it effectual over movables remaining upon the
premises ; for over such property the landlord has a right
of preference in the event of insolvency, which prevails
even against a pignus praetorium issued before the land-
lord has obtained an attachment or interdict in enforce-
ment of his lien.3 The hypothec is not lost by the removal
of the goods from the leased premises under a writ of
execution taken out by the landlord upon a judgment for
arrears of rent.4
2. The 2. The hypothec in principle attaches to movables upon
the premises belonging to the tenant ; or to a sub-tenant,
(gener- but only to the extent of rent due from the sub-tenant to
belong to n*s immediate landlord.5 The property of third parties is
1 Greeffv.Pretorius(1895) 12 S.C. 104.
3 Voet, 20. 2. 3, in fine.
8 In re Stilwell (1831) 1 Menz. 537 ; 2 Maasdorp, p. 313.
4 Columbia Furnishing Co. v. Goldblatt [1929] A.D. 27.
B Voet, 20. 2. 6, in fine; Smith v. Dierks (1884) 3 S.C. 142;
MORTGAGE OR HYPOTHEC 195
not bound unless it has been brought upon the premises the
with the knowledge and consent, express or implied, of the tenant-
owner for the permanent or indefinite use of the tenant
and the landlord is unaware that the goods do not belong
to the tenant.1 Goods supplied under a hire-purcha.se
agreement usually satisfy this condition.2 Consent is
implied if the owner being in a position to give notice of
his ownership to the landlord has failed to do so.3 So soon
as the goods cease to belong to the tenant, e.g. by being
sold and delivered to a bonafide purchaser, they cease to be
affected by the hypothec even before their removal from
the land.4 On the other hand, if the goods have in fact
been brought on to the premises for the permanent or
indefinite use of the tenant, it is immaterial that the
landlord did not know that they were there.5 The land-
lord's hypothec does not extend to goods placed in the
hands of the tenant to be worked by him in the course of
his trade.6 It is not lost if the landlord has accepted a
surety or a conventional mortgage to secure his rent, for
no one should be prejudiced by excess of caution.7
The Insolvency Act, 1916, sec. 86 (as amended by Act
No. 29 of 1926, sec. 29) provided that the landlord's
Exparte Aegis Assurance Co. [1909] E.D.C. 363 ; Reinhold & Co.v.
Van Oudtshoorn [1931] T.P.D. 382. Quaere whether this applies
also to the produce of the land in the hands of a sub -tenant.
Smith v. Dierks, ubi sup. ; Wille, Landlord and Tenant (3rd ed.),
p. 184.
1 Dig. 20. 2. 7; Groen. ad Gr. 2. 48. 17; Voet, 20. 2.5; Bloem-
fontein Munic. v. Jackson's Ltd. [1929] A.D. at p. 276 ; Phillips v.
Hearne & Co. [1937] C.P.D. 61 ; Van den Bergh v. Polliack & Co.
[1940] T.P.D. 237.
2 Bloemfontein Munic. v. Jackson's Ltd., ubi sup.
3 Ibid, at p. 277 ; Sercombev. Colonial Motors (Natal) Ltd. [1929]
N.P.D. 58 ; Rand Furnishing Co. v. Heydenrych [1929] T.P.D. 583 ;
Fresh Meat Supply Co. v. Standard Trading Co. [1933] C.P.D.
550.
4 Webster v. Ellison [1911] A.D. at p. 84 per Lord De Villiers
C.J. The same consequence follows if goods are attached on the
leased premises at the instance of a judgment creditor of the
lessee. Ibid.
5 Mackay Bros. v. Eaglestone [1932] T.P.D. 301.
6 Van Leeuwen, 4. 13. 12.
7 Voet, 20. 6. 12 ; Schorer ad Gr. ubi sup.
196 THE LAW OF PROPERTY
hypothec should give a preference for all rent in respect of
the period current with and up to the sequestration, and
for arrear rent not exceeding three months in respect of the
period immediately prior thereto. The latest Insolvency
Act gives a preference for rent due in respect of any period
immediately prior to and up to the date of sequestration
for periods extending from three to fifteen months accord-
ing as the rent is payable at longer or shorter intervals.1
A statu- The same Act by sec. 84 in case of a sale of goods under
hypothec a 8USPensive condition or of a hire-purchase agreement
creates a statutory hypothec. The trustee of the debtor's
insolvent estate may be required by the creditor to deliver
the property to him, and thereupon the creditor is deemed
to be holding the property as security for his claim.
Other As explained above, there were many other tacit hypo-
thecs which have little, if any, value at the present day.
thecs. Some were special, affecting particular things, such as the
hypothec of one who lent money or supplied materials for
repairing a house or ship, or expended labour in doing so
over the house or ship in question ;2 or the hypothec of an
agricultural tenant, who had quitted possession on the
determination of his lease, over the leased property to
cover his right to be compensated for structures set up
with the landlord's consent.3 Others were general, attach-
ing to all the property of the debtor, such as the hypothec
of the fiscus over the property of administrators and
receivers of public funds4 and of persons liable for taxes
1 viz. three months if the rent is payable monthly or at shorter
intervals ; six months if at intervals exceeding one month, but not
exceeding three months ; nine months, if at intervals exceeding
three months, but not exceeding six months ; and fifteen months if
at any longer interval. Insolvency Act, 1936, sec. 85 (2).
2 Gr. 2. 48. 13; Voet, 20. 2. 28-9; 20. 4. 19; Crooks & Co. v.
Agricultural Coop. Union [1922] A.D. 423.
3 Placaet van de Staten van Hollandt of 26 September, 1658,
Art. 11 (2 G.P.B. 2515). For text and translation see Lee, Com-
mentary, p. 93.
4 Gr. 2. 48. 15; Voet, 20. 2. 8; V.d.K. 420; In re Insolvent Est.
Buisinnc (1828) 1 Menz. 318; Chase v. Du Toit's Trustees (1858)
3 Searle 78 ; (Ceylon) Attorney General v. Pana Adappa Chetty
(1928) 29N.L.R. 431.
MORTGAGE OR HYPOTHEC 197
and dues,1 of the ward over his guardian's estate,2 of
legatees and fideicommissaries over the estate of the de-
ceased testator or intestate,3 of the wife, when all com-
munity of goods had been excluded, over her husband's
estate, in security of her dos.4 Many of these tacit hypo-
thecs, as Professor Wille points out,5 have been rendered
unnecessary by the fact that the legislature has provided
other ways of securing the same result. Others have
degenerated into hens. Any reader who may wish to have
more detailed information will find it in earlier editions
of this book.
A tacit hypothec is not the same as a lien.6 This is a Liens,
creditor's right to retain immovable or movable property,
presently in his possession, until some claim is satisfied.
The claim usually, but not necessarily, relates to the
property retained. Tacit hypothecs and liens have this
in common, that both arise by operation of law, and not
by act of party. But liens last only so long as possession is
retained7 and are not assignable, whereas a tacit hypothec
does not generally depend upon possession, and, like most
other hypothecs, may be ceded to a third party together
with the claim secured by it. In some respects a lien is
more analogous to a pledge of a movable perfected by
delivery. Thus, a right to hold a pledge as a security
cannot be ceded without the consent of the debtor and so
far resembles a lien. On the other hand the pledge gives
a right of sale, which a lien does not.8
Liens fall into one of two classes, which have been Classifica-
tion and
1 Voet, ubi sup. ; V.d.K. 419 ; Cape Govt. v. Liquidators Balmoral legal
Diamond Co. [1908] T.S. at p. 688. effect-
2 Gr. 2. 48. 16 ; Voet, 20. 2. 11 ; V.d.K. 421.
3 Gr. 2. 23. 19 ; Voet, 20. 2. 21 ; V.d.L. 1. 12. 2.
4 Voet, 20. 2. 20; 23. 4. 52; Ruperti's Trustee v. Ruperti (1885)
4 S.C. 22.
6 Wille, Principles of South African Law, p. 187.
8 Lien or jus retentionis is distinguished from pignus in Reed
Bros. v. Ford [1923] T.P.D. 150. The former is a weapon of
defence only (per Wessels J.P. at p. 154).
7 United Building Soc. v. Smookler's Trustees [1906] T.S. at
p. 627 ; Savory v. Baldochi [1907] T.S. 523.
8 Deutschmann v. Mpeta [1917] C.P.D. 79.
198 THE LAW OF PROPERTY
distinguished as: (1) salvage and improvement liens ; (2)
debtor and creditor liens.1 The first of these classes of lien
exists in favour of any person who has necessarily or use-
fully incurred expense about property presently in his
possession. The second is a consequence of contract, and
covers all expenses duly incurred in terms of the agree-
ment. The first is good against all the world, the second
only against the other party to the contract and persons
claiming through him, or acquiring the property with
knowledge of the lien,2 not against an owner who is not
a party to the contract, unless it has been made by his
authority express or implied, or relates to necessary or
useful expenses.3 Instances of the first are the rights of
retention which the law gives to possessors and occupiers
of land in respect of improvements,4 and perhaps to a
finder of lost property in respect of necessary expenses.5
Instances of the second are the rights of retention enjoyed
by builders,6 by artificers, e.g. when cloth has been
delivered to a tailor to make up into clothes,7 by livery
stable keepers,8 by carters and warehousemen.9 By an
extension of the same principle attorneys and other legal
practitioners have a right to retain documents until paid
1 United Building Soc. v. Smooklers Trustees, ubi sup. ; Colonial
Manufacturing Co. v. Wild [1927] C.P.D. 198.
2 Nieman v. Scrivenor N. O. [1922] O.P.D. 101 ; Levy v. Tyler
[1933] C.P.D. 377.
8 Ford v. Reed Bros. [1922] T.P.D. 266 at p. 278; Reed Bros. v.
Ford [1923] T.P.D. 150; Colonial Cabinet Manufacturing Co. v.
Wild, ubi sup. ; United Building Soc. v. Smookler's Trustees at
p. 628. 4 Infra, p. 451.
6 Killian v. Reilly (1908) 18 C.T.R. 159.
8 United Building Society v. Smookler's Trustees, ubi sup. ;
Scholtz v. Faifer [1910] T.P.D. 243; Phillips & Gordon v. Adams
[1923] E.D.L. 104.
7 Voet, 16. 2. 20; 20. 2. 28 (in fin.); Spurrier v. CoxwellN.O.
[1914] C.P.D. at p. 88.
8 Ford v. Reed Bros, ubi sup. ; Reed Bros. v. Ford ubi sup.
By Roman-Dutch Law, differing herein from English law, expenses
incidental to the maintenance of the lien, e.g. the feed and stabling
of horses, may be charged against the debtor. Ibid. Contra, Long-
pan Salt Co. Ltd. v. Blumenfeld & Co. [1922] N.P.D. 177. For
agistor's lien see Land Bank v. Mans [1933] C.P.D. 16.
9 Anderson & Co. v. Pienaar & Co. [1922] T.P.D. 435.
MORTGAGE OR HYPOTHEC 199
their charges in connexion with legal proceedings to which
the documents relate.1 The innkeeper's lien may perhaps
be referred to the same general class.2
The Court reserves to itself the discretion, where equity
demands it, to order a lien-holder to surrender the pro-
perty against adequate security.3
It remains to speak of the effect of a mortgage in rela- How
tion to third parties, i.e. how far it creates a real security,
In Roman Law a mortgage, whether general or special, affords
whether of movables or immovables, whether express or
tacit, bound the mortgaged property, no matter into whose
hands it might come.4 In the Roman-Dutch Law the
consequences are not so simple. We must distinguish the
various kinds of mortgage and shall speak first of con-
ventional mortgages.
(a) A special mortgage of an immovable binds the pro- i. Con
perty so long as it is registered against the mortgagor's
title.5 (6) A pledge of a movable depends in principle, gages.
as in Roman Law, upon retention of possession by the
pledgee.6 Loss of possession destroys, or, at best, imperils
the security.7 (c) A general mortgage of movables affects
the property so long as it remains in the possession of the
1 Van Leeuwen, 4. 40. 2 ; Queen's Town Assurance Co. v. Wood's
Trustee (1887) 5 S.C. 327. But this right of retention does not
afford any security or preference in insolvency. Insolvency Act,
1936, sec. 47. Has an attorney a right of retention over moneys
in his hands for his costs ? The question was left open in Kayser &
De Beer v. Est. Liebenberg [1926] A.D. at p. 98. Book-keepers' lien,
Nieman v. Scrivenor N. O. [1922] O.P.D. 101 ; Wille, p. 157.
2 Van Leeuwen, loc. cit. See Holmes Oarage Ltd. v. Levin [1924]
G.W.L.D. 58, where the English Law is contrasted.
3 Ford v. Reed Bros. [1922] T.P.D. at pp. 272-3. For the
procedure in the event of the insolvency of the owner of property
held by a creditor under claim of lien see Insolvency Act, 1936,
sec. 33 ; Mars, Insolvency (3), p. 362.
4 Voet, 20. 1. 14-15.
6 For procedure in Registrar's Office see Registry of Deeds Act,
1937, sees. 56, 57.
8 Supra, p. 190; Voet, 20. 1. 13; Heydenrych v. Fourie (1896)
13 S.C. 371. For a qualification of this principle see p. 201.
7 Cf. Deutschmannv. Arpeta [1917] C.P.D. 79. A German adage
says : Mit der Hand stirbt das Pfand.
200 THE LAW OF PROPERTY
mortgagor. It is ineffectual against an alienee by onerous
or lucrative title with or without notice,1 or a subsequent
pledgee, or a creditor who gets an execution against any
part of the property.2 A creditor who has a special
mortgage of movables unaccompanied by delivery is in
no better position3 than one who has a general bond of
movables, except that he can assert his right against a
subsequent alienee or encumbrancer who has notice of
his claim.4 (d) The effect of the mortgage of a right would
depend, it may be suggested, upon the nature of the right
and the character of the cession. If the cession, though
intended merely to be in securitatem debiti were absolute
in its terms, the cessionary might give a good title to a
purchaser or pledgee, who took the property in ignorance
of the facts.5
(2) tacit. The effect of tacit hypothecs may be shortly stated. A
tacit hypothec of immovables follows the property into
the hands cujusvis possessoris, as in Roman Law.6 A tacit
hypothec of movables attaches to the property only so
long as the debtor or creditor remains in possession. It
is extinguished by transfer to a third party whether by
onerous or by lucrative title ; and if a third party acquires
a special hypothec accompanied by delivery, or a right
of retention over goods included in the security he is
1 Gr. 2. 48. 23 and 24; Voet, 20. 1. 14; 20. 6. 5; 2 Maasdorp (6),
p. 321.
2 Gr. 2. 48. 23 and 29; Voet, 20. 6. 6, ad fin.; 20. 1. 14; V.d.K.
432 ; 2 Maasdorp, p. 319.
3 In Natal a special hypothecation of movables by notarial bond
had the same effect as if the movables had been delivered as a
pledge. This is so no longer. The Notarial Bonds (Natal) Act,
1932; Parak v. Reynhardt & Co. [1930] N.P.D. at p. 258; In re,
Umlaas Wool Washing Co. [1934] N.P.D. 18.
4 Coaton v. Alexander [1879] Buch. 17; Meyer v. Botha tfc
Hergenroder (1882) 1 S.A.R. 47; Cato v. Alion & Helps [1922]
N.P.D. 469 ; De Jager v. Sisana [1930] A.D. at p. 84. This does not
apply to a general bond. 2 Maasdorp, p. 321.
6 This may be inferred from the language of Lord De Villiers C. J.
in Nat. Bk. of S. A. v. Cohen's Trustee [1911] A.D. at p. 244.
' There is no question [here] as to third parties being misled by the
form of the cession.' See Hartogh v. Nat. Bk. [1907] T.S. 1092;
[1907] T.H. 207.
6 Voet, 20. 1. 14.
MORTGAGE OR HYPOTHEC 201
preferred to the creditor under the earlier hypothec.1 This
is an illustration of the maxim — mobilia non habent se-
quelam — meubelen en hebben geen gevolg — or as the
French Law puts it with reference to this specific case —
Les meubles n'ont pas de suite par hypotheque.2
From what has been said above it is apparent that a General
general mortgage and a special mortgage of movables un- ™po0^ag<
accompanied by delivery afford a very imperfect security security.
since the mortgagee's right is easily destroyed by aliena-
tion. The mortgagee had one valuable right, namely pre-
ference over unsecured creditors in the event of insolvency.
But this has been taken from him by the Insolvency Acts,3
except in the case of a general bond of movables, which is
the only general mortgage now in use.4
In one particular the law as stated above requires Qualifica-
qualification. It was said that a pledge loses its effect if ^e that
the pledgee ceases to possess. But this rule sometimes loss of
yields to 'the exigencies of commercial transactions'.5
Thus, a merchant who was a dealer in wool and also a loss °.f
wool-washer pledged to a bank certain bales of wool,
some of them in his own hands, others in the hands of a
third party, and retained or received them back in his Exigen-
capacity of wool-washer. Shortly afterwards he became °^0
insolvent. It was held that there was a valid pledge to the merce.
bank and that nothing had occurred to deprive the bank
of its security.6 Similarly, in a Scottish case, a pledgee with
a power of sale employed the pledger as his broker to
sell the goods on his behalf. It was held that he retained
the benefit of the pledge against an execution levied upon
the goods while in the possession of the pledger.7
1 Voet, loc. cit. Voet is speaking of general hypothecs, but the
same rule would apply also to a special tacit hypothec. V.d.K.
Dictat. ad Gr. 2. 49. 29 (Lee, Commentary, p. 214).
2 C. C. 2119 ; Planiol-Ripert, ii. 2704.
3 Insolvency Act, 1916, sec. 87 (i); 1936, sec. 86.
4 Deeds Registries Act, 1937, sec. 53 (i); and see definitions of
'mortgage bond', and 'notarial bond'.
6 Heydenrydi v. Fourie (1896) 13 S.C. 371.
6 Stratford's Trustees v. London & S. A. Bank (1874) 3 E.D.C.
439. "• North Western Bank v. Poynter [1895] A.C. 56.
202 THE LAW OF PROPERTY
Wrongful The principle that loss of possession entails loss of
sion.°8 ' security must be further qualified in the sense that if a
pledgee is wrongfully dispossessed, the law will help him to
recover possession even from an innocent third party1 and
an alienee or subsequent pledgee with notice takes subject
to the pledge.2
Priorities. It may happen that the same property is affected with
more than one mortgage. In that event a question arises
as to preference or priority between the various encum-
brances upon the property. In principle all mortgages,
however constituted, rank in order of time — Praevalet
jure qui praevenit tempore — Qui prior est tempore potior
est jure.3 In the case of conventional mortgages this
means from the date of execution, and in modern practice
from the date of registration when registration is required
by law.4 Tacit hypothecs took effect from the moment
when the circumstances existed which gave birth to them.
Thus the minor's hypothec over his guardian's estate took
effect from the moment at which the relationship of
guardian and ward came into existence.5
Preferred But some securities from their nature are preferred to
lecunties. Q^^g Thus a mortgage of movable property perfected
by delivery (pledge) gives the creditor an inexpugnable
right to retain the property against all rival claimants
until his own claim is satisfied.6 The same applies to liens
or rights of retention, which, as explained above, are not
mortgages, but in this respect confer the same advantage.
The landlord's hypothec7 and the pignus praetorium8
1 Theron v. Gerber [1918] E.D.L. 288.
2 Coaton v. Alexander [1879] Buch. 17; Meyer v. Botha <Ss
Hergenroder (1882) 1 S.A.R. 47.
3 Cod. 8. 17 (18). 2; Gr. 2. 48. 34-6; Voet, 20. 4. 16.
4 Voet, 20. 4. 29; Insolvency Act, 1916, sec. 87 (2) (abrogating
the effect of Standard Bk. v. Heydenrych [1907] A.C. 336, 3 Buch.
A.C. 145) ; Insolvency Act, 1936, sec. 87.
8 Voet, 20. 2. 17 ; Schutte v. Meyer's Assignee [1927] C.P.D. 371.
6 Voet, 20. 1. 12 ; 20. 4. 9 ; V.d.K. 437.
7 Voet, 20. 4. 19 ; V.d.K. ubi sup. ; Pothier : Contrat de Lonage,
§252.
8 In re Woeke (1832) 1 Menz. 554. But by the Insolvency Act,
1936, sec. 98 (repeating the Act of 1916, sec. 84) the preference of
MORTGAGE OR HYPOTHEC 203
belong to the same class. Within this group no question
of priority arises, for the simple question is who is in
actual possession or control of the property.1 Thus, if a
creditor with a right of retention parts with the possession
to the debtor, who subsequently pledges the property
with a third party, the pledgee's right is paramount both
against the prior creditor and also, so long as he retains
possession, against a judgment creditor, who seeks to
attach the property under an execution.
By the Political Ordinance of 1580, Art. 35, general P.O.
conventional mortgages of immovables were postponed
to special conventional mortgages, though of later date.2
This did not apply to tacits, but vendors used to retain
a charge upon the land for unpaid purchase money by a
special mortgage executed contemporaneously with the
transfer called a Kustingbrief.3 This was preferred to any Kusting-
general tacit, which might be lurking in the background
ready to seize upon the property in the hands of the
purchaser. It resembled the unpaid vendor's (so-called)
hen in English Law, which, however, arises by operation of
law without express agreement.4 This institution changed
its character hi the course of the nineteenth century,5 and
the disuse of general tacit hypothecs has deprived it of
any importance.
A mortgagee seems in principle to be entitled to posses- Bights of
sion, not like the English mortgagee since the Law
Property Act 1925, qua tenant,6 but because the right to gfigor-
possess is a consequence of the right of hypothec. By the
the execution creditor is limited to the taxed costs of execution.
See Union and Rhodesia Wholesale Ltd, (in Liquidation) v. Brown
& Co. [1922] A.D. 549.
1 It seems, however, that such a question of priority may arise
as between the landlord's hypothec and the statutory hypothec of
the seller under a hire-purchase agreement. Supra, p. 196.
2 1 O.P.B. 338; Gr. 2. 48. 34; Voet, 20. 1. 14; V.d.K. 436.
8 Gr. 2. 48. 40; 3. 14. 25; Voet, 20. 4. 18; V.d.K. 437; In re
Buisinne (1828) 1 Menz. 326; United Bldg. Soc. v. Smookler's
Trustees [1906] T.S. 623 ; Est. Ghislin v. Fagan [1925] C.P.D. 206.
4 Halsbury, vol. xx, sec. 715.
8 The Kustingbrief by Mr. Geo. Denoon, 61 S.A.L.J. (1944),
p. 277. 6 Cheshire (5), p. 607.
204 THE LAW OF PROPERTY
actio hypothecaria the mortgagee asserted his right to
possess against the mortgagor and anyone else who could
not show a better title.1 But it is questionable whether
this right is admitted in the modern law.2 Not being
owner the mortgagee cannot grant leases unless he is in
possession on the terms of an antichresis,3 which entitles
him to take the profits of the land in lieu of interest.
In principle there is no reason why a mortgagor should
not deal with the mortgaged property as he pleases, sub-
ject to the rights of the mortgagee. But in fact it is other-
wise. In South Africa he cannot do so. For since transfer
of land on which a mortgage is registered cannot take place
without the consent of the mortgagee, without his consent
the land cannot be alienated.4 A mortgagor is not pro-
hibited from granting a lease, subject to the mortgage.5
The imposition of a servitude, being plainly prejudicial
to the mortgagee, is not permitted.6
Special Any covenants which are lawful and not contrary to
contained* P^lic policy may be annexed to the contract,7 e.g. (1) that
in mort- the destruction of the pledge without fault on his part
shall free the debtor ; (2) that the creditor shall take the
profits in lieu of interest (antichresis) ;8 (3) or in satisfac-
tion of his claim ; (4) that the pledge shall not be redeemed
for a certain time (invalid if annexed to antichresis ?)9
(5) that if the debt is not paid within a certain time the
creditor may propria auctoritate enter into possession of
the mortgaged land ; (6) that if the debt is not paid the
1 Dig. 20. 1. 16, 3 ; Girard, p. 825.
2 Roodepoort GM.Co.v. Du Toil N. O. [1928] A.D. at p. 71. As
to the rights and duties of a mortgagee in possession see Judes v.
8. A. Breweries Ltd. [1922] W.L.D. 1.
8 Voet, 19. 2. 4. * Deeds Registries Act, 1937, sees. 56, 57.
8 Watson v. McHattie (1885) 2 S.A.R. 28; Dreyer's Trustee v.
Lutley (1884) 3 S.C. 59; Reed's Trustee v. Reed (1885) 5 E.D.C. 23.
6 Stewart's Trustee v. Uniondale Municipality (1889) 7 S.C. 110.
7 Voet, 20. 1. 21.
8 Voet, 20. 1. 23; (Ceylon) Wijeysinghe v. Velohamy (1928)
29 N.L.R. 349.
9 Sande, Decis. Fris. 3. 12. 11; McCullough & Whitehead v.
Whiteaway <fc Co. [1914] A.D. at p. 626 ; (Ceylon) Gabrial v. Adikaran
(194 1)42 N.L.R. 146.
MORTGAGE OR HYPOTHEC 205
creditor (or a surety who pays) may buy the property at
a fair price ; (7) that the creditor may sell the pledge.1
An agreement for forfeiture in the event of non-pay-
ment (pactum commissorium — lex commissoria) is not
permitted.2
In the Roman Law a mortgagee ultimately acquired a Enforce-
power of sale, which could not be excluded by express mortgage,
agreement. This right, however, was enjoyed only by a
first mortgagee.3 He could also, in certain cases, obtain an
order of foreclosure (impetratio dominii).4 In the Roman-
Dutch Law neither of these remedies is generally available.
Foreclosure is unknown, and sale cannot be effected
except with the consent of the debtor. The normal mode
of realizing a mortgage is by obtaining a judgment of the
Court and taking out a writ of execution.5 In South Africa,
if the mortgaged property is immovable, an order of Court
is required declaring the property executable.
The mortgaged property may be sold without an order
of Court with the consent of the debtor ; but, according to
Voet, an agreement for extra-judicial sale contained in
the mortgage-deed will not be enforced if the debtor after-
wards objects, or if a private sale would be prejudicial to
other hypothecary creditors.6 Judicial decisions in South
Africa have recognized the validity of an agreement for
extra-judicial sale (parate executie) of movables : — Parate
executie.
' The conclusion at which I have arrived is that an agreement
for the sale, by means of parate execution, of movables delivered
to a creditor by his debtor is valid in law. It is, however, open
to the debtor to seek the protection of the Court if, upon any
1 Voet, 20. 1. 21.
2 Cod. 8. 34 (35) 3 pr. ; Voet, 20. 1. 25 ; Mapenduka v. Ashington
[1919] A.D. 343; Sun Life Insurance Co. of Canada v. Kuranda
[1924] A.D. 20; (Ceylon) Saminathan Chetty v. Van der Poorten
(1932) 34 N.L.R. 287; [1933] A.C. 178. For lex commissoria in
contract see Cloete v. Union Corp. Ltd. [1929] T.P.D. 508.
3 Cod. 8. 17 (18). 8; Girard, p. 830.
4 Girard, p. 831.
6 2 Maasdorp, p. 352.
6 Voet, 20. 5. 6 ; Compendium, 20. 5. 8. V.d.K. (Th. 439) says
that a pledgee may sell a pledge which has been delivered to him,
if so agreed ab initio.
206 THE LAW OF PROPERTY
just ground, he can show that, in carrying out the agreement
and effecting a sale, the creditor has acted in a manner which
has prejudiced him in his rights.'1
It seems that parate executie is not allowed by the law of
Ceylon.2
If the debtor is insolvent the mortgaged property is
sold not by the mortgagee, but by the trustee of the in-
solvent estate.3
In the Roman-Dutch Law, differing herein from the
Roman Law,4 a later mortgagee cannot5 redeem or buy
out an earlier mortgagee against his will so as to step into
his place.6 But he can do so indirectly, by suing the
mortgagor and obtaining a sale in execution, in which
event he will have the same right as anyone else7 of making
a bid for the purchase of the mortgaged property,8 and
is entitled to have his bond set off against the purchase
price.9 The sale in execution gives him a clean title to the
property even though the price does not cover the amount
of the bond.10 But it is usual in the first instance to offer
the property for sale at a reserve price.
Extin- A mortgage may be extinguished in the following ways i11
euishment . i
of mart- VIZ. by:
gages. i Extinction of the principal debt or liability (book iii,
part i, chap, iv).12 But a mortgagee in possession may,
I Kotz6 J. in Osry v. Hirsch, Loubser & Co. [1922] C.P.D.
at p. 547. In Paruk v. Olendale Est. Co. [1924] N.P.D. 1 Tatham J.
found no distinction between movables and immovables. But see
L. E. Krause, The History of Parate Executie, 41 S.A.L.J. (1924),
pp. 20, 185.
8 Hong Kong and Shanghai Bk. v. Krishnapillai (1932) 33 N.L.R.
249. * Maasdorp, ubi sup.
4 Cod. 8. 17 (18). 1 et passim.
6 Van der Keessel (Th. 441) merely says 'an possit, non sine
caussa dubitari potest '.
8 But he (or anyone else) may, by agreement, take an assign-
ment of the mortgage. Gr. 2. 48. 43 ; Voet, 20. 4. 35.
7 Secus, jure civili. Voet, 20. 5. 3. 8 2 Maasdorp, p. 326.
9 Smiles' Trustee v. Smiles [1913] C.P.D. 739.
10 Voet, 20. 5. 11 ; S. A. Association v. Van Staden (1892) 9.S.C.
95; United Building Soc. v. Law [1910] T.P.D. 369. Secus in
Ceylon, Kristnappa Chetty v. Horatala (1923) 25 N.L.R. 39.
II Wille, Mortgage and Pledge in South Africa, chap, viii ; 2 Maas-
dorp, chap. xxxv. 12 Voet, 20. 6. 2.
MORTGAGE OR HYPOTHEC 207
notwithstanding the discharge of the mortgage, re-
tain the property until an unsecured debt due to
him from the mortgagor has been satisfied ;J
2. Renunciation of the mortgage (a) express ;2 (6) implied,
as by restoring a pledge or allowing the mortgagor
to alienate the mortgaged property;3 but know-
ledge of or consent to sale of the property does
not necessarily imply a remission of the mortgage.
It is a question of intention ;4
3. Confusion or merger, i.e. when the titles of mortgagor
and mortgagee meet in the same person ;5
4. Alienation of the mortgaged property by the mortgagor
in the cases in which alienation passes the property
free of the mortgage (supra, pp. 199-200) ;
5. Complete destruction of the mortgaged property;6
6. Expiry of time or operation of condition when the
mortgage was expressed to be temporary or con-
ditional ;7
7. Extinction of the mortgagor's title, e.g. by death, if
his interest was for his life ; or, in the case of a
sub-mortgage (i.e. a mortgage of the mortgagee's
interest), by the determination of the principal
mortgage ;8
8. Prescription. Grotius adopts the Roman law periods
of forty years, if the property is in the hands of
the mortgagor or his heirs; of thirty years, if it
has come into the hands of a third party by title
adverse to the mortgagor,9 or by no title at all.
Others writers express a preference for the general
1 Cod. 8. 26; V.d.K. 435; Lee, Commentary, p. 216; Smith v.
Family's Trustee [1904] T.S. at p. 962; but against the debtor
only, not against his creditors, ibid.
2 Voet, 20. 6. 5, including novation of the mortgage by sub-
stituting another right in its place. Wille, p. 290.
3 Voet, 20. 6. 6-7.
4 V.d.K. 442; Swanepoel v. Van Heerden [1928] A.D. 15.
6 Voet, 20. 6. 1. o Voet, 20. 6. 4.
7 Voet, 20. 6. 10.
8 Voet, 20. 6. 2 (in fine).
9 Gr. 2. 48. 44 ; V.d.K. 443 ; V.d.L. 1. 12. 6.
208
THE LAW OF PROPERTY
Keeping
first
mortgage
alive.
common law term of a third of a century.1 In South
Africa the period is fixed by statute at thirty years ;2
9. Decree of the Court, when, e.g. the mortgage is set
aside on the ground of mistake or fraud, or under
the provisions of the Insolvency Act, 1936, sees. 26,
29, and 30, as a disposition without value, or a
voidable or undue preference ;
10. Judicial sale, or sale in insolvency, of the mortgaged
property.
Where there is a first and a second mortgage on the same
property and any event occurs which extinguishes the
first mortgage without extinguishing the second, normally
the second mortgage is promoted to higher rank. But if
the first mortgagee has purchased the property from the
mortgagor by private contract, he may, if he pleases, keep
the first mortgage alive as against a second mortgagee, who
is proceeding to a judicial sale of the property.3
1 Voet, 20. 4. 9; Matthaeus, Paroem. no. 9, sec. 6 (7).
a Prescription Act, 1943, sec. 3.
8 Cod. 8. 19 (20). 1; Voet, 20. 5. 10. The Germans call this
Eigentiimerhypothek. See Ennecerus-Kipp-Wolff, Lehrbuch des
Burgerlichen Rechts, iii. 530.
BOOK III
THE LAW OF OBLIGATIONS
4901
BOOK III
The
meaning
of 9bli-
gation.
Obliga-
tions are
civil and
natural.
INTRODUCTION
FROM the law of property, or real rights, we pass to the
law of obligations or personal rights. A real right, as we
have seen, constitutes a claim which the law will sustain
against any and every invader. It is a right against all
the world. A personal right, on the contrary, is a right
against some specific person and against him alone. When
one person is legally entitled to demand from another
some specific act or forbearance, a relation exists between
them which is termed an obligation. When we say that
one person is legally entitled we imply that the other per-
son is legally bound or obliged. Accordingly, Justinian
defines obligatio as 'juris vinculum quo necessitate
adstringimur alicujus solvendae rei secundum nostrae
civitatis jura'1 — 'An obligation is a legal fetter with
which we are bound by the necessity of performing some
matter in terms of the laws of our country.' Any giving,
doing, or forbearing may be the subject of an obligation,2
provided only that it be something possible and not con-
trary to law.3 From legal or 'civil obligations', as they are
specifically called, must be distinguished 'natural obliga-
tions'. These are personal claims founded not in law, but
in morality,4 e.g. the claim of a father to receive services
of duty and affection from his children. More precisely,
in Roman law, the phrase ' natural obligation ' was limited
to claims which, while not enforceable by action, were,
nevertheless, available as a defence and had other conse-
quences in the field of positive law.5 This distinction is not
without importance at the present day. Thus it is generally
held that the unassisted contract of a minor creates a
natural obligation and is a good foundation for a third
1 Inst. 3. 13 pr. The term 'obligation' is not understood to
include personal relations arising from status.
8 Voet, 44. 7. 1. a Voet, 2. 14. 16.
4 Voet, 44. 7. 3. B Voet, ubi sup.
INTRODUCTION 211
party's contract of suretyship. Another case is a statute-
barred debt. The debtor is not bound to pay, but if he
pays he cannot reclaim the money on the ground that it
was not owed (condictio indebiti).1
A legal bond or obligation between two persons may How
arise in different ways. These have been variously classi- °^g
fied by the jurists. We adopt as most convenient the arise,
arrangement chosen by Gaius in his book called Aurea or
Golden Words? According to this, obligations arise: (1)
from agreement; (2) from wrongdoing; (3) from various
other causes. We shall discuss these severally under the
three heads of Contractual, Delictual, and Miscellaneous or
Quasi-contractual.
1 Voet, 12. 6. 2; Wessels, i. 1271. Wessels examines some other
(doubtful) cases of natural obligation.
2 Obligationes aut ex contractu nascuntur aut ex maleficio aut
proprio quodam jure ex variis causarum figuris. Dig. 44. 7. 1 pr.
PART I
The
definition
of con-
tract.
Contracts
are:
valid,
void,
voidable.
There is
no con-
tract un-
less the
parties
intend to
contract.
OBLIGATIONS ARISING FROM CONTRACT
THE subject-matter of the law of contract is in all legal
systems the same, viz. agreements and promises. What
agreements, what promises, will the law enforce ? This is
the problem to be solved, and it is solved by different
systems of law in different ways. But the definition of
contract in the abstract is always the same, viz. 'an agree-
ment enforceable at law ' or, what comes to the same thing,
' an agreement which creates a legal obligation between the
parties to it'. An agreement which produces this effect is
a contract ; an agreement which fails to produce this effect,
however much it may be intended to do so, is a void con-
tract, i.e. no contract at all.1 Sometimes the agreement
has in law the effect that it lies in the option of one of the
parties whether he will be bound by it or not. In that case
it is said to be voidable by such party. Agreements directed
to illegal ends are usually void ; agreements procured by
fraud are usually voidable. Instances will be given in the
following pages.
From what has been said it is apparent that the law of
contract is concerned not with all agreements, but only
with such agreements as are intended to create a legal
obligation between the parties. If the parties do not wish
to be bound the law will not bind them.2 Therefore no
legal consequence attaches to words spoken and under-
1 Or we may, if we please, define contract as 'an agreement
which creates or is intended to create a legal obligation between
the parties to it' (Jenks, Digest of English Civil Law, Art. 196). This
will permit us without abuse of language and in harmony with
common usage to speak of a 'void contract', i.e. a contract which
is intended to create, but does not create, a legal obligation between
the parties.
2 Pothier, Traite des Obligations, sec. 3. The generality of this
statement must be qualified to the extent of admitting that a
person may in certain cases have acted in such a way as to induce
another to believe that he intended to contract with him, and may
be estopped from denying that his apparent intention corresponded
with his real intention. Infra, p. 220, n. 1.
OBLIGATIONS ARISING FROM CONTRACT 213
stood as a jest,1 nor to agreements for the performance of
something patently impossible,2 for they cannot be sup-
posed to have been seriously intended.3
In discussing the law of contract we shall consider : (a) Divisions
the formation of contract, i.e. the conditions of its exis- °£ con-
tence ; (6) its operation or effect ; (c) its interpretation ; tract.
(d) its determination. These topics form the subject of the
following chapters.
1 Vinnius ad Inst. 3. 14. 2, sec. 11 ; Van Leeuwen, 4. 1. 3.
2 Gr. 3. 1. 19 and 42; Voet, 2. 14. 16; 45. 1. 5; V.d.L. 1. 14. 6.
3 Voet, 28. 7. 16 ; Vinnius, ubi sup.
FORMATION OF CONTRACT
The To constitute a valid contract: (A) the parties must be
elements agreed; (B) the parties must intend, or be deemed to
contract, intend, to create a legal obligation ; (C) the object of the
agreement must be physically and legally possible ; (D) the
requisite forms or modes of agreement (if any) must be
observed ; (E) the agreement must not be impeachable on
the ground of fraud, fear, misrepresentation, undue in-
fluence, or lesion ; (F) the agreement must not be directed
to an illegal object ; (G) the parties must be competent to
contract.
SECTION A
The parties must be agreed
Agree- The nature of agreement is explained in many well-
ment. known works. We are here concerned with the modes in
agree- which agreements are concluded and with some circum-
ments are stances in which agreement is absent. Agreement usually
results from the acceptance of an offer, or from the reply
to a question. Thus, if I say 'I offer to buy your horse for
£50', and you answer 'Agreed'; the contract is complete
from the moment that your answer makes known to me
your acceptance of the offer made to you.1 So, if I say
'Will you sell me your horse for £50 ? ', and you answer 'I
will ' ; there is a contract completed by your answer, ex-
pressing a willingness to sell, given in reply to my question
expressing a willingness to buy. In Roman Law the
contract known as the stipulation was normally expressed
in the form of question and answer. In Roman-Dutch Law
1 The general rule is as stated in the text. But in the case of
acceptances through the post actual communication to the offerer
is not indispensable (infra, p. 216); and the offer may in some
cases, from its nature or by express terms, dispense with com-
munication of acceptance. Rex v. Net [1921] A.D. at pp. 344,
351 ft'. ; McKenzie v. Farmers' Co-op. Meat Industries Ltd. [1922]
A.D. 16; Cullinan v. Union Govt. [1922] C.P.D. 33.
FORMATION OF CONTRACT 215
neither offer and acceptance nor question and answer are
indispensable, but any expression of a common intention,
whether conveyed by spoken or written words, or by x;on-
duct, or partly by words and partly by conduct, will con-
stitute an agreement which (other necessary conditions
being satisfied) the law wiU enforce.1 But without union of
minds there can be no agreement.2 Therefore, a mere
declaration of intention not intended to be assented to,3
or not yet assented to, or a mere offer unaccepted, is desti-
tute of legal consequences.4 To such unilateral declara-
tions of intention the Roman lawyers gave the name
of 'pollicitation'.5 Since an unaccepted offer does not
bind the offerer until acceptance, before acceptance it
may at any time be revoked.6 Once accepted, it becomes
irrevocable. An offer, if not accepted within the time, or
1 Van Leeuwen, 4. 3. 1.
2 Gr. 3. 3. 45; Joubert v. Enslin [1910] A.D. at p. 23; Jones v.
Reynolds [1913] A.D. 366; Bloom v. American Swiss Watch Co.
[1915] A.D. 100 (information given in ignorance of offered reward) ;
Dobbs v. Verran [1923] E.D.L. 177 (one party thought that a ride
in a motor-car was to be paid for, the other thought that it was
gratuitous). 3 Gr. 3. 1. 11.
4 Gr. 3. 1. 48 ; Van Leeuwen, 4. 1.3. Grotius says that a pollici-
tation made in God's honour or ex praecedenti causa for public
purposes is binding. This is taken from the Roman Law (Dig. 50.
12. 1 and 2). But it scarcely holds good to-day. Suchapollicitation
however, if accepted, might be binding as an actionable pact or
contract. See Groen. de leg. abr., ad loc., in fine.
6 Dig. 50. 12. 3 pr., Pactum est duorum consensus atque con-
ventio, pollicitatio vero offerentis solius promissum. Grotius
renders pollicitatio by 'belofte'. An offer intended to be -accepted
is 'toezegging'. As to the effect of tender see Union Oovt. v.
Vianini [1938] A.D. 560.
6 Gr. 3. 3. 45. Since the decision in Conradie v. Eossouw [1919]
A.D. 279 (infra, p. 226, n. 2) an option to purchase must be taken, at
all events in certain cases, to constitute a binding contract, from
which the person giving the option cannot withdraw without the
consent of the person to whom the option was given. Boyd v. Nel
[1922] A.D. 414. But an option may be a mere offer. A promise
to give a 'voorkeur' may confer an option (Fourie v. De Bruyn
[1914] A.D. 374), or merely a preference, in which case it may or
may not give a legal right to the promisee. Van Pletsen v. Henning
[1913] A.D. at p. 102; Robinson v. Randfontein Ests. G. M. Co.
[1921] A.D. at pp. 188, 237 ; Edwards (Waaikraal) O. M. Co. Ltd.
v. Mamogale [1927] T.P.D. at p. 295; Sher v. Allan [1929] O.P.D.
137 ; Rainforth v. Brown [1937] S.R. 269.
Contracts
concluded
through
the post.
The
accep-
tance of
railway
tickets,
&c.
Effect of
agree-
ment to
216 THE LAW OF OBLIGATIONS
in the manner, prescribed, for acceptance,1 or, where no
time is prescribed, within a reasonable time, lapses, and
ipso jure determines in the event of the death of the
offerer2 or offeree before acceptance. A purported accep-
tance subject to conditions, additions, restrictions, or
alterations takes effect as a rejection of the original offer
and as a new offer.3
In the case of negotiations through the post, or by other
such medium of correspondence, it is often matter of
importance to determine whether and when a contract
has been concluded. Suppose, for instance, an offer made
through the post and an acceptance posted which never
reaches the ofiferor, or reaches him late. Can it be said that
the offer has been accepted ? English Law is settled in the
sense that the posting of a letter of acceptance concludes
the contract, so that both parties are from that moment
bound,4 and the Appellate Division has pronounced in
favour of this solution, provided of course, that the pur-
ported acceptance is not inconsistent with the terms of the
offer.5
The acceptance of railway tickets, cloak-room tickets,
and the like has raised the same difficulties in modern
Roman-Dutch Law as in English Law, and with similar
results. A party is bound if he has had a reasonable
opportunity of acquainting himself with the contents.6
Sometimes it is agreed between the parties that their
contract shall be reduced to writing. Whether they are
1 Laws v. Rutherfurd [1924] A.D. 261.
2 Voet, 5. 1. 73. See Stofberg v. Est. Van Rooyen [1928] O.P.D.
38 ; Buckland, Textbook, p. 413, n. 8.
3 Jenks, Digest, Art. 211; Watermeyer v. Murray [1911] A.D.
61 ; Houston v. Bletchly [1926] E.D.L. 305.
4 Anson, Law of Contract, p. 25.
6 Kerguelen Sealing and Whaling Co. v. Commrs. for Inland
Revenue, [1939] A.D. 487, approving Kbtz6 J.P.'s decision in Cape
Explosive Works Ltd. v. S. A. Oil and Fat Industries Ltd. [1921]
C.P.D. 244. See also Woolmer v. Rees [1935] T.P.D. 319 (offer
and acceptance by telephone) ; Yates v. Dalton [1938] E.D.L. 177
(by telegram).
• Peard v. Rennie & Sons (1895) 16 N.L.R. 175; Central South
African Railways v. McLaren [1903] T.S. 727; Dyer v. Melrose
Steam Laundry [1912] T.P.D. 164; Wessels. i. 107 ff.
FORMATION OF CONTRACT 217
bound independently of the writing or not before the reduce
contract has been written down is in each case a question to writing.
of intention.1
There is no agreement if it is left to one of the parties No con-
to perform or not as he chooses : ' nulla promissio potest
consistere quae ex voluntate promittentis statum capit ' ;2 agree-
nor if the subject-matter of the negotiations is so vague vague
that its meaning cannot be ascertained.3 or un;
Without union of minds there is no agreement. Mistake Effect of
may exclude agreement.4 'Non videntur qui errant con- mistake.
sentire.'5 'Nulla voluntas errantis est.'6 It is important to
distinguish the different ways in which mistake may affect
a contract.
Mistake consists in a misapprehension as to the existence
or non-existence of a fact or state of facts. All mistake
is mistake of fact. But a mistaken belief that a rule of
law exists or does not exist is distinguished from other
mistakes of fact and is called specifically mistake of law.7 Mistake
With regard to this the maxim applies 'juris ignorantiam of law<
cuique nocere ' ;8 which means that no one can excuse
himself from performance of a contract by alleging that
he entered upon it under some mistaken belief as to the
1 Gr. 3. 14. 26; Voet, ubi sup.-, OoUblatt v. Fremantle [1920]
A.D. 123 ; Woods v. Walters [1921] A.D. 303 ; Cole v. Stuart [1940]
A.D. 399.
2 Dig. 45. 1. 108, 1 ; 44. 7. 8 ; Gr. 3. 3. 47 (ad fin.) ; Van Leeuwen,
4. 3. 5 ; Voet, 44. 7. 1. Secus, if he is to perform when he chooses.
Dig. 45. 1. 46, 2 ; Voet, 45. 1. 20 ; Wessels, i. 1314.
3 Dig. 45. 1. 94; V.d.L. 1. 14. 6; Humphreys v. Cdssell [1923]
T.P.D. 280; Beretta v. Beretta [1924] T.P.D. 60; Schneier & Lon-
don Ltd. v. Bennett [1927] T.P.D. at p. 359.
4 Gr. 3. 1. 19; 3. 14. 4; V.d.L. 1. 14. 2. 5 Dig. 50. 17. 116, 2.
6 Dig. 39. 3. 20. 7 Voet, 22. 6. 1.
8 Dig. 22. 6. 9 pr. : (Paulus) Regula est juris quidem ignorantiam
cuique nocere, facti vero ignorantiam non nocere. An exception
may perhaps be admitted when a law is of merely local application,
in favour of a stranger to the locality. Voet, 22. 6. 2. Some indul-
gence is allowed to minors and women. Voet, 22. 6. 3. The ques-
tion has been much debated whether ignorant ia juris excludes the
condictio indebiti. Voet ( 12. 6. 7) held that it does, dissenting from
Vinnius (Select. Quaest. i. 47). Grotius (3. 30. 6) is of the same
opinion as Vinnius, but his commentator Schorer agrees with Voet.
Van der Keessel (Th. 796) follows Grotius. See Booth v. The State
(1888) 2 S.A.R. 259, where all the authorities are collected in
218
THE LAW OF OBLIGATIONS
Mistake
of fact.
Different
kinds of
mistake.
existence or non-existence of a rule of law.1 As distinct
from mistake of law, mistake of fact often affects the
formation or the operation of a contract, and that in
various ways. In relation to the formation of contract,
mistake, if it has any effect at all, prevents a contract from
coming into existence. To constitute a contract there
must be parties who agree and something agreed upon.
If either of these elements is wanting there may indeed
be the external indicia of a contract, but there is no
consensus of minds. Therefore, in principle, there is no
contract : —
1. If one of the parties to a supposed contract is under
a misapprehension as to the person with whom he
is contracting (error in persona) ;2
2. If there is a misunderstanding as to the nature of
the transaction (error in negotio) ;3 or
3. As to the identity of the subject-matter of the con-
tract (error in corpore) ;4 or
4. As to the quality of the subject-matter (error in
substantia) ;5 or
5. Generally, as to the essential terms of the contract.6
No doubt every one of these propositions must be taken
subject to qualifications which cannot be developed in
an elementary treatise. A few points may be mentioned.
First, according to a widely accepted view, it is not every
Kotz6 C.J.'s learned judgment; Heydenrych v. Standard Bk. of
S. A. [1924] C.P.D. 335; 33 S.A.LJ. (1916), p. 45. Error of fact
and error of law distinguished. Sampson v. Union & Rhodesia
Wholesale Ltd.. [1929] A.D. at p. 479.
1 Whether mistake as to private rights is a mistake of law ?
Booth v. The State, ubi sup., at p. 267 ; Umhlebi v. Umhlebi's Est.
[1905] 19 E.D.C. 237 ; Est. Jonsson v. Est. Jonsson [1926] N.P.D.
at p. 300.
2 Pothier, Obligations, sec. 19 ; Beyers v. McKenzie (1880) Foord,
125.
3 Pothier, op. cit. ; Dobbs v. Verran [1923] E.D.L. 177.
4 Maritz v. Pratley (1894) 11 S.C. 345; Anson, p. 160.
8 Pothier, sec. 18.
8 McAlpine v. Celliers [1921] E.D.L. 112. This was a case of
mistake as to the meaning of a representation inducing the con-
tract, but it illustrates the principle.
FORMATION OF CONTRACT 219
mistake as to persons which will be fatal to a contract;
where the individuality of the party is not a material con-
sideration the contract holds good notwithstanding the
mistake.1 Thus, where an order is sent to one tradesman
and executed by another, in the absence of special circum-
stances the goods must be paid for, though the purchaser
may have been under a misapprehension as to the person
who supplied them. But another view, which seems more
in accordance with principle, is that if the goods are
retained there is a quasi-contractual duty to pay for them.2
Next, as regards what may be called the material basis
or subject-matter of the contract — the crucial question to
determine is what was the bargain between the parties.
'Videamus quid inter ementem et vendentem actum sit',
says Julian in the Digest.3 Clearly, mistake which lies
outside the orbit of the bargain cannot affect it in any
way. Thus, in a Canadian case, where A offered ten boxes
of matches for sale at $2.55 per box, and the offer was
accepted, he could not escape from the contract on the
plea that he meant to charge $4.25 per box, and had
named the lower figure by mistake.4 Similarly, where it
is a question of quality, e.g. if the bargain is for the sale of
'these candlesticks ' it is beside the mark that the purchaser
thinks he is getting silver candlesticks, when in fact they
are plated. The case would be different if the seller thought
that the bargain was for the sale of 'these candlesticks',
or 'these plated candlesticks', while the buyer, thought
that the bargain was for the sale of 'these silver candle-
sticks'. In that event there would be no union of minds
between the parties, each being under a misapprehension
as to the intention of the other. This is a case of mutual
error. It must be distinguished from common error, i.e.
when both parties labour under the same mistake.5
1 Pothier, sec. 19; Anson, p. 151 ; C.C. 1110.
2 Wessels, i. 935 ff.
3 Dig. 18. 1. 41 pr.
4 Morisset v. Brochu (1883) 10 Quebec Law Reports, 104.
6 Pothier, sec. 18; Prof. Cheshire in 60 L.Q.R. (1944), p. 175.
Infra, p. 221.
220 THE LAW OF OBLIGATIONS
The Even where a material misapprehension exists, it does
theory I>f no* necessarily follow that a party to an apparent contract
contract, can escape liability by alleging his mistake. It is to some
extent true that a contract has an objective existence
independent of the volition of the parties.1 In estimating
the consequences of mistake the question which is asked
is not so much what a person intends as what he says;2 and
not so much what he says as what expectation his words
excite (or reasonably may excite) in another person's mind.
Therefore, on the one hand, 'the promisor is bound to
perform what his language justified the promisee in expect-
ing ' ;3 and, on the other hand, a promisee's expectation
must be reasonable in the circumstances. Neither promisor
nor promisee can take advantage of his mistake unless it
was a reasonable mistake — Justus et probabilis — not im-
putable to his own carelessness.4 Thus if at a sale by
auction a person bids for property A, intending to bid for
property B, as a rule he must accept the consequences
of his mistake ;5 but the result will be different, if there
was something in the circumstances to make the mistake
excusable.6
We have spoken of cases in which mistake may have
1 'Cases arise in which, although there is in fact no mutual
assent, and accordingly no contract, one of the parties may be
estopped by his statements or conduct from setting this up. In
such cases there may be said to be a quasi-mutual assent.' Black-
burn J. in Smith v. Hughes (1871) L.R. 6 Q.B. at p. 607, cited in
Van Ryn Wine and Spirit Co. v. Chandos Bar [1928] T.P.D. at
p. 422. 'Where a party has entered into a written agreement, he is
not entitled to relief, because he understood the contract differently
from what it is truly construed to mean. ' Hoffmann v. S. A. Con-
servatorium of Music (1908) 25 S.C. at p. 30 per Maasdorp J.
2 S. A. Rlwys. v. Nat. Bk. of S. A. [1924] A.D. at p. 716 per
Wessels J.A.
3 Pieters & Co. v. Salomon [1911] A.D. at p. 138 per Innes J. ;
Pheasant v. Warrie [1922] A.D. at p. 487 ; Hodgson Bros. v.S.A.
Rlwys. [1928] C.P.D. 257 ; Van Ryn Wine and Spirit Co. v. Chan-
dos Bar, ubi sup.; Irvin & Johnson (S. A.) Ltd. v. Kapla [1940]
C.P.D. 647.
4 Voet, 12. 6. 7 ; 22. 6. 6 ; Logan v. Beit (1890) 7 S.C. at p. 216.
6 Merrington v. Davidson [1905] 22 S.C. 148; De Villiers v.
Parys Town Council [1910] O.P.D. 55.
6 Maritz v. Pratley [1894] 11 S.C. 345; and see the English case
ofScriven v. HindUy [1913] 3 K.B. 564; Anson, p. 157.
FORMATION OF CONTRACT 221
the effect of excluding agreement. There are other cases Mistake
in which the parties are in fact agreed but entertain a ^°™^n
common error. Such is the case where the contract between parties.
the parties is based upon a false assumption of fact ; e.g.
where the parties have contracted for the purchase and
sale of a thing which in fact does not exist,1 or where there
is a common error as to a substantial quality.2 The con-
tract collapses from its foundation. Another case of com-
mon error is when the parties are in fact agreed, but
the writing to which they have reduced their agreement
fails to express their real intention. In such a case the Court
will decree rectification of the instrument.3
From what has been said it is plain that the fact that a Error in
party has been induced to contract by misapprehension ^^ °r
(as to a fact or state of things), for which the other party
is not responsible and which is not of such a nature as to
prevent the supposed contract from coming into existence,
does not affect the liability of the mistaken party. It is
no defence to an action on a contract to say 'If I had
known the truth I would not have entered into it'. For
as Lord Atkin said in Bell v. Lever Bros. Ltd. [1932] A.C. at
p. 224: 'It seems immaterial that he could have got the
same result in another way, or that if he had known the
true facts he would not have entered into the bargain.'
Salmond terms mistake of this kind, error in causa con-
trahendi, which he contrasts with error in consensu, where
there is no contract at all.4
A contract procured by the fraud of a third party is Mistake
induced
1 Gr. 3. 1. 42; Scrutton v. Ehrlich [1908] T.S. 300; and see by fraud.
Theron Ltd. (In liquidation) v. Gross [1929] C.P.D. 345.
2 Si aes pro auro veneat, non valet, Dig. 18. 1. 14 ; Moyle, Contract
of Sale in the Civil Law, p. 55 ; de Zulueta, The Roman Law of Sale,
p. 25.
8 Port Elizabeth Harbour Board v. Mackie, Dunn & Co. (1897)
14 S.C. per de Villiers C.J. at p. 479 ; Bushby v. Guardian Assurance
Co. Ltd. [1916] A.D. 488 ; Weinerlein v. Goch Buildings Ltd. [1925]
A.D. 282 ; Meyer v. Merchants Trust Ltd. [1942] A.D. 244 ; and on
the question whether the error need be Justus see 44 S.A.L.J.
(1927), p. 31, and Tshoba Colliery (Natal) Ltd. v. Tshoba Coal
Syndicate Ltd. [1926] N.P.D. 526.
4 Salmond, Contracts, ed. Winfield (1927), p. 190.
222
THE LAW OF OBLIGATIONS
Property
alienated
under
mistake.
Decree of
restitu-
tion.
void if the circumstances are such as to exclude consent.
The same principle seems to apply to a contract procured
by the fraud of one of the contracting parties ; e.g. when
a man is deceived as to the nature of the transaction.
Certainly, in such a case he would have no consenting
mind.
'If the defendants were induced by fraud to enter into a
contract they never intended to enter into, in the absence of
a contracting mind on their part, the contract would be
wholly void, and not only voidable ; but the defence of fraud
could not be set up by them against the bank, an innocent
party, if they were guilty of negligence in signing the con-
tracts.'1
The effect of mistake, where it operates, being to render
the contract void, not voidable, property alienated under
mistake can be recovered even from bona fide possessors.
It is, however, not unusual to take active steps to pro-
tect oneself against liability by applying to the Court for
rescission of the contract, and this is particularly matter
of prudence when the contract is expressed in writing.
A decree of restitution on the ground of mistake implies
that both parties must be replaced in their former position.
For example, a purchaser of shares who seeks restitution
on the ground that he reasonably and justifiably mistook
the meaning of terms in the contract of sale must account
for profit made by sale of such shares as were delivered to
him. It is not enough to offer to return an equivalent
number of shares.2
Intention
to con-
tract.
SECTION B
The parties must intend, or be deemed to intend, to create
a legal obligation
Since the foundation of contract is the intention of
the parties to bind themselves, where this is absent their
1 Standard Bank v. Du Plooy (1899) 16 S.C. at p. 172 per Maas-
dorp J. ; Mackeurtan, Sale of Goods in South Africa, p. 130. It
may be presumed that the South African Courts would not accept
the reasoning in Carlisle Banking Co. v. Bragg [1911] 1 K.B. 489;
Anson, p. 162. 8 Logan v. Beit (1890) 7 S.C. 197.
FORMATION OF CONTRACT 223
agreement does not create a legal obligation.1 Whether
such an intention exists or not is usually to be inferred
from the circumstances, and particularly from what the
parties said and did. The English Law regards the giving
of consideration as evidence (and, in general, necessary
evidence) of such intention. In the Roman-Dutch Law,
which does not require consideration as a constituent
element of a contract,2 'it becomes all the more important
that the evidence should establish clearly that the in-
tention of the parties was to create a legal obligation'.3
If the transaction is of a usual business character this
intention will be inferred to be present in the absence of
clear evidence to the contrary.4
SECTION C
The object of the agreement must be physically and legally
possible
The Courts will consider that an agreement is without Physical
legal effect if according to the prevailing standard of know- aQ^silegal
ledge it is supposed to be impossible of performance. bility.
The same may be said of an agreement designed to
create a legal relation which the law does not recognize
as possible ; e.g. if a person agrees to create a servitude
in favour of himself over his own property contrary to the
principle 'nulli res sua servit'.
SECTION D
The requisite forms or modes of agreement (if any) must
be observed
The historical development of the law of contract Require-
follows substantially the same course in the various legal
1 Van Leeuwen, 4. 1. 3 ; Vinnius ad Inst. 3. 14. 2, sec. 11.
2 Infra, p. 226.
3 Robinson v. Randfontein Q. M. Co. [1921] A.D. at p. 237 per
Solomon J.A.
4 The English case of Rose & Frank Co. v. Crompton [1923]
2 K.B. (C.A.) 261 supplies a remarkable illustration of the effect
of such contrary intention (reversed on appeal to the House of
Lords, but not on this point [1925] A.C. at p. 454). Cf. Foster v.
W heeler (1887) 36 Ch.D. 695 ; Balfour v. Balfour [1919] 2 K.B. 571.
224 THE LAW OF OBLIGATIONS
systems known to us. In a primitive society few promises
are enforced by law, and only upon condition of their
being accompanied by some solemnities of form or expres-
sion, which serve to mark their serious character and to
distinguish them from the mass of agreements and pro-
mises of which the law in its initial stages fails to take
account.1 Later, the categories of actionable agreements
are multiplied, or the conditions of enforceability made
more simple. Lastly, a stage is reached in which all agree-
ments intended to create legal relations, contracted by
competent persons for lawful objects, are upheld by the
courts. It may be, however, that the law still requires that
all agreements indifferently should satisfy some condition
which is taken to be the test of the serious intention of
the parties. It may be, further, that for special reasons
some kinds of agreement are required to be expressed in
writing or in solemn written form.
Contracts The Roman Law, as is well known, was far from en-
m Roman forcmg an agreements. In Justinian's system only the
following classes of agreement were actionable, viz.: (1)
real contracts ; (2) stipulations ; (3) the four consensual
contracts ; (4) the so-called innominate contracts ; (5)
certain pacts, which at various times and in various ways
had been clothed with actionability and thus became con-
tracts in everything but name.
Pacta All other agreements remained bare pacts (pacta mtda).
They could not be enforced by action, but might be
pleaded by way of exception.2 'Nuda pactio obligationem
non parit sed parit exceptionem.'3 The stipulation in its
latest stages was almost always reduced to writing, so that
it is substantially true to say that in Justinian's law any
agreement whatever would be enforced provided that it
was expressed in a written instrument and was intended
to create a legal obligation, but other agreements only if
they fell within certain known classes, or if one party had
1 Maine, Ancient Law, p. 327.
2 Gr. 3. 1. 51.
3 (Ulpian) Dig. 2. 14. 7, 4.
FORMATION OF CONTRACT 225
performed his part and was demanding performance from
the other.
The ancient Dutch Law has been partly made known to Contracts
us by the researches of the late Professor Fockema Andreae
and other scholars. It may be, as Grotius and others Dutch
assert, that the Germans of old attached the highest im-
portance to the duty of keeping faith,1 but it was not the
case that every promise was legally enforceable. Here, as
elsewhere, the history of the law of contract is the history
of a slow transition from form to formlessness.2
In the Roman-Dutch Law — the system derived from inRoman-
the two above-named sources — the process of develop-
ment, aided, without doubt, by the influence of the Canon
Law,3 has reached its furthest limit. By many of the old
writers the phraseology of the Roman Law is retained,
but it does not correspond with facts. There is no need All
to refer an agreement to any specific head of contract or
actionable pact, for by the Roman-Dutch Law all contracts sensual.
are consensual,4 and any pact whatever is enforceable,5
provided only that it is freely entered upon by competent
persons for an object physically possible and legally per-
missible. 'If I consult the law of our own fatherland,' Decker
says Van Leeuwen's commentator, C. W. Decker,6 in a essentials
well-known passage, 'I merely consider: (1) whether the of con-
persons were capable of binding themselves ; (2) whether
the agreement was made deliberately and voluntarily ; (3)
whether it has a physical and moral possibility or reason-
able cause. If these essentials concur, I say with safety
that a valid action for performance arises.'7
1 Gr. 3. 1. 52: Heineccius, Elem. Jur. Germ., lib. ii, sees. 330-1.
8 Fock. And., vol. ii, pp. 1 ff . ; de Blecourt, p. 393 ; Gierke,
Deutsches Privatrecht, vol. iii, p. 325.
3 Vinnius, De pactis, cap. vii, sec. 6 ; Voet, 2. 14. 9.
4 Heineccius, Elem. Jur. Germ., lib. ii, sec. 345 ; Decker ad Van
Leeuwen, 4. 2. 1, n. 1.
6 'Moribus hodiemis ex nudo pacto datur actio.' Groenewegen,
de leg. abr. ad Inst. 3. 20 (19). 19 ; Gr. 3. 1. 52 ; Voet, ubi sup.
6 Van Leeuwen, 4. 2. 1, n. 1 (Kotze's translation, vol. ii,
p. 11).
7 Decker, it will be observed, identifies reasonable cause with
physical and moral possibility. But perhaps (strictly understood)
4901 Q
226 THE LAW OF OBLIGATIONS
Roman- From the above description of the essential elements of
L"w contract it is apparent that the Roman-Dutch Law pays
requires no attention to the formal requirements of the Roman
form Law. It is equally a stranger to the English requirement
nor con- of Form or Consideration. It may be asserted with con-
sidera-
tion, fidence that the doctrine of consideration did not form
part of the Roman-Dutch Law of Holland. The late Lord
de VUliers, indeed, on more than one occasion, judicially
advanced the view that in the Roman-Dutch Law every
contract must be based upon some reasonable cause (rede-
The lijk oorzaak), and that reasonable cause, as understood
of causa anc^ applied by the Dutch lawyers, was in effect indis-
or redelijk tinguishable from the ' quid pro quo ' which passes for
consideration in English Law.1 But this identification has
now been rejected by the highest judicial authority.2 It
may, indeed, be doubted whether the doctrine of causa
really occupied the important place in the Roman-Dutch
Law which has been assigned to it in modern discussions.
If, as seems probable (the identification of cause with
consideration being rejected), to say that a promise or con-
tract will be enforced if it has reasonable cause is under-
stood to-day as meaning simply that it will be enforced if
it is reasonable (and lawful) and if the parties intended to
contract a legal obligation, the retention of the phrase
'reasonable cause' may be justified as a compendious form
of expression, but, on the other hand, its disuse would
leave the substance of the law unimpaired. ' The require-
ment of a reasonable cause does not add to or take away
much from our idea of a contract.'3
The It was said above that even in a developed legal system
form may sometimes be required in particular cases. Thus
it corresponds rather with the second term in his series, viz. a
serious and deliberate intention. See Appendix F.
1 See in particular the Cape case of Mtembu v. Webster (1904)
21 S.C. 323, and the Transvaal case of Rood v. Wallach [1904]
T.S. 187.
2 Jayawiclcreme v. Amasuriya [1918] A.C. 869; Conradie v.
Rossouw [1919] A.D. 279 ; Robinson v. Randfontein Ests. Q. M. Co.
[1921] A.D. at p. 236.
3 Wessels, i. 72.
FORMATION OF CONTRACT 227
English Law requires sometimes a deed, sometimes that a some cases
contract should be evidenced by writing. No such require-
ment existed in the Roman-Dutch common law. Van der contracts
Linden,1 indeed, says that an antenuptial contract must be ^
be in writing, but Van der Keessel2 does not agree with writing.
him. It was not necessary that contracts relating to land
should be in writing; but in the modern law writing is
generally required as a condition of validity or of proof.3
Further, as has been seen above, antenuptial contracts do
not affect third parties unless registered in the office of
the Registrar of Deeds.4 Gifts in excess of £500, unless
registered or (of movables) notarially executed, are invalid
to the extent of the excess.5
SECTION E
The agreement must not be impeachable on the ground of
Fraud, Fear, Misrepresentation, Undue Influence, or
Lesion
All contracts derive their validity from the free consent Agree-
of the contracting parties. Free consent is absent when a ™ugt ^e
contract has been procured by fraud or fear. free-
Fraud is defined by Labeo as 'omnis calliditas, fallacia, Fraud.
machinatio, ad circumveniendum, fallendum, decipien-
dum alterum adhibita '6 — ' any craft, deceit, or contrivance
1 V.d.L. 1. 3. 3. 2 Supra, p. 73.
3 By Transvaal Procl. No. 8 of 1902, sec. 30, 'No contract of
sale of fixed property shall be of any force or effect unless it be in
writing and signed by the parties thereto or by their agents duly
authorised in writing.' Levy v. Phillips [1915] A.D. 139. Fixed
property is defined in sec. 2. Similar provisions in O.F.S. (Ord. 12
of 1906 (O.R.C.) sec. 49); Wilken v. Kohler [1913] A.D. 135. For
Ceylon see Ord. No. 7 of 1840, sec. 2 ; for Natal, Law No. 12 of 1 884,
sec. 1 (Royston v. Radebe [1914] A.D. 430; Cole v. Stuart [1940]
A.D. 399), which follows more or less closely the English Statute
of Frauds, sec. 4 (now the Law of Property Act 1925, sec. 40 (1)) ;
see Anson, Contract (18th ed., p. 63). There is no such legislation
in the Cape Province.
4 Supra, p. 73. 6 Infra, p. 289.
6 Dig. 4. 3. 1, 2. This definition, together with the English Law
as interpreted in Derry v. Peek (1889) 14 App. Cas. 337, is discussed
in Tait v. Wicht (1890) 7 S.C. 158. See also Roorda v. Cohn [1903]
T.H. 279.
228 THE LAW OF OBLIGATIONS
employed with a view to circumvent, deceive, or ensnare
another person'.
In the Roman Law dolus produced (inter alia) the
following effects: viz. (1) In stricti juris actions it might
be the subject of a special plea (exceptio doli) ; (2) In rela-
tion to bonae fidei contracts it might be alleged as ground
of action or of defence (without special plea) in the action
appropriate to the transaction in question, e.g. sale or
deposit ;J (3) If no other remedy was available it grounded
a special action called the actio doli.
Remedies I*1 Roman-Dutch Law the victim of fraud could : (a) set
in case of Up the fraud as a defence ;2 (6) sue for damages ;3 (c) take
Roman- steps to have the contract set aside.4 This he did by
applying to the Hooge Raad for a writ directing a Court of
first instance to inquire into the truth of his allegations
and, if they were well founded, to grant relief.
In the modern law the procedure has been simplified,
but the remedies are substantially the same.5
Dolus j^he old writers distinguish between fraud which causes
^ans a contract (dolus dans locum, vel causam, contractui) and
contractui fraud incidental to a contract (dolus incidens in contractum).
mcidens Fraud was said to cause a contract when a person who,
in con- otherwise, had not the intention of contracting was in-
duced to contract by, and would not have contracted but
for, the fraud. Fraud was said to be incidental to a con-
tract when a person freely contracted but was deceived in
the terms of the contract (in modo contrahendi), e.g. in
the price.6 This distinction, which seems to have no solid
foundation in Roman Law,7 has been adopted in many
1 Girard, p. 492.
2 Gr. 3. 48. 7 ; Van Leeuwen, 5. 17. 13.
8 Decker ad Van Leeuwen, 4. 2. 2 (Kotz^'s translation, vol. ii,
p. 14).
4 Gr. 3. 48. 5 ; Van Leeuwen, 4. 42. 2 and 4.
8 Frost v. Leslie [1923] A.D. 276; Kleynhans Bros. v. Weasels
Trustee [1927] A.D. at p. 277.
6 Voet, 4. 3. 3 ; Vinnius, Select. Quoest. lib. i, cap. xii ; Van der
Linden, Supplement, ad Pandect. 4. 3. 3.
7 Girard, p. 493, n. 4 ; Cuq, Manuel des Institutions Juridiques
des Romains, p. 392, n. 11.
FORMATION OF CONTRACT 229
modern codes,1 though the more recent codes reject it.
It is recognized in South Africa, but not precisely in the
sense above stated. In the modern law the victim of
deceit is not required to prove that he would not have
contracted if he had not been deceived :—
'the person deceived may not be able to state with certainty
that he would have refrained from entering into the contract
if he had known the truth, but if the circumstances are such
that the knowledge of the truth would have been calculated to
induce a reasonable man acting with ordinary prudence and
discretion not to enter into the contract, the Court, or jury, as
the case might be, is justified in drawing the inference that the
representation did in fact form an inducement to the contract.'2
This amounts to saying that the test to-day is objective
and not subjective.3
What is the effect of fraud upon contract ? In the old Are con-
books the question is much debated whether fraud which ^Tced by
is the cause of a contract renders the contract void orfraudvoid
merely voidable. Grotius in one passage says in absolute voidable ?
terms that a person is not bound by anything he does
when misled by fraud ;4 but he is speaking, as the context
shows, of the law of nature. When he comes to speak of
the contract of sale, he says : 'If the whole sale was induced
by the seller's fraud and otherwise would not have taken
place the sale is annulled at the instance of the pur-
chaser.'5 This amounts to saying that the contract is not
void, but voidable. There can be no doubt that this is the
modern law. Sir John Kotze in his edition of VanXeeuwen
says: 'It must be borne in mind that fraud does not
necessarily render a contract void, but voidable at the
election of the party sought to be defrauded.'6 No doubt
1 C.C. Art. 1116, Colin & Capitant (8), vol. 2, § 44; B.W.B.
Art. 1364.
2 Woodstock, &c. Councils v. Smith [1909] 26 S.C. at p. 701 per
De Villiers C.J. ; Schultz N. O. v. Myerson [1933] W.L.D. 199. A
mere statement of opinion is not in itself a representation. Naude
v. Harrison [1925] C.P.D. 84; Lamb v. Walters [1926] A.D. 358;
Sampson v. Union & Rhodesia Wholesale Ltd. [1929] A.D. at p. 481.
3 Mackeurtan (2), p. 129.
4 Gr. 3. 1. 19. 6 Gr. 3. 17. 3.
8 Kotz6, Van Leeuwen, vol. ii, p. 14. Cf. United Shoe Machinery
230 THE LAW OF OBLIGATIONS
if a person is induced by fraud to execute an instrument
purporting to be a contract in entire ignorance of its
nature, the absence of a contracting mind on his part
would (apart from estoppel due to negligence) render the
contract wholly void.1 But a case of this kind may more
properly be referred to the topic of mistake than of fraud.2
Impor- As between defrauded and defrauder the distinction
thesis'- °f v°id and voidable is of no great importance ; except
tinction. that in the latter case the victim of the fraud must be
more alert to assert his rights,3 but it affects the rights
of innocent third persons to whom property obtained by
fraud has passed. If the transaction is wholly void the
third party has no title and the defrauded person can
recover it from him by vindication.4 If the transaction is
merely voidable the innocent possessor is in the better
position.5
Remedies Since a contract induced by fraud is voidable, not void,
modern ^G Party defrauded may in his option either (a) abide by,
law. or (6) repudiate, the contract. If he means to repudiate
he must do so within a reasonable time, and may then
either bring an action for rescission, or set up the fraud
as a defence to an action on the contract.
The defrauded party, whether he elects to abide by
or to repudiate the contract, may, in any event, claim
damages for the fraud, if he has suffered prejudice hi
consequence of it, unless he has not only affirmed the con-
tract, but also waived his claim for damages.6
Co. of Canada v. Brunei [1909] A.C. 330 (P.O. in appeal from
Quebec).
1 Standard Bank v. Du Plooy (1899) 16 S.C. at p. 172.
2 Supra, p. 222.
3 Wessels.i. 11 35 ft.
4 Voet, 4. 3. 3. This is expressly stated also by Groenewegen ad
Gr. 3. 48. 7 citing Neostad. Supr. Cur. Decis. no. 5.
6 Wessels, i. 1141. In Beyers v. McKenzie (1880) Foord 125
there was no contract at all, and the innocent purchaser acquired
no title. Cf. Gundy v. Lindsay (1878) 3 App. Ca. 459; Philips v.
Brooks [1919] 2 K.B. 243; Anson, p. 152.
8 Bowditch v. Peel & Magill [1921] A.D. 561; Frost v. Leslie
[1923] A.D. 276; Pathescope Union of S. A. v. Mallinick [1927]
A.D. 292.
FORMATION OF CONTRACT 231
A person seeking to be relieved from a contract on the
ground of fraud must as a rule tender to restore what he
has received under the contract.1
It must be noted that dolus always implies an intention Inno-
to deceive. In the Dutch Law innocent misrepresenta-
tion inducing a contract gave no right of action nor claim tation.
to relief. It was, however, available as a defence, for it
is inequitable to sue upon such a contract.2
The modern law, influenced by English practice, allows
a plaintiff to sue for rescission of a contract induced by
innocent misrepresentation, but no more than the Dutch
Law allows an action for damages.3
There are certain classes of contract known as contracts Duty of
uberrimae fidei in which the law is not satisfied with the contracts
absence of misrepresentation fraudulent or innocent, but uberrimae
goes further and requires an active disclosure of material
facts. Contracts of insurance belong to this class. 'In
policies of insurance . . . there is an understanding that the
contract is uberrima fides, that if you know any circum-
stance at all that may influence the underwriter's opinion
as to the risk he is incurring, and consequently as to
whether he will take it ... you will state what you know.
There is an obligation there to disclose what you know;
and the concealment of a material circumstance known to
1 Marks Ltd. v. Laughton [1920] A.D. 12. But this rule will
not apply where the subject-matter of the contract has perished,
without fault of the purchaser, in consequence of the defect which
is alleged as the ground of rescission, e.g. eggs fraudulently
represented as of good quality and after delivery destroyed by the
local authority. Ibid.
2 Van der Linden, Supplement, ad. Pandect. 4. 3. 1 (ad fin.).
For South African Law see Viljoen v. Hillier [1904] T.S. 312
(citing Redgrave v. Hurd (1881) 20 Ch. D. 1); Karoo & Eastern
Board of Exors. v. Fair [1921] A.D. 413; Sampson v. Union &
Rhodesia Wholesale Ltd. [1929] A.D. at p. 480.
3 Steyn v. Davis & Darlow [1927] T.P.D. 651. Whether an
action lies in delict ? Infra, p. 337. Note that misrepresentation of
the legal effect of a written agreement which a party signs with
full knowledge of its contents is not a ground for avoiding the
agreement. This is because every man is supposed to know the
legal effect of an instrument which he signs. Union & Rhodesia
Wholesale Ltd. (In Liquidation) v. Sampson [1928] C.P.D. at p. 456
per Gardiner J.P. citing English cases.
232 THE LAW OF OBLIGATIONS
you, whether you thought it material or not, avoids the
policy'.1
Fear or Fear or Duress is another ground of invalidity in con-
15881 tract. ' Quod metus causa gestum erit ratum non habebo,'
said the Roman Praetor in his Edict.2 Ulpian defines fear
as 'a disturbance of mind caused by instant or appre-
hended peril'.3 Grotius describes it,4 more largely, as 'a
great terror as of death, dishonour, great pain, unlawful
imprisonment of oneself or of one's belongings'.5 It is an
old controversy whether a contract procured by fear is
void or voidable. No doubt, if a contract is procured by
physical compulsion it is wholly void.6 But in case of
what is sometimes called moral violence or duress the
view now generally accepted is that the contract is not
void, but voidable. This accords with the well-known
dictum of Paulus 'coactus volui',7 to which the glossator
adds the explanation 'voluntas coacta est voluntas'. Ac-
cordingly a contract induced by fear remains good until
repudiated or rescinded,8 and may be ratified expressly or
tacitly when the fear is removed.9 It is not every kind
of fear that affects the formation of a contract, but only
a just or reasonable fear — 'metus non vani hominis'1(
(regard being had, however, to the age, sex, and condition
of the person intimidated),11 and a fear of unlawful not of
1 Fine v. General Assurance Corporation [1915] A.D. 213;
Colonial Industries Ltd. v. Provincial Insurance Co. [1922] A.D. 33
(where the passage in the text is cited and adopted from Lord
Blackburn's judgment in Brownlie v. Campbell (1880) 5 A.C. at
p. 954). For the duty of disclosure between partners see De Jager
v. Olifant's Syndicate [1912] A.D. 505.
2 Dig. 4. 2. 1 ; White Bros. v. Treasurer -General (1883) 2 S.C. at
p. 350.
3 Instantis vel futuri perjculi causa mentis trepidatio. Ibid.
4 Gr. 3. 48. 6. 6 i.e. wife and children. Voet, 4. 2. 11.
6 Wessels, i. 1168. It is not easy to imagine a case in which
there is the semblance of a contract, but no volition.
7 Dig. 4. 2. 21, 5 ; Gr. ubi sup. ; Voet, 4. 2. 1 ; Pothier, Traite des
Obligations, sec. 22, with V.d.L.'s note in the Dutch translation;
Van der Linden, Supplement, ad Pandect. 4. 2. 2.
8 Voet, 4. 2. 2. 9 Voet, 4. 2. 16.
10 Dig. 4. 2. 6; Voet, 4. 2. 11 ; V.d.L. 1. 14. 2; C.C. Art. 1112.
11 Voet, ubi sup.
FORMATION OF CONTRACT 233
lawful violence.1 Mere threats are not enough, unless they
are of a serious character and are likely to take effect.2
The action ' quod metus causa ' lies against the intimidator,
and against any other person into whose hands the pro-
ceeds of the intimidation3 have come, or who has otherwise
benefited by it,4 at the expense of the plaintiff.5 But a
person seeking to avoid a contract or conveyance on the
ground of metus can only do so on condition of restoring
the defendant to his former position.6 This applies equally
to the intimidator and to third parties, so that the position
of a third party, whether he be a bona fide or a mala fide
possessor, is better in a case of metus than in a case of
error. An action to set aside a transaction on the ground
of intimidation is prescribed in thirty years.7
The topic of undue influence, as distinct from metus, Undue
is not developed in the Roman-Dutch writers,8 though the m uence-
books contain hints which might have been worked out by
judicial decisions without the aid of English precedents.9
In South Africa the law on this subject has been inspired
by the decisions of English Courts of Equity,10 and the
1 Voet, 4. 2. 10. 2 Voet, 4. 2. 13.
3 Voet, 4. 2. 4. 4 Voet, 4. 2. 5-6.
6 In the Roman Law the action lay intra annum for four-fold
damages in case of failure to restore (Dig. 4. 2. 14, 1); but in
R.-D.L. the action was always in simplum. Voet, 4. 2. 18.
6 Voet, 4. 1. 22; 4. 2.9.
7 Gr. 3. 48. 13 ; Gens. For. 1. 4. 41. 8 ; Voet, 4. 2. 18. If it is to be
regarded as a proceeding at common law for restitution in integrum
the period of prescription is now three years. Prescription Act,
1943, sec. 3 (2).
1 'Roman -Dutch authority upon the question of undue in-
fluence as distinguished from metus would appear to be somewhat
scanty' (Van Pletsen v. Henning [1913] A.D. at p. 94 (per
Innes J.) and see MacKeurtan, Sale of goods in South Africa,
pp. 134 ff.). For 'duress of goods' as a ground of restitutio in
integrum or condictio indebiti see White Bros. v. Treasurer-
General (1883) 2 S.C. 322; Benning v. Union Government [1914]
A.D. 420; Union Government v. Gowar [1915] A.D. 426; Lilienfeld
v. Bourke [1921] T.P.D. at p. 370. The topic seems to fall under
the head of undue influence rather than of metus properly so
called.
9 Voet, 2. 14. 19; 4. 2. 11; V.d.L. 1. 15. 1 (gift by patient to
medical attendant).
10 Wessels, i. 208; Armstrong v. Magid [1937] A.D. 260.
234 THE LAW OF OBLIGATIONS
English law of undue influence has become part of the law
of Ceylon.1
Lesion (prejudice) may be invoked by minors as a
ground of relief against contracts entered into by them
with the authority of their parents or guardians, or entered
into by parents or guardians on their behalf,2 and by
persons of full age in case of laesio enormis, where this
institution remains in force.3
SECTION F
The agreement must not be directed to an illegal object
Legality The next requisite of a valid contract is that it should
of object. ke Directed to a lawful object. An object is unlawful if it is
condemned by common law or by statute.4 In all mature
legal systems the principal heads of illegality are much the
same. But since social progress brings with it new condi-
tions and fresh abuses, the illegalities of one age will not
be identical with the illegalities of another. Accordingly,
the categories of unlawfulness in contract are not in the
1 Perera v. Tissera (1933) 35 N.L.R. 257.
2 Supra, 48, 114; infra, Appendix B.
3 The rule that a vendor of land for less than half its real value
might get back his land on returning the price, unless the buyer
preferred to pay the full value, is attributed in Justinian's Code
(4. 44. 2 and 8) to constitutions of Diocletian and Maximian
(A.D. 285 and 293), but perhaps was of later origin. Girard,
p. 575. In the Dutch Law a similar indulgence was allowed to a
purchaser who had paid more than double value (Kingsley v.
African Land Corporation [1914] T.P.D. 666), and the principle
was extended to other contracts besides sale. Gr. 3. 17. 5 ; 3. 52. 2,
and Schorer, ad loc. Van Leeuwen, 4. 20. 5; Voet, 18. 5. 13. Did
the rule extend to movables as well as to land ? Girard, p. 576.
Does it apply to sales in execution ? Schorer, loc. cit. Laesio
enormis has been abolished at the Cape by the General Law
Amendment Act No. 8 of 1879. sec. 8 (Southern Rhodesia follows
the Cape), and in the Free State by Ord. No. 5. of 1902, sec. 6. It
still obtains in the Transvaal, McOee v. Mignon [1903] T.S. 89;
Kingsley v. African Land Corp. Ltd. [1914] T.P.D. 666 ; Roff & Co.
v. Mosely [1925] T.P.D. 101; Hoffman v. Prinsloo & Hoffman
[1928] T.P.D. 621 ; in Natal, Mfunda v. Brammage [1913] N.P.D.
477; Briggs v. Hughes [1933] N.P.D. 618 (general principles dis-
cussed) ; and in Ceylon, Gooneratne v. Don Philip (1899) 5 N.L.R.
268; Wijesiriwardene v. Ounasekera (1917) 20 N.L.R. 92 (lease).
4 Gr. 3. 1. 42-3; Voet, 2. 14. 16.
FORMATION OF CONTRACT 235
modern law quite the same as they were in the Roman Law
or in the Dutch Law of the eighteenth century.
Unlawful contracts are regarded by Roman Law as Effect of
civilly impossible.1 For this reason Decker speaks in the ega 1 y'
same breath of physical and of moral possibility (i.e.
legality) as together making one of the essentials of con-
tract.2 It is, however, more in accordance with modern
usage to keep these topics distinct. Unlawful contracts
are null and void.3 No action can be grounded upon them.
On the other hand, money paid in pursuance of an unlaw-
ful contract cannot be recovered back, for, as was said by
an English Judge: 'Whoever is a party to an unlawful
contract, if he hath once paid the money stipulated to be
paid in pursuance thereof, he shall not have the help of
a court to fetch it back again. You shall not have a right
of action, when you come into a court of justice in this
unclean manner to recover it back.'4 The same doctrine
is expressed in the Roman Law maxim, 'in pari delicto
potior est conditio defendentis'.5 This rule excludes cases
in which the defendant alone is guilty. For if an innocent
party has paid money or transferred property for a pur-
pose in fact unlawful, he may get it back (together with
fruits and accessions), or the value, by the process which
in Roman Law was known as the condictio ob turpem Condictio
causam ;6 and the principle has been extended to the case
of a plaintiff guilty, but not equally guilty with the defen-
dant, as for instance if he entered upon the transaction
1 Voet, ubi sup. 2 Supra, p. 225.
3 Gr. 3. 1, sees. 42 and 43; V.d.L. 1. 14. 6. Under unlawful
contracts are included contracts subject to a suspensive condition
which is unlawful. Gr. 3. 14. 29.
4 Wilmot C.J. in Collins v. Blantern (1767) Smith's Leading
Cases (13th ed.), vol. i, at p. 411.
6 Aliter, In delicto pari potior est possessor. Dig. 12. 7. 5 pr. ;
Gr. 3. 1. 43; Brandt v. Bergstedt [1917] C.P.D. 344; (Ceylon)
Silva v. Ratnayake (1935) 37 N.L.R. 245.
6 Voet, 12. 5. 1, condictio ob turpem causam est actio personalis
stricti juris, qua repetitur quod datum est ob factum continens
turpitudinem ex parte accipientis, ita ut condicens turpitudinis
expers sit, licet jam turpe factum subsecutum sit. Sandeman v.
Solomon (1907) 28 N.L.R. 140.
236 THE LAW OF OBLIGATIONS
under the influence of compulsion or menace, and to
cases in which the contract remains substantially unper-
formed. But in every case the Court will grant or withhold
relief with regard to the paramount consideration of
public policy and justice between the parties.1
Partial When a contract contains several agreements and is in
severance" Par* lawful> in P^rt unlawful, the Court will sometimes
sever the lawful agreement from the unlawful agreement,
giving effect to the first and not to the second.2 It has
been said that 'whatever the Roman Law may have
been, our South African Courts have followed the English
decisions in this branch of the law of contract'.3 But the
limits within which severance is admissible are still not
very precisely defined.4
Collateral It is not always easy to determine how far the taint of
actions, illegality extends. Contracts may have some connexion
with an illegal transaction without necessarily being in
themselves illegal. The general rule applicable to such
cases is that if a plaintiff can make out a cause of action
without alleging the illegal transaction as part of his case
he is entitled to judgment in his favour.5 This does not
mean that a plaintiff can evade the stigma of illegality by
ingenuity in stating his case.
'The true principle seems to me to be that the plaintiff
is only entitled to recover upon an obligation connected with
an immoral [or illegal] transaction, if upon a consideration of
all the facts of the case and of the real objects of the parties
whatever form may have been adopted to express their arrange-
ments and not merely upon the plaintiff's presentation of
1 See Wells v. Du Preez (1906) 23 S.C. 284 ; R. v. Seebloem [1912]
T.P.D. at p. 34 ; Jajbhay v. Cassim [1939] A.D. 537 ; Petersen v.
Jajbhay [1940] T.P.D. 182. Since these last cases the authority of
earlier decisions may be open to question.
2 Eastwood v. Shepstone [1902] T.S. at p. 303.
3 Wessels, i. 609.
4 Anson, p. 239. For a recent discussion see Brooks & Wyriberg
v. New United Yeast Distributors Ltd. [1936] T.P.D. 296.
6 Silke v. Goode [1911] T.P.D. 989; Fisher & Son v. Voges
[1925] C.P.D. 370; Heilman v. Vorbeck [1925] T.P.D. 790. But
see Schuster v. Guether [1933] S.W.A. 19, and Kennedy v. Steen-
kamp [1936]C.P.D. 113.
FORMATION OF CONTRACT 237
them, the obligation sought to be enforced is separable from
the immoral [or illegal] transaction and is not itself tainted with
illegality.'1
A contract is not illegal, merely because to the knowledge
of the parties it is entered upon in breach of a contract sub-
sisting between one of the parties and some other person.2
The principal categories of illegality in contract are the What
f 11 • contracts
following:— are
illegal :
I. Contracts made in breach of statute
If a contract is prohibited by law, or is directed to an Contracts
object condemned by a statute, expressly or by implica- bmich^f
tion, there can be no question that the whole transaction statute,
is illegal and void. But whether a contract to which a
statutory penalty attaches is thereby rendered : (a) illegal,
or (6) void, or (c) merely expensive to the parties, is in
each case matter of construction.3 This last will usually
be the consequence when the protection of the revenue
is the object of the statute.4 Likewise, apart from any
question of penalty, a contract may be rendered void by
law without being therefore necessarily illegal.5
II. Contracts prohibited by the common law
Such are : 1 . Agreements to commit a crime or civil Contracts
6 • j • xu • • r • prohibited
wrong ;b promises inducing the commission of a crime by the
or civil wrong ; promises made as an inducement to the °ommon
promisee to abstain from such wrongful acts.7
2. Agreements which tend to pervert the course of
1 Vuurman v. Universal Enterprises Ltd. [1924] T.P.D. at p. 496
per Mason J.P. 2 Isaacman v. Miller [1922] T.P.D. 56.
3 McLoughlin N. 0. v. Turner [1921] A.D. at p. 549; Schier-
hout v. Minister of Justice [1926] A.D. at p. 109. See e.g. cases
decided under the Sunday Trading Acts, such as Cape Dairy and
General Livestock Auctioneers v. Sim [1924] A.D. 167 ; Fisher & Son
v. Vosges [1926] C.P.D. 370; Lubbe v. Trollip [1926] E.D.L. 239.
4 Williams v. Rondebosch Fountain Oarage Co. [1929] C.P.D.
439 ; Voet, 1. 3. 16 ; Standard Bk. v. Est. van Rhyn [1925] A.D. 266 ;
Worthington v. Shagam [1937] N.P.D. 376.
5 Anson, Contract, p. 243.
6 Inst. 3. 19. 24; Gr. 3. 1. 42; Voet, 2. 14. 16.
7 Dig. 12. 5. 2 pr.
238 THE LAW OF OBLIGATIONS
justice, e.g. to stifle a prosecution,1 to condone the com-
mission of a future crime,2 to prevent a person seeking
redress in a court of justice for a future injury or wrong,3
to pay a witness a fee for attendance larger than the amount
fixed by law ;4 agreements purporting to authorize one of
the contracting parties to take the law into his own hands.5
To the same class may be referred such agreements as in
English Law are known by the names of maintenance
and champerty, viz. agreements to promote and maintain
legal proceedings in which the promisor has no direct
concern, and in particular to do so with a view to sharing
with a plaintiff the proceeds of a suit.6 Voet mentions in
this connexion an agreement de quota litis between lawyer
and client, an agreement that a lawyer is not to be paid
unless the suit is successful, an improper agreement for the
assignment of another's right of action.7 Cession of actions
is, however, in general, free from objection, unless of a
speculative character, or for other reasons contrary to the
policy of the law ; and it is not unlawful bonafide and pro-
perly to assist a litigant to defend or establish his rights,
even though the person so assisting may derive some
benefit from the subject-matter of the action.8
3. Agreements for the sale or procurement of public
offices or otherwise tending to injure the public service.9
1 V.d.K. 520; Hotz v. Standard Bank (1907) 3 Buch. A. C.
53; Bezuidenhout v. Strydom (1884) 4 E.D.C. 224; Vuurman v.
Universal Enterprises Ltd. [1924] T.P.D. 488; Smite v.^ Pienaar
[1928] T.P.D. 450. 2 Gr. 3. 1. 42 ; Voet, ubi sup.
3 Schierhout v. Minister of Justice [1925] A.D. at p. 424 per
Kotze J. ; Wells v. S. African Alumenite Co. [1927] A.D. at p. 72.
4 Knox v. Koch (1883) 2 S.C. 382.
6 Blomsonv. Boshoff [1905] T.S. 429; Nino Bonino v. De Lange
[1906] T.S. 120 (clause in a lease permitting the lessor, in the
event of breach of condition, to expel the lessee and re-enter on the
premises without legal process).
6 Gr. 3. 1. 41 ; Incorporated Law Soc. v. Reid (1908) 25 S.C. 612 ;
Campbell v. Welverdiend Diamonds Ltd. [1930] T.P.D. 287.
7 Gr. 3. 1. 41 ; and Schorer ad loc. ; Voet, 2. 14. 18; e.g. assign-
ment to the attorney in a case of all plaintiff's right and interest,
East London Munic. v. Halberd (1884) 3 S.C. 140.
8 Patz v. Salzburg [1907] T.S. at p. 527 per Innes C.J. Cf.
Fellows-Smith v. Shanks [1925] N.P.D. 168.
9 Van Leeuwen, 4. 14. 6 ; V.d.K. Dictat. ad Gr. 3. 1. 42.
FORMATION OF CONTRACT 239
4. Agreements tending to injure the State in its foreign
relations, including agreements with alien enemies.1
5. Agreements directed to a fraud upon the public.2
6. Agreements tending to sexual immorality.3
7. Agreements in restraint of marriage,4 or otherwise
contrary to the policy of the law in the matter of
marriage ; e.g. an arrangement between two persons that
whichever of the two marries first shall pay a sum of
money to the other;5 agreement between husband and
wife for future voluntary separation;6 agreement to live
apart made at the time of marriage ;7 agreement to pay a
sum of money to a person, if a divorce is granted on
evidence procured by that person ;8 promise by a married
man (or woman) to marry (generally or when his (or her)
existing marriage shall have been dissolved by death or
divorce).9 But agreements to procure marriage for reward
(marriage brocage contracts) are not illegal by Roman-
Dutch Law, as they are by English Law.10
8. Agreements in undue restraint of trade.11
9. Agreements in fraud. of creditors.12
1 Janson v. Driefontein Consolidated Mines [1902] A.C. 484.
2 St. Marc v. Harvey (1893) 10 S.C. 267 ; Robinson v. Randfon-
tein Ests. G. M. Co. [1925] A.D. 173.
3 Voet, 12. 5. 6; Louisa v. Van den Berg (1830) 1 Menz. 471;
Aburrow v. Wallis (1893) 10 S.C. 214.
4 Voet, 2. 14. 21 ; Holl. Cons. v. 23. 5 Voet, loc. cit.
6 Braude v. Braude (1899) 16 S.C. 565.
7 Van Oosten v. Van Oosten [1923] C.P.D. 409.
8 Kieley v. Dreyer [1916] C.P.D. 603.
9 Staples v. Marquard [1919] C.P.D. 181; Friedman v. Harris
[1928] C.P.D. 43; Fender v. St. John-Mildmay [1938] A.C. 1;
Viljoen v. Viljoen [1944] C.P.D. 137.
10 Wessels, i. 530. In King v. Gray (1907) 24 S.C. 554, however,
the Court adopted the decision in the English case of Hermann v.
Charlesworth [1905] 2 K.B. 123, and this was followed in Hurwitz v.
Taylor [1926] T.P.D. 81. In Livera v. Gonsalves (1913) 17 N.L.R.
5 the Ceylon Court followed King v. Gray. See also De Silva v.
Juan Appu (1928) 29 N.L.R. 417.
11 Wessels, i. 538 ff. and cases cited.
12 Gr. 3. 1. 27; Cohen v. Herman & Canard (1904) 21 S.C. 621 ;
Wiener v. Est. McKenzie [1923] C.P.D. at p. 582. Alienations in
fraud of creditors may be avoided by the actio pauliana ( Wiener v.
Est. McKenzie ubi sup. at p. 579; supra, p. 143, n. 6); as well
as under the Insolvency Act.
240 THE LAW OF OBLIGATIONS
10. Agreements in fraud of a statute (infraudem legis).1
11. Knock-out agreements at a sale by auction.2
12. Agreements relating to a future right of succession
or limiting freedom of testation.3
This is a head of illegality derived from the Roman Law.
As expounded by Voet the law reprobates any agree-
ment relating to the succession of an ascertained person
still alive, even though made with such person's consent.
Such agreements are contrary to public policy as involving
a dangerous speculation on a person's death and tend-
ing to restrict the freedom of testamentary disposition.4
Consequently, a person cannot contract to make another
his heir ;5 nor can two person's mutually agree that they
shall succeed to one another.6 But if two persons contract
as to the succession to a third, and such third person
assents and does not subsequently revoke his assent, the
contract is allowed to be good.7
The general rule extends to legacies, so that a promise to
leave money by will cannot be enforced against a deceased
person's estate, nor found an action for damages.8 An
agreement, however, relating to the estate of an uncertain
1 Dadoo Ltd. v. Krugersdorp Municipal Council [1920] A.D.
530; Colonial Banking & Trust Co. v. Hill's Trustee [1927] A.D.
488; Rex v. Gillett [1929] A.D. 364; Comm. of Customs v. Randies
Bros. [1941] A.D. 369.
2 Neugebauer <fc Co. v. Hermann [1923] A.D. 564. In England
this head of illegality is statutory. Auctions (Bidding Agreements)
Act 1927.
3 Dig. 45. 1. 61; Cod. 2. 3. 15; 8. 38 (39). 4; Gr. 3. 1. 41; Lee,
Commentary, ad loc. ; V.d.K. 479 ; Voet, 2. 14. 16 ; Gens. For. 1. 4.
3. 15; Bijnk. O.T. i. 295, 360; unless such agreement is contained
in an antenuptial contract. V.d.K. 235 ff. For South Africa see
Jones v. Goldschmidt (1881) 1 S.C. 109; Eksteen v. Eksteen [1920]
O.P.D. 195; Niewenhuis v. Schoeman's Est. [1927] E.D.L. 266.
But in Van Jaarsveld v. Van Jaarsveld's Est. [1938] T.P.D. 343
Greenberg J.P. and Schreiner J. held that a promise to leave
property by will, though unenforceable, is not illegal or contra
bonos mores. Contra, James v. James'' Est. [1941] E.D.L. 67.
4 Cod. 2. 3. 30 ; Voet, ubi sup.
6 Holl. Cons. iv. 30.
8 Voet, ubi sup. But see Schorer ad Gr. 3. 14. 11. Mutual wills
are free from objection, because wills are not contracts.
7 Cod. ubi sup. ; Voet, ubi sup.
8 Voet, loc. cit., ad fin. ; Niewenhuis v. Schoeman's Est., ubi sup.
FORMATION OF CONTRACT 241
person still alive, or of a deceased person, is free from
objection.1 Agreements in antenuptial contracts relating
to the succession of the spouses inter se, or of the spouses
to a third party, or of a third party to the spouses,2 and
agreements for the division of an inheritance amongst
co -heirs (de familia erciscunda) are permitted.
Agreements which burden the obligor without benefit-
ing the obligee,3 and promises which are merely silly and
foolish,4 though not illegal in the sense of being contrary
to law, are devoid of legal effect.5
Gaming and wagering contracts occupy a peculiar posi- Gaming
tion, for, though not positively illegal, it is the policy ^gering
of the law to discourage them.6 Whether by the Roman- contracts.
Dutch common law wagers were or were not illegal or
invalid is a question which, in view of the great variety of
opinion expressed by different writers, must be considered
to be quite unsettled.7 In the modern law the tendency of
judicial opinion has been against their enforcement. Thus,
in a case decided in the Transvaal Supreme Court in 1905,
Innes C.J. said: 'I think, having regard to the general
current of legal decision in South Africa, that the Court
should not enforce contracts in the nature of wagers.'8
On the other hand, money paid under a wager cannot be
recovered by the loser, and a new promise by the loser to
pay the amount of a lost bet is enforceable.9 One who has
deposited money or any other thing to abide the result
of a wager or contest may reclaim it from the stakeholder
1 Voet, 2. 14. 17.
2 Voet, 2. 14. 16; V.d.K. 235 seq.
3 Voet, 2. 14. 20. " Voet, 2. 14. 16.
5 Grotius adds: Contracts relating to res extra commercium.
The sale of a res litigiosa is not forbidden. Gr. 3. 14. 10 ; V.d.K.
630; Hall v. Howe [1929] T.P.D. 591 ; Walker v. Matterson [1936]
N.P.D. 495. Secus in Ceylon ? Ibrahim Saibo v. Pallaku Lebbe
(1928) 29N.L.R. 347.
6 Est. Wege v. Straws [1932] A.D. 76.
7 See Gr. 3. 3. 49 ; Van Leeuwen, 4. 14. 5 ; V.d.K. 514.
8 Dodd v. Hadley [1905] T.S. at p. 442. In Ceylon the view has
prevailed that wagers are unlawful as contrary to public policy.
Tarrant v. Marikar (1934) 36 N.L.R. 145.
9 Rudolph v. Lyons [1930] T.P.D. 85.
4901 R
242 THE LAW OF OBLIGATIONS
before or after the determination of the event before it
has been paid over to the winner1 and, if the stakeholder
nevertheless hands it over to the winner, may maintain
an action for its value.2 A person who has made bets for
me as my agent must hand over the winnings ;3 and money
lent to make4 or to pay5 bets can be recovered. A person
to whom a negotiable instrument has been given in respect
of a gaming or wagering transaction cannot recover upon
it, but a bona fide holder for value would probably not be
under the same disability.
Statute At the Cape Act No. 36 of 1902, reproducing the pro-
South1 visions of the English Gaming Act of 1845 (8 and 9 Vic.
Africa. c. 109), by sec. 11 enacts: —
'All contracts [or] agreements, whether verbal or in writing,
by way of gaming or wagering, shall be null and void, and no
suit shall be brought or maintained in any court of law for
recovering any sum of money or valuable thing alleged to be
won upon any wager, or which has been deposited in the hands
of any person to abide the event on which any wager has been
made: Provided always that nothing in this section shall be
deemed to apply to any subscription or contribution or agree-
ment to subscribe or contribute for or towards any plate, prize,
or sum of money to be awarded to the winner of any lawful
game, sport, pastime, or exercise.'
1 Even if the wager or contest is illegal. Voet, 11. 5. 9 ; Clarke v.
Bruning [1905] T.S. 295.
2 Sloman v. Berkovitz (1891) 12 N.L.R. 216 ; Voet, loc. cit.
3 Dodd v. Hadley, ubi sup.
4 Voet, 11. 5. 4. Contra Van Leeuwen, 4. 14. 5. In Biljoen v.
Petersen [1922] N.P.D. 63 money lent to be used as stakes in a game
of poker was held to be recoverable. The ratio decidendi was that
poker is not a game of chance prohibited by Law No. 25 of 1878.
'The case, of course, is very different if by statute the particular
kind of wagering is made illegal and criminal ' (per Dove Wilson
J.P.). This seems to distinguish the case from Sandeman v.
Solomon (1907) 28 N.L.R. 140, in which money lent for the purpose
of discharging a cheque given in payment of a gambling debt was
held to be irrecoverable. In Glaser v. Blotnick [1941] C.P.D. 403
Sutton J. following Voet, 11. 5. 5 held that money lent by a
winning player to the loser for the purpose of the game could not
be recovered.
5 This may be inferred from Dodd v. Hadley and Biljoen v.
Petersen. The point does not seem to be absolutely covered by
decision.
FORMATION OF CONTRACT 243
SECTION G
The parties must be competent to contract
Incapacity to contract attaches in greater or less degree Capacity
to the following classes of persons : —
1. Minors. 2. Married Women. 3. Insane Persons.
4. Prodigals. 5. Juristic or Artificial Persons. 6. In-
solvents.
Most of these cases have been considered under the
head of the Law of Persons. With regard to insolvents
the law of South Africa has been stated in the following
terms : —
'Although insolvency imposes many disabilities upon the
debtor he is not deprived of his contractual capacity. Such
capacity is, however, limited in several respects and is some-
times made subject to conditions and obligations. . . . Generally
speaking, the insolvent may make a valid contract if he does
not purport thereby to dispose of any property of his insolvent
estate.'1
1 Mars, The Law of Insolvency in South Africa (3), p. 291 ;
Fairlie v. Raubenheimer [1935] A.D. 135; Priest v. Charles [1935]
A.D. 147 ; George v. Lewe [1935] A.D. 249.
II
OPERATION OF CONTRACT
IN this chapter we shall consider :
I. The persons affected by a contract.
II. The duty of performance.
III. The consequences of non-performance.
SECTION I
The Persons affected by a Contract
The A contract primarily affects the parties to it and none
pffrs°^H °^ner- In other words, no one can be bound or benefited
by a by a contract to which he is not a party. Such was the
contract. p>oman Law expressed in the maxims 'Nemo promittere
potest pro altero' ; 'Alteri stipulari nemo potest'.1
Nemo Nemo promittere potest pro altero. This means that a
Po^t pro Promise ma(ie by A cannot impose a burden on B, for
altero. no one can be bound by another man's contract.2
In the Roman Law the rule was carried so far that
a promise by A that B would do something was destitute
of legal effect,3 not binding A because it was not intended
that it should, not binding B because it was not his
promise. However, such a promise would now generally
be construed as a promise by A that he would procure B
to do the thing in question.4 It must be noted further,
that the rule nowadays has no application to the relation
of principal and agent. A servant or agent, acting within
his authority, contracts for his principal and binds his
principal by his contract.5 Moreover, there are certain
legal relations other than that of principal and agent
which give to one person in greater or less measure the
1 V.d.L. 1. 14. 3.
3 Certissimum enim est ex alterius contractu neminem obligari.
Cod 4. 12. 3 ; Gr. 3. 1. 28 ; Van Leeuwen, 4. 2. 4.
3 Inst. 3. 19. 3 ; Vinnius, ad loc. ; Dig. 45. 1. 83 pr.
4 Gr. 3. 3. 3 ; Van Leeuwen, 4. 2. 5 ; Groen. de leg. abr. ad Inst.
3. 19 (20). 3; Voet, 45. 1. 5;Aronowitz v. Atkinson [1936] S.R. 45.
6 Van Leeuwen, 4. 2. 6-7.
OPERATION OF CONTRACT 245
power of binding another by contract. Thus a husband
may bind his wife,1 a tutor his ward,2 a father his child,3
and a master of a ship the ship-owner ;4 but this seems only
to mean that they can enter into contracts incidental to
their powers of administration. This is no real exception
from the rule.
Alteri stipulari nemo potest.5 This rule is the converse Alteri
of the one stated above. It means that just as a person ^no"
cannot be burdened by a contract to which he is not a potest.
party, so neither can he be benefited by it.6
Like the other, this maxim is qualified in the modern
law by the rule which permits an agent to acquire a con-
tractual right on behalf of his principal7 and is also modi-
fied in favour of wife,8 ward,9 parent,10 and child,11 who
may be benefited by the contracts respectively of husband,
guardian, child, or parent, made on their behalf.
But does the rule itself hold good in the Roman-Dutch Is this
Law ? The contrary is asserted inter olios by Voet,12 Groe- present
newegen,13 and Decker,14 and this view was adopted byday?
Sir Henry De ViUiers, in the case of Tradesmen's Benefit
Society v. Du Preez,15 subject, however, to the qualification
1 Gr. 1. 5. 22; Rodenburg, De jure conjugum, 2. 1. 3; Fock.
And. Bijdragen, ii. 115. a Gr. 3. 1. 30, supra, p. 113.
3 Gr. 3. 1. 28. V.d.K. says (Dictat. ad loc.) that a father who
has sons in his power may bind them to perform anything which
a person sui juris might undertake by contract ; e.g. he may let
out their services on hire. This is certainly not law to-day. A
minor may enter into a contract of apprenticeship, but he does so
in his own name, assisted by his parent or guardian.
4 Gr. 3. 1. 32. 5 Inst. 3. 19. 19; Dig. 45. 1. 38, 17.
6 Gr. 3. 1. 36; 3. 3. 38.
7 V.d.K. 478; V.d.L. 1. 14. 3 (ad fin.).
8 Gr. 3. 1. 38 ; Dekenah v. Linton [1920] C.P.D. 579.
9 Gr. 1. 8. 8 ; 3. 1. 38. 10 Gr. 3. 1. 38 ; 3. 3. 36.
11 Gr. 3 3. 36. Grotius says that if a parent stipulates or accepts
on behalf of a child in power, the benefit of the contract accrues to
the parent. But this is not so in the modern law. See Schorer, ad
loc. and V.d.K. 509 and cf. Slabber's Trustee v. Neezer's Exor.
(1895) 12 S.C. 163. 12 Voet, 2. 14. 12 (ad fin.); 45. 1. 3.
18 Groen, de leg. abr. ad Inst. 3. 20 (19). 19; see also Vinnius ad
Inst. 3. 20 (19). 4, sec. 3, and Tract, de Pactis, cap. xv.
14 Decker ad Van Leeuwen, 4. 2. 5 (Kotz6's translation, vol. ii,
p. 17). 1S (1887) 5 S.C. 269.
246 THE LAW OF OBLIGATIONS
that there must be some consideration moving from the
original promisee. But this qualification must be rejected,
since consideration in the English sense of the word does
not form part of the law of South Africa.1 Apart from this
the principle that a third party may take the benefit of a
stipulation made in his favour, if it was the intention of
the contracting parties that he should do so,2 is now
firmly established by judicial decision.3 The juridical basis
of the relations thereby created has been much debated
in the legal literature of other countries, but has hitherto
received little attention from the South African Courts.
Some questions of interest remain for future discussion.4
Cession Cession and Transmission of Actions. It has been said
j *
trans- above that a contract primarily affects the parties to it
mission of and none others. But persons not originally parties may
become so, either by agreement (cession of actions) or by
operation of law (transmission of actions).
By agreement, contractual rights and duties may be
transferred so as to substitute another person in place of
the original party. But there is a great difference between
assignment of duties and assignment of rights.
Assign- Contractual duties cannot be transferred except in
contrac- consequence of a substituted contract (novation), which
tual requires the consent of the original parties and of the
substituted debtor. The effect is to discharge the original
debtor from further liability, the substituted debtor taking
his place.
Contractual rights are now, with some exceptions, freely
transferable by cession of actions. Such is the result of a
tractual long process of legal development. The Roman Law never,
hfthe ft seems, quite reached this point. For though in its latest
Roman period an assignee was 'allowed: (1) to secure to himself
Law;
1 Supra, p. 226.
8 Wessels, i. 1755; Baikie v. Pretoria Munic. [1921JT.P.D. 376;
Qoldfoot v. Myerson [1926] T.P.D. 242.
8 English Law seems to be moving in the same direction. Law
Revision Committee, Sixth Interim Report (1937) Cmd. 5449.
4 See Appendix G. For Ceylon see Jinadasa v. Silva (1932)
34 N.L.R. 344.
ment of
con-
OPERATION OF CONTRACT 247
the benefit of the obligation, even before bringing an
action, by giving the debtor notice of the assignment
(Cod. 8. 41. 3) ; and (2) to sue not in the assignor's name,
but in his own by actio utilis ' ; yet, ' it is disputed whether
the effect of the change was to make the assignee sole
creditor, or whether, in relation to the debtor, he did not
still legally continue a mere agent, enforcing by action in
his own name the right of another ; in other words, whether
a genuine assignment by which the assignee simply and
actually stepped into the shoes of the assignor, who simul-
taneously dropped altogether out of the matter, was
recognized at any time in Roman Law'.1
This doubt does not exist in the modern law, for now :
Roman-
1. Contractual rights and rights arising from breach of Dutch
contract, exceptions apart, may be ceded without the aw'
consent and against the will of the debtor.2
2. The cession can generally be effected by bare agree-
ment without formality,3 and without notice to the debtor ;4
but the law requires that the intention to effect the
cession should be clear and beyond doubt, and that no
further act on the part of the cedent should be necessary
to make the cession complete; i.e. he must have done
everything in his power to divest himself of his right of
action.5
1 Moyle, Institutes of Justinian, pp. 482-3.
2 Sande, De actionum cessione, cap. ix, sec. 5 ; Peterson's Exors.
v. Webster, Steel & Co. (1881) 1 S.C. at p. 355 per De Villiers C.J.
Can a portion of a debt be ceded ? 54 S.A.L.J. (1937), p.. 40 ; yes,
Bezuidenhout v. Van Groan [1938] T.P.D. 331; no, Spies v.
Hansford [1940] T.P.D. 1 ; and see Hiddingh v. Commissioner for
Inland Revenue [1941] A.D. at p. 120.
3 Sande, cap. ii, sec. 1 ; Wright & Co. v. Colonial Oovt. (1891) 8
S.C. at p. 269; Cutting v. Van der Hoven [1903] T.H. at p. 117;
Ex parte Narunsky [1922] O.P.D. 32; Est. Greenberg v. Rosenberg
& Greenberg [1925] T.P.D. at p. 929; Jeffery v. Pollak [1938]
A.D. at p. 22.
4 Voet, 18. 4. 5; Jacobsohn's Trustee v. Standard Bank (1899)
16 S.C. at p. 203 ; Lovell v. Paxinos [1937] W.L.D. 84.
5 Mills & Sons v. Benjamin Bros.' Trustees [1876] Buch. 115;
Wright & Co. v. Colonial Government, ubi sup. ; McGregor's
Trustees v. Silberbauer (1891) 9 S.C. 36; Van de Merwe v. Franck
(1885) 2 S.A.R. 26; Graaf-Reinet Board of Exors. v. Est. Erlank
[1933] C.P.D. 41 ; Jeffery v. Pollak, ubi sup. at p. 24.
248 THE LAW OF OBLIGATIONS
' Where a right of action exists independently of any written
instrument, the cession of such right may be effected without
corporeal delivery of any document. Where, however, the sole
proof of a debt is the instrument which records it, the cession
of the debt is not complete until the instrument is delivered to
the cessionary. ... I am not prepared to say that circumstances
may not arise under which a cession of action may be completed
without delivery of the instrument which constitutes the proof
of the debt. The document may, for instance, be lost, and, in
such a case, if the cedent has done everything in his power
to divest himself of his right of action, there is no reason why
the cession should not be held to be complete. But among the
things required, under such circumstances, to be done by the
cedent would certainly be the notification of the cession to
the debtor.' (De Villiers C.J. in Jacobsohris Trustee v. Standard
Bank, 16 S.C. at pp. 203-4.)
3. The effect of cession is to substitute the cessionary
in place of the cedent as creditor in respect of the obliga-
tion ceded,1 and to vest in the cessionary all the cedent's
rights against the debtor.2
4. Therefore, the debtor after cession is no longer liable
to the cedent and cannot be required by him to perform the
contract, nor be sued by him in case of non-performance.3
After notice or knowledge of the cession, the debtor must
1 Pick v. Bierman (1882) 2 S.C. at p. 34. By the constitution
Per diversas (Cod. 4. 35. 22), commonly known as the lex Ana-
stasiana, enacted by the Emperor Anastasius (A.D. 506) and con-
firmed by Justinian (Cod. 4. 35. 23), a cessionary of a debt could
not recover from the debtor a sum in excess of that for which he
had acquired the debt from the cedent. Gr. 3. 16. 14; Voet, 18. 4.
18. The lex Anastasiana has been declared to be obsolete in
South Africa. Seaville v. Colley (1891) 9 S.C. 39 (Cape) ; Machattie
v. Filmer (1894) 1 O.K. 305 (Transvaal). It seems doubtful whether
and how far it obtains in Ceylon. Pereira, p. 654.
2 Sande, cap. ix, sec. 1. The intention, however, may be not to
transfer the debt, but merely to indicate a source from which the
creditor of the so-called assignor may receive payment. The
civilians call this assignatio. It must be distinguished on the one
hand from delegatio, which is a species of novation (infra, p. 278),
and on the other hand from cession of a right of action, which is
the case dealt with in the text. Assignatio does not discharge the
assignans nor render the asaignatus liable. Gr. 3. 44. 5; V.d.K.
837-8.
3 Voet, 18. 4. 15; Pick v. Biertnan, ubi sup.
OPERATION OF CONTRACT 249
satisfy the cessionary and not the cedent,1 whose right of
action is extinguished by the cession.2 If after notice, or
knowledge,3 of the cession, the debtor chooses to pay the
cedent, he does so at his risk.
5. If, however, the debtor, in ignorance of the cession,
satisfies, or is released from,4 the claim of the cedent, his
liability is at an end.5 For this reason, at all events, it
is matter of prudence for the cessionary at the earliest
possible moment to acquaint the debtor with the fact of
the cession.
6. Whether, in the event of the creditor ceding the
same debt to successive cessionaries, a second cessionary
who had anticipated a first cessionary in giving notice to
the debtor would be preferred to the first cessionary was
a disputed question. Opinion now inclines to a negative
answer; viz. that priorities are determined not by date
of notice but by date of cession.6 But a debtor who has
in good faith satisfied a claim of which he had notice
is not liable to a prior assignee of whose right he was
ignorant.
1 V.d.L. 1. 18. 1. Knowledge is enough without notice. Van
der Heever's Est. v. Greyling (1907) 24 S.C. 414.
2 Keeler v. Butcher & Sons (1907) 28 N.L.R. at p. 48.
3 Van der Heever's Est. v. Greyling, ubi sup.
4 Bijnk, O.T., I. 51.
8 Voet, ubi sup. ; Morkel v. Holm (1882) 2 S.C. at p. 65 ; Keeler
v. Butcher & Sons, ubi sup. at p. 49. The same result follows,
according to Voet, if the debtor satisfies the debt by bonafide pay-
ment to the cedent even with knowledge of the cession, but before
notice from the cessionary. The reason given by Voet is not entirely
satisfactory 'cum utique ei sol vat cui obligatus fuit, nee ipsi fac-
tum tertii obesse queat quamdiu denunciatio haud intercessit'.
But he has said immediately above : ' Plane nostris moribus circa
cessas actiones magis placuit jus omne cedentis cessione extinctum
esse. '
6 This is the opinion of Voet (18. 4. 17) dissenting from Sande,
de act. cess., cap. xii, sec. 8. See Morkel v. Holm (1882) 2 S.C. 57;
Wright & Co. v. Colonial Government (1891) 8 S.C. 260. In Hanau
& Wicke v. The Standard Bank (1891) 4 S.A.R. 130 the Court pre-
ferred Sande to Voet. This was a case between two claimants to
certain syndicate shares. No question arose as between either
party and the debtor. In Mackenzie v. Bilhrough [1906] T.H. at
p. 125, Wessels J. expressed a preference for the principle laid
down by Voet.
250 THE LAW OF OBLIGATIONS
7. A cessionary cannot, generally, be in a better position
than his cedent.1 Therefore all defences which might have
been pleaded against the cedent at the date of cession may
equally be pleaded against the cessionary.2
8. Generally speaking, any right may be ceded which
is transmitted by the death of the party entitled. This rule
excludes penal actions ex delicto, in particular the actio
injuriarum, but there is no rule that actions ex delicto in
general are not assignable.3 It excludes cases in which the
debtor's duty of performance does not extend beyond the
person of the creditor, and the debtor, therefore, may
decline to recognize as entitled any other than the creditor
in person (delectus personae).* A creditor may disable him-
self by the terms of the contract from ceding his right
(pactum de non cedendo), so that 'the right which the
creditor obtains, being circumscribed by the terms of his
agreement with the debtor, becomes by the agreement
between the parties a strictly personal right, and cannot
be ceded'.5 Nor can a right to aliments, i.e. an allow-
ance for maintenance and support, be ceded.6 With these
1 Anderson's Assignee v. Anderson's Exors. (1894) 11 S.C. at
p. 440; Voet, 18. 4. 13; Biggs v. Molefe [1910] C.P.D. 242; Yates
v. Aukland Park Sporting Club efc Roberts [1915] W.L.D. 55;
Sampson v. Union and Rhodesia Wholesale Ltd. [1929] A.D. at
p. 482.
2 Sande, cap. xiii. At all events 'exceptiones in rem' may be so
pleaded (sec. 2), such as 'compensation'. Smith v. Howse (1835)
2 Menz. 163 ; Walker v. Syfret N.O. [1911] A.D. at pp. 160 and 162.
The case of National Bank v. Marks & Aaronson [1923] T.P.D. 69
is not inconsistent with this, for the debt was illiquid and there-
fore there was no compensation.
3 Sande, cap. v, sees. 1, 2, and 11. Personal servitudes cannot
be ceded. Eastern Rand Exploration Co. v. Nel [1903] T.S. at p. 51 ;
Willoughby''s Consolidated Co. v. Copthall Stores [1913] A.D. at
pp. 282-3 per Innes J.
4 Cullinan v. Pistorius [1903] O.R.C. at p. 38; Deutschmann v.
Mpeta [1917] C.P.D. at p. 81.
6 Paiges v. Van Ryn Gold Mines Estates Ltd. [1920] A.D. at
p. 616. In this case the Court held that an agreement, whereby an
employee undertook not to cede or assign wages due to him with-
out the consent of his employer, could be raised by the employer
as a defence to an action by a cessionary to recover the amount of
wages ceded to him by the employee.
8 Schierhout v. Union Qovt. [1926] A.D. at p. 291.
OPERATION OF CONTRACT 251
exceptions, it seems that all contractual rights may be
ceded whether before or after breach, whether arising out
of liquid or illiquid claims, whether obligations to give
or obligations to do. Contrary to the Roman Law, the
Roman-Dutch Law permits the transfer of a thing in
litigation (res litigiosa).1
9. A cession may be absolute or by way of charge. If
a cession is intended to take effect merely in securitatem
debiti, it will be so construed, though in terms absolute,
and dominium will remain with the cedent.2
It has been said that, exceptions apart, a cession
action can be effected by bare agreement. The prin- required
cipal exceptions are: (1) negotiable instruments (which are "* some
transferred by delivery, or, if not payable to bearer, by
delivery and endorsement) ; and (2) the transfer of shares
in companies which are commonly regulated by statute.
By operation of law, contractual rights are transmitted Trans-
on insolvency and death.3 The effect of sequestration of
the estate of an insolvent is 'to divest the insolvent of his
estate and to vest it in the Master until a trustee has been
appointed, and upon the appointment of a trustee to vest
the estate in him ' ;4 and every satisfaction in whole or in
part of any obligation the fulfilment whereof was due or
the cause of which arose before the sequestration of the
debtor's estate, if made to the insolvent after such
sequestration, is void, unless the debtor proves that it
was made in good faith and without knowledge of the
sequestration.5 With regard to the effect of death on
contract, it may be said that all contractual rights and
duties, unless they be of a purely personal character, pass
upon death to the representatives of a deceased person,
who may sue or be sued in respect of them. In the modern
law their liability in no case exceeds the assets of the
estate. -J^s
1 Supra, p. 241, n. 5.
2 National Bank of S. A. v. Cohen's Trustee [1911] A.D. 235.
8 Also by marriage in community, for which see above, p. 70.
4 Insolvency Act, 1936, sec. 20 (1) (a).
6 Ibid., sec. 22.
252 THE LAW OF OBLIGATIONS
SECTION II
The Duty of Performance
' Stare ^ The duty of a party to a contract is faithfully to per-
form his part with the care and diligence proper in the
circumstances, and with due regard to any rules of law
or lawful customs by which the character of the perform-
ance due from him is determined.
Generally Generally speaking, the parties to a contract may in-
makef eS corporate in it any terms they please, and each is bound
their own to the other to do what he has undertaken. When the
parties have expressly agreed, and the object contem-
plated is not unlawful, the function of the Court is limited
to interpreting the terms expressed. The rules of inter-
pretation form the subject of a later chapter.
But the Generally, the Court will not make a contract for the
impose^ Par^ies. They must make up their minds what they
terms, mean, and they should express their meaning clearly and
fully. But within limits law and usage operate to deter-
mine the content of the contract and therefore the duties
of the parties.
abso- If a rule of law is imperative the parties must conform
lutely, j.Q ^ They cannot contract themselves out of an express
legal duty. But if, as often happens, the law merely lays
down rules which are to govern a particular transaction
in the absence of agreement to the contrary, it is open to
the parties to modify or to depart from the rule at their
or in the discretion, for ' conventio vincit legem '. The same remark
contrary0 applies to customs, whether local or relating to some
agree- particular trade or business. They bind only so far as the
parties have not seen fit to exclude their operation.
In this chapter we shall speak of various rules of law
by which the duty of performance is determined where the
parties have not departed from them by express agreement.
All contracts are commonly referred to one or other of
two classes: viz. (a) contracts to give, (6) contracts to do
or to abstain from doing.1 But it is evident that both of
1 Gr. 3. 39. 8; V.d.L. 1. 14. 6; Pothier, Traitd des Obligations,
sec. 53.
OPERATION OF CONTRACT 253
these duties may be incumbent upon the same person
under the same contract. Thus, if I agree to make a
cabinet according to specifications and to deliver it when
made to a purchaser, I incur an obligation first to do and
then to give. The distinction is of no great importance.
The substantial thing is that, whatever the nature of the
contract, I must carry it out according to its terms.1
In the Latin texts of the Roman and of the Roman- Perform-
Dutch Law the words 'solvere' 'solutio' are used in an ance-
extended sense to express the performance of any con-
tractual duty. ' Solvere dicimus eum qui fecit quod facere
promisit.'2 The use of the Dutch 'betaling'3 and of the
English 'payment' in the same wide sense can only be
justified as a permitted abuse of language. We shall, so
far as possible, limit the word 'payment' to a payment of
money. The principles applicable to a money payment
will, however, in many cases be found to be no less
applicable to any other performance of a contractual duty.
Performance may be made either by the debtor in By whom
person or by his agent acting within the scope of his ance°may
authority. Indeed, performance may be made by an be made,
independent third party in the name of the debtor, even
without his knowledge and against his will, with the result
that the debtor will be discharged from liability, unless the
performance is of such a personal character that it cannot
be effectually made except by the debtor in person.4 This
means, in effect, that performance of this character is
permitted when the debtor's obligation consists in giving,
but seldom when it consists in doing.5 A person under Persons
disability cannot discharge a legal debt without his tutor's
1 Voet, 46. 3. 8.
2 Dig. 50. 16. 176: Solutio est naturalis praestatio ejus quod
debetur. Voet, 46. 3. 1.
3 V.d.L. 1. 18. 1: Betaaling, dat is de dadelijke vervulling van
het geen men zig verpligt heeft te geven of te doen.
4 Gr. 3. 39. 10 ; Voet, 46. 3. 1 ; Rolfes Nebel & Co. v. Zweigerihajt
[1903] T.S. at p. 195; or unless the transaction is, in effect, not
intended as a discharge of the debt, but as a purchase of the
creditor's right of action. Mitchell Cotts & Co. v. Commissioner of
Railways [1905] T.S. 349. B V.d.L. ubi sup.
254 THE LAW OF OBLIGATIONS
or curator's authority. If he does so, the sum of money or
other thing alienated can be recovered by vindication, if
still extant ; if it has been consumed, the debt is deemed to
be discharged.1 This only applies, however, if the debt in
minors, question springs from a valid civil obligation. If a minor
has contracted without his tutor's authority, the thing
married delivered, or its value, can always be recovered.2 A married
woman, being in law a minor and unable to contract3
without her husband's authority, is also unable to make
a valid payment. Consequently, money paid by her may
be recovered by the husband stante matrimonio, or by
herself after its dissolution. She may even recover money
paid after the dissolution of the marriage in respect of a
debt contracted during its continuance, provided that she
made the payment in ignorance of her rights and under
the mistaken idea that she was effectively bound.4
To whom Payment may be made to the creditor or his nominee
ancemay or *° anv Person *° whom payment is agreed to be made,
be made, such person being regarded as the creditor's mandatary
to receive payment.5 Payment may in any case be made
to the creditor's agent, if to receive payment falls within
the scope of his authority, or fell within it and the debtor
has not received notice that the authority is revoked.6
Payment made to a person who has no authority to re-
ceive payment on behalf of the creditor will become good
ex post facto if the creditor ratifies the transaction or if the
money paid is applied to his use.7 Payment to servants is
valid, if it is within their authority to receive it.8 Pay-
ment of a debt due to a minor is validly made to his
guardian, unless the debt is of large amount, in which
case an order of Court is desirable.9 If the minor's father
1 Gr. 3. 39. 11 ; Voet, 4. 4. 21 and 46. 3. 1. 2 Voet, loc. cit.
3 This is the general rule. For exceptions see supra, pp. 65 ff.
and infra, Appendix D. 4 Voet, 12. 6. 19.
8 Gr. 3. 39. 13 ; Voet, 46. 3. 2 ; V.d.L. ubi sup. Such a person is
said to be solutionis causa adjectus. Dig. 45. 1. 56, 2. Cf. Mutual
Life Insurance Co. of New York v. Hotz [1911] A.D. at p. 566.
8 Voet, 46. 3. 3. 7 V.d.L. ubi sup. 8 Voet, 46. 3. 4.
9 Gr. 3. 39. 14; Voet, 4. 4. 22 (ad fin.); Holl. Cons. i. 167;
vi. 127.
OPERATION OF CONTRACT 255
is alive, payment to him as natural guardian may be made
without having him first confirmed as guardian by the
Court.1 Payment to a married woman of a debt due to
her or to her husband, made without his knowledge or
against his will, is invalid, unless it has been applied to
his use, or unless it is of small amount and may be sup-
posed to have been applied by the wife to the purposes of
the household.2 Payment may safely be made to a fidu-
ciary pending the condition of a fideicommissum.3 In the
event of the creditor's death payment must be made to
(his heirs4 and now to) his personal representatives. When
two persons claim payment of the same debt, payment
cannot safely be made to either. The debtor should
deposit the money in Court, or if he pays to one of the
rival claimants, take from him security against the claim
of the other.5 Payment to a creditor's creditor, apart from
express authority, can only be justified, if at all, on the
ground of negotiorum gestio. But a sublessee may pay
a head lessor to avoid an execution upon his own goods.
Payment made in good faith to an invading enemy under
pressure of vis major effects a discharge.6
When a debtor is bound by contract to deliver a thing Obligatio
of a certain genus, he must deliver a thing of the kind of geni
average quality.7
When a sum to be paid under a contract is stated in
foreign currency, in the absence of provision to the con-
trary, payment may (must ?) be made in the currency of
1 See Van Rooyen v. Werner (1892) 9 S.C. at p. 430; supra,
p. 37.
2 Groen, ad Gr. 3. 39. 14; Voet, 23. 2. 50 and 46. 3. 5; Neo-
stadius, Supr. Cur. Decis., no. 88. Of course, if the marital power
is excluded, a married woman is competent to receive payment of a
debt due to herself. 3 Voet, 36. 1. 63 and 46. 3. 5.
4 V.d.L. ubi sup.
5 Voet (46. 3. 6) says 'consignandum ac deponendum in usum
victoris'. Interpleader with payment into Court is the modern
equivalent. 6 Voet, 46. 3. 7.
7 Voet, 46. 3. 9 (ad fin.) ; Groen. de leg. abr. ad Dig. 17. 1. 52. But
Brunneman, ad loc., says: 'In obligatione generis liberatur quis
praestando vilissimum. Groenewegen hanc legem putat abolitam,
sed nullo fundamento.'
256
THE LAW OF OBLIGATIONS
Part per-
formance.
Alterna-
tive per-
form-
ances.
Sub-
stituted
perform-
ance.
Effect of
perform-
Proof of
payment.
the locus solutionis at the rate of exchange ruling when
payment falls due.1
The creditor may, if he chooses, demand, but the debtor
is not compellable to render, nor the creditor to accept,
part performance.2 Part performance, if accepted, pro
tanto extinguishes the debt and in the case of a money
debt prevents pro tanto the further accrual of interest.3
When one of two performances is agreed to be rendered
in the alternative, the choice rests with the debtor, unless
it has been expressly given to the creditor.4
Substituted performance may be made with the consent
of the creditor, but not otherwise.5 It has the same effect
as performance of the thing originally agreed to be done.
The effect of performance is to discharge from further
liability the principal debtor, his co-debtors, if any, and
all personal sureties and real securities for performance.6
But if one of several co-debtors, or a surety, pays the
debt, he may demand from the creditor a cession of actions
against other parties liable and thus keep the debt alive.7
If the thing given in payment, or one of several things
given in payment, is recovered from the creditor by a
third party (eviction), the payment is rendered void, and
all former rights revive, unless the creditor prefers to sue
the debtor for damages on the ground of eviction. The
same result follows if the debtor has fraudulently mis-
represented the value of the property given in settlement.8
Payment may be proved by any lawful evidence and,
1 Barry Colne & Co. v. Jackson's Ltd. [1922] C.P.D. 372;
Bassa Ltd. v. East Asiatic (S. A.) Co. Ltd. [1932] N.P.D. 386;
Joffe v. African Life Assurance Ltd. [1933] T.P.D. 189. May pay-
ment be made in the foreign currency ? Barry Colne & Co. v.
Jackson's Ltd. leaves the question open. See Dicey (5), Rule 181.
Legal tender in South Africa is defined by Act No. 31 of 1922,
sec. 3, and in Southern Rhodesia by Act No. 32 of 1938, sees. 13, 15.
2 Gr. 3. 39. 9 ; Voet, 46. 3. 11 ; V.d.L. ubi sup.
8 V.d.L. 1. 18. 1.
4 Dig. 18. 1. 25 pr. ; 23. 3. 10. 6 ; Voet, 45. 1. 22 ; V.d.L. 1. 14. 9.
May the person who has made his election recall it ? Voet, loc. cit.
6 Gr. 3. 42. 4-5 ; Voet, 46. 3. 10.
6 Voet, 46. 3. 13 ; V.d.L. 1. 18. 1. 7 V.d.L. ubi sup.
8 Voet, ubi sup.
OPERATION OF CONTRACT 257
in particular, by producing a receipt for the money, signed
by the creditor or his agent.1 A creditor is bound to give
a receipt, and a debtor is not otherwise compellable to
pay.2 When yearly or half-yearly (or other periodic) pay-
ments are due from the debtor, three several receipts, for
the last three payments, furnish presumptive evidence
that earlier payments have been duly made.3
When several distinct debts are due from the same Appro-
debtor to the same creditor, questions may arise as to the payments
appropriation of payments. The rules relating to this
subject are stated by Voet4 as follows : (1) The debtor may,
in general, appropriate the payment to any debt he chooses,
but not to capital before interest, because capital and
interest constitute a single debt and (unless so agreed) a
creditor cannot be required to accept payment by instal-
ments.5 Failing appropriation by the debtor — (2) the
creditor appropriates;6 but he must do so as he would
were he himself the debtor,7 and therefore not to : (a) a
disputed debt ; (6) a debt not yet accrued due ; (c) a debt
due naturally and not civilly; (d) a debt for which the
debtor is surety in preference to a debt due from him as
principal.8 Appropriation must be made in re praesenti,9
i.e. at the moment of payment, so as to give an opportunity
to the creditor to refuse to accept, or to the debtor to
refuse to pay.10
If a payment is made to a person who has a claim in
his own name and also in the name of another, in the
1 Welch v. Harris [1925] E.D.L. 298 ; Voet, 46. 3. 15.
2 Voet, ubi sup.; Van Noorden v. De Jongh (1892) 9 S.C. 296;
Liebenberg v. Loubser [1938] T.P.D. 414; Secus, English Law,
Jenks, Art. 256.
8 Voet, 46. 3. 14.
4 Voet, 46. 3. 16; Gr. 3. 39. 15; V.d.L. 1. 18. 1 (ad fin.); Wessels,
i. 2284 ft. 5 Wessels, i. 2290.
6 Stiglingh v. French (1892) 9 S.C. 386; Macrae v. National
Bank of S. A. [1927] A.D. 62. The best evidence of appropriation
by the creditor is a statement to that effect in the receipt. Scott v.
Sytner (1891) 9 S.C. 50 per de Villiers C.J.
7 Dig. 46. 3. 1-2. 8 Gr. ubi sup.
9 Statim atque solutum est, seu dum solvitur. Voet, ubi sup.
10 Dig. 46. 3. 2 ; Cod. 8. 42 (43). 1 ; Stiglingh v. French, ubi sup.
4901 a
258 THE LAW OF OBLIGATIONS
absence of expression to the contrary the payee is sup-
posed to apply the payment to his own claim, for charity
begins at home — ' dum ordinata charitas a se ipsa incipit ' j1
(3) Failing appropriation by debtor or creditor, the law
appropriates the payment as follows: viz. (a) to interest
before principal; (6) to the debt which the debtor at the
time of payment is legally compellable to pay rather than
to a merely natural obligation ; and if more than one debt
is of this nature, then (c) to the debt which lays the
heaviest burden on the debtor, i.e. to that debt which it
is most in his interest to discharge ;2 and subject thereto
(d) to a debt due from him as principal in preference
to a debt due from him as surety; and subject thereto
(e) to the debt which is earlier in time;3 and in case of
debts of equal date, finally (/) to all such debts propor-
tionately to their amount.4
Interest. The subject of payment suggests the subject of interest.
This may be either agreed between the parties, or allowed
by the law as damages if one or other party is in default
(damage-interest). As regards the legal rate of interest,
Grotius says that ordinary citizens were allowed to stipu-
late for one-sixteenth, i.e. 6J per cent, per annum.5 Mer-
chants, by the Perpetual Edict of 1540 (Art. 8), enjoyed
the privilege of stipulating for interest up to twelve per
cent.6
In South Africa it was formerly held that there was no
general legal rate of interest and that no agreed rate of
interest could be pronounced usurious, except in view of
the circumstances of the particular case ;7 but now the
1 Voet, ubi sup.
2 Watermeyer's Exors. v. Watermeyer's Exor. [1870] Buch. 69;
Wilhelm's Trustee v. Shepstone (1878) 6 N.L.B. (O.S.) 1 ; Van Wyk
v. Leo [1909] T.S. at p. 795.
3 Voet, ubi sup. ; Scott v. Sytner (1891) 9 S.C. 50.
4 Gr. 3. 39. 15 ; Voet, ubi sup.
6 Gr. 3. 10. 10 (ad fin.); Loen. Decis. Gas. 21; Voet, 22. 1. 3;
V.d.K. 545.
6 1 Q.P.B. 317. Van der Keessel (Th. 547) says that this
privilege was disused so early as 1590.
7 Dyason v. Ruthven (1860) 3 S. 282 ; Reuter v. Yates [1904] T.S.
855; Cloete v. Roberts (1903) 20 S.C. 413. The law is the same in
OPERATION OF CONTRACT 259
Usury Act, 1926, defines the permitted rates of interest
on loans of money and the sum recoverable upon any
such contract. The rule of the Roman-Dutch Law pro-
hibiting compound interest1 is no longer in force ;2 but it Corn-
is still law that the amount of interest recoverable in any
one action (simul et semel) cannot under any circumstances
exceed the amount of the principal.3
In the absence of agreement, no interest can be claimed No
except when the law allows interest by way of damages.4
Where interest has been agreed to be paid, but no specific except by
rate of interest has been fixed, the current rate of interest menfc.
is payable. This is determined, Voet says, prima facie, by
the lex loci contractus.5 The mere payment of interest
for several years without any previous agreement in that
behalf does not confer any right to have such payment
continued.6 A continued payment of less than the agreed
interest may be construed as a tacit agreement for the
lesser amount, but non-payment is not evidence of an
agreement not to pay.7
The obligation to pay interest is determined: (1) by How the
release ;8 (2) by payment of the principal debt (but without °0 Pay10
Ceylon. Pulle v. Candoe (1875) Ramanathan, 1872-6, p. 189 ; Peria
Carpen v. Herft (1886) 7 S.C.C. 182.
1 Gr. 3. 10. 10 (ad fin.) ; Voet, 22. 1. 20.
2 Natal Bk. v. Rwanda [1907] T.H. 155; Ryan & Burton v.
Thornton [1912] E.D.L. at p. 173. In a recent case the Supreme
Court of Ceylon arrived at the same conclusion by a majority of
three to two. Marikarv. Supramanian Chelliar ( 1943) 43 N.L.R. 409.
3 Voet, 22. 1. 19; V.d.K. 549; Roberts v. Booy (1884) 4 E.D.C.
22; Van Diggelen v. Triggs [1911] S.R. 154. See now the Union
Usury Act 1926, sec. 2, for Southern Rhodesia, R.S. cap. 228,
and for Ceylon, R.S. capp. 66, 67. In Union Qovt. v. Jordaan's
Exor. [1916] T.P.D. 411 it was said that no interest runs after
the amount is equivalent to the amount of the capital. See also
Solomon v. Jearey [1921] C.P.D. 108. Sed quaere. Groen., de leg.
abr. ad Cod. 4. 32. 27. 1 ; Voet, ubi sup. ; V.d.K., Dictat. ad Gr.
3. 10. 10.
4 Havemann v. Oldacre Bros. (1905) 26 N.L.R. 56.
5 Voet, 22. 1. 8: ad earn quantitatem obligatio usurarum
contracta intelligitur, quae ex more regionis in qua conventio
celebrata praestari solet.
6 Voet, 22. 1. 13. 7 Voet, 22. 1. 14.
8 Voet, 22. 1. 15. By the Roman -Dutch common law rent is ipso
jure remitted in case of hostile incursion and other calamities, but
260
THE LAW OF OBLIGATIONS
interest is
deter-
mined.
Tender.
Rules of
law as to:
(a) place
of pay-
ment;
prejudice to the right to recover interest already accrued
due) ;* (3) by judgment. A claim for damage-interest is
merged in the judgment, but according to Voet this does
not apply to interest stipulated for in a contract.2
'Tender' is an offer of payment, which, to be effective,
'must be made to a person who is competent and author-
ized to receive payment and must be in strict conformity
with the terms of the original contract'.3 Voet says that a
mere tender of principal and interest does not prevent
interest continuing to run unless accompanied by con-
signation and deposit.4 In the modern law consignation
is not in use. The same effect now results from simple
tender, if regularly made, and a fortiori from payment
into Court.5
The law lays down special rules as to place and time of
payment by which, in the absence of contrary expression,
the parties are bound. As regards place, performance
must prima facie be made where the obligation was con-
tracted, unless another place of performance has been
expressly or impliedly agreed.6 But, where a thing is in
question, the debtor is not as a rule bound to bring it to
the house of the creditor. Such at least is the opinion of
Voet, who says that others think differently.7 It follows
that in the absence of agreement or clear proof of custom
to the contrary it is incumbent on the creditor, even when
the parties are living in the same place, to seek out the
debtor for payment,8 and the place for delivery of goods
the law does not, as a rule, give a similar indulgence in the matter
of interest. 1 Gens. For. 1. 4. 4. 30.
2 Voet, 22. 1. 16.
3 4 Maasdorp, p. 171 ; Wessels, i. 2332 ff. ; infra, p. 273.
4 Voet, 22. 1. 17. For consignation vide infra, p. 274.
6 Infra, p. 273.
6 Gr. 3. 39. 9, and Schorer ad loc. ; Voet, 46. 3. 12 ; Windscheid,
ii. 282; Collet v. Eva [1926] C.P.D. 187; Walker v. Taylor [1934]
W.L.D. at p. 114; Hazis v. Transvaal & Delagoa Bay Investment
Co. [1939] A.D. at p. 391 (per Stratford C.J.); (Ceylon) Haniffa v.
Ocean Accident Corp. (1933) 35 N.L.R. 216.
7 Voet, ubi sup. See also Schorer ad Grot. loc. cit., and Van
Leeuwen, 4. 40. 6; Cens. For. 1. 4. 32. 14-15; Segal v. Mazzur
[1920] C.P.D. at p. 640.
8 Shapiro v. Kotler & Rabinoivitz [1935] W.L.D. 60. But see
OPERATION OF CONTRACT 261
sold is the place where they were when sold,1 and if goods
are to be manufactured is the place of manufacture.2 In
the absence of agreement to the contrary services must be
paid for in the place in which they are rendered.3
Next as regards time : if no time for performance is (6) time
expressly or impliedly agreed, performance falls due imme-
diately,4 i.e. after a reasonable time.5 If the contract is
expressed to take effect from a certain day or subject to a
suspensive condition, performance is not due until the day
arrives or the condition is satisfied.6 When a day is named
for performance the debtor is not in default until the day is
wholly past, for he has the whole day for performance7
(within business hours ?)8 The same principle applies when
a thing is to be done in a named month or year.9 Some-
Northmore v. Scala Cinemas (Pty) Ltd. [1936] T.P.D. 280. The
books are much divided on the question whether it is the duty
of the debtor to seek out the creditor or vice versa.
1 Gilson v. Payn (1899) 16 S.C. 286.
2 Richards, Slater & Co. v. Fuller & Co. (1880) 1 E.D.C. 1;
OoUblatt v. Merwe (1902) 19 S.C. 373.
3 Hornev. Williams & Co. [1940] T.P.D. 106.
4 Dig. 45. 1. 41, 1 ; Gr. 3. 3. 51 ; Voet, 45. 1. 19 ; 46. 3. 8 ; V.d.L.
1. 14. 9.
6 Dig. 46. 3. 105: quod dicimus . . . debere statim solvere, cum
aliquo scilicet temperamento temporis intellegendum est ; nee
enim cum sacco adire debet. Federal Tobacco Works v. Barron
& Co. [1904] T.S. at p. 485; Meyeroivitz v. Annetts [1937] N.P.D.
140 ; and ordinarily it rests on the debtor to advance the reasons
for the granting of delay. Fluxman v. Brittain [1941] A.D. at
p. 296 per Tindall J.A.
6 Voet, 46. 3. 12.
7 Gr. 3. 3. 50; Voet, 45. 1. 19 (ad init.).
8 Dames v. Lawlor [1941] E.D.L. at p. 132.
9 Dig. 45. 1. 42. When a contract provides that something is to
be done, or take place, within e.g. fourteen days from date, the
day of date is included in making the computation, unless a con-
trary intention is to be inferred from the circumstances of the case
or from the language of the contract. Joubert v. Enslin [1910]
A.D. 6; National Bank of S. A. v. Leon Levson Studios [1913]
A.D. 213; Feigenbaum v. Mills [1929] N.P.D. 235. Thus where
there was a policy of insurance on a schooner for a period of
twelve months from January 14, 1857, to January 14, 1858, and
the schooner was lost at 10 p.m. on January 14, 1858, it was held
that the loss was not covered by the policy. Cock v. Cape of Good
Hope Marine Assurance Co. ( 1 858 ) 3 Searle 114. But in interpreting
Acts of Parliament, &c., the first day is excluded. Interpretation
Act, 1910, sec. 5.
262
THE LAW OF OBLIGATIONS
May per-
formance
be made
before it
is due ?
times a stipulation as to time is implied from an agree-
ment as to place ;* for if a place is named for performance
enough time is understood to be allowed to enable the
promisor conveniently to reach the place destined for per-
formance,2 unless it appears that the matter has been
previously arranged so as to allow of performance taking
place by means of agents at the place intended.3 Even
when a contract fixes a definite time for performance the
Court will consider, in view of the circumstances of each
particular case, whether the true intention of the parties
at the time of contracting was to fix a reasonable time or to
make time of the essence of the contract.4 This second
alternative is usually intended in mercantile contracts.5
Just as a debtor cannot be compelled to perform before
performance falls due,6 so it would seem reasonable that
a creditor should not be compellable to accept performance
before the time agreed. But there is a text in the Digest7
which seems to imply the contrary, for Venuleius says:
'quod in diem debetur ante solvi potest, licet peti non
potest'. Voet suggests that this dictum should be limited
to the case where postponement of payment has been
agreed upon for the exclusive benefit of the debtor.8 It
would not apply, for instance, where money had been lent
at interest for a fixed period.9 Schorer10 admits prepay-
ment in this case also, but it must include payment of
future interest as well as of interest already accrued due.
Where there is an agreement for payment by instalments
1 Gr. 3. 3. 53. 2 Dig. 45. 1. 73 pr.
8 Dig. 45. 1. 141, 4; Voet, 45. 1. 19.
4 Bergl & Co. v. Trott Bros. (1903) 24 N.L.R. at p. 518 per
Bale C.J.; Crook v. Pedersen Ltd. [1927] W.L.D. at pp. 76 ff . ;
Olivier v. Paschke [1928] S.W.A. 116 ; Wessels, i. 2247 ff.
6 Algoa Milling Co. v. Arkell & Douglas [1918] A.D. at p. 167 ;
Lewis & Co. v. Malkin [1926] T.P.D. 665; Blatt v. Swakopmunder
Bankverein [1929] S.W.A. 90. 6 Voet, 46. 3. 12.
7 Dig. 45. 1. 137. 2 (ad fin.) ; Sande, Decis. Fris. 3. 16. 1.
8 Dig. 50. 17. 17: in stipulationibus promissoris gratia tempus
adicitur. So V.d.L. (1. 14. 9).
9 Voet, 12. 1. 20 ; Van Leeuwen, 4. 40. 5 ; Gens. For. 1. 4. 32. 16 ;
V.d.K. 542; Kelly v. Holmes Bros. Ltd. [1927] O.P.D. 29 ; McCabe
v. Burisch [1930] T.P.D. at p. 265.
10 Ad Grot. 3. 39.
OPERATION OF CONTRACT 263
a purchaser is not entitled to make premature payments
unless, possibly, together with interest on future instal-
ments.1
The Consequences of Non-performance
In the last section we discussed the duty of performance. In what
We are now to consider what happens if that duty is not failure to
carried out. If a party fails to perform or fails in perform- perform ia
ing what he has undertaken, either he can justify his
failure or he can not. If he can, he incurs no liability.
If he cannot, he has broken his contract and must suffer
the consequences.
The grounds on which non-performance is justified
scarcely, perhaps, admit of formal classification. They
include every case in which a defendant can plead that
the contract on which action is brought is void or void-
able ; void (e.g.) on the ground of mistake, impossibility of
performance,2 illegality; voidable (e.g.) on the ground of
fraud, or minority. Another case is the operation of a
suspensive condition. If a person has undertaken to per-
form in a certain event, it is plain that, unless and until
that event happens, performance cannot be demanded.3
1 Bernitz v. Euvrard [1943] A.D. 595.
2 Impossibilium nulla obligatio est, Dig. 50. 17. 185. Impossi-
bility cannot be assigned to any one place in the theory of con-
tract. It may be of such a character as to negative any serious
intention to contract (supra, pp. 213, 223); or may operate to
make the contract void ab initio (supra, p. 223); or may arise
subsequently to the contract, in which case it will sometimes
discharge the promisor from liability (infra, p. 221). When per-
formance is impossible ab initio, the general rule is that if
the impossibility is absolute (i.e. impossible for everybody) the
promisor incurs no liability ; if it is relative (impossible for the
promisor, not for everybody) he will be bound. Dig. 45. 1. 137, 5:
ei ab eo stipulatus sim, qui efficere non possit, cum alio possibile
sit, jure factam obligationem Sabinus scribit. But even in the
first case the promisor will be bound, if he has contracted in terms
which import a warranty that performance is possible. See on
the whole subject Moyle, Institutes of Justinian (5th ed.), p. 411 ;
Windscheid, ii. 264.
8 Unless he himself deliberately and in bad faith prevents the
fulfilment of the condition. Dig. 45. 1. 85, 7: Quicumque sub
264 THE LAW OF OBLIGATIONS
Finally, there is the question, often difficult, of the effect
of default on the part of the other contracting party.
Where performances are due from both parties to a con-
tract, the duty of performance by one is usually condi-
tional upon performance by the other. It may be that
one is to perform before the other, or that both are to
perform concurrently. In the first case performance on
the one side is said to be a condition precedent of the duty
of performance on the other. In the second case each per-
formance is a concurrent condition of the other. Thus, if
I am to buy your house provided that you first put it in
repair, if you fail to repair I am not bound to buy. Again,
in an ordinary contract of sale, in the absence of agreement
to the contrary, payment and delivery are concurrent
conditions. I need not deliver, unless you are ready and
willing to pay. You need not pay, unless I am ready and
willing to deliver.1 If the one party sues for delivery
without tendering payment, or for payment without
tendering delivery, the other party is under no liability
to perform. Once more : I am not bound to continue ready
and willing to perform, if you on your side make it plain
that you do not intend to do your part. Therefore, if you
refuse to perform, or disable yourself or me from per-
forming, or announce your intention not to perform, I on
my side am released from the duty of performance.2 If
you do not wholly decline to perform, but perform badly
or incompletely, it is a question of fact in each case whether
condicione obligatus curaverit ne condicio existeret nihilo minus
obligator. Bowern v. Oowan [1924] A.D. 550; Macduff & Co. v.
Johannesburg Consolidated Investment Co. [1924] A.D. 573 ; Mowlem
v. Morris [1930] E.D.L. at p. 97 ; Lorenz v. RaUnowitz [1933] C.P.D.
at p. 148 ; Koenig v. Johnson & Co. [1935] A.D. 262.
1 Trichardt v. Mutter [1915] T.P.D. at p. 178; cf. Wolpert v.
Steenkamp [1917] A.D. 493; Landau v. City Auction Mart [1940]
A.D. 284. But in South Africa the general principle is tempered by
the equitable doctrine that no one may be unjustly enriched at
another's expense. Hauman v. Nortje [1914] A.D. 293 ; Ambrose &
Aitken v. Johnson & Fletcher [1917] A.D. at p. 343; Spencer v.
Gostelow [1920] A.D. 617; Viljoen v. Visser [1929] C.P.D. 473;
Kam N. O. v. Udurn [1939] W.L.D. 339; [1940] W.L.D. 137.
2 Bergl & Co. v. Trott Bros. (1903) 24 N.L.R. at p. 515 ; McCabe
v. Burisch [1930] T.P.D. 261. Repudiation before performance
OPERATION OF CONTRACT 265
your failure in performance will justify me in refusing to
perform. As a rule I am not released from my duty of
performance unless your failure in performance amounts
in effect to a repudiation by you of your duty under the
contract, or is a failure to perform a vital term of the
agreement ;l or, to use the language of English Law (not
unknown to the Law of South Africa), unless the breach of
contract is a breach of a condition, not merely a breach of
warranty.2
In the absence of any of the above excuses for non- Breach
performance a party who fails to perform or who fails in tracTand
performance has broken his contract and incurs the its con-
consequences which the law attaches to his default.
The consequences to the defaulting party of breach of
contract are principally two: (1) He is liable to pay
damages ; (2) He may, in a fit case, be compelled to carry
out his contract (specific performance). We deal with
these in order.
1. Damages.3 A person who has broken his contract Damages,
is liable to make compensation to the injured party. The
law relating to this subject is treated in modern books
under the head of 'the measure of damages '. The Roman-
Dutch writers have not very much to say about it. Voet,
however, lays down three rules which are of general
application, viz. : —
(a) Under the head of damages, account is taken of
advantage lost and damage sustained (utilitas
amissa — damnum acceptum) ;
falls due is sometimes called an 'anticipatory breach of contract',
as in the English case ofHochtster v. De la Tour ( 1853) 2 E. & B. 678 ;
Heyman v. Darwins Ltd. [1942] A.C. at p. 379 ; Wessels, ii. 2939.
1 Strachan v. Prinsloo [1925] T.P.D. 709.
2 Foster v. Hillman Bros. [1932] W.L.D. 222. For other cases
see Wessels, ii. 2930, 2939.
3 For the Roman Law see Windscheid, ii. 258; Girard, p. 687.
Justinian's solution in Cod. 7, tit. 47, leaves things as uncertain as
before. Did this lex find a place in R.-D. L. ? See Voet, 45. 1. 10 ;
Pothier, Obligations, sec. 164, and Van der Linden's note to his
translation of this work (p. 179). On the whole subject consult
Nathan and Schlosberg, The Law of Damages in South Africa
(Johannesburg, 1930).
266 THE LAW OF OBLIGATIONS
(6) Damages must not be too remote j1
(c) The standard is a commercial standard. The plain-
tiff's affections and feelings are not taken into
account.2
For the rest, the law of damages in the modern Roman-
Dutch Law is substantially the same as in English Law.
It is necessary in each case to inquire whether the law
lays down a special rule as to the measure of damages
in the class of contracts in question. Thus, in a contract
of sale, when the purchaser refuses to take delivery and
the property is resold at a loss, the measure of damages
recoverable from the original purchaser is the difference
between the contract price and the amount realized on
the resale.
The following passage from the judgment of Innes C. J.
in Victoria Falls and Transvaal Power Co. v. Consolidated
Langlaagte Mines Ltd.3 contains a useful summary of the
law relating to the measure of damages : —
' The agreement was not one for the sale of goods or of a
commodity procurable elsewhere. So that we must apply the
general principles which govern the investigation of that most
difficult question of fact — the assessment of compensation for
breach of contract. The sufferer by such a breach should be
placed in the position he would have occupied had the con-
tract been performed, so far as that can be done by the pay-
ment of money, and without undue hardship to the defaulting
party. The reinstatement cannot invariably be complete, for
it would be inequitable and unfair to make the defaulter liable
for special consequences which could not have been in his
contemplation when he entered into the contract. The laws
of Holland and England are in substantial agreement on this
point. Such damages only are awarded as flow naturally from
the breach, or as may reasonably be supposed to have been
in the contemplation of the contracting parties as likely to
result therefrom (see Voet, 45. 1. 9; Pothier, Oblig. sec. 160;
HadUy v. Baxendale, 9 Exch., p. 341 ; Elmslie v. African
1 Kotze v. Johnson [1928] A.D. 313.
1 Voet, 45. 1. 9 ; Meyer v. Jockie P.H. 1944 (2) J. 14 [E.D.L.].
J [1915] A.D. at p. 22.
OPERATION OF CONTRACT 267
Merchants, Ltd., 1908, E.D.C., p. 82, &C.).1 Moreover, it is
the duty of the complainant to take all legal steps to mitigate
the loss consequent on the breach (see British Westinghouse
Coy v. Underground Railway Coy., 1912, A.C., p. 689). It
follows that damages for loss of profits can only be awarded
when such loss is the direct, natural, or contemplated result
of non-performance.'
If the cause of action is a breach of promise to pay
a fixed sum of money, a plaintiff cannot recover anything
beyond the amount of the debt with interest. A claim
for general damages is not allowed.2
It may happen that a plaintiff proves a breach of con- Nominal
tract, but fails to prove that he has sustained any damage
or to establish the amount of the damage sustained. The
question then arises whether he is entitled, at all events, to
nominal damages. In some cases the South African Courts
have awarded damages for a merely technical breach of
contract.3 In others, they have refused to entertain the
action except on proof of actual damage.4 This seems to
be more in accordance with the principles of the Roman-
Dutch Law. A plaintiff must furnish reasonably sufficient
proof that he has suffered some damage. It is often ex-
ceedingly difficult to value the damage in terms of money,
' but that does not relieve the Court of the duty of doing
so upon the evidence placed before it';5 and 'when a
plaintiff is in a position to lead evidence which will enable
the Court to assess the figure he should do so, and not
leave the Court to guess at the amount'.6
If the parties to a contract have agreed for a penalty Penalty
1 See also Lavery & Co. v. Jungheinrich [1931] A.D. 156.
2 Becker v. Stusser [1910] C.P.D. at p. 294; Koch v. Panovska
[1934] N.P.D. 776.
3 Sauerinann v. English and Scottish Law Life Assurance Associa-
tion (1898) 15 S.C. at p. 88 ; Lord v. Gillwald [1907] E.D.C. 64.
4 Steenkamp v. Juriaanse [1907] T.S. 980; Blumbergv. Buys &
Malkin [1908] T.S. at p. 1181 ; Silbereisen Bros. v. Lamont [1927]
T.P.D. 382.
6 Sandier v. Wholesale Coal Suppliers Ltd. [1941] A.D. at p. 198.
6 Klopper v. Maloko [1930] T.P.D. at p. 865 per Tindall J.
Apparently damages are more readily granted when they are
claimed merely as an alternative to specific performance. Farmers'
Co-op. Soc. v. Berry [1912] A.D. at pp. 351-2.
268 THE LAW OF OBLIGATIONS
and in the event of non-performance, the penalty is incurred
^ by the party in default. Such at least was the rule in
UcHllCtyCO. ** A »/
the Dutch Law, with the qualification that if the
penalty was much larger than the actual loss it was
within the competence of the Court to reduce it;1 on
the other hand, if the penalty proved insufficient to cover
the damages the aggrieved party might fall back on his
original cause of action.2 The modern law has taken over
the English distinction between Penalties and Liquidated
Damages.3
Specific 2. Specific Performance. In Roman Law, during the
perform- formuiary period, condemnation was always pecuniary.
(a) Roman A decree of Court ordering a defendant to carry out a con-
tract specifically or to hand over property to the plaintiff
was unknown, though specific performance was in certain
cases procured indirectly by means of the formula arbi-
traria.4 In the period of the extraordinaria cognitio this
was changed, and the Court would in certain cases order
that an act should be done and employ the armed force
at its disposal to see that its orders were obeyed.5 Such is
the account of the matter which is generally accepted
(b) Dutch at the present day. But the old Dutch writers were
divided in opinion on the question whether the law per-
mitted a decree of specific performance except in the case of
a promise to marry. To say that it does not do so amounts
1 Groen, de leg. abr. ad Cod. 7. 47, § 10; Voet, 45. 1. 13 (in fine)
and see Bijnkershoek, Q.J.P., lib. ii, cap. xiv. See (Ceylon)
Fernando v. Fernando (1899) 4 N.L.R. 285. When a penal rate
of interest is stipulated for, the amount recoverable may not
exceed the amount of the principal. V.d.K. 481 and Dictat. ad
Gr. 3. 1. 42. 2 Voet, 46. 2. 4.
3 (South Africa) Pearl Assurance Co. v. Union Govt. [1933]
A.D. 277 ; Pearl Assurance Co. v. Govt. of the Union of South Africa
[1934] A.C. 570; [1934] A.D. 560; Durban Corp. v. McNeil [1940]
A.D. 66 ; Wessels, ii. 974 (editor's note) ; (Ceylon) Webster v.
Bosanquet [1912] A.C. 394. The forfeiture clause in a contract
of sale (lex commissoria), e.g. of instalments in the event of failure
to complete, belongs to a different category, and the question
whether it is in the nature of penalty or liquidated damages is
irrelevant. Arbor Properties v. Bailey [1937] W.L.D. 116.
4 Girard, p. 1085.
6 Girard, p. 1145.
OPERATION OF CONTRACT 269
to saying that it lies in the option of a party to a contract
either to carry out his undertaking or to pay damages
instead ; and this is in fact the view of Grotius, who says :x
' But although by natural law a person who has promised
to do something is bound to do it if it is in his power, he
may nevertheless by civil law release himself by paying
the other contracting party the value of his interest, or
the penalty if any has been agreed upon in case of failure
to perform. '2 However, Groenewegen in his note on this
passage writes: 'But at the present day he cannot so re-
lieve himself, but may be compelled by civil imprison-
ment to the strict fulfilment of what he has promised.' This
view is endorsed by Schorer and Van der Keessel,3 and
Van der Linden admits, reluctantly, that it was in accord-
ance with the practice of his time.4 So far as the law of
South Africa is concerned the remedy by way of decree of
specific performance is firmly established. In Farmers' (c)Modera
Co-operative Society v. Berry* Innes J.A. said : w<
'Prima facie every party to a binding agreement who is
ready to carry out his own obligation under it has a right to
demand from the other party, so far as it is possible, a per-
formance of his undertaking in terms of the contract. As
remarked by Kotze C.J. in Thompson v. Pullinger (1 O.R. at
p. 301) "the right of a plaintiff to the specific performance of
a contract where the defendant is in a position to do so is
beyond all doubt". It is true that Courts will exercise a dis-
cretion in determining whether or not decrees of specific per-
formance should be made. They will not, of course, be issued
where it is impossible for the defendant to comply with them.
And there are many cases in which justice between the parties
can be fully and conveniently done by an award of damages.
1 Gr. 3. 3. 41.
2 In 3. 15. 6 Grotius departs from his rule and says that if a
vendor is in mora to deliver, the purchaser may demand delivery
or damages at his option. Cohen v. Shires, McHattie & King (1882)
1 S.A.R. 41 ; Silverton Estates Co. v. Bellevue Syndicate [1904]
T.S. at p. 467. * Th. 512. 4 V.d.L. 1. 14. 7.
5 [1912] A.D. at p. 350. See also Moffat v. Touyz & Co. [1918]
E.D.L. 316 ; Woods v. Walters [1921] A.D. at p. 309. The earlier
South African cases are collected by Bale C.J. in Bergl & Co. v.
Trott Bros. (1903) 24 N.L.R., pp. 512 fi.
270 THE LAW OF OBLIGATIONS
But that is a different thing from saying that a defendant who
has broken his undertaking has the option to purge his default
by the payment of money. For in the words of Story (Equity
Jurisprudence, sec. 717 (a)) "it is against conscience that a
party should have a right of election whether he would perform
his contract or only pay damages for the breach of it". The
election is rather with the injured party subject to the dis-
cretion of the Court.'
Com- From the above passage we shall, perhaps, be justified
with0 m concluding that the theory of specific performance is not
English the same in South African as in Engb'sh Law. In South
Africa a plaintiff has a right to claim this remedy, subject
to the discretion of the Court to refuse it. In England he
has no right to this remedy except so far as the Court may
see fit to grant it in accordance with the settled principles
by which this equitable jurisdiction is exercised. Where
damages are an adequate remedy, specific performance
will not be granted.1 Perhaps the practical result is not
very different in the two systems, but it is interesting to
note the difference of approach. In either system the most
frequent case for a decree of specific performance is a con-
tract for the sale or lease of land.2
1 Ryan v. Mutual Tontine Association [1893] 1 Ch. (C.A.) at
p. 126. The reason, of course, lies in the supplementary nature of
the equitable remedy of specific performance. The common law
courts originally gave damages only.
2 See Appendix I, where the subject is developed in greater
detail.
Ill
INTERPRETATION OF CONTRACT
IF an action is brought upon a contract, the plaintiff must proof of
prove its terms, and identify the defendant as the party contract-
liable. The proof of contract is part of the law of evidence
and lies outside the scope of this work. Let it suffice to
point to the general rule that in every case the best evi-
dence must be produced. In the case of a written contract
this means the original instrument together with so much
parol evidence as is necessary to explain the circumstances
of the contract and the nature of the liability alleged.
When the written contract has been produced, the next inter-
step is for the Court to interpret its meaning, i.e. to con- P£etatlon
strue its language and to determine its legal effect. To contract,
assist the judge in this task the law lays down certain rules
of construction, which, however, must be regarded not as
rules of law from which there is no escape, but rather as
finger-posts or indicia, whereby the Court may arrive at
the intention of the author of the instrument. It is true
that a man must be taken to mean what he says, and, as a
rule, if he uses technical phrases he will be understood to
have used them in their technical meaning. None the less
(within limits), the parties are their own interpreters, and
a rule of construction, however respectable, will not be
allowed to override a reasonable inference of intention, to
be collected from an examination of the whole and of every
part of the instrument in question, and even sometimes
from the conduct of the parties, showing the construction
which they agreed to place upon it.1
The following rules of construction are taken from Van Ruies Of
der Linden's Institutes? construe-
tion.
1 Breed v. Van den Berg [1932] A.D. at p. 292; Skill v. Milner
[1937] A.D. at p. 110. Cf. Greer L.J. in W. T. Lamb & Sons v.
Goring Brick Co. [1932] 1 K.B. at p. 721.
8 V.d.L. 1. 14. 4. (Juta's translation). These rules are almost
identical with the language of the French Code (Arts. 1156-64),
which the Dutch Code follows (Arts. 1379-87).
272 THE LAW OF OBLIGATIONS
1. In agreements we should consider what was the
general intention of the contracting parties rather than
follow the literal meaning of the words.
2. When a stipulation is capable of two meanings it should
rather be construed in that sense in which it can have
some operation than in that in which it cannot have any.1
3. Whenever the words of a contract are capable of two
meanings they should be construed in that sense which is
most consonant with the nature of the agreement.2
4. That which appears ambiguous in a contract should
be construed according to the usage of the place where the
contract was made.3
5. Usage has such weight in the construction of agree-
ments that the usual stipulations are understood to be
included in them, although not expressly mentioned.
6. A stipulation must be construed by the aid of the
other stipulations contained in the contract, whether they
precede or follow it.
7. In cases of ambiguity a stipulation must be construed
against the party who has stipulated for anything, and in
favour of the release of the party who has contracted the
obligation.4
8. However general the expressions may be in which an
agreement is framed, they only include the matters in
respect of which it appears that the contracting parties
intended to contract and not those which they did not
contemplate.5
9. Under a general term are comprehended all the
specific matters which constitute this generality, even
those of which the parties had no knowledge.
1 Kotze v. Frenkel & Co. [1929] A.D. 418 ; Annamma v. Moodley
[1943] A.D. at p. 539.
2 West Rand Estates Ltd. v. New Zealand Insurance Co. [1925]
A.D. at p. 261. s Dig. 50. 17. 34.
4 Dig. 45. 1. 38, 18 ; 45. 1. 99 pr. ; Gr. 3. 3. 54; Poynton v. Cran
[1910] A.D. at p. 213; Coronation Collieries Co. v. Malan [1911]
A.D. at p. 612; Van Pletsen v. Henning [1913] A.D. at p. 102;
Bon Accord Irrigation Board v. Braine [1923] A.D. at p. 486;
Cohen v. Rapidol Ltd. [1934] A.D. 137.
5 Est. Sharp v. Scheepers [1919] C.P.D. 26; Lanfear v. Du Toit
[1943] A.D. 59.
IV
DETERMINATION OF CONTRACT
A CONTRACT may be determined in any one of the following How
ways: viz. by (1) performance and its equivalents; (2) aredeter-
release ; (3) novation ; (4) impossibility of performance ; mined.
(5) condition subsequent ; (6) prescription. We deal with
these in order.
1. Performance and its equivalents. The subject of i. Per-
performance and of substituted performance has been con- a^its0*
sidered in a previous chapter. We speak here of various equiva-
processes which in certain cases have the same legal con-
sequences as if the contract had been actually carried out.
Tender is an offer of performance. If the debtor's duty Tender,
consists in something to be done or given, it is not his fault
if he duly offers performance and the creditor refuses to
accept it. In such an event the debtor may usually treat
the contract as determined by the creditor's refusal. He
is not required to waste his time in soliciting an acceptance,
which may never be given. But if the performance due
from the debtor consists in making a money payment, the
case is different. Mere tender does not, as a rule, discharge
the debt. The debtor, tender notwithstanding, must con-
tinue ready and willing to pay, and if sued for the money
must plead the tender and pay the money into Court. He
will then be entitled to his costs in the action.
The effects of valid tender are :l (1) to relieve the debtor Effects of
from liability in case of accidental destruction of the thing tender-
to be given ; (2) to discharge a penalty agreed to be paid in
the event of non-performance ; (3) to arrest the accrual of
interest, and to prevent mora interest from arising.2 This
third consequence followed in some cases in the Roman
Law and follows in all cases in the modern law. In the
Roman-Dutch Law of Holland tender did not arrest the
1 Voet, 46. 3. 28.
2 Voet, 22. 1. 17; Groen. de leg. abr. ad Cod. 4. 32. 6; Wessels,
i. 3340. As to mora and its consequences see Appendix H.
4901 m
274
THE LAW OF OBLIGATIONS
tion and
deposit.
Con-
fusion or
Merger.
course of interest unless it took the form of consignation
and deposit.1
Consigna- Consignation and deposit was an institution, no longer
in use,2 which permitted a debtor with the approval of the
Court to seal and deposit a specific thing or sum of money
with some third person to hold for the benefit of the
creditor and at his risk. Such deposit validly made, and
not revoked by the debtor, had the same legal effect as
payment.3
Confusion or 'merger'4 takes place when by succeeding
to the claim or liability of another, a person who owes to
that other a duty or has against that other a claim
becomes in his own person both creditor and debtor in
respect of the same performance, with the result that the
obligation is extinguished. This usually happened when,
without benefit of inventory, the creditor succeeded as heir
to the debtor, or vice versa.5 Since universal succession is
unknown in the modern law, confusion of this kind no
longer occurs as a direct consequence of death.6 But it is
still possible in the case of a residuary legatee, who has a
claim against the estate ; for if the estate is solvent he may
not think it worth his while to anticipate the distribution
of assets by demanding payment from the executor of the
deceased. Another case of confusion occurs when a prin-
cipal debtor becomes surety, or a surety becomes principal
1 Grotius (3. 40. 2-3) calls it onderrecht -legging. Quaere whether
tender made in court prevented mora interest from running. Voet,
ubi sup.; Van Leeuwen, 4. 11. 3; Odendaal v. Du Plessis [1918]
A.D. at p. 476.
2 Wessels, i. 2335. In the Dutch Law tender was first made
through an officer of the Court or a notary with two witnesses 'met
opene beurse en klinkende gelde'. Boey, Woorden-tolk, sub voce
Consignatie. The nature and effect of tender in the modern
law is discussed in Odendaal v. Du Plessis, ubi sup. ; and see
Harris v. Pieters [1920] A.D. 644; Leviseur v. Scott [1922] O.P.D.
138; Ayob & Co. v. Clouts [1925] W.L.D. 199; Neville v. Flasket
[1935] C.P.D. 115. 3 Gr. 3. 40. 3; Voet, 46. 3. 29.
4 Vermenging, Schuldvermenging. Gr. 3. 40. 4 ; Voet, 46. 3.
18-27; V.d.L. 1. 18. 5; Boey, Woorden-tolk, sub voce Confusie;
Pothier, sees. 641 ff. 8 Gr. 3. 40. 5 ; Voet, 46. 3. 27.
8 4 Maasdorp, p. 234; (Ceylon) Dias v. Silva (1937) 39 N.L.R.
358.
DETERMINATION OF CONTRACT 275
debtor, in respect of the same debt, with the result that the
accessory obligation is extinguished.1
Compensation or set-off 2 takes place when a debtor Corn
has a counter-claim against his creditor. If the creditor
sues his debtor and the debtor pleads compensation, the
creditor's claim is deemed to have been extinguished or
reduced by the amount of the counter-claim from the
moment when the right to enforce the counter-claim by
action vested in the debtor.3 Compensation is only allowed
where both claim and counter-claim are liquid, i.e. capable
of speedy and easy proof,4 unconditional, and presently
enforceable,5 and relate to fungible things ejusdem generis.6
Thus, money may be set off against money or wine against
wine, but not wine of one quality against wine of another.
A natural debt is available as a set-off7 except in cases
where the law forbids it. In certain cases compensation is
disallowed on grounds of public policy. Thus, a person who
has got possession of property by theft or other wrongful
act may not plead a set-off against the owner's claim to
recover what belongs to him ; nor is this defence available
to one who is indebted to the State or to a local govern-
ment for taxes or rates ;8 and there can be no compensation
in insolvency proceedings unless mutuality between the
opposing claims existed at the date of sequestration.9
1 Voet, 46. 3. 20; not if secured by mortgage. Dig. 46. 3. 38, 5.
2 Vergelyking, compensatie, schuld-vereffening. Gr. 3. 40 6 ff . ;
Voet, 16. 2. 1; V.d.L. 1. 18. 4; Schierhout v. Union Govt. [1926]
A.D. 286; Whelan v. Oosthuizen [1937] T.P.D. 304. (Ceylon)
Muttunayagam v. Senathiraja (1926) 28 N.L.R. 353.
3 Voet, 16. 2. 2. A counter-claim is ineffectual as compensation
unless it is available against a plaintiff in the capacity in which he
is suing. De Villiers v. Commaile (1846) 3 Menz. 544.
4 Nat. Bank v. Marks & Aaronson [1923] T.P.D. 69; Baskin &
Barnett v. Barnard [1928] C.P.D. 58 ; Petersen Ltd. v. Inag African
Industrial Co. [1934] C.P.D. 141.
5 Cod. 4. 31. 14. 1 ; Gr. 3. 40. 8; Van Leeuwen, Gens. For. 1. 4.
36. 3; Voet, 16. 2. 17. 6 Voet, 16. 2. 18.
7 Voet, 16. 2. 13 ; as to prescribed debts see below, p. 281.
8 Gr. 3. 40. 11 ; Voet, 2. 16. 16. In the Roman Law compensa-
tion could not be pleaded to an actio depositi directa. This does
not hold good in the modern law. 4 Maasdorp, p. 226.
9 National Bank ofS. A. v. Cohen's Triistee [1911] A.D. at p. 254.
276 THE LAW OF OBLIGATIONS
Effect of The effect of compensation (which, however, must be
lion? * specially pleaded1) is to extinguish the creditor's claim in
whole or in part,2 and in the same measure to arrest the
accrual of interest, to set free sureties and real securities,
and to relieve the defendant from a penalty to which he
would otherwise be liable, provided that the right of com-
pensation has vested before the date when payment would,
but for the compensation, have fallen due.3 Further, if a
debtor has paid his creditor without claiming compensa-
tion he may get his money back to the extent of the com-
pensation by the condictio indebiti.4 Where a right of
action has been ceded, the debtor may set up against the
cessionary any compensation available to him against the
cedent ; for since compensation, if pleaded, takes effect
ipso jure, the amount of the debt is mechanically reduced
by the amount of the set-off from the moment when the
right to assert it first vested in the debtor.5 But a debtor
cannot compensate against the cessionary a claim which
has vested in him after notice of the cession. In other
words compensation implies the coexistence of mutual
debts.6
2. Release. 2. Release.7 A debt may be released by way of gift,8
i.e. as an act of liberality on the part of the creditor, or in
exchange for some advantage.9 In the absence of proof to
1 Gr. 3. 40. 7 ; Van Leeuwen, 4. 40. 2; Voet, 16. 2. 2; V.d.L. 1.
18. 4; Still v. Norton (1838) 2 Menz. 209 ; 4 Maasdorp, p. 232.
2 Gr. 3. 40. 7; Voet, ibid. Van der Keessel (Th. 827) cites a
decision to the effect that compensation may be set up, after
sentence, against execution of a judgment. Cf. Voet, ubi sup.
3 Voet, ubi sup.
4 Dig. 16. 2. 10. 1 ; Voet, ubi sup. ; V.d.L. ubi sup. ; unless the
payment was made in obedience to a judicial decree.
6 Voet, 16. 2. 4. The principle that compensation takes effect
ipso jure, though formally accepted by the French and Dutch
Codes (C.C. 1290, B.W.B. 1462) is inexact. It would be more
correct to say that, if pleaded, it has retro-active effect. Wessels,
i. 2493. Cf. Dig. 16. 2. 2: Unusquisque creditorem suum eundem-
que debitorem petentem summovet, si paratus est compensare.
9 Smith v. Howse (1835) 2 Menz. 163 ; Oudtshoorn Town Council
v. Smith [1911] C.P.D. 558; Consolidated Finance Co. v. Reuvid
[1912JT.P.D. 1019.
7 Quijtschelding — Acceptilatio — Liberatio. Wessels, i. 2342 ff.
8 Gr. 3. 41. 5. 8 Voet, 46. 4, 1.
DETERMINATION OF CONTRACT 277
the contrary a release is presumed to be gratuitous.1 No
form of words is required.2 It is enough that the creditor
by words or conduct3 declares his intention to abandon
his right, and that this is accepted by the debtor or by
some one on his behalf. It is indifferent that the law
required writing to establish the contract.4 No one can
release a debt who is not competent to alienate his pro-
perty.5 A promise not to sue6 operates as a release unless it Promise
is merely personal in its incidence, e.g. a promise not to not
sue A does not necessarily release his representatives after
his death.7 With this reservation a promise not to sue
releases co-debtors and sureties ;8 but a promise not to sue
a surety does not release his principal, unless it was clearly
intended to have that effect.9 If an instrument of debt is
returned to the debtor, the debt is presumed to be dis-
charged.10
In case of reciprocal promises each party may by agree- Mutual
ment release the other from performance, each returning re
to the other any advantage he may have derived from the
contract.11
3. Novation.12 The parties to a contract may, if they 3. Nova-
tion.
1 Gr. 3. 41. 6. 2 Secus, jure civili, Inst. 3. 29. 1.
3 Gr. 3. 41. 7 ; V.d.L. 1. 18. 3. 4 Wessels, i. 2346.
6 Gr. 3. 41. 8; nor persons charged with the administration of
another's property without power of alienation. Ibid.
6 Pactum de non petendo. Van Leeuwen, 4. 40. 7, and Decker,
ad loc. 7 Gr. 3. 41. 9.
8 Gr. ubi sup. ; Voet, 46. 4. 4 ; V.d.K. 828 ; V.d.L. 1. 18. 3 ; C.C.
1285, 1287. Pothier, however, Traite des Obligations (sec. 617),
says that a release of one co -debtor only releases the other to the
extent to which the second is prejudiced by the release of the
first by being deprived of the opportunity of claiming contribution
from him. This view was adopted by the Transvaal Supreme
Court in Dwyer v. Goldseller [1906] T.S. 126.
9 Voet, 2. 14. 12; V.d.L. ubi sup. Grotius and Voet (46. 4. 4)
say that a discharge of a surety discharges the principal, founding,
however, on technicalities of Roman Law. It is all a question of
intention. 10 Gr. 3. 41. 10; V.d.L. ubi sup.
11 Handelbraeck — Recessio a contractu. Gr. 3. 42. 2; V.d.K.
833.
12 Schuldvernieuwing — Novatie. Gr. 3. 43. 1; Voet, 46. 2. 1;
V.d.L. 1. 18. 2; Wessels, i. 2365 ff . ; Caney, A Treatise on the
Law relating to Novation (Juta & Co. 1938); Electric Process
Engraving Co. v. Irwin [1940] A.D. 220.
278 THE LAW OF OBLIGATIONS
please, enter into a new contract, putting an end to an
original liability, and substituting a new liability in its
place. This is called novation. It may assume one of
three forms, viz. an agreement : ( 1) to extinguish an existing
debt and to substitute a new debt in its place ; (2) to substi-
tute a new debtor; (3) to substitute a new creditor.1 Any
agreement in that behalf express or tacit is sufficient ;2
but in case of doubt an intention to novate is not presumed.3
Thus a creditor is not held to novate his debt merely by
allowing his debtor an extension of time for payment.
Such an allowance, therefore, does not set free sureties or
discharge a mortgage.4 Novation fails to take effect if the
second contract is ipso jure void ; or conditional and the
condition is not implemented ; or if the thing which forms
the subject of the novating contract has perished5 while
the condition is still pending.
Any debt may be novated, as well natural as civil and
whether arising from contract or delict or judgment.6 The
effect of novation is to discharge the old liabilities with all
their incidents, such as interest, real and personal securi-
ties, and to purge any previous mora.7 Novation may
consist, as mentioned above, not only in the substitution of
Delega- one debt for another, but also in the substitution of one
debtor for another. This was known in Roman Law as
delegation.8 The consent of all three parties is required ;9
for though the law allows the assignment of a claim with-
out the consent of the debtor, so that a new creditor takes
the place of an old one, the law does not allow the debtor
to make over his liability to a third party, unless the
creditor, and, of course, the third party,10 agree. In this
1 Wessels, i. 2375.
2 Gr. 3. 43. 3 ; Voet, 46. 2. 2-3 ; 4 Maasdorp, p. 201.
* Gr. 3. 43. 4; V.d.K. 835; Brenner v. Hart [1913] T.P.D. at
p. 616 ; Bhana Nana v. Patel [1929] W.L.D. 234.
4 Gr. 3. 43. 4 ; V.d.K. 836 ; nor does a subsequent stipulation
for a penalty (Voet, 46. 2. 4), or for payment in kind and not in
money, or for interest, or for a higher rate of interest (Voet,
46. 2. 5). B Voet, 46. 2. 7. 6 Voet, 46. 2. 9-10.
7 Voet, 46. 2. 10; HolL Cons. ii. 126.
8 Overzetting — Delegatie. Gr. 3. 44. 2.
9 Voet, 46. 2. 11. 10 Gr. 3. 44. 3.
DETERMINATION OF CONTRACT 279
case, as in the first, the intention to novate must clearly
appear. The mere assignment by a debtor to his creditor
of the debtor's claim against a third party, even though the
third party consents, does not in itself effect a novation.
The substitution by novation of a new creditor (the third
kind of novation mentioned above) will seldom be neces-
sary, for, generally, assignment, which does not require the
consent of the debtor, serves the same purpose.
The above are all cases of 'voluntary novation'. An- Novatio
other case of novation, to which the commentators have n< na"
given the name of 'necessary novation', was incidental to
judicial proceedings1 and took place at the moment of litis
contestatio. This, though admitted by Grotius,2 did not
entail the usual consequences of novation,3 and may there-
fore be left out of account.
From delegation properly so called must be distinguished Assigna-
assignation,4 which takes place when A requests B to pay tlon>
C, or refers C to B for payment. If A is C's debtor, his
debt to C is discharged, if, and only if, C is paid by B,5
unless, of course, C agrees to accept the assignation in full
discharge.6 In other words, assignation is, as a rule, a
conditional delegation. In the modern law the same result
usually follows if a debtor gives his creditor a cheque
drawn on his banker or other such instrument in payment
of a pre-existing debt.7
4. Impossibility of Performance. If a contract, 4. impos.
possible when made, subsequently becomes impossible of sib^y °f
- perform-
periormance, the parties are sometimes discharged from ance.
future liability. Whether this will be so or not depends
upon the nature of the contract and the circumstances
of each particular case.8 The English law on this subject
1 Gaius, iii. 180 ; Dig. 46. 2. 29. a Gr. 3. 43. 3.
3 Voet, 46. 2. 1.
4 Aenwijzing — Assignatie. Gr. 3. 45. 1 ; Brenner v. Hart [1913]
T.P.D. at p. 612.
5 Gr. 3. 44. 5.
6 Van Leeuwen, 4. 40. 10; Voet, 46. 2. 13.
7 Kaplan v. Schulman [1933] C.P.D. 544; Milner v. Webster
[1938] T.P.D. 598.
8 Hersman v. Shapiro & Co. [1926] T.P.D. 367.
280 THE LAW OF OBLIGATIONS
was stated by Blackburn, J. in terms which are equally
applicable to the Roman-Dutch Law: —
' Where there is a positive contract to do a thing, not in itself
unlawful, the contractor must perform it or pay damages for
not doing it, although in consequence of unforeseen accidents
the performance of his contract has become unexpectedly
burthensome or even impossible. But this rule is only appli-
cable when the contract is positive and absolute and not sub-
ject to any condition either express or implied.'1
Such a condition exempting a party from liability, when
through no fault of his own a contract has become im-
possible of performance, has been taken to be implied in
the event of the destruction of some specific thing which
in terms of the contract he was bound to deliver ;2 or when
the parties contemplated as the foundation of their con-
tract some condition or state of things which has since
ceased to exist or has not been realized (frustration of
contract) :3 or when a party is disabled by illness, or pre-
vented by vis major or casus fortuitus.4 Mere difficulty
of performance furnishes no excuse for non-performance.5
But a contract is discharged if performance becomes legally
impossible (e.g. if the thing to be given passes extra com-
mercium),6 or illegal.
5. Condi- 5. Condition Subsequent. A contract may include,
tionsub- expressly or by implication, a provision for its
sequent.
1 Taylor v. Caldwell (1863) 3 B. & S. at p. 833, adopted by
Maasdorp J.A. in Algoa Milling Co. v. Arkell & Douglas [1918]
A.D. at p. 171.
2 Dig. 45. 1. 23 and 33; Gr. 3. 47. 1. In these cases the dis-
tinction between absolute and relative impossibility (supra, p. 263,
n. 2) does not apply. Moyle, p. 411 ; Windscheid, ii. 264.
8 African Realty Trust v. Holmes [1922] A.D. at p. 400;
Constantine (Joseph) Steamship Line Ld. v. Imperial Smelting
Corporation Ld. [1942] A.C. 154; Denny, Mott & Dickson Ld. v.
James B. Fraser & Co. Ld. [1944] A.C. 265.
4 Peters, Flamman & Co. v. Kokstad Municipality [1919] A.D.
427; Schlengemann v. Meyer, Bridgens & Co. [1920] C.P.D. 494.
For the effect of mora see Appendix H.
6 Dig. 45. 1. 2. 2. (ad Jin.): Non facit inutilem stipulationem
difficultas praestationis ; Algoa Milling Co. v. Arkell & Douglas,
ubi sup. at pp. 170-1.
6 Gr. 3. 47. 1 and 4.
DETERMINATION OF CONTRACT 281
determination after the lapse of a certain time or upon the
happening of a specified event. Upon the expiry of the
time or the happening of the event, the parties are dis-
charged from their obligations and the contract is at an
end. Pothier gives in illustration a contract of suretyship
whereby the surety undertakes to be answerable for the
repayment of a loan for a period of three years only, or
until the return of a certain ship. If the creditor has not
put his debtor in mora by demanding payment before the
term has expired or the ship returned, the liability of the
surety is at an end. But if there has been default on
the part of the borrower before the accomplishment of the
term or the happening of the event, the surety must make
it good, for he is now bound unconditionally to answer for
the principal debtor's default.1
6. Prescription. Grotius treats prescription as a release 6. Pre-
of a debt effected by operation of law in consequence of scnPtlon-
the lapse of a certain period of time.2 His opinion, which
is also that of Voet, is that the effect of prescription is not Does it
merely to bar the remedy, but to extinguish the right.3 the'rSht
But Van der Keessel says that this view is not free from or merely
difficulty,4 and in South Africa it was said that ' the more r
correct view is that prescription merely affords a ground
of defence or exception to an action, and does not act as an
extinguishment of the obligation ipso jure'.5 The late Sir
John Wessels wrote : ' Prescription is said to be one of the
methods by which an obligation is extinguished. This is
probably true with regard to the prescription of a third
of a century or of thirty years (praescriptio longissimi
temporis), but it is not true of that form of prescription
which is equivalent to a limitation of actions. The latter
form of prescription does not extinguish the debt, it
only bars the remedy.'6 Substantially this is the view
endorsed by the Prescription Act, 1943. For, if on the one
hand ' a debt prescribed by extinctive prescription — (i) may
1 Pothier, sees. 224-5, 672.
2 Quijtschelding door verjarung. Gr. 3. 46. 1.
8 Gr. 3. 46. 2 ; Voet, 44. 3. 10. 4 V.d.K. 874.
6 4 Maasdorp, p. 194. 6 Wessels, i. 2748.
282 THE LAW OF OBLIGATIONS
be set off against a debt which came into existence after
the lapse of the period of prescription j1 and (ii) is suffi-
cient to support a contract of suretyship', nevertheless
'after the lapse of thirty years from the date on which
the right of action in respect thereof first came into
existence ' it no longer has these effects.2
The periods of prescription (or limitation) of actions fixed
by the Roman and the Roman-Dutch Law varied greatly.3
In the latter, in the absence of provision to the contrary,
the term of prescription was a third of a century or, as
some said, thirty years. The second alternative is now
statutory, but usually the terms are much shorter. Thus,
to select a few instances from the South African statute,
actions for defamation, the actio redhibitoria and the actio
quanti minoris are prescribed in one year, oral contracts in
three years, written contracts, including bills of exchange,
in six.4
When the creditor is a person under disability (minors,
persons under curatorship, &c.) prescription does not
begin to run until the date on which disability ceases, and
when the debtor is absent from the Union not until the
date of his return.5 Prescription is suspended during dis-
ability of the creditor, absence of the debtor from the
Union for a period exceeding six months, and in some other
cases.6 Prescription is interrupted, that is to say the time
which has already run is blotted out, by acknowledgment
of the debt, service on the debtor of any process by which
action is instituted, and in some other cases.7 Interruption
against a principal debtor is deemed to be an interruption
as against a surety.8 When a principal debt is prescribed,
interest on the debt is prescribed with it.9
1 Abrogating Swanepoel v. Van der Westhuizen [1930] T.P.D.
806; and Pentecost v. Cape Meat Supply Co. [1933] C.P.D. 472.
a Prescription Act, 1943, sec. 3 (5). 8 Voet, 44. 3. 5-7.
4 Prescription Act, 1943, sec. 3. For Ceylon see Ord. No. 22 of
1871 and Cadija Umma v. S. Don Manis Appu [1939] A.C. 136.
8 Voet, 44. 3. 9 (ad fin.) ; Prescription Act, sees. 9, 10.
8 Prescription Act, sec. 7.
7 Voet, ubi sup. (in med.) ; Prescription Act, sec. 6. 8 Ibid.
• Voet, 22.1.16; Eat. Obermeyer v. Eat. Wolhuter [ 1 928] C.P.D. 32.
DETERMINATION OF CONTRACT 283
A two years' term of prescription for certain claims
was ordained by Art. 16 of the Perpetual Edict of 1540.1
Though already in the seventeenth century Van Leeuwen
thought that this article was abolished by disuse,2 it
remained to embarrass the law of South Africa. Repealed
in Cape Colony in 186 13 and withdrawn from operation in
the Transvaal in 19084 it has been finally eliminated by the
Prescription Act, 1943.5
1 1 G.P.B. 319; Gr. 3. 46. 7; Loteryman & Co. v. Cowie [1904]
T.S. 599. A translation will be found in earlier editions of this
book.
2 Van Leeuwen, 2. 8. 11.
3 Act No. 6 of 1861, sec. 4.
4 Act No. 26.
B Sec. 15.
PLURALITY OF CREDITORS AND DEBTORS
Co- THE parties to a contract are entitled or liable as co-
md cc creditors or co-debtors (correi stipulandi vel credendi — cor-
debtors. rei promittendi vel debendi) when two or more stipulate
or promise as principals and not as sureties at the same
time in respect of the same performance with the inten-
tion of becoming thereby entitled or liable severally in
respect of the whole performance (singuli in solidum) and
not merely pro rota parted
Plurality The position of a co-debtor must be distinguished from
ofdebtors. t^at of a surety. Each co-debtor is liable as principal.
The liability of the surety, as such, is merely accessory and
secondary. To constitute the relation of co-creditor or co-
debtor, as above defined, it is not enough that two or more
persons should stipulate for or promise the same thing at
the same time, unless they do so with the intention of
becoming each entitled or each liable in respect of the
whole debt. In the absence of evidence of such intention,
the parties, even in the earlier civil law, were not correi but
were each entitled or liable only in respect of his rateable
share.2 In the Roman-Dutch Law, following herein the
latest Roman Law, a co-debtor cannot as a rule be made
liable in solidum unless there is a special agreement to that
effect.3 Thus if William, Thomas, and James jointly con-
tract to pay a hundred aurei to Jludolph, in the absence of
special agreement, each of them is liable only for one-third
1 Voet, 45. 2. 1, and Compendium, 45. 2. 1.
2 Dig. 45. 2. 11. 1-2 (Papinian).
8 Authent. ad Cod. 8. 39 (40). 2. Hoc ita si pactum fuerit
specials unumquemque teneri in solidum. . . . Sin autem non con-
venerint specialiter, ex aequo sustinebunt onus. Sed et si convene-
rint, ut uterque eorum sit obligatus: si ambo praesentes sint et
idonei, simul cogendi sunt ad solutionem. See Groenewegen, ad
loc. The authentica is taken from Nov. 99 c. 1 (A.D. 539), which
only refers to sureties, but is nevertheless, according to the
general opinion and common consent, extended to two or more
joint principal debtors. Van Leeuwen, 4. 4. 1 ; V.d.K. 494 ; Tucker
v. Carruthers [1941] A.D. at p. 254.
PLURALITY OF CREDITORS AND DEBTORS 285
of the total.1 Apart from agreement, there are cases in
which the law creates, or presumes, a solidary liability,
where no contrary intention is expressed. Such is the case
of partners in business contracting in relation thereto ;2
and persons who become joint parties to a bill of exchange
or promissory note, whether as drawers (makers), accep-
tors, or indorsers, are similarly liable. Where a solidary
obligation is validly created, whether by act of party or
by operation of law, one co-debtor who is sued for the
whole debt may still claim the benefit of division if he has
not renounced it, provided that the other co -debtors are
solvent and within the jurisdiction.3
The principle stated above with regard to co-debtors Plurality
applies also in case of plurality of creditors, so that in ^ors!
the absence of express agreement to the contrary each is
entitled, and may sue, only in respect of his rateable share
of the performance which forms the subject-matter of the
contract.4
If the contract contemplates that several co-debtors Excepted
shall be liable in solidum without benefit of division, or ca
that several co-creditors shall be entitled in solidum, the
rules of the Civil Law apply. In case of plurality of creditors
each one may sue for the whole debt, and payment or its
equivalent, or novation, made to, or with, one creditor,
1 Neostad. Decis. Supr. Cur. No. 97; Gr. 3. 3. 8-11; Van
Leeuwen, ubi sup. ; Voet, 45. 2. 4 (in fine), and Compendium, 45.
2. 5. So in the case of joint-purchasers, Barnet v. Glanz (1908)
25 S.C. 967 ; Wirths v. Albow Bros. & Van Zyl [1922] S.W.A.
127; Lydenburg Estates v. Palm & Schutte [1923] T.P.D. 278;
co-lessees, Miller v. De Bussy [1904] T.S. 655 ; co-lessors, Kistan v.
Komarasamy [1940] N.P.D. 56.
2 V.d.L. 1. 14. 9.
3 But co -debtors are taken to have renounced the benefit of
division if they bind themselves 'each one for all and the one for
the other', or 'each for all as principal debtors', or to like effect;
Gr. 3. 3. 29 and Lee, Commentary, ad loc. ; Van Leeuwen, 4. 4. 1 ;
V.d.K. 494; Wessels, i. 1517. With regard to partners the rule in
South Africa is that all the partners must be joined as defendants
to an action, but a judgment obtained against the partnership
may be enforced by execution against any partner in solidum.
Theunissen v. Fleischer, Wheeldon and Munnik (1883) 3 E.D.C.
291.
4 De Pass v. Colonial Government (1886) 4 S.C. at p. 390.
286 THE LAW OF OBLIGATIONS
discharges the whole liability,1 for 'in utraque obligations
una res vertitur ; et vel alter debitum accipiendo vel alter
solvendo omnium perimit obligationem et omnes liberat'.2
But an agreement not to sue one of several debtors, being
merely personal in its incidence, has no effect upon the
liability of the others,3 except that their liability is pro-
portionately reduced, i.e. to the extent to which they have
lost their right to claim contribution from the debtor
released.4 The debtor, on his side, until, but not after,
action brought, may pay any co-creditor that he pleases.
In case of plurality of debtors the creditor may proceed
against any one of them for the whole or any part of the
debt; and his election to sue one does not preclude him
from going against another, since it is not his election, but
only payment or its equivalent, or novation, which dis-
charges the liability of the other co-contractors. If one
co-debtor has voluntarily paid part, but not the whole, of
the debt, the creditor is not precluded from suing him for
the balance, unless he has expressly or tacitly agreed to
that effect. The case is different if the creditor has taken
proceedings against one co-debtor in respect of his rateable
share of the debt ; for by so doing he precludes himself
from taking fresh proceedings against him for the balance.
Contribu- If one co-creditor recovers the whole debt, or if one co-
between debtor pays the whole debt, the other co-creditors in the
co- one case may sue, and the other co-debtors in the other
j . . V
and co-18 case may be sued, in respect of their rateable share of the
debtors, benefits or loss. Such is the modern law. In the Roman
Law no action for contribution lay except between part-
ners and in some other cases.5
1 Voet, 45. 2. 4. 2 Inst. 3. 16. 1.
3 Gr. 3. 3. 8. A judicial demand by one co-creditor or against one
co -debtor interrupts prescription in favour of every co -creditor
or against every co-debtor. Voet, 45. 2. 6. By the Prescription
Act, 1943, sec. 8: 'Prescription shall not be affected in respect
of one joint debtor by any fact which would affect prescription
in respect of any other joint debtor, except in the case of debtors
liable in solidum.' Joint creditors ?
4 Dwyer v. Goldseller [1906] T.S. at p. 129; De Charmoy & St.
Polv. Dhookoo [1924] N.P.D. 254; Wessels, i. 1527.
6 Gr. 3. 3. 8 ; Voet, 45. 2. 7 ; Wessels, i. 1581.
VI
SPECIAL CONTRACTS
To undertake a detailed statement of the law appli- in
cable to the various kinds of contract into which men may
enter lies outside the scope of an elementary treatise. As Law all
observed above, in Roman-Dutch Law all contracts are are con-8
consensual. The differences of the Roman Law between sensual,
contracts re, verbis, litteris, and consensu have in a great
measure lost their significance ; and the ancient distinction
between contracts and nude pacts is equally a thing of the
past. It follows that the principles which have been stated
with regard to contracts in general apply to every kind of
contract, except so far as the parties have chosen to depart
from them, or the law attaches special rules to contracts of
the kind in question. All contracts partake of the same
nature, and all take a special colour from the subject-
matter with which they deal. If we select some contracts
for special treatment it is because they concern certain
relations of mankind which are of such frequent occurrence
that every reasonably equipped lawyer must be prepared
to deal with them.
In this chapter we describe in brief outline some of these Special
contracts of frequent occurrence. We shall speak of: contTacts-
(I) Donation or Gift; (2) Sale; (3) Exchange; (4) Hire;
(5) Mandate or Agency; (6) Partnership; (7) Loan for
Consumption ; (8) Loan for use ; (9) Deposit ; (10) Pledge ;
(II) Suretyship or Guarantee ; (12) Carriage by water and
by land. It must be remembered that, in general, the
rules given bind the parties only so far as they have not
seen fit to depart from them by express agreement.
1 . Donation or Gift1 is regarded in Roman-Dutch Law l. Dona-
as a contract. A distinction is drawn, as in the case of sale, J^01
between the contract, which binds the parties, and the
1 (Donatio — Schencking) Gr. 3. 2. 1 ; Van Leeuwen, lib. iv, cap.
xxx ; Voet, 39. 5. 1 ; V.d.L. 1. 15. 1 ; 3 Maasdorp, chap. 7.
288 THE LAW OF OBLIGATIONS
handing over, which passes the property.1 Any promise
to give is enforceable, provided that it is made with a
serious and deliberate mind.2 As in other contracts, no
obligation arises until acceptance by the donee, or by some
person qualified to accept on his behalf.3 It is a general
rule that a donation is not presumed, but must be proved
by the person who relies upon it.4 The capacity of parties
is the same, generally, as in other contracts. Thus, minors
cannot make a gift, nor can guardians in their name.5
According to Grotius, parents cannot make gifts to their
unemancipated children,6 but this proposition does not
hold good at the present day. In the Roman Law gifts
between husband and wife were invalid7 until confirmed by
1 Gr. 3. 2. 14. Donation is an act of liberality which may
assume a great variety of forms. In this chapter we speak only of
the normal case, gift of a corporeal thing.
2 Grotius says (3. 2. 11) that a gift inter vivos of all one's goods —
present as well as future — is bad 'om dat het maecken van de
uiterste wille daer door werd belet '. So also Van Leeuwen, 4. 30. 6.
Contra, Voet, 39. 5. 10. Van der Keessel says (Th. 487): Jure
Romano quidem ex saniori doctrina omnium bonorum donatio non
fuit prohibita: sed cum contraria sententia olim juri civili magis
consentanea haberetur, eadem a plerisque in foro recepta et nostris
quoque probata videtur. In Meyer v. Rudolph [1917] N.P.D. at
p. 177 Broome J., delivering the judgment of the Court, said: 'In
my opinion, the weight of authority is in favour of permitting a
donation of this kind and the reasons given for forbidding it have
ceased to operate.' In this case there was a gift mortis causa of all
the donor's estate.
3 Gr. 3. 2. 12. A father may accept on behalf of his minor son.
Barrett v. 0 'Neil's Exors. (1879) Kotze at p. 108.
4 Meyer v. Rudolph's Exors. [1918] A.D. at p. 76; Timony &
King v. King [1920] A.D. 133; Smith's Trustee v. Smith [1927]
A.D. 482 (gift of husband to wife). 6 Gr. 3. 2. 7.
6 Dig. 41. 6. 1. 1 ; Gr. 3. 2. 8. In South Africa a parent, being
solvent, may make a valid gift to a child, who, if above the age of
puberty, may accept on his own behalf. If he is below that age the
father accepts on his behalf by doing some act which puts it out
of his power to revoke the gift. See Slabber's Trustee v. Neezer's
Exor. (1895) 12 S.C. 163. For Ceylon see Wellappu v. Mudalihami
(1903) 6 N.L.R. 233; Silva v. Silva (1908) 11 N.L.R. 161 ; Babai-
hamyv. Marcinahamy (1908) 11 N.L.R. 232.
7 Moderate gifts of jewellery, &c., are excepted from the rule.
Voet, 24. 1. 11. There are other exceptions. Wagenaar v. Wage-
naar [1928] W.L.D. 306; Lee, Commentary, p. 233. The Roman-
Dutch writers experienced difficulty in deciding whether a gift to
a concubine was valid. See de Haas ad Cens. For; 1. 3. 4. 41.
SPECIAL CONTRACTS 289
death.1 This rule was received in the Roman-Dutch Law,2
which also, as we have seen above, rendered wholly void
gifts, whether antenuptial or postnuptial, made by a minor,
who contracted marriage without the necessary consents,
in favour of the other spouse.3
As a general rule the contract of donation requires no Registra-
special form; but the constitution of Justinian,4 which,
subject to some exceptions, required registration of gifts
exceeding 500 aurei in value, was admitted into the Roman-
Dutch Law,5 and has been recognized as in force in South
Africa, the aureus being taken as equivalent to the pound
sterling.6 Unregistered gifts in excess of the permitted
value are void to the extent of the excess.7 In the case of a
donation of immovable property transfer of the property in
the Deeds Office satisfies the requirements of registration.
In the case of any donation other than a donation of
immovable property, or of a promise to give immovable
property if the property has not been transferred to the
donee, it is sufficient for the donation to be embodied in a
deed notarially executed.8. Reciprocal and remuneratory
gifts do not fall within the rule,9 provided, says Voet, that
in the latter case the gift does not exceed the value of the
service rendered by more than £500 .10 But this has been
For S.A. see Louisa & Protector of Slaves v. Van den Berg (1830)
1 Menz. 471 ; Aburrowv. Wallis (1893) 10 S.C. 214; (Ceylon) Wani-
garatnev. Selohamy (1941) 42 N.L.R. 353 (valid).
1 Dig. 24. 1. 32. 2; Girard, p. 1000; Est. Phillips v. Commr. for
Inland Revenue [1942] A.D. 35; Potter and Potter v. Rand Town-
ships Registrar P.H. 1945 (1). B. 7 [A.D.].
a Supra, p. 96. 3 Gr. 3. 2. 10 ; supra, p. 57.
4 Cod. 8. 53 (54) 36. 3; Inst. 2. 7. 2.
6 Voet, 39. 5. 18. But Grotius says (3. 2. 15): waer van ick in
onzes lands wetten niet en vinde, misschien om dat de mildheid
hier niet te groot en is geweest. See Lee, Commentary, ad loc.
6 Thorpe's Exors. v. Thorpe's Tutor (1886) 4 S.C. 488; Coronel's
Curator v. Est. Coronet [1941] A.D. at p. 340.
7 Cod. 8. 53 (54). 34, 1 ; Est. Phillips v. Commr. for Inland
Revenue, ubi sup. at p. 47.
8 Commr. for Inland Revenue v. Est. Graaff [1935] A.D. 210 ; Est.
Phillips v. Commr. for Inland Revenue, at p. 47.
9 Fichardt Ltd. v. Faustmann [1910] A.D. 168 (promise to pay
a pension); Avis v. Verseput [1943] A.D. 331.
10 Voet, 39. 5. 17.
290 THE LAW OF OBLIGATIONS
described as an 'impracticable suggestion',1 and it is not easy
to say when gifts can properly be described as remuneratory.
Apparently they may be so described whenever 'they are not
inspired solely by a disinterested benevolence, but are, as a
rule, made in recognition of, or in recompense for, benefits or
services received, and therefore are akin to an exchange or
discharge of a moral obligation '.2 It is said that registration
is required when several gifts are made by the same person
at the same time to different persons, which in the aggregate
exceed the limit below which registration is unnecessary.3
Removing doubts raised by some earlier cases the
Appellate Division has decided that the rule requiring
registration exists for the protection not merely of credi-
tors, but also, or principally, of the donor, so that : (a) it
holds good between donor and donee, and (6) applies to a
gift of movables perfected by delivery.4 An unregistered
gift between husband and wife is not confirmed by death.5
No im- A gift being gratuitous, there is no implied guarantee
plied against eviction or against latent defects.6 If the property
tees. given does not belong to the giver, the gift is void.7
In what Gifts as a rule are irrevocable.8 Therefore, if a donor fails
cases gifts £O han(j over property promised by way of gift he may be
revoked, sued for breach of contract;9 and if property has been
handed over by the donor, he cannot reclaim it. But both
these statements admit of some qualification. In the first
case, the donor may defend an action on the ground of
want of means (beneficium competentiae), and the claims
of creditors by onerous title are preferred to the claim of
the donee.10 In the second case the gift may be revoked
1 Avis v. Verseput, ubi sup. at p. 352 per Watermeyer A.C.J.
2 Ibid, at p. 353.
8 Voet, 39. 5. 16.
4 Coronel's Curator v. Est. Coronel [1941] A.D. at p. 342.
8 flames' Exor. v. Haines [1917] E.D.L. 40.
6 Voet, 39. 5. 10. 7 Dig. 39. 5. 9, 3 ; Gr. 3. 2. 5.
8 Gr. 3. 2. 16.
9 Stephens v. Liebner [1938] W.L.D. 95. The measure of
damages is (as in the case of sale) the value of the property on the
day when delivery should have been made. Ibid.
10 Dig. 39. 5. 12: Qui ex donatione se obligavit, ex rescripto divi
Pii in quantum facere potest convenitur. Sed enim id quod credi-
SPECIAL CONTRACTS 291
and the property reclaimed i1 — (1) if the donee fails to give
effect to a direction as to its application (donatio sub modo) ;2
(2) on the ground of the donee's gross ingratitude ;3 (3) if
at the time of the gift the donor was childless, and after-
wards became the father of a legitimate child by birth or
legitimation.4 In the Roman Law this ground of revocation
was limited to the case of gifts made by patrons to freed-
men.5 In the Roman-Dutch Law, according to the pre-
vailing opinion, it was available to all donors,6 but not to
the donor's children or heirs.7
These two last grounds of revocation do not apply to
remuneratory gifts, nor to gifts in marriage settlements.8
A special kind of gift is the donatio mortis causa,9 Donatio
which partakes of the nature both of contract and of mortis
A causa.
legacy. Like the ordinary contract of donation it is per-
toribus debetur erit detrahendum ; haec vero, de quibus ex eadem
causa [scil. donationis] quis obstrictus est, non debebit detrahere.
Voet, 35. 9. 19.
1 No doubt the grounds of revocation would be equally available
as a defence to an action on the contract.
2 Cod. 4. 6. 8 ; Girard, p. 1002. In Ex parte Trustees of the Pre-
toria Hebrew Congregation [1922] T.P.D. 296 the Court declared
that it had no jurisdiction to release a donee from a condition
attached to a gift. V.d.K. (Th. 488) admits a personal action only,
not a vindication. See Buckland, Textbook, p. 254. Under some
modern Codes (e.g. B.G.B. Art. 527) the donor is not entitled to
revoke the gift, but may claim from the donee the amount by which
he has been unjustly enriched by his failure to give effect to the
modus. For a modus imposed by will see Ex parte The Dutch
Reformed Church of Dewetsdorp [1938] O.P.D. 136.
3 What amounts to ingratitude is specified in Cod. 8. 55 (56). 10.
See Gr. 3. 2. 17 ; Van Leeuwen, 4. 30. 7 ; Voet, 39. 5. 22 ; V.d.L.
ubi sup.; Mulligan v. Mulligan [1925] W.L.D. at p. 182. For
Ceylon see Sivarasipillai v. Anthonypillai (1937) 39 N.L.R. 47.
4 Voet, 39. 5. 27.
5 Cod. 8. 55 (56). 8.
6 Gr. 3. 2. 18 ; Lee, Commentary, ad loc. ; Voet, 39. 5. 26 (ad fin.) ;
(Ceylon) Guneratne v. Yapa (1926) 28 N.L.R. 397.
7 Voet, 39. 5. 31 ; V.d.K. 490.
8 Voet, 39. 5. 25 and 34; Avis v. Verseput [1943] A.D. 331.
9 Gr. 3. 2. 22 ff . ; Voet, lib. 39, tit. 6 ; V.d.K. 492-3 ; 1 Maasdorp,
chap. 31 ; (Ceylon) Parampalam v. Arunachalam (1927) 29 N.L.R.
289. Buckland (Textbook, p. 257) describes it as 'a gift made in
expectation of death, either general or on a certain event, to be
absolute only if and when the expected death occurred'.
292 THE LAW OF OBLIGATIONS
intends to give, the other to accept what is given j1 and, as
in the case of ordinary contracts, the property does not
pass until delivery.2
On the other hand a gift mortis causa resembles a legacy
in that it takes effect on death, is revocable during the
donor's lifetime, is ipso jure revoked by the death of the
donee before the donor and is postponed to the claims of
all creditors of the deceased.3 In form too it must comply
with the requirements of testamentary disposition,4 which
in the modern law usually implies execution by the donor
in the presence of at least two witnesses.5 This require-
ment must be understood of a promise to give. It does not
exclude any appropriate method of transferring the pro-
perty which forms the subject of the gift.
The distinction between a gift mortis causa and a gift
inter vivos is often difficult to draw. A gift mortis causa
is not necessarily made by a dying man or even by a man
who is in immediate danger of death provided that it is
made in contemplation of death,6 nor is a gift made by a
dying man necessarily a gift mortis causa.7 It is a question
of intention. In case of doubt the presumption is in favour
of a gift inter vivos. If a man says ' I give after my death '
without more, it is a gift inter vivos to take effect on death.8
A gift mortis causa may consist either in a promise to
give accepted by the donee, which, of course, leaves the
property in the donor ; or in actual delivery to the donee,9
1 Voet, 39. 6. 6 ; Exor. Est. Komen v. De Heer (1908) 29 N.L.R.
487 ; Meyer v. Rudolph's Exors. [1918] A.D. at p. 77 per Innes C.J.
2 So says Voet, but under Justinian's legislation a donatio
mortis causa executed before five witnesses (the form required
for codicils) took effect on death like a legacy without transfer of
possession. Buckland, p. 258.
3 Voet, 39. 6. 4. Brink's Trustees v. Median (1864) 1 Roscoe at
p. 212. * Voet, ibid.
6 Meyer v. Rudolph's Exors. ubi sup., pp. 84 ff.per Solomon J.A. ;
Wiley v. The Master [1926] C.P.D. at p. 103.
* Voet, 39. 6. 1 ; Voet adds : 'ac necesse videtur ut aliqua in
donando mortalitatis aut redhibitionis mentio fiat.'
7 Dig. 39. 6. 42. 1 (in fine), Papinianus: respondi . . . eum qui
absolute donaret non tarn mortis causa quam morientem donare.
• Voet, 39. 5. 4; 39. 6. 2.
' Gr. 3. 2. 22; Komen's Exor. v. De Heer (1908), ubi sup.
SPECIAL CONTRACTS 293
in which case the gift is subject either to (a) a suspensive
condition, so that, actually, there is no vesting of owner-
ship in the donee unless the gift remains unrevoked and
the donee survives the donor ; or, (6) a resolutive condition
so that the property revests in the donor if he revokes the
gift or if the donee predeceases him.
There is some difference of opinion in the books as to
capacity to make a gift mortis causa. According to Voet
it is a question of testamentary capacity, which qualifies
a married woman and a minor;1 according to Grotius
neither of these is competent.2 It may be that the dis-
tinction turns upon the question whether the gift is merely
promissory or purports to effect an alienation of property.3
A gift mortis causa is rendered inoperative:4 (1) by
express revocation ; (2) cessante periculo, e.g. if the gift
was made in contemplation of death from a particular
illness, and the donor recovers ; (3) if the donee pre-
deceases the donor ;5 (4) if the donor becomes insolvent. If
there is not enough money in the estate to meet all the
gifts mortis causa they abate rateably like legacies, with-
out regard to priority of creation.6
2. Sale.7 The Roman-Dutch Law on this subject is 2. Sale.
fundamentally Roman Law varied at some points by
Dutch custom. In South Africa the law, which remains
uncodified, has been influenced by English case law. In
Ceylon, Ordinance No. 11 of 1896 (E.S. cap. 70) follows
the English Sale of Goods Act, 1893.
1 Voet, 39. 6. 5.
2 Gr. 3. 2. 23; 1.5.23.
3 Sande, Decis. Fris. (2. 4. 4), agrees that a married woman is
incapable; contra, Schorer ad Gr. 3. 2. 23, and V.d.K. 100, 'si rei
donatae post mortem demum transferatur dominium'.
4 Gr. 3. 2. 23 ; Voet, 39. 6. 7.
5 If they die simultaneously and the property has passed, the
gift stands. Dig. 39. 6. 26. 6 Voet, loc. cit.
7 Emptio venditio- — Koop ende verkooping. Gr. lib. iii, cap.
xiv ; Van Leeuwen, lib. iv, cap. xvii ; Voet, lib. xviii, tit. 1 ; V.d.L.
1. 15. 8 ; 3 Maasdorp, chaps. 11-16 ; Wille & Millin, Mercantile Law
of South Africa, chap. 2 ; Morice, Sale in Roman-Dutch Law
( 1919) ; Norman, Purchase and Sale in South Africa (2nd ed. 1939) ;
Mackeurtan, The Sale of Goods in South Africa; Wessels, vol. ii,
chaps, xxvii ff .
294 THE LAW OF OBLIGATIONS
When the The contract of sale is complete so soon as the parties
contract j ,1 • i • .1
of sale is are agreed as to the price, i.e. so soon as the price is
complete, certain or readily ascertainable. In English Law, when
no price is fixed, there is a presumption that the parties
intended to contract for a reasonable price. In the Roman-
Dutch Law such a contract would not, perhaps, satisfy
the requirements of the definition of sale.2 But this is a
question of words. The Courts would give effect to it as
an innominate contract or actionable pact.
When the The property in things sold passes, as a rule, upon
passes?7 delivery. But: (a) if the sale is made subject to a sus-
pensive condition the property does not pass until the
condition is satisfied; and (6) where credit has not been
given the property does not pass until payment of the
purchase price.3 It follows that an unpaid vendor, who
has reason to fear that he will not get his money from the
purchaser, may reclaim the property even in the hands of a
third person to whom the purchaser has resold it, or to
whom the vendor may have consigned it at the pur-
chaser's request.4 But he must do so within a reasonable
time,5 which is usually, but not necessarily, understood to
be ten days. This is the period which is allowed by the
Insolvency Act in the parallel case of the unpaid vendor
under a contract for payment against delivery, reclaiming
his property in the event of the purchaser's insolvency.6
It must be noted that a sale may be a cash sale though
not expressly stated to be so, and the mere delivery
1 Inst. 3. 23 pr. : Emptio et venditio contrahitur simul atque de
pretio convenerit. The parties must also be at one as to the res.
As to auction sales see Marcus v. Stamper & Zoutendijk [1910]
A.D. 58; Demerara Turf Club Ltd. v. Wight [1918] A.C. 605, and
Neugebauer & Co. v. Hermann [1923] A.D. 564.
2 Gr. 3. 14. 1 and 23.
3 Inst. 2. 1. 41; Gr. 2. 5. 14; Voet, 19. 1. 11; Newmark Ltd. v.
Cereal Manufacturing Co. Ltd. [1921] C.P.D. 52.
4 Van Leeuwen, 2. 7. 3; 4. 17. 3; Laing v. S. A. Milling Co.
[1921] A.D. 387.
• Groen. ad Gr. 2. 5. 14; V.d.L. 1. 7. 2 ; Daniels v. Cooper (1880)
1 E.D.C. 174 ; Sadie v. Standard Bk. (1889) 7 S.C. 87 ; Mackeurtan,
p. 262.
6 Insolvency Act, 1936, sec. 36.
SPECIAL CONTRACTS 295
of goods raises no presumption that credit has been
given.1
Property sold is at the purchaser's risk from the moment When the
that 'the sale is perfect'. Generally this means, when the risk
contract is concluded so as to bind the parties.2 But this
is not necessarily so. The contract may have been con-
cluded subject to a suspensive condition, or something
may remain to be done to determine the price or what is
sold ; for instance, if the price is to be fixed by a third
person and the third person has not fixed it, or bales are
sold at so much per bale and the bales have not been
counted, or a hundred bales are sold from the stock in a
warehouse and the bales have not been appropriated to
the contract. These requirements are summed up in a
passage in the Digest where Paulus says : —
It is necessary that we should know when a sale is perfect,
for then we shall know whose is the risk, for when the sale is
perfect the risk will attach to the purchaser. Should it appear
what is sold, of what quality and in what quantity, and the
price is fixed, and the sale is unconditional, the sale is perfect.3
So long as any one of these requirements is not satisfied,
the sale is 'imperfect' and the risk does not pass. 'The
contract may be quite complete for the purpose of pro-
ducing the obligations which ordinarily result from it, and
yet not "perfect" for the purpose of transferring the risk
from the vendor to the purchaser.'4 The right to the fruits
and other advantages of the property, including rents
accruing due under an existing lease,5 accompanies the
risk.6
1 V.d.K. 203 ; Sadie v. Standard Bank (1889) 7 S.C. 87.
2 Inst. 3. 23. 3; Voet, 18. 6. 1; V.d.K. 639; Home v. Hutt
[1915] C.P.D. 331.
3 Dig. 18. 6. 8 pr. : Necessario sciendum est, quando perfecta
sit emptio : tune enim sciemus, cujus periculum sit : nam perfecta
emptione periculum ad emptorem respiciet. et si id quod venierit
appareat quid quale quantum sit, sit et pretium, et pure venit,
perfecta est emptio.
4 Moyle, Contract of Sale in the Civil Law, p. 76.
5 De Kock v. Fincham (1902) 19 S.C. 136; Walker v. Wales
[1922] C.P.D. 49; Kidney v. Garner [1929] C.P.D. at p. 169.
6 Gr. 3. 14. 34; 3. 15.6.
296 THE LAW OF OBLIGATIONS
Warranty It is not an implied condition in the contract of sale
eviction. *na* a vendor should make a good title.1 A man may
contract to sell res aliena no less than res sua.2 But he
must give vacant possession to the purchaser.3 If he fails
to do so, or if after delivery the purchaser is evicted by
superior title, the vendor is liable in damages. However,
a sale by a vendor of what, to his knowledge, does not
belong to him to a purchaser who is ignorant of the fact,
is regarded as a fraud upon the purchaser, who may at
once maintain an action on the contract without waiting
for eviction.4
Remedies In case of eviction the purchaser may claim a refund
eviction^ °^ *^e Pr^ce' or damages (if the price has not been paid,
damages only) measured by the value of the property at
the date of eviction,5 less any compensation which the
purchaser as bona fide possessor may be entitled and able
to recover from the true owner.6 Mackeurtan in his book
The Sale of Goods in South Africa adds a further qualifica-
tion. The property may have increased in value owing to
a fortuitous event, e.g. in the case of the sale of land if
gold has been discovered upon it, or a railway brought to
it. It would be unfair to charge the vendor with this
increase in value. Damages, therefore, should be limited
to such damage as would necessarily flow from the breach
irrespective of accidental circumstances. This excludes
an increase in value which the seller did not contemplate
or could not reasonably have contemplated at the time of
the sale.7 If the purchaser has knowingly bought a thing
which did not belong to the vendor (res aliena) in the absence
1 Mackeurtan, pp. 2, 193. 2 Gr. 3. 14. 9.
3 Theron v. Schoombie (1897) 14 S.C. 192; Lourenson v. Swart
[1928] C.P.D. 402; Sauerlander v. Townsend [1930] C.P.D. 55.
4 Dig. 19. 1. 30, 1 ; Kleynhans Bros. v. Wessels' Trustee [1927]
A.D. at p. 290.
8 If the price has not been paid and the value has fallen the
damages will be nil.
6 Gr. 3. 15. 4 ; Mackeurtan, p. 377.
7 Mackeurtan's opinion is based upon Dig. 19. 1. 43 (in fine):
plane si in tantum pretium excedisse proponas, ut non sit cogita-
tum a venditore de tanta summa . . . iniquum videtur in magnam
quantitatem obligari venditorem.
SPECIAL CONTRACTS 297
of an express warranty against eviction, he cannot claim
damages or even a refund of the price.1
There is no implied warranty against eviction if a Selling
purchaser sells a thing 'good or bad for what it is worth ', vc
'as it stands', 'with all its faults', or, according to the
common phrase, voetstoots? It seems that in this case too
the purchaser cannot recover the price.3
A vendor cannot, generally, give to an innocent pur- Nemo dat
chaser a better title than his own. In Holland, a purchaser habet"0
who had no notice of his vendor's defect of title might
sometimes retain the goods against the true owner, unless
the latter paid him the price which he had given for them.
The principal case is sale in a 'free market'.4 But this has
no equivalent in the modern law.5
In the absence of contrary agreement (which would be Warranty
another case of voetstoots] the vendor is understood to Defects
warrant the purchaser against any defect in the thing sold
unfitting it for its ordinary use, or for any special purpose
communicated to the vendor, or for which he warrants or
represents it to be fit.6 .Thus, where food is sold for
human consumption it is an implied condition that it is
reasonably fit for the purpose.7 The warranty does not
extend to defects which a purchaser who has inspected the
property saw or should have seen.8 If the defect is such
that a purchaser9 with knowledge of it would not have
1 V.d.K. 641 ; Lee, Commentary, p. 299.
2 Gr. 3. 14. 12: zoo goed ende quaet als 't is, zonder daef voor in
te staen, 't welck men noemt met de voet stoten. The idea is that
the vendor kicks the thing from him.
3 V.d.K. Dictat. ad Gr. 3. 14. 12 ; Lee, Commentary, ad loc.
4 Gr. 2. 3. 6. A free market was one which enjoyed special
privileges, e.g. those resorting to it were free from arrest for debt.
It was by no means the case that every public market was a free
market. B Appendix E ; Lee, Commentary, p. 72.
6 Bosman Bros. v. Van Niekerk [1928] C.P.D. 67; Cohen &
Klein v. Duncan Gray & Co. [1936] C.P.D. 490; Mackeurtan,
pp. 213, 218. 7 Kroomer v. Hess & Co. [1919] A.D. 204.
8 Mackeurtan, pp. 211, 212. With this qualification the war-
ranty extends to all defects latent or patent. Ibid.
9 A purchaser, not the purchaser. In the modern law 'the test
is not the purchaser's view at all, but that of the reasonable
man'. Mackeurtan, p. 303.
298 THE LAW OF OBLIGATIONS
The aedi- concluded the contract, he may, by the actio redhibitoria,
actions, rescind the sale restoring the property and recover the
purchase money with interest from the date of payment1
and any expenses necessarily incurred about the thing
sold,2 but not damages for loss of profit.3 Defects which
are serious enough to give rise to this remedy are termed
redhibitory defects. In the alternative the purchaser may
sue for reduction of the price in the actio aestimatoria or
quanti minoris. These actions are known as the aedilitian
actions because they came into the Roman Law through
the edict of the curule aediles.
Restitu- The aedilitian actions were restitutory, not compen-
compen- satory, in character, and were supplementary to the pur-
satory. chaser's civil law remedy, the actio empti or ex empto.
This lay for damages for breach of the contract, but gave
no damages for defects in the thing sold unless the seller
When either: (1) knew of the defect, or at least had reasonable
may be ground for suspecting it, and did not make it known to
claimed, ^he purchaser ;4 or (2) expressly warranted the absence of
defects.5 In these two cases, besides requiring the vendor
to take back the thing and refund the price, the purchaser
could sue for consequential damages. In other cases he
could not. In Erasmus v. Russell's Exor. which came before
the Transvaal Supreme Court in 1904, it was held that a
purchaser with an express warranty was in no better
position than one who had bought without warranty. The
argument was that the express warranty gave him no
more than was already given him by the warranty implied
by law. Consequently, when a purchaser bought cattle
with an express warranty against disease and the beasts
1 Voet, 21. 1. 4; Jones v. Cotta & Co. (1902) 23 N.L.R. 269
(defective rickshaw tyres) ; Cohen & Klein v. Duncan, Gray & Co.,
ubi sup. (cash register machine which frequently jammed).
2 Nourse v. Malan [1909] T.S. at p. 205; Kirsten v. Niland
[1920] E.D.L. 87 ; Mackeurtan, p. 321.
J Seggie v. Philip Bros. [1915] C.P.D. 292.
4 Dig. 19. 1. 13 pr. ; Pothier, Contrat de Vente, sec. 213; Eras-
mils v. Russell's Exor. [1904] T.S. at p. 373.
6 Dig. 19. 1. 6, 4; Evans & Plows v. Willis & Co. [1923] C.P.D.
496.
SPECIAL CONTRACTS 299
were in fact infected with tick-fever, which was com-
municated to the rest of the purchaser's herd with heavy
consequential loss, it was held that he was entitled to a
refund of what he had paid, but not to damages.1 But this
does not represent the present state of the law. ' Erasmus's
case must now be taken to be bad law in so far as it deals
with the measure of damages on breach of an express
warranty.'2
On the other hand there are particular circumstances in
which damages may be recovered for breach of an implied
warranty ; viz. when the seller is the manufacturer of the
defective article,3 or is a merchant selling goods in which
he makes it his business to deal.4 Thus a provision-dealer
was held liable for the sale of a defective tongue in a tin
which he sold to a customer in the state in which he had
received it from the manufacturer.5
The aedilitian actions are limited by short periods of Periods of
prescription. By the Dutch Law the actio redhibitoria must tl^n?"
be brought within six months of the date of the sale,
the actio quanti minoris within twelve months, unless in
either case the Court saw fit to prolong the term.6 The
period is now one year for both actions.7 The purchaser
may plead an exceptio quanti minoris in answer to the
vendor's action for the price. This is not subject to the
short prescription which bars the action.8
The question may be asked what is the measure of The actio
reduction in the actio quanti minoris. The Roman texts <l^ant?
minoris.
speak indifferently of the less price the purchaser would
have given (quanto minoris empturus fuerit)9 and the less
Erasmus v. Russell's Exor. [1904] T.S. 365.
Mackeurtan, p. 217, n. 80.
Seggie v. Philip Bros. [1915] C.P.D. at p. 306.
Pothier, Contratde Vente, sec. 214; Mackeurtan, pp. 321, 324;
Marais v. Commercial General Agency Ltd. [1922] T.P.D. at p. 444.
Young's Provision Stores v. Van Ryneveld [1936] C.P.D. 87.
Voet, 21. 1. 6; Nourse v. Malan [1909] T.S. 203.
Prescription Act, 1943, sec. 3 (2) following Transvaal Act 26 of
1908, sec. 3. Under this Act it was held that the Court had no
discretion to allow an extension. Cluley v. Mutter [1924] T.P.D. 720.
8 McDaid v. De Villiers [1942] C.P.D. 220.
9 Dig. 19. 1. 13 pr. ; 21. 2. 32, 1.
300 THE LAW OF OBLIGATIONS
value (quanti minoris res fuerit).1 South African practice
has adopted another standard, viz. the difference between
the purchase price and the value of the thing in its defective
condition at the date of sale (or delivery ?).2
In Holland, by general custom, the Count had a right
Pre- of pre-emption over feuds ; and, by local custom, relatives
and others had a similar right over other immovable
property. This right was called naasting or jus retractus.3
It has no equivalent in the modern law, but a right of
pre-emption may be the subject of express stipulation
(conventional retractus).4
Laesio The subject of laesio enormis (which in the Roman-
a18' Dutch Law is not limited to the contract of sale) has been
mentioned in an earlier chapter.5
3. Ex- 3. Exchange.6 The rules applicable to the contract of
sale are in general applicable to the contract of exchange.
In the Roman Law, exchange was a real contract, i.e.
no obligation arose until one party had delivered property
to the other. In the modern law, an agreement to exchange
is actionable per se.1 In the Roman Law the property
exchanged must be res sua, not res aliena, and in this
respect exchange differed from sale.8 In the modern law,
there seems no reason why, if you agree to give me the
horse of Titius in exchange for my ox, you should not be
bound by your agreement.
4. Hire. 4. Hire.9 In the Roman Law, the contract locatio
1 Dig. 21. 1. 38 pr. and 13.
2 S. A. Oil & Fat Industries v. Park Eynie Whaling Co. [1916]
A.D. at p. 413 ; Mackeurtan, pp. 338, 382.
3 Gr. lib. iii, cap. xvi; Voet, 18. 3. 9 ff.
4 3 Maasdorp, p. 148 ; Robinson v. Randfontein Eats. O. M. Co.
[1921] A.D. at p. 188 ; Sher v. Allan [1929] O.P.D. 137.
6 Supra, p. 234.
6 Permutatio — Ruiling. Gr. 3. 31. 6; Voet, lib. xix, tit. 4.
7 Worcester Municipality v. Colonial Oovt. (1909) 3 Buch. App.
Cas. at p. 553. 8 Voet, 19. 4. 2.
9 Locatio conductio — Huir ende Verhuiring. Gr. lib. iii, cap.
xix ; Van Leeuwen, lib. iv, capp. xxi-xxii ; Voet, lib. xix, tit. 2 ;
V.d.L. 1. 15. 11 ; 3 Maasdorp, chaps. 17-21 ; Wille & Millin, chap.
3; Wille, Landlord and Tenant in South Africa (2nd ed., 1927).
For hire -purchase see the Hire -Purchase Act, 1942 and M. A. Die-
mont, The Law of Hire-Purchase in South Africa (Juta & Co. Ltd.).
SPECIAL CONTRACTS 301
conductio has a wide extension. It covers not only the
hire of things (locatio conductio rei), but also the hire of
services (locatio conductio operarum), and the putting out
of a piece of work on contract (locatio conductio operis).1
Under the first head are included the hire of movables,
such as a horse or carriage, and the hire of land, or what
is nowadays commonly known as a lease. The term 'hire
of services ' covers contracts between master and servant,
and all other contracts of employment for reward. In the
modern law, it includes also contracts for professional
services, which, having originally been in theory, if not in
fact, honorary in character, were referred by the Roman
Law to the head not of hire, but of mandate.2
In the Roman-Dutch Law the rules relating to the hire
of movables and the hire of services correspond closely
with the Roman Law, and need not detain us.
The contract of hire of land calls for separate treatment. Hire of
The rules which we shall state with regard to it are in many land:
respects applicable to the hire of movables as well.
In an earlier chapter we have considered the hire ofinrela-
land in relation to the law of property, and have inquired {^ilw Of
how far a lease creates a right in rem.3 property;
As regards form, we have seen that sometimes, to pro- as regards
duce this result, the lease must be effected by a judicial form>
act or by a notarial deed duly registered, and that in
some jurisdictions the law requires that leases for shorter
periods should be in writing.4
The landlord's lien has been mentioned in the chapter Land-
on Mortgage or Hypothec.5 lord'8 Uen<
In its purely contractual aspect, the contract of hire of Hire of
land (lease) involves the consideration of the rights and Ration
duties which, in the absence of contrary agreement, the to the
law confers and imposes upon lessor and lessee, the rights contract.
of the one being the counterpart of the duties of the other.
The lease (so-called) of mineral rights in the form usual in 3. A. is a
contract sui generis. Edwards (Waaikraal) G. M. Co. v. Mamogale
[1927] T.P.D. 288. 1 Lee, Elements of Roman Law, p. 314.
11 Girard, p. 607. 3 Supra, p. 161.
4 Ibid. 6 Supra, pp. 193ff.
302 THE LAW OF OBLIGATIONS
Duties of The duties of the lessor are: (1) to deliver the subject
of the lease to the lessee ;x (2) after delivery to abstain
from interfering with the lessee's occupation and enjoy-
ment, and to guarantee him against justifiable interfer-
ence by others;2 (3) to deliver and maintain the subject
of the lease in such a state of repair that it may be con-
veniently used by the lessee for the purpose contemplated
by the lease.3 When a landlord refuses to execute those
reasonable repairs which the common law requires him to
do, the tenant may effect such repairs himself and deduct
the necessary cost from the rent ;4 (4) to see that the sub-
ject of the lease is free from such defects as will prevent
its being properly and beneficially used for the purpose
for which it was leased;5 (5) to pay all taxes imposed
upon the property.6
Duties of The duties of the lessee are: (1) to pay the agreed rent
in terms of the contract ;7 (2) to take proper care of the
property leased — thus, not to injure or destroy it ;8 (3) not
to use it for any purpose other than that for which it was
leased;9 (4) to retain the leased property until the lease
expires ;10 (5) to restore it to the lessor in a proper state of
repair on the expiry of the lease.11
1 Voet, 19. 2. 26; V.d.L. 1. 15. 12.
3 V.d.L. ibid. ; Wille, Landlord & Tenant, pp. 132 ff.
3 Gr. 3. 19. 12; Voet, 19. 2. 14; V.d.L. ubi sup.; Poynton v.
Cran [1910] A.D. at p. 221 ; Henning v. LeRoux [1921] C.P.D. 587 ;
Cape Town Munic. v. Paine [1923] A.D. atp. 218 ; Amin v. Ebrahim
[1926] N.P.D. 1.
4 Gr. ubi sup. ; Poynton v. Cran, ubi sup.
5 Hannay v. Parfitt [1927] T.P.D. 111.
6 Gr. 3. 19. 15. Secus if charged upon the fruits. Van Leeuwen,
4. 21. 5.
7 Voet, 19. 2. 22. Strictly speaking, where no rent is agreed
there is no contract of letting and hiring, but the owner of the
property is entitled to compensation for 'use and occupation'.
Murphy v. London & S. A. Exploration Co. (1887) 5 S.C. 259;
Pereira, p. 667. Cf. Voet, 19. 2. 7 (ad fin.).
8 Gr. 3. 19. 11 ; Voet, 19. 2. 29. He may not (e.g.) convert pas-
ture into arable land, Van Leeuwen, 4. 21. 4; V.d.K. 680 (mis-
translated by Lorenz). 9 V.d.L. ubi sup.
10 Gr. 3. 19. 11 (in fin.). Is the lessee bound to take possession ?
Not in French or German law. For Roman Law there is no
authority. Lee, Elements of Roman Law, p. 317, n. 34.
11 Voet, 19. 2. 32.
SPECIAL CONTRACTS 303
Generally speaking, neither party to the contract is No
liable unless he has been guilty of dolus or culpa. Thus the wtthout
lessor of a house is not answerable for accidental destruc- dolu8 or
tion by fire and is not bound to rebuild.1 Similarly a lessor Ci
is not in principle answerable for undisclosed defects of
which he neither knew nor ought to have known ; but if
the thing is in such a state that it does not serve for the
ordinary uses of such things, the lessor is responsible, 'not
on the ground of negligence, but for not supplying what
he contracted to supply'.2
As regards the lessee's liability for injury to the property,
apart from minor cases of disrepair, such as arise ordinarily
from the fault of the lessees, of their families, or of persons
whom they introduce into the house and which do not
arise from the age or bad quality of the deteriorated
articles, a lessee will not be answerable, unless the dis-
repair is shown to be the result of his wrongful act or
negligence.3
If a lessee remains in possession after expiry of the Tacit relo-
lease, without objection on the part of the lessor, there is catlon-
held to be a renewal of the lease for a period, which varies
with the terms of the original hiring and other circum-
stances (tacit relocation).4 In the case of a yearly tenancy
of a rustic tenement the renewal will usually be for a year.5
As regards urban tenements: 'In the Cape Province . . .
it has been repeatedly held that where the original lease
provides for a monthly rent, the relocation becomes a
1 Windscheid, ii. 400, n. 5.
2 Voet, 19. 2. 14 in fine; Buckl., p. 500, citing Dig. 19. 1. 6, 4.
8 A. B. Reid & Co. v. Federal Supply Co. (1907) 24 S.C. 102
(broken plate glass window — no inference of negligence) ; Bresky v.
Vivier [1928] C.P.D. 202. If the lessee has covenanted to repair,
'the ordinary rule is ... that the buildings must be left in the state
of repair in which they were delivered to the lessee. De Beers
Consolidated Mines v. London & S. A. Exploration Co. (1893)
10 S.C. at p. 373 ; Poynton v. Cran [1910] A.D. at p. 238.
4 Voet, 19. 2. 9; Tiopaizi v. Bulawayo Munic. [1923] A.D. at
p. 325 ; Tshabalala v. Van der Merwe [1926] N.P.D. at p. 79.
5 Semble, Dig. 19. 2. 13, 11; Gr. 3. 19. 8; Voet, 19. 2. 10;
Japhtha v. Mill's Exors. [1910] E.D.C. at p. 155; Lee, Com-
mentary, pp. 303-4.
304 THE LAW OF OBLIGATIONS
monthly tenancy terminable on a month's notice, whether
the original lease was for a year, three years, six years, or
some other period.'1
When The lessee may in certain cases claim a reduction or
claim may remission of rent. These are: (1) if the lessor fails to
remission deliver the whole of the property agreed to be leased ;2
(2) if the lessee is evicted,3 or if his use or enjoyment is
interfered with, either by the lessor,4 or by some third
person5 in the exercise of a legal right ;6 (3) if the lessor
fails to keep in repair ;7 (4) if the lessor fails to see that the
thing leased is free from defects;8 (5) if the property
leased has been destroyed completely,9 or to such an
extent as to be useless for the purpose for which it was
let; (6) if the lessee has abandoned possession for just
cause,10 or if his enjoyment of the property has been
seriously interrupted by fire, flood, or foe or other causes
1 Wille, p. 50.
2 Voet, 19. 2. 26. The same principle applies to the hire of
services. An employee who fails owing to illness to render the full
service which he has undertaken to perform can recover the agreed
salary only pro rata parte. There is some mitigation of this rule in
favour of domestic servants. Voet, 19. 2. 27 ; Boyd v. Stuttaford
[1910] A.D. 101.
8 Voet, 19. 2. 26 ; Donniger v. Thorpe [1930] T.P.D. 839.
4 Baum v. Rode [1905] T.S. 66.
6 Voet (19. 2. 23) gives as an instance the case of the lessor
alienating the property before the lease has expired. But this
would only hold at the present day in cases in which koop gaat voor
huur (V.d.L. 1. 15. 12). Another case is — si non commodus sit
praestitus rei usus— e.g. if a lessee's lights are wholly obscured by a
neighbour (Voet, 19. 2. 23) ; but slight interference does not entitle
the lessee to relief. Dig. 19. 2. 27 pr. ; Voet, 19. 2. 18. It may be
necessary for the lessor to deprive the lessee of possession for the
purpose of effecting repairs. The lessee while so out of possession
pays no rent, Voet, 19. 2. 16; Shapiro v. Yutar [1930] C.P.D. 92;
unless he entered into the lease with knowledge of the circum-
stances rendering repairs necessary. Larkin v. Jacobs [1929]
T.P.D. 693; Orsmond v. Van Heerden [1930] T.P.D. 723.
6 Rex v. Stamp (1878) 1 Kotze, 63.
7 Gr. 3. 19, 12; Voet, 19. 2. 23.
8 Dig. 19. 2. 19, 1 ; Voet, 19. 2. 14 (ad fin.).
9 Dig. 19. 2. 9, 1 ; V.d.L. 1. 15. 12; North Western Hotel Co. v.
Rolfes, Nebel & Co. [1902] T.S. at p. 331.
10 Such as ghosts — spectra in aedibus dominantia (Rex v.
Zillah [1911] C.P.D. at p. 647) ; or if the house becomes ruinous or
dangerous. Voet, 19. 2. 23.
SPECIAL CONTRACTS 305
beyond his control (vis major-casus fortuitus) j1 (7) if there
has been an extraordinary failure of crops, due to tempest
or any of the above mentioned causes.2
Most of these grounds of remission rest upon the broad
principle that the duties of lessee and lessor are reciprocal.
If the latter fails in his duty the former need not pay his
rent. But for the last two grounds of remission the lessor
is no more to blame than the lessee. Accordingly at the state of
Cape the General Law Amendment Act, No. 8 of 1870,^^^
provides (sec. 7) that the rent accruing under a lease shall Province,
not 'be incapable of being recovered on the ground that the
property leased has, through inundation, tempest, or such
like unavoidable misfortune, produced nothing (or on the
ground that the lessor himself has absolute need of the
land) '.3 By judicial interpretation the phrase ' unavoidable
misfortune ' has been extended to acts of war.4 There is a
similar provision in the Free State.5
In the Roman Law a lessee was entitled to compensation Compen-
for necessary and useful expenses,6 being in this respect ^°**°T
assimilated to the bona fide possessor.7 Grotius, following ments.
the Roman Law, makes no distinction between the two
cases.8 But, after his time, a Placaat of September 26,
1658, contained provisions very inimical to lessees.9 By
this enactment a lessee is entitled to compensation for
1 Zweigenhaft v. Rolfes, Nebel & Co. [1903] T.H. 242; Sheffield
v. Hart [1903] T.H. 469; Hansen, Schroder & Co. v. Kopelowitz
[1903] T.S. 707 (lessee of licensed premises). There must be a
direct relation of cause and effect between the vis major, &c., and
the loss of enjoyment. Ibid.
2 Gr. 3. 19. 12; Van Leeuwen, 4. 40. 7; Voet, 19. 2. 24-5. May
the lessor require the lessee to set off extraordinary gain in one
year against extraordinary loss in another (sec. 24) ? What is
extraordinary loss (sec. 25) ?
3 See below, p. 310, n. 6. 4 3 Maasdorp, p. 245.
5 The corresponding clause in O.R.C. Ord. No. 5 of 1902, sec. 5,
before the words ' through inundation ' inserts the words ' through
war or insurrection or'. For Ceylon see Wijesiriwardene v. Guna-
sekera (1917) 20 N.L.R. 92. 6 Dig. 19. 2. 55. 1.
7 See Appendix J. 8 Gr. 2. 10. 8.
9 Placaet van de Staten van Hollandt tegens de Pachters ende
Bruyckers van de Landen (2 G.P.B. 2515), re-enacted by Placaat
of February 24, 1696 (4 G.P.B. 465). For text and translation see
Lee, Commentary, pp. 92, 93.
4901 .
306 THE LAW OF OBLIGATIONS
structures (getimmer) annexed to the land with the lessor's
consent, and for ploughing, tilling, sowing, and seed-corn.1
His claim to compensation, after vacating possession, is
enforceable by action and is secured by a statutory hypo-
thec upon the land. He has no right to retain possession
until his claim is satisfied.2
Compensation is assessed on a singularly ungenerous
scale. The law provides that 'account shall be taken only
of the bare materials, without sand, lime, and workmen's
wages, such as they shall actually be worth at the time
of the said assessment, just as if they were removed from
the ground'.3 In other words, the lessee gets what the
materials would be worth to a housebreaker after destruc-
tion and removal. He is entitled to no compensation
whatever if a structure was erected without the landlord's
consent or if an improvement cannot be brought under the
description of a structure. He may remove any fixture
annexed to the land with or without consent4 before, but
not after, the determination of the lease. This is limited
to cases in which removal can be effected without serious
injury to the premises,5 and subject to the duty of restoring
them to their original condition.6 When it is said that the
right of removal cannot be exercised after the determina-
tion of the lease this must be understood of fixtures which
have become immovable by annexation to the soil. If they
remain movable, they may be removed before or after the
determination of the tenancy.7
1 Placaat, Art. 10. Though the text of the Placaat speaks of
'structure', an agricultural tenant's right to compensation is not
confined to structures in the nature of buildings, but extends to
other structures or improvements, as wire fences, bridges, dams,
&c. Von Holdt v. Brewer [1918] C.P.D. 163.
a Placaat, Arts. 10 and 11.
8 Placaat, Art. 1 1 ; De Beers Consolidated Mines v. London &
S. A. Exploration Co. (1893) 10 S.C. at p. 368 ; Steinbach v. Schmidt
[1930] S.W.A. 8.
4 De Beers at pp. 370-3. Has the landlord the option to retain
it paying compensation ? Windscheid, ii. 400 ; Barnard v. Col.
Oovt. (1887) 5 S.C. 122. 5 De Beers, loc. cit.
8 Dig. 19. 2. 19, 4.
7 Abrahams v. Isaacs & Co. (1887) 5 S.C. 183; Mclntyre v.
Johnston (1895) 2 Off. Rep. 202 ; Wille, p. 263.
SPECIAL CONTRACTS 307
The above considerations do not apply to necessary im-
provements, as to which the Placaat is silent. In this case
the common law applies and the lessee is entitled to com-
pensation1 on the same basis as a bona fide possessor, and
has, perhaps, a right of retaining possession until his claim
is satisfied, but no right of removal. It seems that com-
pensation is due whether such improvements were made
with or without the landlord's consent. The measure of
compensation for improvements 'depends not upon the
cost of erection, nor upon the value of the materials
annexed, but upon the extent to which the value of the
land has been enhanced'.2
The weight of judicial opinion is in favour of the view
that the provisions of the Placaat are to be taken to apply
to houses as well as to agricultural property.3
The lessee is not entitled to compensation for trees Compen-
planted by him unless he can prove that he planted them l^1™ for
at the lessor's instance (last ende bevel), and even in that planted
case is entitled to be compensated only for the cost of the y
trees at the time of planting4 and for the labour of plant-
ing.5 Once planted the trees" accede to the soil and may
not be removed or cut down.6
1 De Beers at p. 369.
2 Willoughby's Consold. Co. v. Copthall Stores [1918] A.D. at p. 20.
3 De Beers (1893) 10 S.C. 359, affirmed in appeal to P.O.
12S.C. 107; [1895] A.C. 451 ; Rubin v. Botha [1911] A.D. at p. 579
(per Innes J.) ; contra, Burrows v. McEvoy [1921] C.P.D. at p. 234
per Kotze J.P.
4 Placaat, Art. 13 ; Oosthuizen v. Oosthuizen's Est. [1903] T.S. at
pp. 692-3 ; Lee, Commentary, p. 95.
5 Eos v. Vermeulen [1927] O.P.D. 5.
6 De Beers at p. 369. But a lessee may cut silva caedua, i.e.
trees which sprout anew from the roots, such as blue gum trees,
Houghton Est. Co. v. McHattie & Barrat ( 1 894) 1 Off. Rep. at p. 103 ;
unless planted for ornament, Brice v. Zurcher [1908] T.S. 1082;
and in Burrows v. McEvoy, ubi sup., Kotze J.P. held that the
lessee of an urban tenement may during his tenancy and on its
determination, but not after, remove garden flowers and vege-
tables. By Art. 14 of the Placaat, fruit trees and timber trees
(vruchtbare Boomen ofte opgaende Hout) are not to be lopped or
cut down without the landlord's written consent (opgaende hout,
hoc est arbores procerse. Christinaeus, ad legg. Mechl. xv. 4. 8).
Van der Keessel says in general terms (Th. 215): Plantatae in
308 THE LAW OF OBLIGATIONS
Assign- The interests of the lessor and lessee respectively are
sublease, assignable by act of party.1 The effect of assignment by
a lessee is to substitute the assignee (cessionary) in the
place of the original lessee, who thereupon ceases to be
bound or entitled under the contract.2 A sublease has no
such effect. It is a contract whereby the original lessee lets
the property to a third party for the whole3 or for a part of
the unexpired term of the original lease. As between lessee
and sublessee there is a cession of the lessee's rights of use
and enjoyment ; but the lessee does not cease to be liable
to the lessor,4 nor does the sublessee become liable to, or
acquire any rights against, the lessor. As between lessor
and sublessee there is no privity of contract.5
Is the Since, then, assignment has the effect of discharging
the original lessee from his liabilities under the lease, it
necessary is in accordance with principle to hold that it can only
assign! ° take place with the landlord's consent, and that this is
ment, equally the case whether the subject-matter of the lease
is a house or land (urban or rural property). The law of
South Africa may now be taken to be settled in this
sense.6 But if the lease is expressed to be made with
fundo conducto arbores solo cedunt nee earum pretium dominus
qui plantari non jussit restituit.
1 If the lessor assigns, the lessee must pay the rent to the as-
signee even though he may have paid the lessor in advance. Voet,
19. 2. 19. But see De Wet v. Union Oovt. [1934] A.D. 59 and
Wille (3), p. 166.
2 Reeders & Wepener v. Johannesburg Town Council [1907] T.S.
at pp. 652, 654; Jassat v. Lewis [1924] T.P.D. 11. The term
'assignment' is an importation from English Law, which has
established itself in South African usage. The word 'cession' is
used in the same sense.
3 Secus in English Law. Wharton's Law Lexicon sub voce
Under -lease.
4 Dunman v. Trautman (1891) 9 S.C. at p. 17 per de Villiers C.J.
6 Voet, 19. 2. 21; Green v. Griffiths (1886) 4 S.C. 346; Wille,
p. 103.
6 Bolfes, Nebel & Co. v. Zweigenhaft [1903] T.S. 185; Jassat v.
Lewis, ubi sup. There seems to be no sufficient reason for dis-
tinguishing in this respect between short leases and long leases.
Wessels, however, does so (i. 1739) ; nor between rural and urban
tenements. De Villiers C.J.. however, does so. Green v. Griffiths,
ubi sup. at p. 350.
SPECIAL CONTRACTS 309
the lessor 'and his assigns' the lessor's consent is not
required.1
Different considerations apply to a sublease. The right or sub-
to sublet may be restricted by covenant, but in the absence
of such agreement the lessee of a praedium urbanum is
free to sublet without the consent of the lessor. Whether
the lessee of a praedium rusticum may do the same has
long been a vexed question. The Cape Courts have held
consent in writing to be necessary.2 The Courts of the
Transvaal have held consent to be unnecessary.3
The effect of assignment by the lessor has received little How the
attention from the Courts. Does a sale of the property
relieve him from further responsibility to the lessee ?4 deter-
The contract of letting and hiring is determined: (1) by
expiration of the term fixed or implied for its duration,5
and in the case of a lease at will by a declaration of inten-
tion by, or by the death of, either party ;6 (2) by the deter-
mination of the lessor's interest,7 e.g. if he is merely a
1 Reeders & Wepener v. Johannesburg Town Council, ubi sup.
2 De Vries v. Alexander (1880) Foord 43 ; Friedlander v. Croxford
(1867) 5 S. 395; Nieuwoudt v. 'Slavin (1896) 13 S.C. at p. 63; Du
Preez v. M'Kwambi [1929] E.D.L. at p. 92. The law is the same
(semble) in O.F.S. (Cullinan v. Pistorius [1903] O.R.C. 33). But
see Besterv. Taylor [1912] O.P.D. 60.
3 Eckhardt v. Nolle (1885) 2 S.A.R. 48. Prof. Wille (p. 107)
considers the first view to be 'distinctly preferable'. There is a
somewhat ill-defined rule that a lessor may object to a sublocation
which he deems to be prejudicial to his interest, e.g. if the sub-
lessee is likely to use the premises in a way unsatisfactory to him.
Voet, 19. 2. 5: Si conductor secundusejus conditionis sit ut magis
utendo nociturus sit rebus conductis quam primus, aut aliis usibus
rem locatam destinaturus. See Rolfes, Nebel & Co. v. Zweigenhaft
[1903] T.S. 185. But why cannot the lessor, if he apprehends any-
thing of the kind, protect himself by express stipulation? Consult
on the whole subject Wille, Landlord and Tenant in South Africa,
chap, viii, Subletting and Assignment ; Morice, English and Roman-
Dutch Law, Dutch Law, p. 172.
4 Boshoffv. Theron [1940] T.P.D. 299. 5 V.d.L. 1. 15. 12.
8 Gr. 3. 19. 9 ; Voet, 19. 2. 9. But a lease may be validly made
'for as long as the lessee pleases '. In such case the landlord is not
entitled to determine the lease by notice. Friedman v. Friedman
[1917] C.P.D. 268.
7 In this and such other cases, however, the lessee must have
a reasonable time to turn round. He must not be bundled out
'velut Jovis ignibus ictus'. Voet. 19. 2. 18.
310 THE LAW OF OBLIGATIONS
usufructuary1 or fiduciary; (3) by destruction of the
subject-matter ; (4) by merger of the titles of lessor and
lessee in one person;2 (5) by mutual agreement; (6) by
renunciation by either party for just cause ; in which case
the party renouncing may, if he thinks fit, apply to the
Court for cancellation of the lease.3 A just cause exists if
the conduct of either party amounts to a repudiation by
him of his duties under the contract. Such would be an
entire failure to keep in repair by the party liable for
repairs,4 or, on the part of the lessee5 acts of waste or a
contumacious refusal of rent.6 It is safer, however, instead
of leaving the law to determine whether a cause of for-
feiture has occurred, to provide for the event by express
agreement.7 But in no case may the lessor (or any other
person who wishes to eject the lessee) take the law into his
own hands. He must apply to the Court to declare the
lease forfeited, and to replace him in possession.8 It has
No relief been held that a South African Court has no equitable
forfeiture jurisdiction to relieve against a cancellation stipulated for
in the lease, but the Court will be guided by considerations
of equity in determining whether a breach entitling a party
1 Voet, 19. 2. 17.
2 V.d.L. ubi sup. ; Grootchwaing Salt Works Ltd. v. Van Tonder
[1920] A.D. 492.
8 3 Maasdorp, p. 270.
4 Gr. 3. 19. 12; Bliden v. Carasov [1927] C.P.D. 2; Shapiro v.
Fwtar [1930] C.P.D. 92.
6 Voet, 19. 2. 16-18.
8 Grotius (3. 9. 11) and Decker ad Van Leeuwen, ubi sup., say,
'if the rent is more than two years in arrear '. Dig. 19. 2. 54, 1 ; 56 ;
but see Solomon v. Van Zijl (1908) 25 S.C. 974. In the
Roman and Dutch Law a lessor might also resume the property in
case of pressing need, if he showed that it was necessary for his own
use. Cod. 4. 65. 3; Gr. 3. 19. 11 (ad fin.); Van Leeuwen, 4. 21. 7;
Voet, 19. 2. 16. Van der Keessel (Th. 675) doubts. In any event
this is no longer law in the Cape Province since the General Law
Amendment Act of 1879, sec. 7, nor in the O. F. S., Ord. 5 of 1902,
sec. 5.
7 See, e.g. Voet, 19. 2. 5 (clause for forfeiture in the event of sub-
letting without leave). But forfeiture may be enforced even in the
absence of such clause in case of breach of covenant not to sublet
or assign without the previous consent in writing of the lessor.
Abdulla & Co. v. Kramer Bros. [1928] C.P.D. 423.
8 Voet, 19. 2. 18.
SPECIAL CONTRACTS 311
to cancellation has or has not in fact been committed.1
A lessee who has been evicted may sue for cancellation,
but a mere apprehension that he may be evicted does not
justify a repudiation of the lease.2
The effect of the insolvency of lessor or lessee according insol-
to Van der Keessel, who cites a number of local keuren,
was to bring the lease to an end at the next ensuing date lessee.
at which people commonly changed house.3 In South
Africa a lease is not determined by the lessor's insolvency.
If the lessee becomes insolvent the trustee may determine
the lease (by notice in writing), and is deemed to have
done so at the end of three months from his appointment,
if in the interval he has not notified the lessor of his
intention to keep it alive on behalf of the estate.4 A
stipulation in a lease that the lease shall terminate or be
varied upon the sequestration of the estate of either party
to the lease is null and void.5
5. Mandate or Agency.6 The Roman-Dutch writers 5. Man-
reflect the inadequate treatment of agency met with in agency,
the Roman Law and typified in the fact that the word
'mandate' points principally to the relation between
principal and agent, while the word ' agency ' points rather
to the juristic relation established by the agent between
his principal and third parties.7 In this state of things, in
all jurisdictions where the Roman-Dutch law is adminis-
tered at the present day, the English law of agency has
1 Est. Thomas v. Kerr (1903) 20 S.C. 354; Human v.'Rieseberg
[1922] T.P.D. 157 ; Gluckman v. Qoodworths Ltd. [1928] E.D.L. 95;
O. A. FichardtLtd. v. Brand [1928] O.P.D. 56.
2 Donnigerv. Thorpe [1930] T.P.D. 839.
8 V.d.K. 676. 4 Insolvency Act, 1936, sec. 37.
8 Ibid., sec. 37 (5).
8 Mandatum — Lastgeving. Gr. lib. iii, cap. xii ; Van Leeuwen,
lib. iv, cap. xxvi; Voet, lib. xvii, tit. 1 ; V.d.L. 1. 15. 14; 3 Maas-
dorp, chaps. 23-5; Wille & Millin, chap. 9; De Villiers and
Macintosh, The Law of Agency in South Africa ( Juta & Co., 1933).
7 The Roman -Dutch Law, however, was tending to or had
reached the same result as the English Law. For some remarks on
the historical development of the law of agency see Blower v. Van
Noorden [1909] T.S. 890. The same case considers and adopts
the action for the breach of an implied warranty of authority
(Collen v. Wright (1857) 8 E. & B. 647) . See V.d.K. 478, 672.
312
THE LAW OF OBLIGATIONS
6. Part-
nership.
Compari-
son of
English
and
Roman-
Dutch
partner-
ship law.
Kinds of
partner-
been substantially adopted and followed.1 Such differences
as exist between the two systems belong to the theory of
contract in general or are matter of detail, upon which we
have not space to enter.
6. Partnership.2 In Ceylon the English law of part-
nership for the time being in force has been introduced by
statute.3 In South Africa the law of partnership depends
partly on the Roman-Dutch common law, partly on statute.
But it is very far from being the case that the partnership
law of South Africa differs entirely from the partnership
law of England. 'Developed from a common source, viz.
the mercantile custom of Europe, the two systems exhibit
a great similarity, together with some notable differences.
Further, the influence of English case law has tended
towards assimilation. The English rules have stood the
test of practice, while much of the Roman-Dutch Law on
this subject is purely theoretical. The channel of "recep-
tion" for the English Law is mercantile custom, which in
the matter of partnership is much the same in South
Africa as in England.'4
The law of South Africa recognizes various kinds of
partnership, in addition to joint-stock companies, which
1 In Ceylon Ord. No. 22 of 1866 introduces the English law of
principals and agents for the time being in force.
2 Societas — Societeit — Compagnieschap — Maetschap — Ven-
noodschap. Gr. lib. iii, cap. xxi ; Van Leeuwen, lib. iv, cap. xxiii ;
Voet, lib. xvii, tit. 2 ; V.d.K. 698 ff. ; V.d.L. 4.1. 11 ; 3 Maasdorp,
chaps. 26-8 ; Wille & Millin, chap. 8. The essentials of a partnership
are considered in Joubert v. Tarry & Co. [1915] T.P.D. 277;
Wulfsohn v. Taylor [1928] T.P.D. 99; Rhodesia Rlwys. v. Comm.
of Taxes [1925] A.D. at p. 465. A colonus partiarius is not a
partner (Blumberg & Sulski v. Brown & Freitas [1922] T.P.D. 130;
Cossets v. Love [1924] E.D.L. 128), but a lessee. Du Preez v.
Steenkamp [1926] T.P.D. 362.
3 Ord. No. 22 of 1866. By Ord. No. 7 of 1840, sec. 21, writing and
signature of the parties are required for establishing a partnership
when the capital exceeds £100. Pate v. Pate [1915] A.C. 1100.
4 The Commercial Laws of the World (South Africa), vol. xv,
part ii, pp. 84-5. In an early Ceylon case, Boyd v. Stables (1821)
Ramanathan, 1820-33, at p. 21, Giffard C.J. observed upon the
affinity of the commercial law of England with that of Holland,
and added: 'We look upon every decision of the Courts of West-
minster upon commercial subjects as a commentary upon the
Dutch Commercial Law, the law which we are bound to observe.'
SPECIAL CONTRACTS 313
are regulated by special statutes and do not fall within ship in
the scope of this chapter.1 Partnerships proper are either Africa:
ordinary or extraordinary. The law of ordinary partner- (a) Ordi-
ships corresponds in most particulars with the law ofnary;
England. The principal difference is that in English Law
the liability of partners for partnership debts is joint, while
in Roman-Dutch Law it is joint and several.2 But in
South Africa, as in England, actions arising out of partner-
ship transactions must be directed against the firm, not
against individual partners, and all the partners must, as
a rule, be joined as defendants.3 The creditor's remedy is
to obtain judgment against the partnership property; if
the writ is not satisfied he may levy execution upon the
private assets of the individual partners.4 In the Transvaal
actions may be brought by or against a registered partner-
ship in the registered business style of the partnership
without setting forth the names of the individual partners.5
Extraordinary partnerships are : (a) anonymous partner- (6) Extra-
ships ; (6) partnerships en commandite ;6 and (c) in the Cape ordmary-
Province and Natal, statutory limited partnerships created
by Cape Act No. 24 of 1861 and Natal Law No. 1 of
1865. The common element in all three cases is that
certain non-active partners incur a limited liability, or no
liability at all, to creditors of the firm. In the last two
cases, but not in the first, the liability to active co-partners
is limited to the amount of the capital contributed. In
the first case it is unlimited.7 In the first two cases, but
not in the last, there are partners in the background,
whose names are not made public. In the last a certificate
must be registered in the office of the Registrar of Deeds
1 See the Companies Act No. 46 of 1926 as amended by Act
No. 23 of 1939, and for Ceylon The Companies Ordinance No. 51
of 1938 amended by Ords. Nos. 6 of 1939 and 19 of 1942.
2 V.d.K. 703.
8 Commercial Laws of the World, vol. xv, ubi sup. ; Morice, 2nd
ed., p. 199.
4 Olifanfs Vlei Gold Mining Co. v. Wolff (1898) 15 S.C. 344;
Wille & Millin (9) , p. 342. Note also the provisions of the Magistrates
Courts Acts (ibid.). B Act No. 36 of 1909, sec. 8 (1).
• V.d.K. 704. 7 Morice, p. 193.
314 THE LAW OF OBLIGATIONS
containing (inter alia) the names and residences of all the
general and special partners. A non-active partner may
not, in any event, compete with the creditors of the firm
in respect of debts due to him from the other partners.1
7, 8. Loan 7 & 8. Loan for Consumption2 — Loan for Use.3 All
smnption *nis is Roman law. Some matters connected with money-
— Loan loans and the permitted rate of interest have been con-
sidered in the chapter on Operation of Contract.4
9. De- 9. Deposit.5 This too is essentially Roman Law. But
the double penalty in case of depositum miserabile is no
longer in use.6 A so-called deposit with a bank is not
deposit but loan.7
lO.Pledge. 10. Pledge.8 The contract of pledge, which defines
the personal relations between pledger and pledgee, is
1 Watermeyer v. KerdeVs Trustees (1834) 3 Menz. 424; Sellar
Bros. v. Clark (1893) 10 S.C. 168.
2 Mutuum — Verbruickleening. Gr. lib. iii, cap. x ; Van Leeuwen,
lib. iv, cap. vi ; V.d.L. 1. 15. 2 ; 3 Maasdorp, chap. 10.
3 Commodatum — Bruickleening. Gr. lib. iii, cap. ix; Van
Leeuwen, lib. iv. cap. x; Voet, lib. xiii, tit. 6; V.d.L. 1. 15. 4;
Doubellv. Tipper (1892) 11 S.C. 23 ; Gonstanav. Ludidi Duna (1892)
7E.D.C. 60; Enslin v. Meyer [1925] O.P.D. 125; 3 Maasdorp, chap. 9.
4 Supra, p. 258. The S.C. Macedonianum of the reign of Ves-
pasian forbade loans of money to filiifamilias. The f.f. might
renounce the benefit of the S.C. after full age. It has been doubted
whether, and how far, the S.C. has place in the modern law. It is,
of course, not applicable to a f.f. of full age. But in case of minority
there is a general inclination to hold that it may sometimes be
usefully pleaded. Groen. de leg. abr. ad Cod. lib. iv, tit. 28 ; Voet,
14. 6. 5 (ad fin.); and Compendium, 14. 6. 5; Gens. For. 1. 4. 3. 12;
V.d.K. 475, and Dictat. ad Gr. 3. 1. 26.
6 Depositum — Bewaergeving. Gr. lib. iii, cap. vii ; Van Leeuwen,
lib. iv, cap. xi; V.d.L. 1. 15. 5; Sakazi v. Gurr [1906] T.S. 303;
Rama Narotam v. Natha Dullabh [1914] N.P.D. 227; 3 Maas-
dorp, chap. 8. Depositum sequestre and consignation (supra,
p. 274) are varieties of deposit. Gr. 3. 7. 12; V.d.L. 1. 15. 6,
loc. cit. ; Thornton v. Priest's Trustee [1932] C.P.D. 296.
6 Groen. de leg. abr. ad Dig. 16. 3. 1 ; Voet, 16. 3. 11.
7 Dig. 42. 5. 24. 2: Aliud est enim credere, aliud deponere. Cf.
Voet, 20. 4. 14; 46. 2. 5. These passages speak expressly of a
deposit with a bank which bears interest. But (semble) in the
modern law if the money is to be used by the bank the contract is
in every case a mere loan. 3 Maasdorp, p. 110.
8 Pignus — Pandgeving ofte Verzetting — Onderzetting. Gr. lib.
iii, cap. viii ; Van Leeuwen, lib. iv, cap. xii ; Voet, lib. xiii, tit. 7 ;
V.d.L. 1. 15. 7; 2 Maasdorp, chap. 29; Wille & Millin, chap. 5;
Wille, Mortgage and Pledge in South Africa.
SPECIAL CONTRACTS 315
governed by the rules of Roman Law. The real rights
created by pledge have been discussed in Book II.1
11. Suretyship or Guarantee.2 A contract of surety- n. Surety-
ship is a contract whereby one person undertakes a
secondary or collateral liability for the debt3 or delict4 of
another person who is primarily liable. The principal debt
may be civil or natural, but must not be void or illegal.5
Any male person capable of contracting may conclude a
contract of suretyship.6 But by the well-known enact-
ments, Senatusconsultum Velleianum and Authentica si
qua mulier, women are prohibited from binding them-
selves as sureties, and, in particular, married women are Special
prohibited from binding themselves as sureties for their ™
husbands.7 The policy of the law extends to the case of a sureties.
woman binding herself as principal debtor for another or
taking another's debt upon her as her own.8 The effect of
these laws is so far-reaching that money paid by a woman
under a contract of suretyship may be recovered back if
she was ignorant of the benefit conferred by them,9 and
even sub -sureties, i.e. persons who have bound themselves
as sureties for the female surety, may plead them as a
defence.10 There are, however, some exceptions from the
1 Supra, pp. 190, 199.
2 Fidejussio — Borgtogt. Gr. lib. iii, cap. iii; Van Leeuwen, lib.
iv, cap. iv; Voet, lib. xlvi, tit. 1; V.d.L. 1. 14. 10; 3 Maasdorp,
chaps. 30-2 ; Wille & Millin, chap. 7 ; Wessels, ii, chap, xxi ff . ;
Caney, The Law of Suretyship in South Africa.
3 Gr. 3. 3. 12. 4 Gr. 3. 3. 21 ; Voet, 46. 1. 7.
8 Gr. 3. 3. 22; Voet, 46. 1. 10-11.
6 Even minors with the authority of their guardians. Voet, 46. 1. 5.
7 The Senatusconsultum was passed in the consulship of Marcus
Silanus and Velleius Tutor (A.D. 46), Dig. 16. 1. 2. The authentica
is a gloss on Cod. 4. 29. 22, giving the effect of Nov. 134, c. 8
(A.D. 556). (The supposedly official collection of the Novels was
known as the Authenticum. Hence the name Authentica (scil. lex
or constitutio) given to these summaries.) The rule that a married
woman might not 'intercede' for her husband was older than
the Senatusconsultum. Justinian re-enacted it in the Novel. See
Kotze, Van Leeuwen, vol. ii, p. 616.
8 Van Leeuwen, ubi sup. ; i.e. it includes both cumulative
intercessio and privative intercessio (Buckland, Textbook, p. 448),
and some other cases as well. Standard Building Socy. v. Keller-
mann [1930] T.P.D. 796. • Voet, 16. 1. 12.
10 Voet, 16. 1. 2.
316 THE LAW OF OBLIGATIONS
rule of non-liability. These are principally the following :
(1) if the woman has acted fraudulently, and in particular
if she has professed herself to be a co-principal debtor ;l
(2) if she has benefited by the principal contract,2 or if she
has gone surety for her creditor ;3 (3) if, after the lapse of
two years, she has confirmed her suretyship by a new
agreement ;4 (4) if, being a public trader, she has become
surety in relation to her business;5 (5) if, expressly and
with full knowledge of what she was doing, she has re-
nounced the benefits of the senatusconsultum and of the
authentica.6 A woman who has renounced the benefit of
the first will not be held by implication to have renounced
the benefit of the second. There must be a separate and
distinct renunciation of each if a married woman is to be
held liable for her husband's debts.7
These benefits have been abolished in Ceylon8 and in the
opinion of the late Sir John Wessels C.J. it is high time
that they were abolished in South Africa.9 'Women are
regarded at present as the equals of men, and we may very
1 Gr. 3. 3. 15; Voet, 16. 1. 11.
2 e.g. if she has received consideration for becoming surety.
Voet, ubi sup. and 46. 1. 32 ; Richter v. Transvaal Oovt. [1906] T.S.
146; Pettersen v. Yates [1928] N.P.D. 453; African Guarantee Co.
v. Rabinowitz [1934] W.L.D. 151 ; Southern Life Association of
African. Wright [1943] C.P.D. 15. 3 Gr. 3. 3. 16.
4 Cod. 4. 29. 22. 1; Gr. 3. 3. 17; Voet, 16. 1. 11.
6 Voet, ubi sup. ; Schorer ad Gr. 3. 3. 18 ; Oak v. Lumsden (1884)
3 S.C. at p. 148.
6 Gr. 3. 3. 18 ; Voet, 16. 1.9; V.d.L. ubi sup. Mackellar v. Bond
(1884) 9 App. Gas. 715 (in appeal from Natal) ; Knocker v. Standard
Bk. [1933] A.D. 128; Southern Life Associations. Wright, ubi sup.
It was, and possibly still is, an unsettled question whether the
renunciation must be notarially executed. See V.d.K. 496 and
translator's note, ad loc. ; Kotz6, Van Leeuwen, vol. ii, p. 617,
where all the authorities are collected. In Natal Law 40, 1884 pro-
vides a form of renunciation. Caney says (p. 125): 'there seems no
question that outside of Natal an underhand renunciation suffices '.
7 Gr. 3. 3. 19; Voet, 16. 1. 10.
8 Ord. No. 18 of 1923, sec. 29.
9 Wessels, ii. 3872. By the Bills of Exchange Acts (e.g. Cape
Act 19 of 1893, sec. 54) renunciation of the benefits is not requisite
to the validity of a bill accepted or endorsed by a woman. But
this does not apply when a woman signs an 'aval' (Moti & Co. v.
Cassim's Trustee [1924] A.D. 720) or expressly as surety. National
Acceptance Co. v. Robertson [1938] C.P.D. 175.
SPECIAL CONTRACTS 317
well do what Henry IV did in France in 1606 — abolish
the benefits both of the senatus consultum Vdleianum and
the authentica si qua. They hinder trade, interfere with
credit, and are often the source of trickery.' It may be
added that all modern codes reject them.
By the Roman-Dutch common law a contract of surety- in Ceylon
ship need not be in writing. But in Ceylon1 no contract c°ntra°t8
for charging any person with the debt, default, or mis- ship must
carriage of another will be of force or avail in law unless
it be in writing and signed by the party making the same,
or by some person thereto lawfully authorized. In Natal
no action is maintainable on a contract of suretyship,
' unless and save so far as such contract shall be evidenced
by some writing'.2 This does not mean that the writing
must contain all the terms of the contract.3
In the Roman Law up to the time of Justinian a surety The
might be sued before the principal debtor.4 Justinian, how-
ever, required the creditor to excuss the principal before to sure-
pursuing the surety.5 If he failed to do so, in case the ies:
principal debtor was solvent and within the jurisdiction,
the surety might plead in his defence the beneftcium benefi-
ordinis sive excussionis.6 In the Roman-Dutch, differing C1.u™ ordl"
° nis sivc ex-
from the Roman Law, the surety has the further advantage cussionis;
that he may require the creditor to realize any real security
which he may have for his debt before seeking to render
the surety liable upon his personal obligation.7 In the
1 Ord. No. 7 of 1840, sec. 21.
2 Law 12 of 1884; supra, p. 227, n. 3.
3 Amod v. Parsotham [1929] N.P.D. 163.
4 Girard, pp. 802-3.
6 Nov. 4, cap. i (A.D. 535) ; Van Leeuwen, 4. 4. 7.
6 Gr. 3. 3. 27; Voet, 46. 1. 14; V.d.L. 1. 14. 10. Wolfson v.
Crowe [1904] T.S. 682; Worthington v. Wilson [1918] T.P.D. 104.
7 Placaat of Philip II, February 21, 1564 (1. G.P.B. 379); Gr.
3. 3. 32; V.d.K. 507. Lee, Commentary, p. 255 ; Serrurier v. Lange-
veld (1828) 1 Menz. 316. (But the benefit of the Placaat cannot
be set up by a surety who has expressly renounced the beneficium
ordinis sive excussionis. Ibid.) In Roman Law the rule was just
the other way ; viz. the creditor must excuss the surety personally
before pursuing the hypothecated goods of the debtor in the hands
of third parties. Nov. 4, cap. ii (A.D. 535).
318
THE LAW OF OBLIGATIONS
benefi-
cium divi-
sionis ;
benefi-
cium ce-
dendarum
actionum.
How
surety-
ship is
dis-
charged.
Roman-Dutch Law, as in the Roman, sureties may also
invoke the beneficium divisionis1 and the beneficium
cedendarum actionum.2 All these benefits may be re-
nounced.3 In the modern law, one of several joint sureties
who has paid the whole debt, and perhaps who has paid
more than a rateable share of the debt, is entitled to go
against his co-sureties for contribution without cession of
actions.4 He may also, in the absence of agreement to
the contrary, equally without cession of action, claim
reimbursement from the principal debtor, but he is not
obliged to go against the principal debtor before taking
proceedings against the co-surety.5
A contract of suretyship is discharged — not to speak of
incidents which affect any contract such as a time limit or
a resolutive condition — by any event which extinguishes
the principal debt and by any material variation of the
principal contract.6 If a creditor has released one of
several sureties the rest are discharged to the extent to
which they are thereby precluded from recovering contri-
bution from the released surety.7
1 Gr. 3. 3. 28; Voet, 46. 1. 21 ; V.d.L. 1. 14. 10.
2 Gr. 3. 3. 31 ; Voet, 46. 1. 27 ; V.d.K. 506 ; including any claims
which the creditor may have against a third party in respect of
the debt or default to which the suretyship relates. Yorkshire
Insurance Co. v. Barclay's Bank [1928] W.L.D. at p. 210; African
Guarantee Co. v. Thorpe [1933] A.D. 330.
8 Gr. 3. 3. 29 ; V.d.K. 502 ; and, in some places, says Van der
Keessel (Th. 503), are taken to have renounced them, if the
sureties bind themselves ' each for all ', or ' each as principal debtor '.
Cf. Gr. loc. cit. and Van der Vyver v. De Wayer (1861) 4 Searle
27. For del credere contracts see V.d.K. 504.
4 This is statutory in Natal (Law No. 9 of 1885), but the law is
the same in the other Provinces. Kroon v. Enschede [1909] T.S.
374; Nosworthy v. Yorke [1921] C.P.D. 404; Est. Steer v. Steer
[1923] C.P.D. 354; Pearce v. De Jager [1924] C.P.D. 455; Lever v.
Buhrmann [1925] T.P.D. 254; Moosa v. Mahomed [1939] T.P.D.
271.
6 Est. Steer v. Steer, ubi sup. ; Rutouritz's Flour Milh v. The
Master [1934] T.P.D. 163.
6 Brinkman v. McGill [1931] A.D. 303; Irwin v. Davies [1937]
C.P.D. 442. As to the effect of an extension of time given by the
creditor to the debtor see Est. Liebenberg v. Standard Bk. [1927]
A.D. 502.
7 Moosa v. Mahomed, ubi sup., at p. 285.
SPECIAL CONTRACTS 319
12. Carriage by land and by water.1 In the Roman 12. Car-
Law the section of the praetor's edict — de nautis, stabu- [anTand
lariis et cauponibus — made carriers by water, along with by water,
stable-keepers and innkeepers, the insurers of goods en-
trusted to them.2 Except in case of damnum fatale or of
vis major their liability was absolute.3 The language of
the edict does not in terms cover the case of carriers by
land, but in the modern law they must be taken to be
included within its scope.4 If it were not so they would be
liable as conductores operis to show the highest diligence,
but not answerable in damages except on proof of culpa.5
Carriers, stable-keepers, innkeepers, and keepers of
boarding-houses may retain the goods of their customers
until their reasonable charges are satisfied.6
1 Gr. 3. 38. 9; Van Leeuwen, 4. 2. 9; Voet, lib. iv, tit. 9;
3 Maasdorp, chap. 22; Wille & Millin, chap. 11.
2 Dig. 4. 9. 1 pr. Ait praetor nautae caupones stabularii quod
cuj usque salvum fore receperint nisi restituant in eos judicium
dabo.
3 Dig. 4. 9. 3, 1 . As to vis major see New Heriot G. M. Co. v. Union
Qovt. [1916] A.D. 415. As to contracting out, Burger v. Central
S. A. Rlwys. [1903] T.S. 571 ; S. A. Rlwys. v. Conradie [1922] A.D.
137. A notice posted up in an hotel purporting to limit the pro-
prietor's liability has no effect without proof that the client agreed
thereto. Davis v. Lockstone [1921] A.D. 153. In South Africa the
Praetors' Edict has been applied to the case of an hotel proprietor
in Davis v. Lockstone, ubi sup. See also Glover v. Finch [1921]
C.P.D. 358; Toy v. Blake [1923] C.P.D. 98; Koenig v. Godbold
[1923] C.P.D. 526.
4 Tregidga & Co. v. Sivewright N.O. (1897) 14 S.C. 86 per de
Villiers C.J. and Buchanan J., dissentiente Maasdorp J. This is
also the opinion of Mr. T. E. Donges in his careful study,- The Lia-
bility for Safe Carriage of Goods in Roman-Dutch Law (Juta & Co.,
1928). The South Africa Railway Administration is liable to the
extent above-mentioned. Act No. 22 of 1916, sec. 18 (1).
5 Postmaster General v. Van Niekerk [1918] C.P.D. 378. In
Ceylon by Ord. No. 22 of 1866 the law of England for the time
being is made applicable to all questions relating to carriers by
land. For innkeepers see Hotel Keepers' Liability Ord. No. 19 of
1916; for Carriage of Goods by Sea, Ord. No. 18 of 1926.
8 Van Leeuwen, 4. 40. 2, and Cens. For. 1. 4. 37. 8 and 9;
Anderson & Co. v. Pienaar & Co. [1922] T.P.D. 435 (cartage con-
tractors); Reed Bros. v. Ford [1923] T.P.D. 150 (livery-stable
keeper) ; Marais v. Andrews [1914] T.P.D. 290 (innkeeper — board-
ing-house keeper); Holmes Garage Ltd. v. Levin [1924] G.W.L. 58
(innkeeper) ; S. A. Philips (Pty) Ltd. v. Vermouth [1932] C.P.D. 377
(boarding-house keeper).
PART II
OBLIGATIONS ARISING FROM DELICT
The law THE second principal class of obligations is that which
isf(rin-t8 ai>ises fr°m delict. A delict is a wrongful act which
cipally grounds an action in favour of the person injured. In this
origin.11 n branch of law, as in others, the jus civile was received in
Holland. In the pages of Grotius and occasionally of Voet
we detect indications of a different order of ideas derived
from Teutonic sources. But the Roman Law drove the
native law out of the field. In the textbook writers, and
probably also in the practice of the Courts, of the eighteenth
century the Roman-Dutch law of delicts was based upon
the Roman Law expounded in the Institutes and the
Digest.
The The Roman law of delict, derived from the XII Tables
toeonTof anc^ fr°m a still more primitive customary law, came in
delict. time, thanks to the directing influence of jurists and of
praetors, to express a comprehensive theory of civil
liability. A few simple principles covered the whole
ground, and, adopted in modern codes, have been found
sufficient to provide for the complexities of modern life.
Dolus A man must see that he does not wilfully invade another's
and culpa. right, or, in breach of a duty, wilfully or carelessly cause
him pecuniary loss. If he does either of these things he is
Excep- answerable in damages. There may also be cases, resting
caseffof uPon a more archaic principle, in which he is answerable
absolute absolutely for damage which he has caused, though without
y' intention and without negligence. Such in a few words is
the Roman theory of delictual liability.
Defective In one respect the Roman law of delicts has suffered
termmo- fj-Qflj ^ne simplicity of its principles, namely, in its vocabu-
lary. It is convenient to distinguish by different names
the various groups of circumstances which give rise to
liability. The English Law — poor in principle, rich in
detail — does so. It distinguishes various heads of lia-
bility under the names of assault, trespass, libel, slander,
OBLIGATIONS ARISING FROM DELICT 321
malicious prosecution, and the rest. The Roman Law has
no such distinctions or corresponding terminology.
In South Africa and Ceylon the English law of torts has influence
imposed itself upon the Roman-Dutch law of delict much Sf **??,
as the Roman law of delict imposed itself upon the native law of
law of Holland. The adoption of English nomenclature *^8 H
has accompanied the adoption of much of the substance of colonies.
the English Law. The process has gone further in some
jurisdictions than in others, but in all the influence of
English Law has been very great. The Union of South
Africa, here as elsewhere, is most retentive of the Roman-
Dutch common law. In Ceylon the reception of the English
Law has gone further.
The course of events briefly described in the foregoing Difficulty
paragraphs makes it a matter of some difficulty to apply
to the law of delict the method of treatment applied in presenta-
this volume to other departments of the Roman-Dutch
Law. In writing of the law of persons, of things, and of
contract, we have tried to build upon the foundations laid
in the seventeenth century .by Grotius, Van Leeuwen, and
Voet and in the eighteenth and early nineteenth centuries
by Bynkershoek, Van der Keessel, and Van der Linden.
For the law of delict the foundations are wanting or must
be sought in the pure Roman Law (which we suppose to
be known to our readers), while the superstructure, as
observed above, is largely English in character. In this Method
chapter we shall state shortly the principles of the Roman- op e
Dutch law of delict so far as it is at all applicable to the
conditions of modern life, and indicate how far these
principles are still in force. The example of modern codes
may be pleaded in justification of this summary treatment
of the law of delict in general.1 For the convenience of
students the law of defamation will be considered rather
more in detail.
1 The law of delict occupies in the French Code five articles
(1382-6), in the Dutch sixteen (1401-16), in the German thirty-one
(823-53) ; in the Swiss Code des Obligations twenty -one (41-61). In
the Digest of English Civil Law (ed. E. Jenks) it has been found pos-
sible to compress the law of torts into about three hundred articles.
4901 v
322 THE LAW OE OBLIGATIONS
Any wrongful act or omission which grounds an action,
i.e. any act or omission which is wrongful in law, is known
The in Roman Law as an injury. 'Generaliter injuria dicitur
meaning omne quod non jure fit.'1 An injury may or may not cause
of injuria. pecuniary loss (damnum), but every injury gives rise to a
claim for pecuniary compensation (id quod interest — schade
en interessen — damages). In some cases there is no injury
and right of action unless pecuniary loss is proved; in
Injuria other cases there is an injury and right of action, whether
damno. pecuniary loss is proved or not (injuria sine damno) ; in
Damnum others pecuniary loss may be proved, and yet no action
injuria. lies (damnum sine injuria), because the law does not con-
demn either the act in itself or the act together with the
consequent loss as constituting a legal wrong.2
Classifica- The classification of delicts is a matter of some difficulty.
deUcts- ^n *ke R°man Law the principal delicts were four in
in Roman number: viz. (1) furtum; (2) rapina; (3) damnum injuria
datum ; (4) injuria (specifically so-called). Since rapina was
merely an aggravated form of furtum, the principal heads
of delict may be reduced to three. This classification,
however, is by no means exhaustive. There were other
grounds of liability such as dolus, and there were certain
quasi-delicts which differed from true delicts in little but
in name.
inGrotius, In writing of delicts proper Grotius and Van Leeuwen
Leeuwen adopt a different arrangement.3 In their system delict
(misdaad) is directed: (1) against life; (2) against the
person ; (3) against freedom ; (4) against honour ; and (5)
against property. Both these writers treat the subject of
wrongs principally from the point of view of crime. Van
and Van der Linden4 follows their lead except that he includes
den. m 'wrongs against freedom 'under the head of wrongs against
honour, thus making four classes in place of five.
1 Inst. 4. 4 pr.
2 Thus in Oreyvensteyn v. Hattingh [1911] A.C. 355; [1911] A.D.
358 it was held that no action lay against an adjoining owner who
hindered locusts from settling on his own land with the result that
they settled on the land of the appellant.
3 Gr. 3. 33. 1 ; Van Leeuwen, 4. 32. 9. * V.d.L. 1. 16. 1.
OBLIGATIONS ARISING FROM DELICT 323
Neither the Roman nor the Dutch arrangement is com- Classifi-
pletely satisfactory. In this chapter we shall speak of: — adopted
1. Wrongs against the person ; chapter.
2. Wrongs against property ;
3. Wrongs against reputation ;
4. Wrongs against the domestic relations ;
5. Breach of a statutory or common law duty ;
6. Wrongs other than the above mentioned.
But first a few words must be said about the theory of General
delictual liability in general, which is essentially the same delicts in
as in Roman Law. Roman-
In the modern law the Roman terminology serves as a Law.
general touchstone of liability. The underlying principles
of injuria and damnum injuria datum are applicable to all
kinds of delict. Today all delictual liabilities (with few DOIUS an(j
exceptions) are referable to one or other of these two culpa.
heads. I am answerable for wilful aggression on another's
right (injuria), though it may not cause pecuniary loss. I
am answerable for wilful or careless aggression on another's
right which causes pecuniary loss (damnum injuria datum).
In the first case I am liable for 'sentimental damages', Damages
i.e. I must compensate the plaintiff for the affront upon
his person, dignity, or reputation,1 the assessment of the and patri-
damages being in the discretion of the Court. In the m
second case I am liable for 'patrimonial damages', i.e. I
must compensate the plaintiff for the reduced value of his
patrimony (or estate) consequent upon my wrongful act,
whether this consists in positive loss direct or indirect
(damnum emergens) or in loss of prospective gain (lucrum
cessans). In addition to this, the Dutch Law, differing from
the Roman Law, allowed a plaintiff under the head of
damnum to claim compensation for physical pain andiiis-
figurement.2 From this it is evident that a wilful wrong
may give rise to a claim under both heads of liability, and
1 Omnemque injuriam [Labeo ait] aut in corpus inferri aut ad
dignitatem aut ad infamiam pertinere. Dig. 47. 10. 1. 2.
a Gr. 3. 34. 2; Union Govt. v. Warneke [1911] A.D. at p. 665.
324 THE LAW OF OBLIGATIONS
by the modern practice claims under both heads may be
asserted in the same action.1
Ante- It is common to both heads of liability that there must
cedent have been an antecedent duty owed by the defendant to
the plaintiff, for where there is no duty there is no right,
and there can be no invasion of a right. If the wrong is
intentional there is little difficulty, because the list of
intentional wrongs is fairly accurately defined. But there
is more difficulty in determining the scope of the duty to
take care. Attempts to find a positive formula have not
proved very successful.2 The degree of care which a man
is called upon to exercise varies with the circumstances,
and is the care which in the circumstances would be
exercised by the reasonable man.
' Legal negligence consists in a failure to exercise that degree
of care which, under the circumstances, it was the duty of the
the person concerned to use towards another. . . . Such a duty
may arise in various ways. It may be specially imposed, as by
a statute; but, speaking generally, it either springs from a
privity of relationship (contractual or other) between the
parties concerned, or it is created by the circumstances of
the case.'3
'It has repeatedly been laid down in this Court that account-
ability for unintentional injury depends upon culpa — the
failure to observe that degree of care which a reasonable man
would have observed. I use the term reasonable man to denote
the diligens paterfamilias of Roman Law — the average prudent
person. . . . Once it is clear that the danger would have
been foreseen and guarded against by the diligens paterfamilias,
the duty to take care is established, and it only remains to
ascertain whether it has been discharged.'4
English I* nas been said that the duty to take care is wider in
and Roman-Dutch Law than in English Law. The difference,
Dutch so far as there is any, consists not in the principle to be
Law- applied, for the bonus paterfamilias is hardly distinguish-
1 Matthews v. Young [1922] A.D. at p. 505.
2 McKerron, p. 39.
3 Union Oovt. v. National Bk. ofS. A. [1921] A.D. at p. 128 per
Innes C.J.
4 Cape Town Municipality v. Paine [1923] A.D. at pp. 216-17
per Innes C.J. ; Stride v. Reddin N.O., 1944 (1) P.H., O. 1 [A.D.].
OBLIGATIONS ARISING FROM DELICT 325
able from 'the reasonable man',1 but in the consequences
derived from it. The South African Courts, for example,
have not followed the English Law in distinguishing
sharply the duty which an occupier owes to the invitee,
the licensee, and the trespasser, and in such cases, as well
as in others, have been inclined to go further than the
English courts in recognizing a duty of taking care.2
It must be observed that mere omission does not in Mere
general constitute culpa, but where there is prior conduct ^
of such a kind as gives rise to a duty to do an act, the culpa.
omission to do that act may ground an action for negli-
gence.3 Thus a surgeon need not operate, but if he does, he
must take reasonable steps to secure the well-being of his
patient.4 In South Africa a municipality is not bound to
repair the roads within its area, but if it does it must not
introduce a new source of danger into the street without
taking proper precautions to prevent consequent injury
to the public.5
The burden of proving negligence falls, of course, on the Res ipsa
person who alleges it. But there are cases in which the lovuitur-
facts speak for themselves (res ipsa loquitur), as when a
barrel of flour fell from an upper floor of a warehouse
and injured a person passing in the street.6 In such cir-
cumstances the mere fact of the accident is relevant evi-
dence of negligence on the part of the person in control,
which the defendant is called upon to rebut ' by giving an
1 Buckland and McNair, Roman Law and Common Law, p. 287 ;
Macintosh, Negligence in Delict (2), p. 13.
2 Cape Town Municipality v. Paine [1923] A.D. at p. 216;
Perlman v. Zoutendyk [1934] C.P.D. at p. 158. (Contrast Le Lievre
v. Gould (1893) 1 Q.B.D. 491, but see McKerron's comment, The
Law of Delict, p. 209.)
3 Voet, 9. 2. 3 ; Halliwell v. Johannesburg Munic. Council [1912]
A.D. at p. 670; Union Govt. v. Nat. Bk. of S. A. [1921] A.D. at
p. 134; S. A. Rlwys. v. Est. Saunders [1931] A.D. 276.
4 Dig. 9. 2. 8 pr. 6 McKerron, p. 23.
6 Byrne v. Boodle (1863) 2 H. & C. 722; Jenks, sec. 1060.
Mitchell v. Maison Libson [1937] T.P.D. 13; Fisher v. Coleman
[1937] T.P.D. 261 ; Naude N. 0. v. Transv. Boot & Shoe Co. [1938]
A.D. 379. The majority judgment in Hamilton v. MacKinnon
[1935] A.D. 114, 346, has been much criticized. See Mr. Ian
Murray's article in 53 S.A.L.J., p. 8, and McKerron, p. 50.
326 THE LAW OF OBLIGATIONS
explanation of the accident, which either excludes negli-
gence on his part or is equally consistent with negligence,
or no negligence'.1 But, as has often been pointed out,
there is no shifting of the burden of proof. It is always
incumbent on the plaintiff to make out his case.
Contri- The most frequent defence in actions for negligence is
negU^ *na* *ne damage was due wholly or in part to the plaintiff's
gence. Own negligence. This is what is called the plea of contri-
butory negligence ; and the law which has grown up with
regard to it is known as the doctrine of contributory
negligence. To-day it has few, if any, friends, and should
be superseded by the Admiralty rule of apportioned respon-
sibility.2 It is unfortunate that this doctrine has been
admitted into the law of South Africa.3
Excep- So far we have considered the general principles of
from the delictual liability in Roman-Dutch Law, which are derived
general from the delicts injuria and damnum injuria datum and
ofliabi- the corresponding actions. Between them they cover
Mty- nearly the whole field of delict. But, as will be seen, there
are cases in which both dolus and damnum must be
present in order to constitute legal liability and there are
a few cases of absolute liability. We now proceed to con-
sider specific delicts as classified above.
Specific 1. Wrongs against the person. To this head may be
delicts. referred the wrongs which in English Law are known as
againft8 assault, battery, false imprisonment, malicious arrest. If
the the wrongful act is an intentional aggression the plaintiff
recovers damages measured in the discretion of the Court
by the nature of the outrage. If the act is unintentional
but careless the plaintiff is entitled to compensation for
1 McKerron, p. 47.
2 This has in effect been done for England and Scotland by the
Law Reform (Contributory Negligence) Act, 1945.
3 McKerron, pp. 59-75. The following recent cases may be
consulted : Sutherland v. Banwell [1938] A.D. 476 ; Bower v. Hearn
[1938] N.P.D. 399 (contributory negligence of child of tender
years) ; Pretorius v. African Gate & Fence Works Ltd. [1939] A.D.
571 ; Franco v. Klug [1940] A.D. 126; Bona Pierce v. Hau Mon
1944 (1) P.H., O. 10 [A.D.]; and see 'Causation and Legal Re-
sponsibility', by Aquarius, 62 S.A.LJ. (1945), p. 126.
OBLIGATIONS ARISING FROM DELICT 327
actual damage, if proved. In this case the action is usually
termed an action for negligence.
In principle, then, there is no liability without dolus or
culpa. But in South Africa it will be no defence to an action
for false imprisonment to plead that the defendant acted in
good faith and without negligence.1 This is a departure
from principle due to the fact that this action, like the
action for malicious arrest and the action for malicious
prosecution (of which we shall speak hereafter) is derived
from English Law and governed by English precedents.
The action for seduction (defloratie) may be conveniently Action for
mentioned under the head of wrongs against the person. lon'
It is an action derived from the Canon Law by which a
man who seduced a virgin was required to give her a
dower and to marry her — dotabit earn et habebit uxorem.
By the law of many parts of Germany and of Holland the
seducer was given the alternative. Aut was substituted
for et.2 By the Dutch Law a virgin who had been seduced
might bring an action requiring the defendant to marry
her, or, if he would not do so, to compensate her for the loss
of her virginity, and if she were with child also for her
lying-in expenses (kraam-kosteri) .3 'The man was bound
aut ducere aut dotare, the option of choice being his alone.'4
In the modern law the action lies for damages only.5 This
action has no resemblance to the English action for seduc-
tion which a father can bring for the pretended loss of his
daughter's services. But the father may sue for, lying-in
expenses if he has defrayed or made himself liable for
them.6
Voet says that the action for seduction does not lie if the
1 McKerron, p. 124.
2 Stobbe, Deutsches Privatrecht, iii. 530.
3 Gr. 3. 35. 8 ; Voet, 48. 5. 3 ; Botha v. Peach [1939] W.L.D. 153.
4 Bensimon v. Barton [1919] A.D. at p. 17.
6 As to what may be claimed under the head of damages see
M'Guni v. M'twali [1923] T.P.D. 368; Els v. Mills [1926] E.D.L.
346. As to the term of prescription in the action for seduction see
Carelse v. Estate De Vries (1906) 23 S.C. at p. 539. The term is
now three years. Prescription Act, 1943, sec. 3 (2), c. (vi).
6 Webb v. Langai (1884) 4 E.D.C. 68.
328
THE LAW OF OBLIGATIONS
Wrongs
against
property.
woman knew that the man was married, or declined to
marry him, or could never lawfully marry him, or had
married someone else.1 In South Africa the Appellate
Division has held by a majority that the fact that the
plaintiff knew at the time of her seduction that her seducer
was a married man is no bar to the action.2 The seducer
is liable in any event for lying-in expenses, for reasonable
maintenance for the child, and for funeral expenses, if
the child dies.3 But this liability is a consequence not of
seduction but of paternity.4
2. Wrongs against property. Any wrongful inva-
sion of another's right to own, to possess, or to detain, is
actionable.5
The corresponding actions in English law are conver-
sion, detinue, trespass to land and to goods.
Damage to property falls under the same head. In this
case, if the act which caused the damage was unintentional
but negligent, the action is usually termed an action for
negligence.
The law of nuisance has been borrowed from, or coin-
cides with, the English law.6
1 Voet, 48. 5. 4.
2 Bensimon v. Barton [1919] A.D. 13. The opposite view was
taken by the Ceylon S.C. in Meenadchipillai v. Sanmugam (1916)
19 N.L.R. 209. It has been held in two cases (Mulholland v.
Smith (1910) 10 H.C.G. 333 ; Delport v. Ah Yee [1913] E.D.L. 374)
that the Marriage Order in Council having abolished the action
to compel marriage, an offer of marriage on the part of the defen-
dant is no longer a defence to plaintiff's action for damages. On
this point Innes C. J. reserved his opinion. Bensimon v. Barton at
p. 23.
8 Voet, 48. 5. 6; V.d.L. 1. 16. 4; Kalamie v. Armadien [1929]
C.P.D. 490. * Jacobs v. Lorenzi [1942] C.P.D. 394.
6 Gr. 3. 37. 5; Voet, 9. 2. 10; Maraisburg Dims. Council v.
Waagenaar [1923] C.P.D. 94. A person in possession of a car under
a hire-purchase agreement has sufficient title to sue for damage
to the car. Sulaiman v. Amardien [1931] C.P.D. 509.
6 See for instance Demerara Electric Co. Ltd. v. White [1907]
A.C. 330 (Brit. Gui.) ; Bloemfontein Town Council v. Richter [1938]
A.D. at p. 229; McKerron, p. 215. But the liability of an owner
of land in respect of excavations near a public road which may
be a source of danger is determined by the law of culpa, not, as
in English Law, by the law of nuisance. Transv. & Rhodesian
Estates Ltd. v. Golding [1917] A.D. per Innes C.J. at p. 28.
OBLIGATIONS ARISING FROM DELICT 329
In regard to trespass to land the modern Roman-Dutch Trespass
Law retains its original character. An action will not lie to
unless the trespass was 'injurious' or caused damage.1 A
trespass is injurious when it is committed in defiance or
denial of another's right or accompanied by circumstances
of insult or contumely. This is but one illustration of the
principle, now generally accepted, that actual damage is
a necessary ingredient of any claim for damages based on
delict, unless (a) the action, though in form one for damages,
is brought to establish a right challenged by the defendant,
or (6) the act complained of was done in circumstances
amounting to contumelia.2
It may seem out of place to mention offences against Action for
life under the head of wrongs against property, but the J,°SySed bv
action which the law gives to the dependent relatives of a death,
deceased person is in fact referable to this title. Such
persons if they have suffered pecuniary loss by the death
may maintain an action for damages against the person by
whom the death was intentionally or negligently caused.3
Thus, children may sue on account of the death of parents,4
or parents on account of the death of children.5 A husband
may recover patrimonial damages for his wife's death, but
not compensation as solatium for the loss of his wife's
society.6
Where an action lies to recover damages for fatal in- Or for
juries, it may also be brought for injuries which are not s°rtices
fatal, if the plaintiff has suffered pecuniary loss through or main-
being deprived of services or maintenance to which he had
a legal claim. Thus, a father may sue for the loss of the
1 Edwards v. Hyde [1903] T.S. at p. 387 per Solomon J. ; Rich-
mond v. Chadwick [1927] N.P.D. 92; De Villiers v. Barlow [1929]
O.P.D. at p. 57; Vanston v. Frost [1930] N.P.D. 121.
2 Richmond v. Chadwick, ubi sup.
3 Gr. 3. 32. 16; 3. 33. 2; Van Leeuwen, 4. 34. 15; Voet, 9. 2. 11.
See, for a discussion of this action, Union Oovernment v. Warneke
[1911] A.D. 657, and Union Qovt. v. Lee [1927] A.D. 202.
4 Jameson's Minors v. C.S.A.R. [1908] T.S. 575 (father) ; Young
v. Button [1918] W.L.D. 90 (mother).
6 Oosthuizen v. Stanley [1938] A.D. 322.
6 Steenkamp v. Juriaanse [1907] T.S. 980; Union Govt. v.
Warneke, ubi sup.
330 THE LAW OF OBLIGATIONS
services of his minor child,1 and a husband for the loss of
the services of his wife.2 But it has been held that a wife
has no corresponding right of action in respect of injuries
sustained by her husband, the ground of the decision being
that the husband can recover compensation for his dimi-
nished earning capacity and the wife would be no worse
off than she was before.3 In all these cases it must appear
that the person killed or injured owed a legal duty to
furnish maintenance or services,4 and the plaintiff must
allege in his declaration that he was unable to support
himself and that there was thus a necessity for the main-
tenance alleged to be lost.5 The measure of damages is
the amount by which the resources of the plaintiff, actual
and prospective, have been diminished in consequence of
the death or injury,6 or the cost of replacing the services
of which he has been deprived.7 Where death is the cause
of action it is no defence to show that the negligence of the
deceased was a contributory cause of the fatal accident.8
(It seems that this does not apply to non-fatal injuries.)9
Nor is it any defence that the deceased before his death
accepted a sum of money in full satisfaction of his claim
for damages.10
Wrongs 3. Wrongs against Reputation. All the authorities
reputa- agree that an action lies for written or spoken defamation.
tion. Grotius devotes a short chapter to lastering or misdaed
jegens eer which he describes as an outrage upon 'the
1 Gr. 3. 34. 3; Voet, 9. 2. 11 ; Abbott v. Bergman [1922] A.D. at
p. 56.
2 Abbott v. Bergman, ubi sup.
3 De Waal v. Messing [1938] T.P.D. 34.
4 Union Qovt. v. Warneke, ubi sup. at p. 666 per Innes J.A.
In the same case (p. 672) De Villiers J.P. said that a duty ex pietate
would be enough, but this view has not prevailed.
6 Waterson v. Mayberry [1934] T.P.D. 210 ; Oosthuizen v. Stanley
[1936] W.L.D. 110.
8 Voet, 9. 2. 11; Jameson's Minors v. C.S.A.R., ubi sup.;
Hulley v. Cox [1923] A.D. 234; Smart v. 8. A. Rlwys. [1928]
N.P.D. 361.
7 Union Qovt. v. Warneke, ubi sup. at p. 669.
8 Union Qovt. v. Lee, ubi sup.
9 De Waal v. Messing, ubi sup.
10 Ex parte Oliphant [1940] C.P.D. 537.
OBLIGATIONS ARISING FROM DELICT 331
good opinion which others have of us '-1 Van Leeuwen, in
his corresponding chapter speaks of outrage upon a man's
'honour and good name'.2 Both these writers evidently
regard defamation as a species of injuria, which, as we
read in the Digest, is a wrong directed against a man's
person or affecting his dignity or reputation.3 If this
identification is correct the animus injuriandi is of the
essence of the delict. This, however, is not the law ; for, The
if the language complained of is clearly defamatory in
character, the intention to injure will be presumed,4 and
proof that a defamatory statement concerning the plain-
tiff was made with no intention of injuring him is no defence
to an action for defamation.5 'The Court cannot dive into
the mind of a defendant ; it can only interpret his lan-
guage as it would be understood by reasonable men ; he is
assumed to have meant what his language thus interpreted
would convey.'6 In short, the injurious mind, required by
the modern Roman-Dutch Law, in cases of defamation
amounts to little, if to anything, more than the implied
malice of English Law. The essential thing is publication,
and ' the wrong of defamation consists in the publication
of defamatory matter concerning another without lawful
justification'.7 In other respects too, the English Law is
followed closely, or with variations. But in two important
particulars there is a difference between the two systems :
(1) the Roman-Dutch Law does not distinguish between
spoken and written defamation. Where words are defama-
tory they are prima facie actionable and it is unnecessary,
whether they be spoken or written, to give proof of special
1 Gr. 3. 36. 1.
2 Lib. iv, cap. xxxvii. For defamation of the dead and conse-
quent actions see Voet, 4. 10. 5 ; Spendiff v. East London Daily
Despatch Ltd. [1929] E.D.L. 113; and Dr. F. P. Walton in Journ.
Comp. Leg. (1927), vol. ix, pt. i. 8 Supra, p. 323.
4 Voet, 47. 10. 20. 6 Tothill v. Foster [1925] T.P.D. 857.
6 Suiter v. Brown [1926] A.D. at p. 163 per Innes C.J. The
question whether Hulton v. Jones [1910] A.C. 20 can be reconciled
with the law of South Africa (McKerron, p. 175) has been re-
opened by Newstead v. London Express Newspaper Ltd. [1940]
1 K.B. 377.
7 McKerron, p. 165.
332 THE LAW OF OBLIGATIONS
damage j1 and (2) the truth of a defamatory statement is
not (it seems) per se a defence in an action for defamation.2
Defences The principal defences to an action for defamation are
for^efa" t^ie same as *n English Law ; viz. Justification,3 Privilege,4
mation. and Fair5 Comment. But there are differences of detail.
1. Justification. It is generally held that truth in
itself is not a justification. It must be shown that the
publication of the truth was for the public benefit.6 The
law of South Africa may perhaps be taken to be settled
in this sense,7 though it has been said that 'technically
it is still an open question whether "public benefit" is a
necessary part of a defence of justification'.8 But the
truth of a defamatory statement may be pleaded in miti-
gation of damages.9 In Ceylon the question seems to
be not merely ' technically ' open, for in a case appealed to
the Privy Council, Lord Alness, speaking for the Board
said, 'The existing law would appear from the argument
which their Lordships heard to be far from clear and on it
their Lordships offer no opinion'.10
2. Privilege. The only case of absolute privilege cer-
tainly admitted by the law of South Africa is the statutory
protection extended to speeches in Parliament and to
papers published by authority of Parliament and its com-
mittees.11 Other cases are cases of qualified privilege, i.e.
I 4 Maasdorp, p. 136; (Ceylon) Wickremanayake v. The Times
of Ceylon (1937) 39 N.L.R. 547. 2 McKerron, p. 165.
3 Johnson v. Rand Daily Mails [1928] A.D. 190.
4 De Waal v. Ziervogel [1938] A.D. 112.
6 Moolman v. Cull [1939] A.D. 213.
6 Gr. 3. 36. 2 ; Voet, 47. 10. 9. Secus, V.d.K. 803 (Lee, Commen-
tary, p. 342) ; and see Kotze, Van Leeuwen, vol. 2, p. 296.
7 Botha v. Brink [1878] Buch. at p. 123 ; Ceylon law is the same.
Chelliah v. Fernando (1937) 39 N.L.R. 130.
8 Toerien v. Duncan [1932] O.P.D. at p. 145 per de Villiers J.P.
* Leibenguthv. Van Straaten [1910] T.P.D. 1203; Willoughby v.
McWade [1932] C.P.D. 66.
10 Sabapathi v. Huntley (1937) 39 Ceylon N.L.R., 396.
II Powers and Privileges of Parliament Act, 1911, sees. 2, 8, 29.
There may be other cases. ' If the duty to communicate a third
party's statement to another is absolute, then it seems to me, the
privilege must be absolute.' Sather v. Orr [1938] A.D. at p. 439
per Stratford C. J.
OBLIGATIONS ARISING FROM DELICT 333
they afford a prima facie defence which may be displaced
by proof of a positive animus injuriandi,1 the so-called
express malice of English Law. Thus, neither advocates,2
nor attorneys,3 nor witnesses,4 nor, it seems, judges5 enjoy
more than a qualified privilege. It must further be noted
that qualified privilege is not available as a defence to
a person who has published defamatory matter beyond
what was reasonably required by the exigency of the occa-
sion.6 In such case it is not incumbent on the plaintiff to
give proof of an animus injuriandi.
3. Fair Comment. The defence of fair comment is the
v same in South African as in English Law.7
There are some other defences of less frequent occur-
rence, such as rixa (quarrel).8 This is the plea that the
words were spoken in sudden anger without premeditation
and in reasonable retaliation for provocation from the side
of the plaintiff, and were not persisted in. This seems to
come very near to what English lawyers call ' vulgar abuse '.9
1 Kleynhans v. Usmar [1-929] A.D. at p. 126; Hazaree v.
Kamaludin [1934] A.D. 108; Gluckman v. Schneider [1936] A.D.
151; Young v. Kemsley [1940] A.D. 258; Molepo v. Achterberg
[1943] A.D. at p. 111.
2 Preston v. Luyt [1911] E.D.L. 298; Findlay v. Knight [1935]
A.D. 58.
3 Gluckman v. Schneider, ubi sup. ; Solomon v. Van Leggelo [1938]
T.P.D. 75.
4 Dippenaar v. Hauman [1878] Buch. at p. 140; Goldseller v.
Kuranda [1906] T.H. 185; MacGregor v. Sayles [1909] T.S. 553;
Van Rensburg v. Snyman [1927] O.P.D. 123. Secus in Ceylon.
Silva v. Balasuriya (1911) 14 N.L.R. 452; Leisa v. Siyatuhamy
(1925) 27 N.L.R. 318.
6 Gr. 3. 37. 9 (Lee, Commentary, ad loc.); Voet, 47. 10. 2;
Preston v. Luyt, ubi sup. at p. 311 ; Norden v. Oppenheim (1846)
3 Menz. at p. 54; Cooper v. The Government [1906] T.S. 436;
Matthews v. Young [1922] A.D. at p. 493 (authorities cited by
counsel).
6 McKerron, p. 192, citing Adam v. Ward [1917] A.C. at p. 321 ;
Molepo v. Achterberg [1943] A.D. 85 ; (Ceylon) Chelliah v. Fernando
(1937) 39 N.L.R. 130.
7 Moolman v. Cull [1939] A.D. 213; McKerron, p. 192.
8 Glass v. Perl [1928] T.P.D. 264; Kirkpatrick v. Bezuidenhout
[1934] T.P.D. 155.
9 Gatley, Libel and Slander (3) pp. 56, 141 ; Alia v. Thaba [1939]
N.P.D. 231.
334 THE LAW OF OBLIGATIONS
Other defences hardly, if at all, distinguishable from
rixa are retorsion or self-defence,1 and compensation,
which rests upon the principle of ' tit for tat ' — paria de-
licta mutua compensatione tolluntur.2 But the essence
of the thing is that words spoken in anger are not taken
seriously by impartial hearers any more than words
spoken in jest.3
Publica- The question has been raised whether publication is
necessary to ground an action for defamation and has been
defama- answered affirmatively.4 But the question rests upon a
misconception. Defamation is an injury to reputation,
which necessarily implies publication. I may also have an
action for injury to my feelings, but that is another matter
to be considered below.
The law of From what has been said it will be apparent that if the
tion foundation of the South African law of defamation is to be
largely sought in the Roman-Dutch Law, the superstructure con-
in118 sists in very large measure of material taken from the Law
character. of England.5
o
Malicious Malicious prosecution is akin to defamation and should
be governed by the same rules. In Holland private prose-
cutions for crime were infrequent, and the books speak on
this topic with uncertain voice. The writers of the seven-
teenth century give some indications that any prosecutor
who failed to secure a conviction exposed himself to an
action for damages. In the eighteenth century it seems
probable that he would not have been liable in the absence
of affirmative proof of injurious intent. However this may
be, the question is merely of historical interest, for the
modern Roman-Dutch Law has adopted the English law
1 Wilkinson v. Trevett [1922] C.P.D. 393; Tietze v. Woschnitzok
[1929] S.W.A. 39.
2 Holl. Cons. v. 81 ; Lachter v. Glaser [1914] T.P.D. 461 ; Harris
v. A. C. White Co. Ltd. [1926] O.P.D. 104.
3 McKerron, p. 198.
4 Hall v. Zietsman (1899) 16 S.C. 213; Van Vliefs Collection
Agency v. Schreuder [1939] T.P.D. 265.
8 Some more cases relating to special aspects of the law of
defamation are collected in an Appendix to this chapter.
OBLIGATIONS ARISING FROM DELICT 335
of malicious prosecution, which requires the plaintiff to
establish not merely the element of malicious intention but
also the absence of reasonable cause.1 The same principles
apply to other abuses of legal process such as maliciously
instituting civil proceedings.2
In Holland and Germany actions for injury were brought
very frequently and upon the slightest occasion. By his
statement of claim the plaintiff asked for 'amende honora-
bel' and 'amende profitabel'.3 The first was an apology Amende
from the defendant. The second consisted in a sum of £ £1^£e
money to be paid to the plaintiff or applied to the use of tabel.
the poor. In the modern law the amende honorabel is no
longer in use ; the action for damages remains.
The action for defamation is only one aspect of the actio Affront,
injuriarum, which lay also for an outrage upon a person's
dignity. This is injuria in the specific sense of contumelia
(Dutch hoon).4 The gist of the action is the affront. In
the modern law the action for defamation has pushed the
action for affront into the background or out of sight. But
it unquestionably exists5 as in Scots Law,6 though it is
not an action which one would wish to see encouraged.
In the Roman Law an injury to wife, child, or servant Injuries
was construed as an injury to the husband, parent, or
master.7 There are South African cases in which an insult
to, or defamation of, a wife has been held to give the
husband a cause of action.8
1 Corea v. Peiris [1909] A.C. 549; McKerron, p. 246. "
2 Boshoff v. Van Zyl [1938] C.P.D. 415; Cole's Est. v. Oliver
[1938] C.P.D. 464; (Ceylon) Cooray v. Fernando (1941) 42 N.L.R.
329.
3 Gr. 3. 35. 2; 3. 36. 3; Voet, 47. 10. 17; V.d.L. 1. 16. 4.
4 Grotius distinguishes hoon and lastering (Gr. 3. 35 and 36),
Van Leeuwen (4. 37. 1) does not.
5 Whittington v. Bowles [1934] E.D.L. 142; Mulock-Bentley v.
Curtoys [1935] O.P.D. 8; Walker v. Van Wezel [1940] W.L.D. 66.
6 Mackay v. McCankie, 1883, 10 R. 537.
7 Inst. 4. 4. 2 ; and see Gr. 3. 35. 6 and Voet, 47. 10. 6.
8 Banks v. Ayres (1888) 9 N.L.R. 34; Jacobs v. Macdonald
[1909] T.S. 442. In the Ceylon case of Appuhami v. Kirihami
(1895) 1 N.L.R. 83 it was said that a father is not entitled to sue
for words defamatory of his daughter, although he may have felt
pained and distressed. See also Miller v. Abrahams [1918]C. P. D. 50.
336
THE LAW OF OBLIGATIONS
Wrongs
against
the
domestic
relations.
Breach of
statutory
or com-
mon law
duty.
4. Wrongs against the domestic relations. An
action for damages lies against an adulterer, which is
usually, but not necessarily, combined with the action for
divorce against the guilty spouse,1 but no action for
damages lies against a guilty wife or husband.2 In the
action against the adulterer the husband may claim not
only sentimental, but also patrimonial, damages ; the first
'on the ground of the injury or contumdia inflicted' upon
him, the second 'on the ground of the loss of the comfort,
society, and services of his wife'. If he condones his wife's
adultery and continues to live with her, the second ground
of damage falls away, but not necessarily the first. The
measure of damages (if any) recoverable under this head
depends upon the circumstances.3 Whether an injured wife
can maintain an action for damages against a female co-re-
spondent remains uncertain. The decisions are conflicting.4
Apart from adultery a husband has an action against one
who in bad faith deprives him of the consortium of his wife
(abduction — harbouring).5 Whether a wife has an action
for the loss of the society of her husband must be regarded
as an open question.6 A father (semble) has an action
against one who in bad faith takes from him his child.7
5. Breach of a Statutory or Common Law Duty. In
either case the person committing the delict is liable to
an action at the suit of any one of the public who has
sustained special damage in consequence.8 Thus it is the
duty of a gaoler to keep safely every prisoner lawfully
confined. If he illegally allows his prisoner to escape he is
1 Gr. 3. 35. 9; Norton v. Spooner (1854) 9 Moo. P.C.C. 103;
Sutcliffe v. Sutcliffe [1913] T.P.D. 686; Viviers v. Kilian [1927]
A.D. 449. 2 Exparte A.B. [1910] T.S. 1332.
3 Viviers v. Kilian, ubi sup. * McKerron, p. 161.
6 Union Govt. v. Warneke [1911] A.D. at p. 667; (Ceylon) De
Silva v. De Silva (1925) 27 N.L.R. 289.
' McKerron, p. 164; recently decided affirmatively by Black-
well J. in Rosenbaumv.Margolis, 1944 (1) P.H., B. 33 [W.L.D.].
7 The theft of a filius or of a slave constituted the crime of
plagium which was severely punished. Voet, 48. 15. There is a
strange want of authority for a civil action.
8 Begemann v. Cirota [1923] T.P.D. 270 (action by shopkeeper
against hawker for illegal trading in breach of statute).
OBLIGATIONS ARISING FROM DELICT 337
answerable in damages.1 The harm in respect of which an
action is brought for breach of a statutory duty must be
of the kind which the statute was intended to prevent,2 and
must be the immediate result of the breach of the statute.3
If a statute creates a special obligation and prescribes a
special remedy, as a rule no other remedy is available.4
6. Miscellaneous wrongs. There are many wrongs Miscei-
which do not come within any of the above-mentioned
classes. In Roman Law the actio doli lay in any case in
which the plaintiff had been cheated by the defendant, and
had no other remedy, but nowadays the action for deceit is
governed by the same principles as in English Law.5 The
question remains open whether an action lies for negligent
statements which cause damage.6 For the rest, it is obvious
that the Roman-Dutch Law is inadequate to resolve all
the complex situations of modern life. The old writers may
suggest an argument, but hardly supply an answer. The
Courts in the absence of legislation will be guided, or aided,
more by British and American decisions than by text-
writers of the seventeenth and eighteenth centuries.7
There is a wrong to which Salmond gives the name of Injurious
'injurious falsehood', of which slander of title and slander
of goods may be regarded as varieties. This consists in the
malicious publication of a false statement concerning a
man's trade or business, which causes damage. Neither
injuria alone, nor damnum alone is sufficient to ground
the action. Both must be proved.8 By injuria must be
1 Sandilands v. Tompkins [1912] A.D. 171.
2 Chandler v. Middelbierg Munic. [1924] T.P.D. 450.
3 Bellstedt v. S. A. Rlwys. [1936] C.P.D. at p. 411.
4 Madrassa v. Johannesburg Munic. [1917] A.D. 718.
8 McKerron, p. 199.
8 Van Zyl v. African Theatres Ltd. [1931] C.P.D. at p. 66;
McKerron, p. 207 ; answered affirmatively in Western Alarm
System (Pty) Ltd. v. Coini & Co., 1944 (1) P.H., J. 9 [C.P.D.].
7 Trade competition, &c.,4Maasdorp, pp. 43ff. Inducing another
to break his contract with a third party, Solomon v. Du Preez
[1920] C.P.D. 401 ; Isaacman v. Miller [1922] T.P.D. at p. 61.
Passing off, Policansky Bros. v. Policansky [1935] A.D. 89.
8 Salmond's Law of Torts (10), ed. Stallybrass, p. 590;
McKerron, p. 203.
4901 r,
338
THE LAW OF OBLIGATIONS
Doubtful
cases of
absolute
liability.
understood not contumelia, but wrongful intention, as in
the actio legis Aquiliae.1 Like the action for malicious
prosecution it is an importation from English Law. It is
not an actio injuriarum.2
It has been said above that a man is liable for intended
wrongs, and for negligence which causes damage. Are
there also cases in which his liability must be stated higher,
viz. as an absolute duty not to cause injury even in cir-
cumstances which exclude dolus and culpa ? A man's lia-
bility for mischief done by his animals is of this character.
If my dog bites you, you may obtain damages without
proof of scienter or of negligence.3 It is doubtful whether
there is any other case of absolute liability.4 There are
cases in which the duty of taking care is very high and the
liability for carelessness proportionately great. But these
fall under the head of negligence and conform as a rule
to English Law.5
1 G. A. Fichardt Ltd. v. The Friend Newspapers Ltd. [1916]
A.D. 1 ; Van Zyl v. African Theatres Ltd. [1931] C.P.D. 61.
2 Bredell v. Pienaar [1924] C.P.D. 203.
3 O'Callaghan N. O. v. Chaplin [1927] A.D. 310; 8. A. Rlwys.
and Harbours v. Edwards [1930] A.D. 3; Greydt-Ridgeway v.
Hoppert T.P.D. (1930) 15 P.H.J. 14; Mehnert v. Morrison [1935]
T.P.D. 144; Smith v. de Smidt [1937] T.P.D. 8; Brown v. Laing
[1940] E.D.L. 75; Batchoo v. Crick [1941] N.P.D. 19 (noxa caput
sequitur unknown to the modern law). For the Roman Law see Lee,
Elements of Roman Law, sec. 626. Note that in Mowbray v. Syfret
[1935] A.D. 199 the cause of action was negligence, not pauperies.
4 The actio de pastu pecorum (Voet, 9. 1. 1) may have implied
culpa. In any case it has been superseded in South Africa by the
Pounds Acts. McKerron, p. 243 ; Kock v. Klein [1933] C.P.D. 194.
The Judicial Committee can scarcely be supposed to have incor-
porated the rule in Rylands v. Fletcher into the law of South Africa
by Eastern & S. A. Telegraph Co. Ltd. v. Cape Town Tramways
Co. Ltd. [1902] A.C. 381. See Union Govt. v. Sykes [1913] A.D.
at pp. 161, 169. In Binghamv. Johannesburg City Council [1934]
T.P.D. 301 Solomon J. regarded Rylands v. Fletcher as a case of
nuisance. But nuisance and Rylands v. Fletcher are distinguish-
able. Salmond, p. 602; Winfield, Torts (2), p. 538. The rule in
Rylands v. Fletcher has been held to be in force in Ceylon. Subaida
Umma v. Wadood (1927) 29 N.L.R. 330.
6 Natal Act, No. 3 of 1905, in the case of an action for damages
sustained from fire occasioned by a railway engine, throws upon
the defendant the onus of disproving negligence. For the general
law as to damage by fire see Gr. 3. 38. 2 and Lee, Commentary,
OBLIGATIONS ARISING FROM DELICT 339
Who are liable for delicts. Any person is answerable for Who are
his wrongful acts if he had intelligence to understand that delicts.
he was doing wrong. This excludes insane persons and
young children.1 All persons who have in any way author-
ized, instigated, or assisted in the commission of a wrongful
act are liable.2 Masters and principals are answerable for
the wrongful acts of their servants or agents authorized
by them or committed in the course of their service or
employment.3 This applies whether the master or em-
ployer is an individual or a corporation.4 But an employer
is not, as a rule, liable for the delicts of 'an independent
contractor'.5 Ratification of the act of a subordinate is
equivalent to a prior command.6 Fathers are not, as such,
answerable for the delicts of their children,7 nor husbands
for the delicts of their wives.8
ad loc. ; Voet, 9. 2. 19-21; McLaugUin v. Koenig [1928] C.P.D.
102; Van Reenen v. Glenlily [1936] C.P.D. 315. Stringent precau-
tions are called for in regard to fire-arms. Roddy v. Ohlsson's
Breweries Ltd. [1907] T.S. 125.
1 Gr. 3. 32. 19; Voet, 9. 2. 29; 47. 10. 1. As to the effect of
drunkenness see Voet, ibid. Minors who have reached years of
discretion are liable. Collinet v. Leslie (1907) 17 C.T.R. 110.
2 Gr. 3. 32. 11; McKenzie v. Van der Merwe [1917] A.D. 41;
Mouton v. Becket [1918] A.D. at p. 190.
3 Mkize v. Martens [1914] A.D. 382; Est. van der Byl v.
Swanepoel [1927] A.D. 141 ; Union Govt. v. Hawkins, 1944 (2) P.H.,
J. 10 [A.D.].
4 Houldsworth v. City of Glasgow Bk. (1880) 5 A.C. at p. 326
per Lord Selborne, who adds the words 'provided that the act
done is within the scope of the corporate powers'. This raises a
controverted question, viz. whether a corporation can be held
liable for a delict committed by one of its servants in the course
of an undertaking which is ultra vires the corporation. See Tram-
way Workers Union v. Heading [1938] A.D. 47; South African
Bazaars Ltd. v. National Union of Distributive Workers [1939]
N.P.D. 79; McKerron, p. 116.
5 Colonial Mutual Life Assurance v. Macdonald [1931] A.D.
412; Dukes v. Marthinusen [1937] A.D. 12.
6 Whittaker v. Boos efc Bateman [1912] A.D. at p. 113.
7 Gr. 3. 1. 34 ; Voet, 9. 4. 10 ; V.d.K. 476. But note the applica-
tion of the principle ' qui prohibere potest, tenetur ' ; Philpott v.
Whittal, Elston, and Crosby & Co. [1907] E.D.C. at p. 207; and
a father may be liable if a relation of master and servant existed
between father and son. Andrews v. Levy [1930] S.R. 101.
8 V.d.K. 225 ; Pretoria Municipality v. Esterhuizen [1928] T.P.D.
at p. 682; (Ceylon) Ord. No. 18 of 1923, sec. 5 (2).
340 THE LAW OF OBLIGATIONS
Every co-delinquent is liable in solidum,1 but if one
makes satisfaction the others are discharged2 and cannot
be called upon to contribute.3 An unsatisfied judgment
against one is no bar to an action against another.4
Who may Who may sue. In general, any person who is injured
by a delict may maintain an action for damages, but in
cases of nuisance which cause inconvenience or discomfort
merely without pecuniary damage, the only remedy is
by way of interdict.5 Corporations may sue for wrongs
against property and for defamatory statements which
affect them in their trade, business, or property.6 No
action for delict lies between husband and wife married
in community; whether between spouses not so married
is not free from doubt.7
Personal In litigation insane persons are represented by their
mcapa- curators ; minors and married women (when the marital
city.
power is not excluded) are represented or assisted by their
guardians or husbands.8
Trans- An action in delict directed to patrimonial damages
acdons °f *8 activety and passively transmissible to (heirs or) per-
sonal representatives.9 An action directed to sentimental
damages is not transmissible actively or passively, until
1 Gr. 3. 32. 15; Naude and Du Plessis v. Mercier [1917] A.D.
at p. 38. But when a plaintiff in an action for injuria claims
sentimental, not patrimonial, damages, it may be that different
damages will be assessed by the Court according to the blame T
worthiness of the various co-delinquents. Gray v. Poutsma [1914]
T.P.D. 203.
2 Gr. 3. 32. 15; Voet, 9. 2. 12; Grek v. Jankelowitz [1918]
C.P.D. 140. Voet limits his statement to actio rei persecutoria
and this seems to accord with modern practice. Cf. Toerien v.
Duncan [1932] O.P.D. at p. 203.
3 Voet, 9. 2. 20 (ad fin.); Gray v. Poutsma, ubi sup. at p. 215;
Naude and Du Plessis v. Mercier [1917] A.D. 32 ; (Ceylon) Wahidu
Marikar v. Sahidu Marikar (1930) 32 N.L.R. 111.
4 Natal Trading Co. v. Inglis [1925] T.P.D. 724.
5 McKerron, p. 221.
8 G. A. Fichardt v. The Friend Newspapers Ltd. [1916] A.D. at
p. 5 ; Hoogendoorn v. Fouche [1933] C.P.D. 560 ; McKerron, p. 169.
7 Mann v. Mann [1918] C.P.D. 89; McKerron, p. 97.
8 McKerron, pp. 96, 97; Harms v. Malherbe [1935] C.P.D. 167
(married women).
9 Gr. 3. 32. 10; Voet, 9. 2. 12.
OBLIGATIONS ARISING FROM DELICT 341
it has reached the stage of litis contestatio,1 which in
modern practice is reached when the pleadings are closed
and matters are at issue between the parties.2 The action
for seduction is not an action for injuria, but sui generis?
It is questionable whether it is transmitted either way
before litis contestatio,4 but the seducer's estate has been
held liable for lying-in expenses, for reasonable mainten-
ance of the child born of the seduction, and for the cost
of its funeral.5
General exceptions from liability. No one is liable for General
inevitable accident,6 or for acts done in the lawful exercise
of a right7 or performance of a duty.8 No action lies
against a judge for acts done or words spoken in honest
exercise of his judicial office. If he acts in bad faith or with
injurious intention he will, perhaps, be liable.9 No action
lies, as a rule, if the plaintiff consented to the alleged
1 Gr. 3. 35. 4; Voet, 47. 10. 22; Sande, Decis. Fris. 5. 8. 4.
Grotius says (3. 35. 5) that the action is not passively transmitted
'unless carried through to judgment', but wrongly.
2 Meyer's Exors. v. Gericke (1880) Foord at p. 18 per De Vil-
liers C.J. 3 Spies Exors. v. Beyers [1908] T.S. 473.
4 McKerron, pp. 160, 161.
5 Spies Exors. v. Beyers, ubi sup.
8 Gr. 3. 34. 4 ; Voet, 9. 2. 21 and 29 ; McKenzie v. Bloemfontein
Town Council [1904] O.R.C. 83 (abnormal flood); Moffat v. Raw-
storne [1927] T.P.D. 435 (lightning). These are cases of casus
fortuitus. Vis major, if distinguishable at all, is related to casus
fortuitus as species to genus. But the terms casus fortuitus, vis
major, and damnum fatale are used indifferently. Donges, p. 44.
7 e.g. defence of one's person, Gr. 3. 33. 9 ; 3. 34. 4 ; Voet, 9. 2.
22 — defence of one's property, Dig. 43. 24. 7. 4 ; Voet," 9. 2. 28 ;
Schoeman v. Olivier (1907) 24 S.C. 759; Du Plessis v. Aswegen
[1931] T.P.D. 332— parendi necessitas, Voet, 47. 10. 3— error,
Voet, 47. 10. 20 — provocation, ibid. — statutory authority : 'Speak-
ing generally, no man can be sued for doing what Parliament has
declared to be a lawful act. To that principle, however, there is
a well-established exception, and that is, that the act sanctioned
must not be done negligently, Union Government v. Sykes [1913]
A.D. at p. 169 ; Johannesburg Munic. v. African Realty Trust Ltd.
[1927] A.D. 163 ; Ready v. Durban Corpn. [1939] A.D. 293 ; Johan-
nesburg City Council v. Viccinovich [1940] A.D. 365 — quasi-judicial
capacity, Matthews v. Young [1922] A.D. at p. 509; — acts done
under the sanction of and within the limits of the authority con-
ferred by judicial process. Hart v. Cohen (1899) 16 S.C. 363.
8 e.g. intervention to stop a breach of the peace. Voet, 9. 2. 29.
9 Supra, p. 333.
342 THE LAW OF OBLIGATIONS
wrong, or accepted a risk with knowledge and appreciation
of the circumstances.1
Measure of damages. The distinction between senti-
mental and patrimonial damages has been explained
above. Exceptionally, the damages awarded are exem-
plary or nominal. Exemplary damages are sentimental
damages enhanced to punish the defendant for particu-
larly injurious misconduct. Nominal damages are damages
awarded where a right has been infringed but no actual
damage incurred. The South African courts have shown
a marked disinclination to give nominal damages except
when the plaintiff's right is challenged by the defendant
and the action, though in form one for damages, is actu-
ally brought to establish a right.2 In all cases in which
actual damage is the gist of the action it is essential that
the damages (or, more precisely, the damage) should not
be too remote,3 i.e. that the loss to the plaintiff which
forms the basis of the assessment should be connected not
too remotely with the wrongful act or omission alleged.
Whether the test of remoteness is ' foreseeability ' or ' direct
consequence ' remains for the present an open question.4
We have seen that in case of injury to the person
physical pain and disfigurement are taken into account
in assessing the damages, but no allowance is made for
mental suffering and anguish unless it affects the victim's
health.5 This is in substantial conformity with English Law.
1 'Volenti non fit injuria.' Dig. 47. 10. 1, 5; Voet, 47. 10. 2;
Waring & Gillow Ltd. v. Sherborne [1904] T.S. 340 ; National Meat
Suppliers (Pty)Ltd. v. Cape Town City Council [1938] C.P.D. at p. 504.
2 Edwards v. Hyde [1903] T.S. at p. 387 ; Richmond v. Chadwick
[1927] N.P.D. at p. 94 ; Eampersad v. Goberdun [1929] N.P.D. 32.
3 Voet, 9. 2. 16 ff. ; Luyt v. Morgan [1915] E.D.L. 142 ; Anderson
v. Van der Merwe [1921] C.P.D. 342.
4 Transv. Provincial Administration v. Coley [1925] A.D. at
p. 26 per Innes C. J. ; Venter v. Smit [1927] C.P.D. 30; Foster v.
Moss and Dell [1927] E.D.L. at p. 217 ; Coetzee v. S. A. Rlujy*.
[1933] C.P.D. at p. 574. The implications of In re Polemis [1921]
3 K.B. 560 have not yet left their mark on the law of South
Africa. See the cases last cited and McKerron, p. 131.
8 For recent English cases see Salmond (10), p. 344, and for an
interesting Australian case, Chester v. Munic. Council of Waverley,
see 55 L.Q.R. (1939), p. 495.
OBLIGATIONS ARISING FROM DELICT 343
Quasi-delicts.1 Under the title of obligationes quasi ex Quasi-
delicto the Institutes of Justinian mentions the following delicts-
cases of liability: (1) the occupier of a house or room from
which anything is thrown or poured down on a way in
common use so as to do damage to a person passing or
standing beneath (actio de effusis vel dejectis) ;2 (2) the
occupier of a house who keeps something placed or sus-
pended which may fall on someone passing or standing
on the road beneath (actio positi aut suspensi) ;3 (3) the
keeper of a ship, tavern, or stable on whose premises a
theft is committed or damage done by persons in his
employ (actio de damno in nave aut caupona aut stabulo
facto).4 These may be regarded as cases of absolute liabi-
lity or (which comes to the same thing) as cases in which
the law draws an irrebuttable inference of culpa and of
consequent liability.5
Actions of this class are actively, but not passively,
transmissible.6
Limitation of Actions. Actions arising out of delict were Limita-
usually prescribed by the lapse of thirty years, but actions
for verbal or written injuries7 by the lapse of one year
from the time when the injured party had knowledge of
the wrong. The law as to limitation of actions now
1 Gr. lib. iii, cap. xxxviii ; Van Leeuwen, lib. iv, cap. xxxix.
2 Inst. 4. 5. 1 ; Dig. 9. 3. 1 ; 44. 7. 5. 5 ; Transvaal and Rhodesian
Estates Ltd. v. Golding [1917] A.D. at p. 28; cf. Colman v. Dunbar
[1933] A.D. 141.
3 Inst. loc. cit. ; Gr. 3. 38. 5; V.d.K. 810; and see Rechts. Obs.,
pt. i, no. 98. Contrary to the Roman Law, R.-D.L. only gave
an action in case of actual injury.
4 Inst. 4. 5. 3 ; Gr. 3. 38. 9 ; V.d.K. 811. In the case of inns the
liability extended to the acts of permanent residents. Dig. 47.
5. 1, 6. For all practical purposes the ground is covered by the
contractual liability mentioned above, p. 319. Donges, The Lia-
bility for safe carriage of Goods in Roman-Dutch Law, pp. 26-6,
considers the differences between the two actions.
6 Buckland, Textbook, p. 598, n. 22. Another case of quasi-
delict was 'si judex litem suam fecerit'. Inst. 4. 5 pr. The subject
of judicial liability in the modern law has been touched on above.
6 Inst. 4. 5. 3 (ad fin.).
7 Gr. 3. 35. 3 (and Groen. ad loc.); 3. 36. 4; Voet, 47. 10. 17
(ad fin.) and 21 ; Van Leeuwen, 4. 37. 3, and Kotze"'s note ; Beukes
v. Coetzee (1883) 1 S.A.R. 71.
344 THE LAW OF OBLIGATIONS
depends for the most part upon statute. By the (Union)
Prescription Act, 1943, actions for defamation are pre-
scribed by a period of one year, and actions for damages
other than those for which another period is laid down
in the Act by a period of three years.1
APPENDIX
ADDITIONAL CASES ON THE LAW OF DEFAMATION
Privilege. McLean v. Murray [1923] A.D. 406 (communica-
tion of Town Councillor to Council) ; King v. Neale [1936]
E.D.L. 236 (Town Councillor) ; Van Leggelo v. Argus Printing
Co. [1935] T.P.D. 230 (newspaper report of judicial proceed-
ings) ; Hearson v. Natal Witness Ltd. [1935] N.P.D. 603 (report
of speeches in Parliament) ; Molepo v. Achterberg [1943] A.D.
85 (common interest).
Abuse of privilege. Middler v. Hamilton [1923] T.P.D. 441 ;
Rose v. Brewer [1933] C.P.D. 49 ; Finn v. Joubert [1940] C.P.D.
130.
Justification — public interest. Lyon v. Steyn [1931] T.P.D.
247 ; Bayer v. Bayer [1937] S.W.A. 73.
Rixa. Conway v. Westwood [1936] N.P.D. 245.
Retorsion. Read v. Pyper [1935] S.W.A. 16.
Assessment of damages. Salzmann v. Holmes [1914] A.D. 471.
Mitigation of damages. Cressey v. African Life Assurance
Soc. Ltd. [1917] A.D. 605; Nathan and Schlosberg, Law of
Damages, p. 155.
The provinces of judge and jury (or of judge deciding issues
of fact). Richter v. Mack [1917] A.D. 201 ; Middellandsche
Nationale Pers v. Stahl [1917] A.D. 630.
Words defamatory per se. Holdt v. Meisel [1927] S.W.A. 45 ;
Glass v. Perl [1928] T.P.D. 264 ; Yates v. MacRae [1929] T.P.D.
480. Helps v. Natal Witness Ltd. [1937] A.D. 45; Brill v.
Madeley [1937] T.P.D. 106 ; Smith v. Elmore [1938] T.P.D. 18 ;
Whitlock v. Smith [1943] C.P.D. 321 ('you are a liar') ; Moosa v.
Duma, 1944 (1) P.H., J. 4 [T.P.D.] ('bastard').
Words not defamatory per se. Richter v. Mack, ubi sup.;
Hardaker v. Tjabring [1927] N.P.D. 145; Wallaces Ltd. v.
1 Sec. 3 (2).
OBLIGATIONS ARISING FROM DELICT 345
Marsh [1928] T.P.D. 531 ; Smith v. Lawrence [1929] N.P.D.
132; Haacke v. Deutsche Presse Ltd. [1934] T.P.D. 191;
Welgemoed v. Cohen [1937] T.P.D. 134 ; Kay v. Argus Printing
Co. [1937] N.P.D. 119; Unie Volkpers Bpk. v. Eossouw [1943]
A.D. 519.
Newsvendor, dissemination in ordinary course of business.
Trimble v. Central News [1934] A.D. 43; Masters v. Central
News [1936] C.P.D. 388.
Publication by reference to other published matter. African
Life Assurance Socy. v. Robinson <fc Co. [1938] N.P.D. 277 ;
African Realty Trust Ltd. v. Robinson & Co. [1939] T.P.D. 155.
Defamation of a class of persons. Nasionale Pers Bpkt. v.
Long [1930] A.D. 87 ; Knupffer v. London Express Newspaper
Ld. [1944] A.D. 116.
PART III
OBLIGATIONS ARISING FROM SOURCES OTHER
THAN CONTRACT AND DELICT
Obliga- WE have spoken of obligations arising from contract and
cmasi °^ obligations arising from delict. It remains to refer to a
ex con- residuary group of obligations which it is customary to
describe as quasi-contractual. This embraces a variety of
cases in which the law, in order to secure fair dealing
between persons who are brought into relation with one
another, makes one the creditor of the other in respect of
a specific act or forbearance, thereby creating a vinculum
juris between them. We must not, perhaps, extend the
phrase 'quasi-contractual obligation', so as to include ties
arising out of the domestic relations, such as those existing
between husband and wife or parent and child, so far as
they are capable of legal enforcement.1 But apart from
these there are many relations between persons which give
rise to obligations created not by agreement or by wrong
but by operation of law. Thus, where one person has been
inequitably enriched at the expense of another the law
imposes a duty of making compensation. Nam hoc natura
aequum est neminem cum alterius detrimento fieri locu-
pletiorem.2 In accordance with this principle enrichment
without cause, or from an unjust cause, constitutes a fre-
quent source of quasi-contractual obligation. Thus, where
money has been paid under reasonable error of fact to a
person not entitled,3 or under protest as a means of
obtaining possession of property or the recognition of a
1 See Sohm's Institutes of Roman Law, translated by J. C. Ledlie,
3rd ed., p. 308, n. 1, and pp. 358-9.
2 Dig. 12. 6. 14; supra, p. 47; Van Rensburg v. Straughan
[1914] A.D. at p. 329; Uriel v. Jacobs [1920] C.P.D. at p. 493;
Pretorius v. Van Zyl [1927] O.P.D. 226 ; Gorfinkel v. Miller [1931]
C.P.D. 251. See The Doctrine of Unjustified Enrichment, Gutteridge
and David, Cambridge Law Journal, 1934, p. 204 ; Unjustified En-
richment, Mr. Justice A. J. McGregor, 55 S.A.L.J. (1938) pp. 4, 167.
3 Inst. 3. 27. 6 ; Gr. 3. 30. 4 ; Voet, lib. xii, tit. 6 ; Union Govt. v.
Nat. Bank of S. A. [1921] A.D. 121 ; 3 Maasdorp, chap. 34.
OBLIGATIONS ARISING FROM OTHER SOURCES 347
right1 (indebiti solutio), an action (condictio indebiti) lies
for its recovery, and there are many other cases, which can
be referred to the same general head.2 Another case in
which an obligation is said to arise quasi ex contractu is
negotiorum gestio,3 which occurs when a person without
previous mandate has managed another's affairs, or
rendered him some other service, not merely as an act of
kindness, but in circumstances apt to create a legal rela-
tion.4 In such case the volunteer (negotiorum gestor) is
bound: (a) to manage the affairs of his principal with
exacta diligentia,5 and (6) to render account of his adminis-
tration ; the principal (dominus negotiorum — dominus rei
gestae) is bound to indemnify the agent in respect of ex-
penses and liabilities usefully incurred. Other cases of
quasi-contractual obligation are such as exist between
co-owners, coheirs, heir and legatee, executor and legatee,
guardian and ward, fiduciary and fideicommissary ; and the
duty of a surviving spouse, party to a mutual will under
which such spouse has accepted a benefit, to recognize and
give effect to the will of the first-dying spouse has been
assigned to the same class of obligation.6
1 Union Govt. v. Oowar [1915] A.D. 426; Wilken v. Holloway
[1915] C.P.D. 418.
2 For the action to recover money paid upon a consideration
which has failed (condictio causa data, causa non secuta), in Scots
Law, see Cantiare San Eocco S. A. v. Clyde Shipbuilding and
Engineering Co. [1924] A.C. 226, and now in English Law the Law
Reform (Frustrated Contracts) Act, 1943 (6 & 7 Geo. 6, c. 40).
3 Grot. lib. 3, cap. 27; Voet, lib. iii, tit. 5, V.d.L. 1. 15. 15;
Buckland, Textbook, p. 537 ; 3 Maasdorp, chap. 33 ; Klug v.
Penkin [1932] C.P.D. 401 ; Williams' Est. v. Molenschoot [1939]
C.P.D. 360; (Ceylon) Thangamma v. Ponnambalam (1943) 43
N.L.R. 265.
4 Dig. 10. 3. 14, 1.
B Inst. 3. 27. 1. But Van Leeuwen (Gens. For. 1. 4. 26. 3) thinks
that the degree of diligentia which can be demanded of the gestor
varies with the circumstances. Lawrie v. Union Govt. [1930]
T.P.D. 402.
6 Rosenberg v. Dry's Exors. [1911] A.D. at p. 695; Receiver of
Revenue, Pretoria v. Hancke [1915] A.D. at p. 74.
BOOK IV
THE LAW OF SUCCESSION
BOOK IV
THE LAW OF SUCCESSION
IN this book we shall speak of the devolution of property
upon death, under the two titles of testamentary and
intestate succession. But first it will be convenient to
preface some remarks on succession in general.
SUCCESSION IN GENERAL
The IT is familiar knowledge that, according to the principles
of the°n °f R°man Law, the heir, whether testamentary or in-
heir in testate, until the time of Justinian was, and under that
Law emperor's legislation might be, the universal successor of
the deceased.1 As such, he assumed the dead man's rights
and liabilities, the latter in full and without reference to
the sufficiency of the assets. Hence the phrase 'damnosa
hereditas', meaning a succession which involved more loss
Heres than gain to the acceptor. Further, in the early law, the
family-heir, if the paterfamilias had not excluded him by
testament, could not refuse the inheritance, which vested
in him immediately upon the death of his ancestor. For
this reason he was known as 'heres suus et necessarius'.
His liability in this regard was the same, whether he was
instituted heir in his ancestor's will, or left to succeed upon
an intestacy.2 In the maturity of Roman Law, however, he
might abstain from the inheritance (beneficiumabstinendi),3
and so avoid liability. But if he intermeddled with the
estate, he 'sustained the person' of the deceased, and
succeeded not only to the benefits of the inheritance, but
also, without limit, to its burdens.4
Heres ^j^ 'extraneus heres ', that is, anyone who was not suus
extraneus.
1 Dig. 50. 17. 62: (Julianus) Hereditas nihil aliud est quam suc-
cessio in universum jus quod defunctus habuerit.
2 Girard, p. 843. » Inst. 2. 19. 2; Dig. 29. 2. 57.
4 Inst. 2. 19. 6; Cod. 6. 30. 22, 14.
SUCCESSION IN GENERAL 351
et necessarius, was, originally, in a better position. So
soon as the testator died, the inheritance was said to be
'delated' to the heir,1 but he need not accept unless he
pleased. If he neither accepted nor acted as heir (pro
herede gerere), he incurred no liability. If he accepted or
acted as heir, he was said to 'enter upon' the inheritance
(adire hereditatem), and from that moment was in the posi-
tion of a universal successor. It might happen that the
heir hesitated to enter, apprehensive that the inheritance
might prove 'damnosa'. In such case the creditors of the
estate or the heir himself would apply to the praetor to fix
a 'spatium deliberandi',2 a period within which he must
accept, if he meant to do so. If at the end of the time fixed
he had failed to accept, he was treated by the praetor as
having refused the inheritance, which was then offered or
delated to the person (if any) next entitled. Such was the Changed
law until the time of Justinian. But that emperor's legis- *•£ ^on
lation gave the heir the choice of alternatives.3 (1) He heir in
might enter at once, subject to the benefit of inventory ia^'sm~
(beneficium inventarii). If he did so, he was liable not as system,
universal successor, but only to the extent of the assets.
This was a change of far-reaching consequence. 'It was',
as Dr. Hunter observes, 'a bold and successful stroke to
convert the heir into a mere official, designated by the
deceased for the purpose of winding up his affairs and dis-
tributing his property. The heir was now a mere executor,
with the privilege of being residuary legatee.'4 (2) If he did
not choose to take advantage of the procedure by inven-
tory, he might, as under the old law, claim the spatium
deliberandi. In that event, under Justinian's system, if
he did not expressly repudiate the inheritance within the
time allowed, he was deemed to have accepted. An accep-
tance or repudiation, once made, was irrevocable except by
1 i.e. if instituted immediately and unconditionally. Dig. 50. 16. •
151: Delata hereditas intellegitur quam quis possit adeundo consequi.
2 i.e. to give the heir the option of asking for it, or of allowing the
creditors to realize the estate. Gaius. 2. 167 ; Dig. 28. 8. 5 pr.
3 Inst. 2. 19. 5 and 6 ; Cod. 6. 30. 22, 14 a (gemini tramites).
4 Hunter, Roman Law (3rd ed.), p. 755.
352 THE LAW OF SUCCESSION
a minor, who might obtain from the praetor restitutio in
integrum.
The heir The Dutch Law followed the Roman Law with modifica-
Dutch tions. There was ho necessary heir and consequently no
Law. need to invoke the beneficium abstinendi.1 The benefit of
inventory and the spatium deliberandi were retained, at
least in name.2 In the modern law of South Africa and
Ceylon these institutions are wholly disused.3
The No department of the Roman-Dutch Law is more
Lawof thoroughly penetrated by the Roman tradition than that
testa- of testamentary succession. The institution was unknown
to early Germanic Law.4 The whole law of testaments,
therefore, is derived from foreign, namely from Roman,
sources, and principally through the channel of the Canon
Law. As to the intestate heir — though ascertained in
accordance with rules of customary, not of Roman, origin
— once determined, he is in the same position as the heir
instituted by testament. In the later stages of the Dutch
Law, as in the Roman Law, both the one and the other were
universal successors of the deceased.5 In all continental
systems of law the heir is still a universal successor. In
English Law the universal successor is unknown. In his
place we find an executor or administrator charged with
the duty of applying the dead man's personalty (now his
whole estate) in payment of debts and of making over the
surplus to the persons entitled under the will or upon
intestacy.
The testa- Testamentary executors were not unknown to the law of
executor Holland, but their functions were confined within narrow
in Roman- limits. They were, in fact, as Van der Keessel6 observes,
'procurators appointed by the testator to manage his
funeral, to recover what is due to him, to pay legacies and
1 Groen. de leg. abr. ad Inst. 2. 19. 2.
a The Acte van Beraad differed materially from the spatium
deliberandi. V.d.L. 1. 9. 9.
8 Fischer v. liquidators Union Bk. (1890) 8 S.C. at p. 53.
4 Tacitus, Germania, cap. 20; Fockema Andreae, Het Oud-
Nederlandsch Burgerlijk Recht, vol. ii, pp. 313 ff. ; Gr. 2. 14. 2.
6 Gr. 2. 14. 7.
6 V.d.K. 323; V.d.L. 1. 9. 10.
SUCCESSION IN GENERAL 353
debts, and to administer his property until a division
thereof can be effected '. But they ' cannot debar the heirs
from the inheritance, unless the testator has directed other-
wise, nor alienate the property without their consent'. It
would seem from this that the appointment of executors
did not affect the position of the heir as universal suc-
cessor1 (in every case where he had not obtained benefit of
inventory),2 nor prevent him from suing or being sued in
respect of debts due to or by the deceased. An office so in the
alien from English ideas of the function of an executor has ^ ei
not held its ground against the competing analogy of the
English Law.3 Executors and administrators of the English
type have superseded at once the executor and the univer-
sal successor of the old law. To-day ' an inheritance is the
net balance of the estate of a deceased person which is left
after the debts and legacies [if any] have been paid, and
which has to be handed over by the executor to the heir'.
A testamentary heir is merely a residuary legatee.4 If
the deceased dies intestate the estate is liquidated by an
executor dative (corresponding to the English adminis-
1 Gr. 2. 21. 7; Gens. For. 1. 3. 1. 3; Fock. And., vol. ii, p. 348.
2 In Holland the benefit of inventory was not granted as of
course. Voet, 28. 8.11. Application must be made to the Sovereign
or, in Holland, to the Hooge Raad. Gr. 2. 21. 8ff., with Schorer's
note.
8 The older conception of the executor's office is reflected in the
P.C. cases, De Montfort v. Broers (1887) 13 App. Gas. 149 (Cape),
and Farnum v. Administrator-General of British Guiana (1889) 14
App. Cas. 651, and still, to some extent, obtains in Ceylon. Qopal-
samy v. Ramasamy Pulle (1911) 14 N.L.R. 238; Muttiah Chetty v.
Ukkurala (1925) 27 N.L.R. 336. For the history of the office of
executor see Ferguson v. Hucknell [1903] T.H. at p. 227; The
Master v. Edgecombe's Exors. [1910] T.S. at p. 268 ; Krige v. Scoble
[1912] T.P.D. at p. 817; Goosen v. Bosch [1917] C.P.D. 189.
4 1 Maasdorp, p. 132. For the history of the law and the posi-
tion of the heir in South Africa see Oosthuysen v. Oosthuysen [1868]
Buch. 51; Fischer v. Union Bank Liquidators (1890) 8 S.C. 46;
Vermaak's Exor. v. Vermaak's Heirs [1909] T.S. at p. 682; Sny-
man v. Basson N.O. [1915] T.P.D. 368. It may still be material
for certain purposes to determine whether a beneficiary takes as
heir or legatee. Juta J.A. in Est. Cato v. Est. Cato [1915] A.D. at
p. 309. But see argument of counsel in Winstanley v. Barrow
[1937] A.D. 75. For Ceylon see Pulle v. Pulle (1893) 2 S.C.R. at
p. 106.
4901
A a
354 THE LAW OF SUCCESSION
trator) appointed by the Master of the Supreme Court,1
and the heir ah intestate is in the same position as if he had
been appointed legatee by will. The Master also appoints
an executor dative, if the testator has omitted to nominate
an executor (the administrator cum testamento annexo of
English Law), or if for any reason the nominated executor
does not act. The estate of the deceased does not vest in
the heir, as in Roman Law, but in the executor, testa-
mentary or dative.2 Administrators are not unknown to the
law of South Africa. Their functions are to some extent
those of the English trustee.3 Since the administrators (if
any) appointed by a will are usually also the executors, it
may be a matter of some difficulty to draw the dividing
line between their distinct functions.4
The heir, having been reduced in the modern law to this
entirely secondary position, it is matter of indifference
whether a testator does or does not institute an heir by his
will. The institution of the heir, which was once ' caput et
fundamentum testamenti ', is no longer a necessary forma-
lity.5 Consistently with this, again contrary to the Roman
Law, a man may die partly testate, partly intestate.6
What he fails to dispose of by will goes to his intestate
successor.7 In Roman Law it would have gone to the
instituted heir by accrual.8 But there is a presumption
1 Administration of Estates Act, 1913, sec. 34.
2 Fischer v. Union Bank Liquidators (1890) 8 S.C. 46; Krige v.
Scoble [1912] T.S. 814.
3 Hiddingh v. Denyssen (1885) 3 S.C. at p. 441.
4 For the distinct functions of executors and administrators see
Administration of Estates Act, 1913, sec. 61 ; Registrar of Deeds
(Natal) v. Est. Shaw [1928] A.D. 425 ; The Master v. Ocean Accident
Corp. Ltd. [1937] C.P.D. 302.
6 V.d.K. 290. This is expressly enacted for Natal by Law, No. 2
of 1868, sec. 4.
8 Voet, 28. 1. 1 ; 28. 5. 26. 7 V.d.K. 309, 322.
8 Voet, 29. 2. 40: Jus accrescendi, quatenus Romani juris sub-
tilitatibus nititur, inter coheredes locum non habet. See, how-
ever, this passage. Grotius (2. 24. 19 and 2. 26. 4) merely follows
the Roman Law. Van der Linden says (1. 9. 6) that the jus
accrescendi applies, unless each of the heirs is appointed to a
separate portion. Voet (ubi sup.) and Schorer ad Gr. 2. 26. 4 make
the question depend upon the intention of the testator. See also
Van Leeuwen, 3. 4. 4 (and Decker ad loc.) and 3. 6. 8; V.d.K.
SUCCESSION IN GENERAL 355
against intestacy, and if a man makes a will disposing of
his property, the presumption is that he intends to dispose
of all his property.1 If he disposes of a usufruct of property
but not of the corpus there is a presumption that the
legatee of the usufruct is also legatee of the corpus.2
It is common to testamentary and to intestate succes- Collatio
sion that a child or grandchild of the deceased claiming to
share in the estate may only do so on condition of bringing
into account property received from the deceased during
his lifetime 'for the advancement of their marriage,
business or merchandise'.3 The Romans call this process of
accounting collatio bonorum. The Dutch call it inbreng.4
But the beneficiary was under no obligation to account.
If he elected not to claim, he was entitled to retain what
he had received. Collation was made for the benefit of the
other heirs and of a surviving spouse married in commu-
nity.5 If strangers had been instituted along with descen-
dants they neither made collation nor benefited by a
collation made by others, i.e. they took what the will
gave them, neither less nor more.6 According to Voet,
whose view has been adopted by the Appellate Division,
the Roman-Dutch Law (contrary to the Roman Law) re-
quires also collation of debts which are of such a nature as
to 'involve an actual depletion of the ancestral estate in
favour of a descendant'.7
326 ; Parker v. Est. Fletcher [1932] C.P.D. 202 ; Reid v. Admors. Est.
Reid [1932] W.L.D. 30; Winstanley v. Barrow [1937] A.D. 75;
Winn N. O. v. Oppenheimer [1937] T.S. 91.
1 Havemann's Assignee v. Havemann's Exor. [1927] A.D. at
p. 476. 2 Van Cotter v. Henny [1929] C.P.D. 244.
3 P.O. Art. 29 ( 1 Q.P.B. 336) ; Gr. 2. 1 1. 13 ; 2. 28. 14 ; Voet, 37. 6 ;
Van Leeuwen, lib. iii, cap. xvi ; Jooste v. Jooste's Exors. ( 1891 ) 8 S.C.
288; (Ceylon) Sellasamy v. Kaliamma (1944) 46 N.L.R. 76; 61
T.L.R. 99 (P.C.) ; Saram v Thiruchelvam (1945) 46 N.L.R. 145.
4 Supra, p. 71, n. 5. In English Law this is called 'bringing
into hotchpot '. It only applies ipsojure in the event of intestacy.
6 Gr. ubi sup. a Voet, 37. 6. 6-8.
7 Est. VanNoordenv.Est. Van Noorden [1916] A.D. 175. There
was a difference of opinion amongst the Dutch jurists. E. M.
Meyers in Tydskrif, 1939, p. 130. The French Code (Art. 829)
retains the collation of debts (rapport des dettes). The Dutch Code
does not. Veegens-Oppenheim, vol. ii, p. 446.
II
TESTAMENTARY SUCCESSION
Contents IN this chapter we shall consider: (1) how wills are made ;
chapter (^) wnat may be disposed of by will ; (3) who may make a
will ; (4) who may take under a will ; (5) who may witness
a will ; (6) restrictions on freedom of testation ; (7) institu-
tion and substitution of heirs; (8) legacies; (9) codicils;
(10) how wills and legacies are revoked ; ( 1 1 ) fideicommissa ;
(12) trusts ; (13) mutual wills.
The 1 . How wills are made . In the latest period of Roman
Law the will commonly in use was the testamentum triper-
wfllin titum, so called because derived from three sources, the
Law: civil law, the praetor's edict, and imperial constitutions.1
(a)written, The testator ' subscribed ' it in the presence of seven com-
petent witnesses, who, then, themselves subscribed it and
afterwards affixed their seals.2 Alternatively, but only,
perhaps, in case of emergency, he might declare his will
orally in the presence of the same number of witnesses.
(6) nun- This was the nuncupative will.3
cupative. ^ observed above, wills were not an original Germanic
institution, but from the Frankish period onwards con-
trivances were in use, whereby acts inter vivos were made
to serve the purpose of a disposition mortis causa. The
testament properly so-called developed in the Middle Ages
under the influence of the Canon Law.4
How wills The writers on the Roman-Dutch Law tell us that it
^HoT- was no* forbidden to make a will in Roman form,5 but it
land. was usual to employ one or other of the two forms of will
prescribed by native custom, viz. wills executed either:
1 Inst. 2. 10. 3.
2 Girard, p. 863 ; Buckland, p. 286.
8 Inst. 2. 10. 14 ; Buckland, p. 287.
4 Gr. 2. 14. 2 ; Fock. And. O.N.B.R., vol. ii, pp. 313 ff. ; Wessels,
History of the Roman-Dutch Law, Part II, chap. viii.
5 Gr. 2. 17. 16; Voet, 28. 1. 20; V.d.K. 293; V.d.L. 1. 9. 1.
The Roman will was an alternative by the common law of South
Africa. De Smidt v. Hoets (1852) 1 Searle at p. 279.
TESTAMENTARY SUCCESSION 357
(1) before two schepenen (local magistrates) and the secre-
tary of the Court, or (2) before a notary and two witnesses.1
The second of these survived in the law of South Africa,
where it continued to exist together with a statutory will
of the English type, executed in the presence of two
witnesses.
The notarial will depends for its effect upon the solemnity The
of its execution and the public character of the notary's
office. The notary must know the testator,2 or, failing that,
must know the witnesses, who must know the testator;
and in the last event the fact of knowledge must be re-
corded in the instrument.3 The witnesses must be males
of full age and good repute.4 The ancient writers discuss
the question whether the notarial will is more properly
described as oral (nuncupative) or as written. Voet says
that it is mixti generis or intermediate in character.5 In
fact, the mode of execution was not always the same.
Sometimes the will verbally pronounced by the testator
was reduced to writing by the notary.6 Sometimes the
notary drew it up in writing from instructions privately
communicated by the testator.7 The practice was for the
notary to read over to the testator in the presence of wit-
nesses the completed will, after which he asked him if he
understood it and acknowledged it as his last will.8 If the
testator assented, the will was valid even without the signa-
ture of testator and witnesses.9 The completed will, which
1 Gr. 2. 17. 17-18 ; Van Leeuwen, 3. 2. 6 ff. ; V.d.L. 1. 9. 1.
2 Perpetual Edict of Charles V of October 4, 1540, Art. 14;
1 Q.P.B. 319; Gr. 2. 17. 22; Voet, 28. 1. 24.
3 A will is not void which fails to express this fact, says Voet
(28. 1. 24). But see Resolutie van de Staten van Hollandt ende West-
Vrieslandt of March 18, 1671; 3 G.P.B. 487.
4 Luyden van eeren, weerdich van gheloove. Perpetual Edict,
ubi sup.; Gr. 2. 17. 21. 5 Voet, 28. 1. 23.
6 Gr. 2. 17. 23 ; Van Leeuwen, 3. 2. 3. This process, which seems
to have been very common, is neatly described by Neostadius,
Decis. van den Hove, no. 1 (ad fin.): Notarius excipit viva voce
mentem testatoris et deinde, ad probationem, redigit ejus volunta-
tem, nuncupative prolatam, in scriptis et registro suo inserit.
7 Voet, ubi sup. 8 Van Leeuwen, 3. 2. 3.
9 Voet, 28. 1. 23, citing Groenewegen, de leg. abr. ad Inst. 2. 10. 3 ;
V.d.K. 296; V.d.L. 1. 9. 1. By Cape Act No. 3 of 1878, sec. 1;
358 THE LAW OF SUCCESSION
the notary retains in his protocol, is termed 'the minute'.
The fair copy supplied, if desired, to the testator, or after
his death to his representatives, is termed 'the grosse'.1
Wills of the kind described above are known as 'open
wills'.2
The A special kind of notarial will is the ' closed will ' (besloten
^j testament}? This is an instrument written by the testator,
or by another by his direction,4 and signed by him, which
he produces to a notary and two competent witnesses,
declaring it to be his last will. The notary then encloses
the will in a wrapper, seals the wrapper on the outside,
and adds a note of the testator's declaration, which is sub-
scribed by the testator5 and the witnesses (acte van super-
scriptie).6
A notarial testament, Voet says, must be dated ; other-
wise it will be held void, unless the circumstances exclude
the risk of fraud.7
The The statutory, or 'under-hand will', as it is called, is the
modem creation of statutes, which are not textually identical in
statutory »
will. the several Provinces. It is made with the ceremonies pre-
scribed by the English Wills Acts, 1837.8
Transvaal Ord. No. 14 of 1903, sec. 5; and O.F.S. Ord. No. 11 of
1904, sec. 5 : No notarial will shall be taken to be invalid by reason
that the same was not read over by the notary or by any other
person to the testator in the presence of the subscribing witnesses.
The Cape Act was passed in consequence of the decision in Meiring
v. Meiring's Exors. [1878] Buch. 27, 3 Roscoe 6, that a will of this
kind, which had not been read by the notary to the testator in the
presence of the witnesses, was invalid.
1 See W. H. Somerset Bell, South African Legal Dictionary,
sub verbis Grosse, Prothocol. 2 V.d.L. ubi sup.
3 In South Africa also called a 'close will'. Van Leeuwen,
3. 2. 5; Voet, 28. 1. 26; Bijnk. O.T. i. 100; De Smidt v. Hoets
(1852) 1 Searle at p. 281 ; V.d.L. ubi sup.
4 Provided such other takes no benefit under the will. V.d.L.
ubi sup. 6 Voet, ubi sup.
6 When the will was opened it was usual for the notary and
witnesses to be present. Gr. 2. 17. 26; Decker ad Van Leeuwen,
ubi sup. The fact was placed on record by the notary (acte van
opening). V.d.L., ubi sup.
7 Voet, 28. 1. 25 ; Holl. Cons. iii. 328. But see Bijnk. O.T. i. 420.
8 Cape Ord. No. 15 of 1845, sec. 3; Natal Law 2 of 1868, sec.
1 ; Transvaal Ord. No. 14 of 1903, sec. 1 ; O.R.C. Ord. No. 1 1 of 1904,
sec. 1. It should be noted that the Cape Act requires that the
TESTAMENTARY SUCCESSION 359
In addition to the wills of the normal types described Privileged
above (known to the commentators as 'solemn' wills, w
written and nuncupative) the Roman Law admitted in
special circumstances the use of exceptional or 'privileged'
wills, so called because the testator was dispensed partly
or entirely from observance of the usual solemnities. Such
were : (a) will made in time of pestilence — testamentum
tempore pestis conditum — (witnesses need not be present
at the same time) j1 (6) will made in the country — testa-
mentum ruri conditum — (five witnesses sufficient) ;2 (c) will
by which a parent disposed of his property among his
children — testamentum parentis inter liberos — (no wit-
nesses necessary, if the win was holograph, i.e. written
wholly in the testator's own hand);3 (d) soldier's will —
testamentum militare — (no formalities required, any in-
dication of testamentary intention sufficient).4
To these the Canon Law added : (e) will made for pious
causes (churches and charitable institutions) — testamentum
ad pias causas — (this, too, by the Canon Law was relieved
from all requirements of form).
Of these privileged wills the Dutch Law admitted (c)
and (d),5 and they persist in the law of South Africa.6 The Testa-
testament whereby an ascendant disposes of property
amongst his or her children or remoter descendants, if inter
written out in full in the testator's own handwriting,
testator and witnesses should sign at least one side of every leaf
upon which the will is written. The Transvaal and O.F.S. Ordi-
nances require them to sign 'every sheet '. Robb v. Medley 's Exor.
(1899) 16 S.C. 133; Ex parte Miller [1922] W.L.D. 105. There is
no such provision in the Natal Act.
1 Cod. 6. 23. 8. 1. 2 Cod. 6. 23. 31. 3.
3 Nov. 107 cap. i (A.D. 541). * Inst. lib. ii. tit. 11.
8 Gr. 2. 17. 28. 29.
6 The Cape Act by implication, the Transvaal and O.F.S. Ordi-
nances in express terms preserve the privileged will. The test.
parent, inter lib. is not recognized in Natal, In re Est. Lalla [1922]
N.P.D. 18. Other cases of privilege are questionable (Gr. 2. 17.
30-1). The testamentum ad pias causas is fully considered by
Van der Keessel in Dictat. ad Gr. 2. 17. 31, Lee, Commentary,
p. 152, and was mentioned in Sim v. The Master [1913] C.P.D.
187. The test. temp. pest. cond. has re-emerged in O.F.S. Ex
parte De Wet [1919] O.P.D. 61 ; Smith v. Mathey [1926] O.P.D. 31.
360 THE LAW OF SUCCESSION
requires no witness.1 It may even be nuncupative (minus
sollemne nuncupativum), but must, in that case, be proved
by two witnesses.2 The testator may distribute the pro-
perty among his children in any proportion he pleases.
' Children ' means legitimate children, at all events if the
father is the testator ;3 in the case of a mother, perhaps
illegitimate children may be considered to be on the same
footing as legitimate issue.4 Children alone come within
the privilege. Other people cannot benefit under a will
which is not executed with the usual solemnities.5 It is
essential that the document put forward as a holograph
will should really be a declaration of the testator's last
wishes, and not merely a draft or memorandum of a will
to be executed afterwards. Further, every child must be
named, and no one of them may be disinherited.6 All the
cases that have been cited show that where a privileged
will of a parent has been supported, it has been where the
property has been distributed amongst all the children,
not necessarily equally, but amongst all ( Van der Watt v.
Van der Wall's Exors. (1896) 13 S.C. at p. 321 per Buchanan
A.C.J.). The question has been raised whether a child
should not receive at least 'a substantial share', if a will
is to be privileged as a testamentum parentis inter liberos.7
Testa- The military testament, i.e. one made by a soldier or
mentum saiiOr8 in expeditione, requires no solemnities whatever. It
1 Nov. 107, cap. i (A.D. 541); Voet, 28. 1. 15; Van Leeuwen,
3. 2. 13 ; Gens. For. 1. 3. 2. 19. Voet says that if the will is written
by another person by testator's direction it requires two witnesses.
Van Leeuwen merely says that he must subscribe it himself. So
Grotius (2. 17. 28). In South Africa such a will is not privileged
unless wholly in testator's handwriting. In re McCalgan (1893)
10 S.C. 277. It is essential that it should be dated. Nurok v.
Nurok's Exors. [1916] W.L.D. 125. Contra, Bijnk. O.T. i. 420.
2 Gr. 2. 17. 28 ; Voet, ubi sup.; Gens. For., ubi sup. ; Windscheid,
iii. 544. The witnesses may be male or female. Groenewegen,
de leg. abr. ad Inst. 2. 10. 6; de Haas ad Cens. For., ubi sup.
3 Wilkinson's Est. v. Wilkinson (1907) 24 S.C. 602.
Voet, 28. 1. 16.
Ex parte Tippett [1942] C.P.D. 68.
Voet, 28. 1. 17.
In re Ebrahim's Est. [1936] T.P.D. 60.
Holl. Cons. iv. 209 ; Vervolg op de Holl. Cons. ii. 64.
TESTAMENTARY SUCCESSION 361
may be written or oral.1 Voet, following Grotius, permits
the same informal mode of testamentary disposition to
ambassadors and their suites residing abroad in the course
of duty.2
In the modern law, it is not required that a will should
be framed in any particular form of words. Even an in-
stitution of heirs is unnecessary. Of course, the law lays
down certain rules of construction of words and phrases,3
which in the absence of evidence of a contrary intention
on the part of the testator the Courts will follow. But we
must not allow them to detain us. Here it will be enough
to mention two particular clauses inserted in wills, which
were known in the Dutch Law as the ' clausule reservatoir '
and the ' clausule derogatoir ', each of which requires a few
words of explanation.
The clausule reservatoir4 is a clause in which the testa- Clausule
rcscrvfii"
tor reserves to himself the right of adding to, or subtracting toir
from, the dispositions of the will and ratifies by anticipa-
tion any further dispositions which he may make under
his hand, such dispositions to have the same effect as if
inserted in the testament. Voet expresses a strong opinion
against this practice, but hesitates to declare it illegal.5
In South Africa the reservatory clause is admitted by the
law of the Cape Province,6 probably in the Transvaal and
1 Inst. lib. ii, tit. 11 ; Gr. 2. 17. 29 ; Voet, 29. 1.11; Van Leeuwen,
3. 2. 14; In re Leedham (1901) 18 S.C. 450; Ex parte Scheuble
[1918] T.P.D. 158. Such a will holds good for one year after the
soldier's honourable discharge from service, not, as Grotius says,
for one year after the end of the expedition (V.d.K. 299).
2 Voet, 28. 1. 14; Grotius in Holl. Cons. iii. 341.
3 See Gr. lib. ii, cap. xxii.
4 Gens. For. 1. 3. 11. 10; Holl. Cons, i, 125; Bynkershoek,
Quaest. Jur. Priv., lib. iii, capp. iv-v; V.d.K. 337; V.d.L. 1. 9. 2.
6 Voet, 28. 1. 29.
6 See Precedents of Wills, pp. 411 ff. Cape Ord. No. 15 of 1845
retains the reservatory clause, expressly in the case of the notarial
will, and by implication in the case of the underhand will. In re
Sir John Wylde's will(1859) [1873] Buch. 113 ; Erasmus v. Erasmus'
Guardians [1903] T.S. 843; Joseph v. Est. Joseph (1907) 24 S.C.
76. May a reservatory clause in a mutual will, by apt words,
confer power upon the survivor to depart from its terms ? Est.
Ebden v. Ebden [1910] A.D. 321.
362 THE LAW OF SUCCESSION
the Free State,1 but not in Natal.2 In more than one case
it has been required that a codicil should purport to be
executed ' under and by virtue of the reservatory clause in
the will ',3 and Lybreghts, in his book on Notarial Practice,
gives a form which contains such an express reference.4 In
a recent case the need of an express reference to the
reservatory clause was questioned.5 The validity of a
codicil executed under a reservatory clause depends upon
the existence of a valid will containing the clause. The
codicil cannot revoke the will upon which it depends for
its effect.6 A codicil executed under the reservatory clause
must be signed by the testator. It need not be in his
handwriting.7
Clausule The clausule derogatoir (no longer in use) was one in
de.roga- which the testator purported to disable himself by anti-
cipation from departing from the tenor of his will, either
by any subsequent disposition whatever, or by any dis-
position not expressed in a particular form of words or the
like.8 Voet justly observes that such a clause contains
merely a signification of intention and no derogation from
a testator's power of changing his will.9 Whether he does
so or not depends upon the true construction of his subse-
quent testamentary dispositions.
Summary From what has been said it appears that the law of
of the law
of South South Africa admits the following types of will or codicil,
Africa, yjz . ^jj iji^g notariai wju (open and closed); (2) the
1 Ex parte Van Biljon [1934] O.P.D. 104.
2 Steyn, The Law of Wills in South Africa, p. 8. In Southern
Rhodesia only in a notarial will. R.S. cap. 49.
3 Nelson v. Currey (1886) 4 S.C. 355; Erasmus v. Erasmus'
Guardians, ubi sup.
* Redenerende Praetycq over 't Notaris Ampt (1759), p. 189.
6 Ex parte Pieterse N.O. [1933] S.W.A. 4.
6 Van Reenen v. Board of Exors. [1875] Buch. 44; Ex parte
Webber's Exor. (1902) 19 S.C. 427.
7 Hart v. The Master [1923] C.P.D. 78.
8 Gr. 2. 24. 8 ; e.g. containing the words 'arma virumque cano'
(Voet, 28. 3. 10), or the whole of the credo (Holl. Cons. v. 42), or
the words 'Heaven be my portion' (V.d.L. 1. 9. 11), or 'Our soul
waits upon the Lord. He is our help and shield' (Bynkershoek,
Quaest. Jur. Priv., lib. iii, cap. vii). • Voet, 28. 3. 10.
363
statutory or underhand will; (3) the privileged will; (4)
the codicil executed by virtue of the reservatory clause.
But the first of these is no longer in use.
In Ceylon a will must be executed either in the presence of Ceylon.
of a notary and two witnesses, or in the presence of five
witnesses1 if a notary is not present.2 The vast majority
of wills are notarially executed.
2. What may be disposed of by will. Anything may What
be disposed of by will which is capable of ownership,3 ^fl^y6
whether corporeal or incorporeal,4 whether the property will,
of testator5 or of his heir6 or of any one else ;7 for the
Roman-Dutch Law, following the Roman Law, permits
a bequest of a res aliena no less than of a res sua.8
3. Who may make a will. All persons may make a Active
will except : (a) minors under the age of puberty ;9 (6) ^g^tarv
persons mentally incapable ;10 (c) interdicted prodigals capacity.
(hofs- ofte stads-kinderen) ;u but the wills of these last are
upheld so far as their dispositions are just and equitable.12
1 Ord. No. 7 of 1840, sec. 3. There is a saving in favour of the
wills of 'any soldier being in actual military service, or any mariner
or seaman being at sea ', who ' may dispose of his personal estate as
he might have done before the making of this Ordinance ' (sec. 13).
2 i.e. if a notary is not present acting in his notarial capacity.
Perera v. Perera [1901] A.C. 354.
3 Gr. 2. 22. 7. 4 Gr. 2. 22. 9.
5 Gr. 2. 22. 32. 6 Gr. 2. 22. 35. 7 Gr. 2. 22. 38.
8 Receiver of Revenue, Pretoria v. Hancke [1915] A.D. at p. 77.
9 Gr. 2. 15. 3; V.d.L. 1. 9. 3. In this case 'ultimus impuberis
aetatis dies coeptus pro completo habetur'. Voet, 28. 1. 31. In
Ceylon : No will made by any male under the age of twenty -one
years or by any female under the age of eighteen years shall be
valid unless such person shall have obtained letters of venia
aetatis or unless such person shall have been lawfully married.
Ord. No. 21 of 1844, sec. 2. In Natal: No will or codicil shall be
valid unless the testator shall at time of execution or re -execution
thereof have attained the age of twenty-one years, or have other-
wise become entitled to the privileges of majority by emancipation
from paternal power by venia aetatis, or otherwise. Law 2 of 1868,
sec. 6.
10 Gr. 2. 15. 4; Voet, 28. 1. 34. As to insane delusions see Rapson
v. Putterill [1913] A.D. 417 ;— drunkenness, Voet, 28. 1. 35. As to
what constitutes mental incapacity see Tregea v. Qodart [1939]
A.D. 16. u Gr. 2. 15. 5 ; Van Leeuwen, 3. 3. 2 ; Voet, 28. 1. 34.
12 V.d.K. 281; Lee, Commentary, p. 135; Ex parte F. [1914]
W.L.D. 27.
364 THE LAW OF SUCCESSION
There seems no reason why a deaf-mute, though born so,
if of sufficient understanding, should not make a will at the
present day.1 Married women and minors may make wills
without the authority of their husbands2 and parents or
guardians3 respectively. If a deceased spouse, married in
community, has left something to the survivor and at
the same time directed how the common property shall
devolve after the survivor's death, acceptance by the sur-
vivor of the benefit in question deprives him or her of the
power of disposition over his or her share of the joint-
estate.4 We return to this subject later.5
Passive 4. Who may take under a will. Except as hereafter
testamen- grated any person whether native or foreigner,6 individual
capacity, or corporate, born or unborn,7 may take under a will, pro-
vided such be ascertained or ascertainable.8 Exceptions
were or are: (1) spiritual persons and houses (geestelicke
luiden ende huizen) prohibited from taking immovable or
movable property;9 (2) the curators and tutors or ad-
ministrators of minors, and their children, as well as the
godparents and concubines of such minors prohibited
from taking under the will of such minors any immovable
property or interest therein ;10 (3) a person who has con-
1 Grotius (2. 15. 6) and Voet (28. 1. 36) say that, if a dumb man
cannot write, he should obtain a licence from the Sovereign (land-
overheid — Princeps), and Van der Linden recommends this course
in the case of persons who become thus afflicted after birth. See
Rechts. Obs., pt. ii, no. 38. A blind man jure civili must make his
will before a notary or other eighth witness. Cod. 6. 22. 8.
2 Voet, 28. 1. 38. 3 Gr. 1. 8. 2; Voet, 28. 1. 43.
4 Gr. 2. 15. 9. 5 Infra, p. 392.
6 Gr. 2. 16. 1 ; but not outlaws (woestballingen), or those who
adhere to the enemy. Van Leeuwen, 3.3.9; Voet, 28. 5. 5.
7 Voet, 28. 5. 12. 8 Gr. 2. 16. 2 ; Voet, 28. 5. 2.
9 Gr. 2. 16. 3 ; or by gift inter vivos. Placaat of March 20, 1524
(1 G.P.B. 1588). The prohibition, so far as regards title by succes-
sion, was extended to movable property by Placaat of October 1 6,
1531 (2 G.P.B. 2973; Bynkershoek, Quaest. Jur. Priv., lib. iii,
cap. i). In South Africa these disabilities exist no longer (Cape Act
No. 11 of 1868 ; Nathan, vol. iii, sec. 1764), and there is no general
law of mortmain.
10 Perpet. Edict of October 4, 1540, Art. 12 (1 G.P.B. 318); Gr.
2. 16. 4; Voet, 28. 5. 8; Bijnk. O.T. i. 163; V.d.K. 285-6; Lee,
Commentary, p. 140 ; V.d.L. 1. 9. 4. It has been suggested that the
reference to godparents is attributable to a mistranslation of a
TESTAMENTARY SUCCESSION 365
tracted a betrothal or marriage with a minor without the
necessary consents of parents, relatives, or of the Court,
prohibited from taking any benefit under the will of such
minor ;l (4) adulterine and incestuous bastards prohibited
from taking directly or indirectly under the will of either
parent more than is sufficient for their necessary main-
tenance ;2 other illegitimate children, however, may be
benefited without restriction, unless the testator has at
the same time legitimate children, in which case the
bastard issue may not take more than one twelfth of his
estate ;3 (5) persons who have committed adultery or in-
cest together prohibited from taking under each other's
will ;4 (6) a surviving spouse prohibited from taking under
the will of a deceased spouse (who was previously married)
more than the smallest share left by the deceased spouse
to any child of his or her previous marriage ;5 (7) a woman
who marries within the annus luctus prohibited from taking
anything under the will of her deceased husband ;6 (8) a
French draft of the P.E., paratre and maratre (= vitricus-
noverca) being confounded with parrain and marraine. (Bijnk.,
Quaest. Jur. Priv. lib. iii, cap. iii.) It seems clear that by 'concu-
bines ' is meant concubines of the minors, though Van Leeuwen
(3. 3. 12) takes it to mean concubines of the tutors, &c.
1 Perpet. Edict of 1540, Art. 17 (1 G.P.B. 319); Gr. 2. 16. 5;
Van Leeuwen, 3. 3. 16 ; Voet, 28. 5. 7. The Placaat of February 25,
1751, extends the prohibition to persons of any age (having parents
or guardians) who have eloped together.
a Gr. 2. 16. 6 ; Van Leeuwen, 1.7.4 and 3. 3. 10 ; Voet, 28. 2. 14 ;
V.d.L. 1. 9. 4. This is still law in France, C.C. 908. In South
Africa an adulterine child can take under the will of the mother.
Green v. Fitzgerald [1914] A.D. 88. In Ceylon it has been held that
an adulterine bastard may take a legacy from the father. Jaya-
shamy v. Abeysuriya (1912) 15 N.L.R. 348.
3 Nov. 89. 12. 2 (A.D. 539); Voet, 28. 2. 13; Schorer ad Gr., ubi
sup. ; V.d.K. 287.
4 Voet, 28. 5. 6. So far as adultery is concerned this is no longer
law in South Africa. Est. Heinamann v. Heinamann [1919] A.D.
99. Semble a testamentary gift to a concubine holds good. Voet,
loc. cit. ; de Haas ad Gens. For. 1. 3. 4. 41; Bijnk. O.T. i. 414;
ii. 1846.
5 Cod. 5. 9. 6 (lex hac edictali) ; Gr. 2. 16. 7 ; this is no longer law.
Supra, p. 98, n. 5.
8 Cod. 5. 9. 1. But the penalties of remarriage within the annus
luctus are stated by Van Leeuwen to be obsolete. Cens. For.
1. 1. 13. 27.
366 THE LAW OF SUCCESSION
notary prohibited from taking any benefit under a will
written by himself.1 (9) A like disqualification attaches to
any other person who writes a will for another and inserts
therein a disposition for his own benefit, unless the testator
has added a clause confirming the will (dictavi et recognovi)
or in some other way confirmed the disposition.2 The
prohibition extends to the mutual will of spouses3 and
even (in Roman Law) to the privileged will of soldiers.4
This rule is derived from a senatusconsultum Libonianum
of A.D. 16.5 It is an unhappy survival, which might well
be abrogated. (10) Finally, in imitation of English Law,
modern statutes disqualify an attesting witness to whom
or to whose wife or husband a benefit is given by the will.6
It has been held that an appointment as executor is a
benefit within the meaning of the law.7 Of the disqualifica-
tions in this list numbered 1-7 some are certainly, others
probably, obsolete. A gift to a person incapable of taking
a benefit under a will is taken pro non scripto.8
1 Lybreghts, Redenerend Vertoog over 't Notaris Ampt (4th ed.),
vol. i, p. 377. Holl. Cons, vi (part 2), 43 ; Est. Brown v. Elliott
Bros. [1923] C.P.D. 325. Quaere, does the prohibition extend to
the wife or relations of the Notary ? Serfontein v. Rodrick [1903]
O.R.C. 51 ; Nathan, vol. iii, pp. 1811 ff. If the notary were insti-
tuted heir the will would at common law have wholly failed, the
heir being an incompetent witness.
3 Voet, 34. 8. 3; V.d.K. 292; Benischowitz v. The Master [1921]
A.D. 589; Hellish v. The Master [1940] T.P.D. 271; (Ceylon)
Arulampikai v. Thambu (1944) 45 N.L.R. 457.
3 Thienhans v. The Master [1938] C.P.D. 69.
4 Dig. 29. 1. 15. 3. 6 Dig. 34. 8; 48. 10; Cod. 9. 23.
8 Cape Act No. 22 of 1876, sec. 3; Natal, Law No. 2 of 1868,
sec. 7 ; Transvaal, Ord. No. 14 of 1903, sec. 3 ; O.F.S., Ord. No. 11
of 1904, sec. 3; Ceylon Ord. No. 7 of 1840, sec. 10.
7 Smith v. Clarkson [1925] A.D. 501.
8 Grotius (2. 24. 22) says that if the gift is clandestine it is
forfeited to the fiscus; but Van der Keessel (Th. 333) following
Bynkershoek (Quaest. Jur. Priv., lib. iii, cap. ix) excludes the fisc
in favour of the legit imi heredes. Nowadays the lapsed gift would
go to the substituted heir or fall into residue. Grotius adds
(sec. 23) that gifts to persons adhering to the enemy or to outlaws
(woestballingen) are forfeited to the Count. So also Van Leeuwen
(3. 3. 9). Groenewegen (ad loc.) dissents. If a beneficiary under
a will has: (a) caused testator's death; (6) failed to discover the
author of his death ; (c) disputed the will ; (d) slandered the memory
of the deceased ; (e) after the execution of the will entertained a
TESTAMENTARY SUCCESSION 367
5. Who may witness a will. In the Roman Law 'those Who may
persons only can be witnesses who are legally capable of a wjn:
witnessing a testament. Women, persons below the age of in Roman
puberty, slaves, persons deaf or dumb,1 lunatics, and those Law>
who have been interdicted from the management of their
property or whom the law declares worthless and unfitted
to perform this office, cannot witness a will.'2 Persons
connected by potestas were incompetent to witness one
another's wills ;3 so was the heir and those connected with
him by potestas, but legatees and fideicommissaries were
under no such disability.4
Generally speaking, the Dutch Law followed the Roman in the
Law as regards the capacity and qualification of witnesses.5
But in some respects it departed from it. Thus: (1) It
was unnecessary that the witnesses should be specially
requested to witness the will. It was enough that they
knew that they were doing so ;6 (2) A legatee was not a
competent witness to an open will7 notarially executed,
but to a closed will he was.8 On the other hand, the
Dutch Law followed the Roman Law: (a) in requiring
capacity in the witnesses only at the date of the will ;9
and (b) in considering a woman an incompetent witness
deadly enmity against the testator; (/) defiled his wife; (g)
plundered the inheritance ; (h) in the testator's lifetime contracted
with regard to the inheritance with a third party — by the Roman
Law he forfeited the benefit to the fiscus, but Grotius (2. 24. 24)
says that an innocent substitute direct or fideicommissary is pre-
ferred to the Count. Groenewegen (ad loc.) says that, even where
there is no substitute, in all these cases an innocent heir is preferred
to the fisc. Van der Keessel (Th. 334) comments on the first of the
above-mentioned cases alone, and says that, though the guilty
party could not take, his children might. Ereption for indignitas
is recognized in the modern law. Taylor v. Pirn (1903) 24 N.L.R.
484. 1 Or blind. Voet, 28. 1. 7.
2 Inst. 2. 10. 6; Dig. 28. 1. 20. 3 Inst. 2. 10. 9.
4 Inst. 2. 10. 11. 6 Van Leeuwen, 3. 2. 8.
6 Voet, 28. 1. 22. 7 Voet, ubi sup. ; V.d.L. 1. 9. 1.
8 Voet, 28. 1. 26. Voet refers to the view expressed in Holl.
Cons. i. 103, that (as in English Law) a legatee -witness disqualifies
only himself, and says that it is altogether erroneous. Van der
Keessel, however, adopts it (Th. 291), and it is now statutory in
South Africa and in Ceylon (supra, p. 366).
9 Voet, 28. 1. 22.
368 THE LAW OF SUCCESSION
to a will,1 as also the heir.2 Further (herein exhibiting
a greater stringency than the Roman Law), it excluded
as witnesses persons too nearly related to the heir or
testator by blood or affinity.3 But in the modern law it
may be said to be a general rule that every person above
the age of fourteen years who is competent to give evi-
dence in a court of law is competent to attest the execu-
tion of a will or other testamentary instrument.4
Restric- 6. Restrictions on Freedom of Testation. (A) THE
testamen- LEGiTiM. The Roman Law accorded the querela inofficiosi
tary dis- testament! to three classes of persons : (1) descendants ; (2)
position.
A. The ascendants ; (3) brothers or sisters passed over in favour
legitim. o£ turpes personae.5 In the latest law descendants were
entitled to one third of their intestate share if the deceased
left four children or less, to one half if he left more than
four ;6 ascendants and brothers and sisters were entitled to
one fourth;7 unless in each case they were justly disin-
herited. The portion to which these classes were succes-
sively entitled was known as the statutory portion —
legitima portio — or, as we say, the legitim.
1 Voet, ibid. ; Groenewegen, de leg. abr. ad Inst. 2. 10. 6 ; but not
to a codicil executed before five witnesses jure Romano ; Gr. 2. 25.
2; Voet, 29. 7. 1; Dwyer v. O'Flinn's Exor. (1857) 3 Searle 16.
Codicils notarially executed required male witnesses. Voet, 29. 7. 5.
2 Gr. 2. 17. 12; Joubert v. Exor. of Russouw [1877] Buch. 21.
3 Voet, 28. 1. 22. The restriction applied to notarial wills only,
not to underhand wills. Semble in the case of underhand wills the
Roman Law excluding domesticum testimonium (Inst. 2. 10. 9) was
in force in Holland. Voet, 28. 1. 8.
4 Cape Act. No. 22 of 1876, sec. 2. Similar provisions in Trans-
vaal (Ord. 14 of 1903, sec. 2), O.F.S. (Ord. 11 of 1904, sec. 2),
Southern Rhodesia (RS. cap. 49), but not in Natal. Momololo's
Exor. v. Upini [1919] A.D. 58. The Ceylon Law contains no general
provision as to the competency of attesting witnesses, with the
exception of Ord. No. 7 of 1840, sec. 9, to the effect that: 'If any
person who shall attest the execution of any will, testament or
codicil shall at the time of the execution thereof or at any time
afterwards be incompetent to be admitted a witness to prove the
execution thereof, such will, testament or codicil shall not on that
account be invalid.' B Inst. lib. ii, tit. 18; Girard, p. 915.
6 Nov. 18, cap. i (A.D. 536).
7 Girard seems to be of this opinion. Others think that Justinian
intended that parents and brothers and sisters should take a third
instead of a fourth. Windscheid, iii. 580.
TESTAMENTARY SUCCESSION 369
The law of legitim was received in Holland,1 but is Abolished
unknown to the modern law having been abrogated by
statute or disuse.2 law.
(B) QUARTA FALCIDIA. In Dutch, as in Roman, law, B. The
the heir was entitled to retain, as against legatees, a clear
fourth of the estate or of the share in which he was insti-
tuted after payment of funeral and other expenses and
debts ; the legacies were, if necessary, reduced pro rota.
(C) QUARTA TREBELLIANA. The principle of the Lex C. The
Falcidia was applied by later Roman legislation to the re- portion!"1
lation of fiduciary and fideicommissary. This also passed
into the law of Holland.
The Falcidian and the Trebellian portions have been
abolished in South Africa3 and are disused in Ceylon.
7. Institution and Substitution of Heirs. It is un- institu-
necessary to linger over the rules relating to this topic,
which Grotius4 and other writers have taken over in detail tio.n of
from the Roman Law. As observed above, the institution
of an heir is no longer necessary to the validity of a testa-
ment.5 Vulgar substitution is the same as in the Roman
Law.6 Pupillary and exemplary substitution in the Roman
sense are not in use,7 the same result being sufficiently
obtained by fideicommissa (so called fideicommissary sub-
stitution). In the Roman-Dutch Law, unlike the Roman
1 Gr. 2. 18. 5.
2 Cape Act No. 23 of 1874, sec. 2 ; Natal, Law 22 of 1863, sec. 3
(A) and Law 7 of 1885, sec. 1 ; O.F.S. Law Book of 1901, cap.
xcii, sec. 3; Transv. Procl. No. 28 of 1902, sec. 128. There is no
express abolition in Ceylon, as pointed out by the late Mr. Justice
Thomson (Institutes of the Laws of Ceylon, vol. ii, p. 208) ; but see
Ord. No. 21 of 1844, sec. 1.
3 Cape Act 26 of 1873, sec. 1 ; Natal, Law 22 of 1863, sec. 3 A,
and Law 7 of 1885, sec. 2 ; Transv. Procl. No. 28 of 1902, sec. 126 ;
O.F.S. Law Book of 1901, cap. xcii, sec. 2. As to Ceylon there may
be (or was) some doubt. Thomson, Institutes, vol. ii, p. 225.
4 Gr. lib. ii, capp. xviii and xix.
5 Supra, p. 354.
6 V.d.L. 1. 9. 7.
7 Gr. 2. 19. 9 ; Voet, Compendium, 28. 6. 16 ; Van Leeuwen, 3. 7.
5 ; V.d.K. 106. But Van der Keessel (Th. 312) and Van der Linden
(1. 9. 7) admit exemplary or quasi -pupillary substitution. See
Rechts. Obs., pt. i, no. 41.
4901
370
THE LAW OF SUCCESSION
Law, an institution a die or in diem is good, the effect
being to shift the property from the intestate heir (insti-
tutio a die) or to. the intestate heir or substituted heir
named by the testator (institutio in diem).1
Legacies. 8. Legacies. In regard to the creation and interpreta-
tion of legacies, the rules of the Roman Law are closely
followed. We may be content on this topic to refer to
the usual sources of information.2 It may be noted that
if the assets are insufficient to discharge the debts, all
legacies of whatever nature, abate proportionately.3
Codicils. 9. Codicils. In Roman Law, codicils were originally
informal documents in the nature of notes or memoranda
containing directions from the deceased to his heir testa-
mentary or intestate. In Justinian's legislation they were
generally executed in writing by the maker, in the presence
of at least five witnesses, male or female, who 'subscribed'
the instrument. Though as regards form, therefore, they
fell little short of regular wills, in several respects they
differed from them. Thus : (a) they could not dispose of the
inheritance, and therefore could not institute or substitute
an heir directly nor contain a clause of disherison. On the
other hand, (6) their validity did not depend upon the
existence of a will ; if there was a will the codicil was usually
construed as part of it, and if the will failed the codicil
failed too ; but in the absence of a will a codicil validly
executed might impose a fideicommissum upon the in-
testate's heir ; (c) though a man could only leave behind
him one valid will, he might leave any number of valid
codicils.4
1 Gr. 2. 18. 21 ; Lee, Commentary, ad loc. ; V.d.K. 311. See Est.
Cato v. Est. Goto [1915] A.D. at p. 300; where Innes C.J. points
out that Voet (28. 5. 12) takes a different view of the effect of such
an institution; and cites Black v. Black's Exors. (1904) 21 S.C. at
p. 563. In Van der Merwe v. Van der Merwe's Executrix [1921]
T.P.D. 9 Gregorowski J. followed Voet, but there was no argument.
See also In re Cooper's Est. [1939] C.P.D. 309 and Commr. for
Inland Revenue v. Est. Crewe [1943] A.D. at p. 678.
2 Gr. lib. i, capp. xxii and xxiii; Van Leeuwen, lib. iii, cap. ix;
1 Maasdorp, chap, xxv ; Steyn, The Law of Wills in South Africa,
chap. vii. 8 Ex parte Tarr [1941] C.P.D. at p. 111.
4 Inst. 2. 25. 3 ; Moyle, ad loc.
TESTAMENTARY SUCCESSION 371
Anyone might make or take under a codicil who could
make or take under a will.1
Owing to the greater elasticity of the codicil, and the
liability to failure of the formal will, it became usual
among the Romans to insert in every will a clause pro-
viding that if the instrument failed to take effect as a will
it should take effect as a codicil.2 This was called the
clausula codicillaris. It cured defects of form but not of
substance, and even the first only if the form satisfied
the requirements of the law in the case of codicils.3
The Dutch jurists discuss at some length whether there
was any longer any difference between wills and codicils.
Groenewegen says there is none.4 Decker argues with much
force that the Roman law of codicils is entirely foreign to
the law of Holland.5 Voet says, 'the law of codicils has
been very nearly assimilated to that of testaments'.6 Van
der Keessel detects some then existing differences.7 But
today, as in English law, the difference between wills and
codicils is one of name merely not of substance,8 except
that : ' In the ordinary course a codicil is employed merely
for the purpose of supplementing and making alterations
in a will, and it is usually read as an annexure to the main
document.' [Therefore] 'where you have a distinct dis-
position made by will, that disposition cannot be revoked
by a codicil except through the medium and use of words
equally clear and distinct'.9
10. How wills and legacies are revoked.10 A will,
1 Dig. 29. 7. 6. 3 ; Voet, 29. 7. 2 ; Girard, p. 847.
2 Ut vim etiam codicillorurn scriptura debeat obtinere. Cod.
3. 36. 8. 1.
3 Gr. 2. 24. 7. Grotius says also that a will in which an heir is
not instituted takes effect as a codicil by virtue of the codicillary
clause. But even in the absence of such a clause the will held good.
Van Leeuwen, 3. 2. 2, and Decker, ad loc.
4 de leg. abr. ad Inst. 2. 25. 6 ad Van Leeuwen, 3. 2. 2.
6 29. 7. 5. 7 Th. 289.
8 Est. Ebden v. Ebden [1910] A.D. at p. 332; (Ceylon) Ooone-
wardene v. Ooonewardene (1929) 31 N.L.R. at p. 15.
9 Kleyn v. Est. Kleyn [1915] A.D. at p. 537 per Solomon J.A.
10 For Ceylon, see Ord. No. 7 of 1840, sec. 5. For Natal see
Law 2 of 1868, sees. 8-10. In the other provinces there is no
statutory provision.
372 THE LAW OF SUCCESSION
How wills validly made, may be revoked: (1) by a subsequent will,
feeacies rev°kmg the earlier will expressly or by implication,
are In the Roman Law a later will necessarily revoked an
revo ' earlier will. But in the modern law it is a question of
construction. Voet says, correctly, that there must be an
express revocation of the earlier will, otherwise effect will
be given, so far as they are not irreconcilable, to both.1
Grotius,2 following the Roman Law,3 says that a testa-
mentum parentis inter liberos cannot be revoked except by
a later will executed in solemn form and with express
mention that the later will is intended to revoke the former.
But, today, a second privileged will no less than a will
executed with the usual formalities will revoke an earlier
privileged will, if it bears that construction;4 (2) by
declaration of intention to revoke in an instrument exe-
cuted with the formalities proper to a will. This is in
effect a subsequent will, declaring the testator's desire that
his estate should be distributed as in the case of intestacy.
In the Roman Law it would have been invalid for want of
the institution of an heir ;5 (3) by destruction animo revo-
candi.6 If the will has been executed in duplicate, destruc-
tion of one duplicate animo revocandi invalidates the
other.7 But it seems that the destruction of the grosse or
copy of a notarial will leaves the will intact,8 at all events
unless a contrary intention is proved. If a will executed
by a testator was last seen in his possession and cannot be
found on his death, there is a (rebuttable) presumption that
1 Voet, 28. 3. 8; Re Eat. Whiting [1910] T.P.D. 527; Ex parte
Scheuble [1918] T.P.D. 158; Ex parte Tarr [1941] C.P.D. 104.
2 Gr. 2. 24. 18. * Nov. 107, cap. 2.
* Vimpany v. Attridge [1927] C.P.D. 113; Lee, Commentary,
p. 175.
6 Gr. 2. 24. 16 ; Voet, 28. 3. 1. ; V.d.L. 1. 9. 11 ; Lee, Commentary,
p. 174.
6 Gr. 2. 24. 15; Voet, 28. 4. 1.
7 Nelson v. Currey (1886) 4 S.C. 355.
8 Groen. ad Gr., ubi sup. ; Voet, ubi sup. ; V.d.L., ubi sup.
Dissentit Schorer ad Gr., loc. cit. V.d.K. (Th. 330) says that the
will is not revoked, unless it is shown that the testator destroyed
the grosse with the intention of dying intestate. Cf. In re H err on,
Ex parte Waters (1840) 2 Menz. 423.
TESTAMENTARY SUCCESSION 373
the will was destroyed by him animo revocandi.1 Partial
destruction of a will, if intentional, prima facie revokes
only the part destroyed ;2 (4) Van der Linden says that a
will is revoked by subsequent marriage followed by birth
of issue.3 But the statement wants authority, and it does
not appear that in the modern law, in the absence of
statutory provision, a will is revoked either by marriage
alone or by marriage followed by birth of issue.4 In Natal
a will is generally revoked by marriage, unless expressed
to be made in view of a contemplated marriage, or made in
exercise of a power of appointment which does not affect
the interest of the heirs ab intestato. But no joint will is
revoked by the marriage of the surviving spouse.5 (5)
Grotius, following the Roman Law, says that a will is
revoked by a declaration to the Court (inter acta), or made
before three witnesses, that the testator does not desire
his will to stand, provided that ten years have elapsed
since the date of its execution.6 This finds no place in the
modern law. (6) By the Roman Law a will was always
liable to fail owing to non-acceptance of the inheritance.
But since in the modern law it is not necessary to institute
an heir, it is obvious that failure to accept on the part of
an instituted heir leaves the other provisions of the will
unaffected.7 The same consequence follows if a testator
has erased the names of the heirs without intending there-
by to revoke the whole will.8 (7) Legacies in particular are
1 Exparte Slade [1922] T.P.D. 220.
2 Voet, 28. 4. 3 ; Gow v. The Master [1936] C.P.D. 296.
3 V.d.L. ubi sup.
4 Shearer v. Shearer's Exors. [1911] C.P.D. at p. 821.
5 Natal Law 2 of 1868, sec. 8; Lorenzo v. Rakagiatis [1938]
N.P.D. 68. In Southern Rhodesia a will executed before marriage
is usually avoided by marriage unless endorsed after marriage
with the formalities required for the execution of a will. De-
ceased Estates Succession Act, 1929 (R.S. cap. 51). In Ceylon
(Ord. No. 7 of 1840, sec. 5) a will is revoked by marriage. For
English Law see Wills Act, 1837, sec. 18; Law of Property Act,
1925, sec. 177 (1); Sallis v. Jones [1936] P. 43.
6 Gr. 2. 24. 14; Cod. 6. 23. 27.
7 Voet (28. 3. 14) and Schorer (ad Gr. 2. 24. 19) attribute this
consequence to the codicillary clause, but this is certainly not
necessary to-day. 8 Voet, 28. 4. 3.
374 THE LAW OF SUCCESSION
extinguished : (a) by express revocation by will or codicil j1
(6) by implied revocation, which takes place if the subject-
matter of the legacy is given away or except under stress
of necessity sold ;2 (c) if the legatee dies before the testator,
or before the condition (if any) of the legacy has been
implemented ;3 (d) by erasure, &c. in the will animo revo-
candi*
Revival of A will which has been revoked by a later will may be
^1. revived by another will showing a clear intention to revive
it.5 If the revoking will is destroyed animo revocandi or
otherwise revoked, the earlier will is revived if this is
clearly shown to have been the testator's intention.6
Fideicom- H. Fideicommissa. The student who derives his
Roman knowledge of Roman Law at first or second hand from the
in
Law» Institutes of Gaius and Justinian may be supposed to be
familiar with the origin and history of fideicommissa, as
made known to us in those works. He has learnt that
the fideicommissum owed its beginning to the cumbersome
technicalities of the Roman system of testamentary suc-
cession, and, in particular, to the fact that none but
Roman citizens7 could be validly instituted heirs. But
he may sometimes have wondered why the fideicommis-
sum retained its importance in a later age, when the codicil
(which was the usual vehicle of the fideicommissum) so far
as form went was little less technical than the formal
1 Gr. 2. 24. 27 ; Voet, 34. 4. 3.
2 Gr. 2. 24. 28 ; Voet, 34. 4. 5-6. Grotius, following Dig. 34. 4. 3.
11 and lex 4, adds 'serious enmity between testator and legatee'.
Groenewegen doubts (de leg. abr. ad Dig. lib. xxxiv, tit. 4). Voet
(34. 4. 5) affirms and extends the principle. According to Grotius
(2. 24. 27) a legacy may be revoked by a declaration before two
witnesses — sed quaere. Van der Keessel says (Th. 335) that a
legacy may be revoked by a marginal note in the grosse or copy
of a notarial will signed by the testator. See Holl. Cons. v. 45.
8 Gr. 2. 24. 29 ; and Schorer, ad loc. ; Voet, 34. 4. 9.
4 Gr. 2. 24. 27.
6 Re Eat. Marks [1921] T.P.D. 180; Wood v. Eat. Fawcus [1935]
C.P.D. 350; Exparte Gillespie [1943] C.P.D. 58.
8 Nelson v. Currey (1886) 4 S.C. 355; Wynne v. Wynne's Eat.
(1908) 25 S.C. 951.
7 And Latins. Girard, p. 121. Peregrini poterant fideicommissa
capere: et fere haec fuit origo fideicommissorum, Gaius, ii. 285.
TESTAMENTARY SUCCESSION 375
testament; and when, as a rule, the classes disqualified
from taking by will were equally disqualified from taking
by fideicommissum.1 It is possible that it may hardly have
occurred to him that the great part which the fideicom-
missum played in the Roman Law was due, not merely,
and perhaps not principally, to the fact that it afforded
an escape from the fetters of form, but much more to the
fact that it supplied an easily adaptable method of tying
up property through successive generations. The fidei-
commissum of the jus civile was in fact the equivalent of employed
what English lawyers call a settlement.2 When, therefore,
we read the well-known formula : ' Be Titius my heir, and
let him restore the inheritance to Maevius', we must re-
member that, to aid our comprehension, the situation is
presented, as it were, in vacuo. In practice it is highly
probable that the direction would be that Titius should
hand over the estate at his death, or, perhaps, after the
lapse of a fixed time or on the occurrence of some certain
or uncertain future event.
It is not unusual to describe fideicommissa as testa- Fidei-
mentary trusts.3 Passing by the objection that they were °°™mi
frequently intended to take effect upon an intestacy, we trusts.
may remark that to apply the terms of art proper to one
system of law to another system in which they are not
at home is always dangerous and often misleading. The
differences between the trust and the fideicommissum are
fundamental. Thus: (1) The distinction between the legal
and the equitable estate is of the essence of the trust ; the
idea is foreign to the fideicommissum ; (2) In the trust the
legal ownership of the trustee and the equitable ownership
of the beneficiary are concurrent, and often co-extensive ;
in the fideicommissum the ownership of the fideicom-
missary begins when the ownership of the fiduciary ends ;
(3) In the trust the interest of the beneficiary, though
described as an equitable ownership, is properly 'jus neque
1 Girard, p. 977.
2 See examples in Hunter, Roman Law, p. 823.
3 e.g. Hunter, p. 809.
VIVOS.
376 THE LAW OF SUCCESSION
in re neque ad rem ',* against the bona fide alienee of the
legal estate it is paralysed and ineffectual; in the fidei-
commissum the fideicommissary, once his interest has
vested, has a right which he can make good against all the
world, a right which the fiduciary cannot destroy or burden
by alienation or by charge.2 (4) A further difference, more
familiar perhaps but not more important than the others
already mentioned, is that while a trust is created as often
In the by act inter vivos as by last will, in the Roman Law a
La^ladei- fideicommissum always, or almost always, took effect
commissa mortis causa by virtue of a testament or codicil. Voet,3
created by indeed, and other writers say that a fideicommissum could
will or aiso be created by act inter vivos; but the passages from
but in ' the Corpus Juris cited in support of this view are neither
the Dutch numerous nor convincing.4 In the law of Holland it was
Law also
by act otherwise. Though the books have little to say on the
subject, it is clear that fideicommissa were often created
by antenuptial settlement or other act inter vivos.5 As to
the modern law there can be no question. The doubt
1 Chudleigh's case (1589) 1 Co. Rep. at 121 b.
2 Cod. 6. 43. 3. 3; Voet, 6. 1. 6; 18. 1. 15; 36. 1. 64; V.d.L. 1.
9. 8. ; infra, p. 383. See Lange v. Liesching (1880) Foord at p. 59.
3 Voet, 36. 1. 9 ; Vinnius, Tract, depact., cap. xv, nos. 11 and 12.
4 Dig. 16. 3. 26 pr. ; Dig. lib. xxxii, lex 37. 3 ; Cod. 8. 54 (55). 3 ;
Dig. lib. xxx, lex 77. But such a f.c. falls short of a f.c. in the full
sense, if Voet and Vinnius are right in saying that it gave rise to a
personal action merely, not to a vindication.
8 It seems that they were recognized to have the same effect as
fideicommissa arising mortis causa. By a Placaat of the States of
Holland and West Friesland of July 30, 1624 (1 O.P.B. 375), all
fideicommissa or prohibitions of alienation affecting immovable
property were to be destitute of effect unless registered. But this
Placaat, as Voet tells us (36. 1. 12), was never introduced into
practice and so became obsolete. Rechte. Obs., pt. i, no. 42 ; V.d.K.
319. For an early case, in the modern law, of fideicommissum
created by antenuptial contract see Buissinne v. Mulder (1835)
1 Menz. 162. See also Du Plessis v. Estate Meyer [1913] C.P.D.
1006, and Brit. S. A. Co. v. Bulawayo Munic. [1919] A.D. 84. A
f.c. in respect of immovable property duly registered confers a
jus in rem. Ibid, at p. 97, Ex parte Net [1929] N.P.D. 240.
Fideicommissa created by act inter vivos are even more strictly
construed than fideicommissa created by testament. Holl. Cons.
iii. 111. They are irrevocable after acceptance by the fideicommis-
sary without his cons~ent. Ex parte Orlandini [1931] O.P.D. 141.
TESTAMENTARY SUCCESSION 377
remains, however, whether we are to regard the trusts,
which, made familiar by settlements framed upon English
models, have invaded the Courts and even the statute Fidei-
book, as a development of the native institution, or frankly
accept them as a useful importation from a foreign system, in the
We return to this subject later. ^ ei
Since all the text-books of the Roman-Dutch Law follow Method
the Roman Law in their treatment of fideicommissa, it °f treat-
will be convenient to pursue the same method, and to
regard the fideicommissum primarily as a mode of testa-
mentary substitution which derives its importance from
its utility as a means of tying up property through suc-
cessive generations. The student will find no difficulty
in applying the rules which we shall proceed to state to
dispositions inter vivos as well.
No particular form of words is needed for the creation No form
of a fideicommissum. All that is required is that the ^e^red
testator's meaning should be clearly expressed or implied,1 to create a
for the law is unfriendly to fideicommissa and will not mjssu^!
lightly presume in their favour.2 An express fideicom- Fidei-
missum is created by such words as these : ' I make mv commissa
* are:
wife my heir, but when she comes to die I desire that she (a) ex-
will let the property go to those who shall be then nearest press'
to me in blood' or to certain named persons.3 An implied (6) im-
fideicommissum is created in many ways, for example, by p
prohibition of alienation4 general or to specified persons,5 Effect of
provided that there is some clear indication of a person or tio'nof"
class of persons for whose advantage the prohibition is alienation.
imposed.6 Where there is such an indication, the prohibi-
1 Van Leeuwen, 3. 8. 4; V.d.L. 1. 9. 8.
2 Voet, 36. 1. 72; Huber, op. cit. 2. 19. 75-7; Union Govt. v.
Olivier [1916] A.D. at p. 81 ; Moolman v. Est. Moolman [1927] A.D.
at p. 140.
3 Huber, 2. 19. 37.
4 Van Leeuwen, 3. 8. 6; Huber, 2. 19. 53.
5 Sande, de prohib. rer. alienat. 3. 1. 7; Bijnk. O.T. i. 50.
8 Gr. 2. 20. 11 ; Voet, 36. 1. 27 ; Huber, 2. 19. 54. Ex parte Short
[1928] T.P.D. 155; Ex parte Martens [1928] N.P.D. 323; Ex
parte Nel [1929] N.L.R. 240. For Ceylon see Ord. No. 11 of 1876
sec. 3 ; and Salonchi v. Jayatu (1926) 27 N.L.R. 366 ; Meiya Nona
v. Davith Vedarala (1928) 31 N.L.R. 104.
378 THE LAW OF SUCCESSION
tion takes effect as a fideicommissum in favour of the
person or class of persons indicated.1 Where there is no
such indication, the prohibition is 'nude' and wholly in-
operative.2 If the heir is forbidden to alienate the property
out of the family the law raises a conditional fideicom-
missum in favour of the intestate heirs,3 so that the heir
is not free to dispose of the property out of the family
either by act inter vivos or by will.4 Such was the effect
in Holland generally ; but in Amsterdam a proviso of this
nature was almost destitute of effect, for it was construed
as merely prescribing the course of descent in respect of
so much of the property as the heir had not alienated inter
vivos or disposed of by his testament.5
Fideicom- Nearly, but not quite, the same freedom of alienation
^s enjoyed by the heir who is given power to diminish or
1 Holl. Cons. i. 19; vi (pt. 2). 131 ; Ex parte Van Eeden [1905]
T.S. 151 ; In re Est. Kleinhans [1927] C.P.D. 73.
2 Ex parte Fulton [1912] C.P.D. 868; Ex parte Laos [1923]
N.P.D. 104; Nelson v. Nelson's Est. [1932] C.P.D. 395; Ex parte
Badenhorst [1937] T.P.D. 174; (Ceylon) Kithiratne v. Salgado
(1932) 34 N.L.R. at p. 77; Amarasekere v. Podi Menika (1932)
34 N.L.R. 82.
3 i.e. of the last possessor (usually), not of the settlor. Huber,
2. 19. 68. This is called a fideicommissum familiae.
4 Gr. 2. 20. 12 ; Voet, 36. 1. 27 ff. ; the f.c. is conditional, because
it takes effect only in the event of a prohibited alienation taking
place. Not only is such alienation void, but the interest of the
alienor is forthwith determined and the interest of the heirs
immediately vests in possession. So the law is stated by Sande
(de prohib. rer. alienat. 3. 4. 7 seq.) . (As regards the effect of a
judicial sale see below, p. 434.) In Josef v. Mulder [1903] A.C. 190,
20 S.C. 144 the P.C. held that a direction that the property should
'never be sold or parted with in favour of a stranger' was not
infringed by a mortgage. But see Cod. 4. 51. 7, and Huber,
Heedensdaegs. Rechtsg. 2. 19. 58 ; Ex parte De Jager [1926] N.P.D.
413. As to leases ad longum tempus see Sande, op. cit. 1. 1. 45.
Huber (sec. 59) says that if the direction is that the property is
not to be alienated out of the family the fiduciary may leave it by
will to anyone of the family near or remote. Secus, if the property
is left to the family (gemaekt aen het geslachte). Ex parte Eat.
Odendoal [1933] O.P.D. 122. For the distinction between a f.c.
familiae 'verbis in rem conceptis' and 'verbis in personam con-
ceptis', see Voet, 36. 1. 28; Union Govt. v. Olivier [1916] A.D. 74;
Moolman v. Eat. Moolman [1927] A.D. 133; (Ceylon) Sopinona v.
Abeywardene (1928) 30 N.L.R. 295; Palipane v. Taldena (1929)
31 N.L.R. 196. 6 Gr. ubi sup. ; Voet, 36. 1. 5. See V.d.K. 318.
TESTAMENTARY SUCCESSION 379
waste the property, with a direction to make over the
residue to some person named by the testator (fideicom-
missum residui).1 In this case the heir may freely dispose
of three quarters2 of the estate otherwise than by fraudu-
lent donation or last will,3 leaving one quarter only to the
fideicommissary, for which the fiduciary unless absolved
by the testator must give security ;4 if he has alienated
more than three quarters, the goods last alienated may be
followed in the hands of the alienee.5
Very often the fideicommissum depends upon a con- Condi
dition, as where a wife is appointed heir with a gift over
in the event of re-marriage: e.g. 'I appoint my wife Jane missa
my heir ; but, if she marries again, I desire her to make
over the property to my brother Henry' ; or when a son
is appointed heir with a gift over in the event of his dying
under the age of five-and-twenty.6 But the commonest
condition is that which provides that the goods are to go
over if the first taker dies without children. The formula
1 Nov. 108, cap. 1 ; Gr. 2. 20. 13 ; Van Leeuwen, 3. 8. 9 ; Huber,
2. 19. 103; V.d.K. 320. McCarthy v. Newton (1861) 4 Searle 64;
Est. Moorrees v. Board of Exors., Cape Town [1939] A.D. 410 : Est.
Smith v. Est. Follett [1942] A.D. 364 ; (Ceylon) Veerapillaiv. Kantar
(1928) 30 N.L.R. 121; Fernando v. Alwis (1935) 37 N.L.R. 201.
The same result follows when a usufruct with a power of alienation
has been left subject to a condition that the property should be re-
stored after death. V.d.K. 372.
2 Grotius says one fourth ; but this is a slip corrected in Groene-
wegen's and later editions. In certain cases he might dispose of
the whole, viz. ex causa dotis seu propter nuptias donationis seu
captivorum redemptionis vel si non habeat unde faciat expensas.
Nov. 108 (A.D. 541) ; Authentica ad Cod. 6. 49. 6 ; Gr. loc. cit.
3 Voet, 36. 1. 54; Van Leeuwen, 3. 8. 9; V.d.K. Dictat. ad Gr.
2. 20. 13 and Th. 320; Lee, Commentary, ad loc.
4 Ex parte Berrange [1938] W.L.D. 39.
6 Distinguish the case of a mutual will by which the spouses
reciprocally institute each other heirs with power of alienation and
direct that whatever is left of the massed estate shall be divided
between the heirs of the spouses. In this case the surviving spouse
is free to alienate the whole estate by act inter vivos, even by
donation if not made in fraud of the heirs. Voet, 36. 1. 56 ; Coren,
Obs. xi, p. 43 ; Holl. Cons., iv. 278 ; Bijnk. O.T. i. 981 ; Brown v.
Rickard (1883) 2 S.C. 314 ; In re Jordaan's Est. (1907) 24 S.C. 84 ;
Botha v. Van der Vyver (1908), 25 S.C. 760. Exparte Venter [1920]
O.P.D. 153; Kemsley v. Kemsley [1936] C.P.D. 518.
6 Huber, 2. 19. 44.
380 THE LAW OF SUCCESSION
is something of this kind : ' If my heir dies without children
I will that he shall let the property which comes to him
from me go to my nearest of kin then in being.' The effect
is that the gift over is only realized in case the heir leaves
no legitimate children surviving him at the date of his
death.1
The If the clause si sine liberis decesserit was expressly
inserted as the condition of a gift over taking effect and
si sine
liberis de- the first taker had children who survived him, the gift
' over would certainly fail ; but whether a fideicommissum
would be implied in favour of the children was disputed.
Grotius says that a negative answer is commonly given
unless the testator was an ancestor, or the children are
themselves charged with a fideicommissum, or from other
circumstances it appears that the testator intended that
they should benefit under his will.2
If however the testator was an ancestor, not only does
the above-mentioned clause create a fideicommissum in
favour of the children, but even if the clause has been
omitted it will be read into the will with the same result.3
For if an ascendant confers a benefit by his will upon a
descendant who was childless at the date of the will, with
an unqualified gift over in the event of such descendant's
death, none the less, if, at the date of his death, such
descendant leaves children surviving him, a fideicom-
missum will be implied in their favour in derogation of
1 Voet, 36. 1. 13 fit.; Huber, 2. 19. 45-6.
2 Gr. 2. 20. 5; Huber, 2. 19. 30. I institute my brother; if he
dies without children, the property to go over to my nephew. This
does not create a f.c. in favour of the brother's children. Ibid,
sec. 55. Voet (39. 5. 44) observes: Nititur scilicet tota quaestionis
hujus definitio ex determinatione controversiae, an positi in con-
ditione censeantur etiam positi in dispositione. See also Neostad.
Decis. van den Hove, No. 22; Van Leeuwen, 3. 8. 12; Voet, 28.
2. 10; Bijnk. O.T. i. 1032; Steenkamp v. Marais (1908) 25 S.C.
483; Ex parte Odendaal [1926] O.P.D. 223; Reese v. Registrar of
Deeds [1938] C.P.D. 459.
3 This may perhaps, in view of Ex parte Odendaal, seem to be
stated too absolutely. But if descendants 'positi in conditione'
are to be taken to be ' positi in dispositione ', it is correct. It cannot
make any difference whether the condition is express or implied.
Cf. Voet, 36. 1. 17. in fin.
TESTAMENTARY SUCCESSION 381
the express fideicommissum contained in the testator's
will.1
In the Roman Law it was the duty of the fiduciary The effect
to 'restore' the property to the fideicommissarius either £ommis-
forthwith or upon the vesting of the fideicommissum. sum as
The texts of the Corpus Juris leave us in some uncertainty the'owner-
as to what was required to constitute restitution. Prima ship of
facie the property in question vests in the first instance in subject
the fiduciary, as heir or legatee, by title of inheritance or to xt-
legacy ; and it would appear that some act of restitution
— delivery or its equivalent — was, as a rule, necessary to
vest the property in the fideicommissary.2 But Justinian
put fideicommissa and legacies on an equal footing, and
gave to all legatees the real action which, before his time,
had been limited to legatees by vindication.3 As regards
res singulares, at all events, the effect would be to vest the
property in the fideicommissary eo instanti that the fidei-
commissum matured. In the modern law it would seem
reasonable to infer the same result in every case of fideicom-
missum. If this be so, the. true parallel in English Law to Parallel
the fideicommissum is not the trust but the old grant to Lawng S
1 Voet, 36. 1. 17 ; Huber, 2. 19. 49. See Galliers v. Rycroft [1901]
A.C. 130, 17 S.C. 569. It was held in this case that in Roman-
Dutch Law, differing in this respect from Scots Law, the clause
'si sine liberis decesserit' is implied in case of fideicommissary
substitution only, and not also in case of direct substitution.
Query whether the presumption mentioned in the text ought to
operate when the fiduciary heir to the knowledge of the testator
has children of whom no mention is made ? Est . Cato v. Est. Cato
[1915] A.D. at p. 303 per Innes C.J. citing Voet, 36. 1. 17 (read 18).
In the absence of proof of contrary intention 'children' means
descendants of the first degree only. Voet, 36. 1. 22; Galliers v.
Rycroft, ubi sup. But see Est. Welsford v. Est. Welsford [1930]
O.P.D. 162.
The question of 'The vesting and divesting of rights under a
will in Roman-Dutch Law ' suggested by a dictum of De Villiers,
Sir Henry De Villiers in Galliers v. Rycroft, is discussed in an article
so entitled in L.Q.R. vol. xxvi, p. 126, by A. J. McGregor ; and see
Tredgold v. Est. Arderne [1926] C.P.D. 25.
2 Dig. 36. 1. 38 (37) pr. ; Voet, 36. 1. 34; Huber, 2. 19. 108;
Sande, Decis. Fris. 4. 5. 13, where it is laid down that before
'restitution' a fideicommissary cannot, as a rule, maintain an
action against a third party in possession.
8 Inst. 2. 20. 2; Cod. 6. 43. 1. 1.
382 THE LAW OF SUCCESSION
uses. If the fideicommissum is expressed to take effect
at once, the fiduciary will be a conduit-pipe to convey the
property to the beneficiary. If, on the other hand, the
vesting of the fideicommissum is postponed, the fiduciary
will be in the position of an owner in fee simple subject to
an executory limitation over to another. Upon the hap-
pening of the contemplated event the ownership will shift
over to the fideicommissary. If the terms of the fideicom-
missum involved active duties in relation to the property,
the case would, no doubt, be different. In such a case
an actual conveyance would be necessary to transfer the
property to the fideicommissary owner.1
Fidei- Let us now confine our attention to the most usual case
sum"118" of fideicommissum, viz. where the fiduciary is intended to
taking take a life interest and to ' restore ' the property upon his
(ofon death. What is his position ? In the first place, unless
death; the testator has directed otherwise,2 he must give security
for the restoration of the property, undiminished in
amount and value, to the person entitled to succeed him.3
In the interval he is dominus, and may exercise all rights
of dominion not inconsistent with the rights of his suc-
cessor.4 Like the usufructuary, he may transfer his right
of enjoyment to another, remaining liable, however, to the
fideicommissary for the acts and defaults of the transferee.
(6) during Next, put the case of a fideicommissum expressed to
time of take effect upon the happening of a contemplated event
thefidu- during the lifetime of the fiduciary, which event has
happened. Has he ipso jure ceased to be dominus ? It
1 What is stated in the text is true in the modern law in so far
as a fideicommissarius whose title has matured has a right of
action to vindicate the property (2 Maasdorp, p. 39). But by the
law of South Africa his title will be incomplete (and perhaps in-
secure) until he has obtained transfer. 'It is the transfer which
gives the dominium.' Op. cit. p. 82 ; supra, p. 146.
a Huber, 2. 19. 134; V.d.K. 511 (mistranslated by Lorenz), non
obstante Voet, 36. 3. 6. (ad fin.). See also Van Leeuwen, 3. 8. 18.
3 Huber, 2. 19. 83 and 131. He must also make an inventory.
From this duty he cannot be excused even by the testator himself.
Voet, 36. 1. 36; Neostad, Supr. Cur. Decis. No. 91; Bijnk. O.T.
i. 694, and Quaest. Jur. Priv. Lib. iii. cap. 10.
4 Van der Walt v. Registrar of Deeds [1935] C.P.D. 463.
TESTAMENTARY SUCCESSION 383
seems that he has. At all events, he cannot deal with the Can the
burdened property, so as to give a good title to an inno-
cent purchaser. This is expressly enacted in Cod. 6. 43. 3 good title
to the following effect:— purchaser
' If a legacy or fideicommissum be left to any one with a
condition of substitution or restitution, either in an uncertain T ,,
.In Koman
event or in a certain event but at an indefinite time, he will do Law ;
better if in these cases he refrains from selling or mortgaging
the property, lest he should expose himself to still greater
burdens under a claim of eviction. But if in his lust for wealth
he should hastily proceed to a sale or mortgage hi the hope that
the conditions will not take effect : let him know that, upon the
fulfilment of the condition, the transaction will be treated as
of no effect from the beginning, so that prescription will not
run against the legatee or fideicommissary. And this rule will,
in our opinion, equally obtain whether the legacy has been left
unconditionally or to take effect at some certain or uncertain
future time, or in an uncertain event. But in all these cases let
the fullest liberty be given to the legatee or fideicommissary to
claim the property as his own, and let no obstacle be placed in
his way by those who detain the property.'1
That the principles set forth in this law were accepted inRoman-
as part of the law of Holland admits of no doubt. It will
be observed that here there is no tender regard for the
bona fide purchaser, though at an earlier period in the
history of Roman Law he was preferred to the fideicom-
missarius.2 The modern law seems to have reached the
same result in favour of a purchaser without notice who
has obtained registered transfer.3
Next, let us consider the position if: (a) the fiduciary When
dies before the testator ; (6) the fideicommissary dies before
the fiduciary, or before any other event upon which the faila to
vesting of the fideicommissum depends. In principle the effect.
result in each case is the same ; the fideicommissum fails.
In the first case there is no one burdened ;4 in the second
1 De Jager v. Scheepers (1880) Foord at p. 123 per De Villiers
C.J. where this passage is cited. 2 Paul, Sent. 4. 1. 15.
3 Lange v. Liesching (1880) Foord at p. 59; infra, p. 435;
(Ceylon) De Silva v. Wagapadigedera (1929) 30 N.L.R. 317;
Kusmawathi v. Weerasinghe (1932) 33 N.L.R. 265.
4 Voet, 36. 1. 69; Huber, 2. 19. 112-21.
384 THE LAW OF SUCCESSION
case there is no one entitled.1 But in case (a), since to-day
the heir has been replaced by the testamentary executor,
the death of the fiduciary before the testator no longer pre-
vents the fideicommissary from claiming under the will ;2
nor, again, is he excluded from the succession, if the fidu-
ciary repudiates the inheritance.3 In case (6) it is always
possible for a testator to make a direct substitution in
favour of the children of the fideicommissary, so that they
will take his place, and, where the testator has not done so
in express terms, an intention to do so will sometimes be
inferred ex conjectura pietatis.4 There are other cases too
in which a fideicommissum is not held to fail if the fidei-
commissary does not survive the fiduciary: 'If, for in-
stance, the fiduciary is a mere trustee to administer a
trust for a certain period without any beneficial interest,
or according to Voet (36. 1. 67), if the fideicommissum
were created by contract, the implication would not ordi-
narily arise.'5 But on this last point opinions varied.6 If
the fideicommissary disclaims his right, the fiduciary in the
absence of a contrary intention has the absolute dominium.7
Distinc- From what has been said it will be seen that when a
between ^e interest is given by will it is of the utmost importance
I**6 to find out whether the testator intended to create the
interest
created: life interest by way of fideicommissum or by way of
usufruct.8 From the point of view of the tenant for life
1 Voet, 36. 1. 67; Huber, 2. 19. 31 and 50; Van Dyk v. Van
Dyk's Exors. (1890) 7 S.C. at p. 196.
8 White v.Landsberg's Exors. [1918] C.P.D. 211: (Ceylon) Sheriff
v. Yoosub (1944) 46 N.L.R. 1.
3 Ex parte De Jager [1907] T.S. 283 ; Van der Merwe v. Van der
Merwe's Extrix. [1921] T.P.D. 9.
4 Voet, ubi sup.; Huber, 2. 19. 38; Est. Kemp v. McDonald's
Trustee [1915] A.D. at p. 501.
5 Jewish Colonial Trust v. Est. Nathan [1940] A.D. at p. 177.
6 Wassenaar, Prax. Judic. cap. 18, sec. 126; Brit. S. A. Co. v.
Bulawayo Munic. [1919] A.D. at p. 95; (Ceylon) Balkis v. Perera
(1927) 29 N.L.R. 284. In some cases the fideicommissary may
claim the property even before the vesting of the f.c., notably if
the fiduciary has alienated all the property. Ibid. sec. 125.
7 Voet, 36. 1. 65.
8 Strydom v. Strydom's Trustee (1894) 11 S.C. 425; Commrs. of
Inland Rev. v. Eat. Hollard [1925] T.P.D. 154; Ex parte Cilliers
TESTAMENTARY SUCCESSION 385
the result is, perhaps, much the same in either case.1 But (a) by
from the point of view of the person who is to take after ^,^0^.
him the distinction is of vital importance. If the life- sum;
tenancy is created by way of usufruct the dommium vests usufruct,
forthwith in the person who is to take as successor. He
acquires from the very moment of the testator's death a
real right, which he can dispose of inter vivos or by will or
transmit to his intestate heirs. But if the life-tenancy is
the consequence of a fideicommissum, the fideicommissary
takes no immediate interest. He must be alive when the
fiduciary dies. If he predeceases the fiduciary, he transmits
nothing to his heirs,2 for he had nothing to transmit, and
the ownership, which was from the beginning vested in
the fiduciary, being now freed from the burden of the
fideicommissum, is his to dispose of in any way he pleases.3
This fundamental distinction is seldom present to the mind
of lay people who make wills, and the task of construing
their dispositions is often a matter of difficulty. A clause
forbidding alienation by the life-tenant points to a fidei-
commissum, but affords merely a presumption, not a
positive rule of law.4 Before the Court will construe a
testamentary disposition to be a fideicommissum, it must
be satisfied beyond a reasonable doubt that the testator
intended to burden the bequest with a fideicommissum.
'The well-established rule in the Roman-Dutch Law is
[1927] O.P.D. 65; De Villiers v. Est. De Villiers [1929] C.P.D.
106. See Van Winsen, Usufruct or Fideicommissum 50 S.A.L.J.
147 and Murray J.'s remarks in Wynn N.O. v. Oppenheimer
[1938] T.P.D. at p. 365.
1 Union Govt. v. De Kock N.O. [1918] A.D. at pp. 32 and 40.
2 Voet, 7. 1. 13 ; 36. 1. 26. But 'although there is a presumption
in the case of a fideicommissum that a testator intended a fideicom-
missary legatee to have no transmissible rights unless he survives
the fiduciary legatee, such presumption would have to yield to
other clear indications in the will of an intention to the contrary'.
Samaradiwakara v. De Saram [1911] A.C. at p. 765, per Lord de
Villiers. [This passage is imperfectly reproduced in [1911] A.D.
at p. 471.] s Bijnk. O.T. i. 197.
4 Voet, 7.1.10; Samaradiwakara v. De Saram, ubi sup., at p. 762.
Conversely if a person is instituted as heir in the usufruct of a thing
with power of alienation, he is considered to have been instituted in
the ownership. Van Leeuwen, 3. 8. 17. Cf. V.d.K. 374-5.
4901 0 0
386 THE LAW OF SUCCESSION
that, in case of doubt, the construction should be against
a fideicommissum.'1
It has been observed above that the chief use of the
fideicommissum was to tie up property through succeeding
generations. We are told in the Institutes that a testator
might charge a fideicommissum not only on an heir or
legatee, but also on a fideicommissary. In this way the
testator might tie up the property for so long as he pleased.
The rule Had the Roman and the Roman-Dutch Law, then, no
perpetui- I^6 against Perpetuities ? Yes ; but one which, as inter-
ties in preted in a later age, gave way before the clearly expressed
ana intention of the testator to override it. The rule, which
Dutch js derived from Justinian's 159th Novel (A.D. 555), is
stated by Voet in the following terms :2
' Now since there has been frequent mention of a perpetual
fideicommissum in the preceding sections, it should be known
that it has been generally held that where there is any doubt
such perpetuity only extends to the fourth generation and
that thereafter the property is unburdened, so that the fifth
generation is able to dispose thereof at will ; unless there be
clear evidence of a contrary intention on the part of the
testator, desiring to subject the property to a further burden.
For it seems that we cannot deny the testator's right to
multiply the degrees of fideicommissary substitution at his
discretion in infinitum as in the case of direct substitution.'
The testator, then, may tie up the property for ever if
he pleases. But the mere use of the word 'perpetual',
or the like, is not sufficient to produce this result.3
Thus, if he says : ' I will that my goods after the death
of my first heir shall descend to my next of kin then in
being and that they shall always go from one to the other
1 Gordon's Bay Estates v. Smuts [1923] A.D. at p. 166 ; Ex parte
Sadie [1940] A.D. at p. 30. But it has been said that there is no
presumption against f.c. in favour of usufruct. Miller v. Attwell
[1927] C.P.D. 150; Ex parte Ward [1928] C.P.D. 70; contra,
Commrs. of Inland Rev. v. Bollard [1925] T.P.D. at p. 163.
2 Voet, 36. 1. 33.
3 Ex parte Barnard [1929] T.P.D. 276. Cf. Sande, Decis. Fris.
4. 5. 4, where the head-note runs : ' Perpetuum fideicommissum non
extendi ultra quartum gradum, nisi enixa Testatoris voluntas aliud
suadeat.'
TESTAMENTARY SUCCESSION 387
of my blood-relations and shall not at any time pass
outside my family,'1 these words will not be sufficient
to tie up the property beyond the fourth generation
inclusive, unless, he goes on to add, 'the fideicommissum
shall not at any time or in any event whatsoever come to
an end', or other words of like import.2 As to the mode
of computing the degrees, Voet continues : —
' In Holland and Friesland the general opinion of commentators
has been accepted . . . that it is not the first instituted or
fiduciary heir, but the first fideicommissary heir, who con-
stitutes the first degree, and consequently only the fifth fidei-
commissary heir is able to exercise his free discretion in regard
to the fideicommissary property.'3
The inconvenience of allowing testators to ' tie up ' their Relief
property over a long series of successive generations is br^en ®f
obvious. It is not surprising therefore that applications fideicom-
are made to the Court to discharge the property from the
1 Huber, 2. 19. 63. Cf. Ex parte Steenkamp [1919] C.P.D. 112.
In In re Est. Von Ludwig [1931] C.P.D. 488 a testator made an
unsuccessful attempt to keep a gold snuff-box in the family as a
perpetual heirloom.
2 Huber, 2. 19. 64-5: ten ware de Testateur met zeer krachtige
en dringende woorden hadde belast dat hy immers de bezwarenisse
ten eeuwigen dage wilde hebben uitgestrekt, in welken gevalle de
wille van de Testateur plaets soude moeten hebben.
3 Van Leeuwen (3. 8. 7) agrees with Voet; and this view was
adopted by de Villiers C.J. in Rykcliefs Heirs v. Rykcliefs Exors.
(1896) 13 S.C. 64, and Union Govt. v. Olivier [1916] A.D. 74. See
further, as to the method of computing the degrees, Strickland v.
Strickland [1908] A.C. 551 (P.C. in appeal from Malta). .In Ceylon
by Ord. No. 11 of 1876 immovable property may not by any will,
deed, or other instrument be made inalienable for a longer period
than the lives of persons who are in existence or en ventre sa mere
at the time of its execution and are named described or designated
in it, and the life of the survivor of such persons (sec. 2) ; and any
prohibition or restriction of alienation so far as it extends beyond
the above-mentioned period is null and void (sec. 3). The Trusts
Ord. No. 9 of 1917 repeals this Ord. in so far as it relates to trusts ;
but sec. 110 (1) provides that 'no trust shall operate to create an
interest which is to take effect after the lifetime of one or more
persons living at the date of the constitution of the trust, and the
minority of some person who shall be in existence at the expiration
of that period, and to whom, if he attains full age, the interest
created is to belong'. But a fideicommissum can be created ex-
tending over four generations. (Ceylon) Carolis v. Simon (1929),
30 N.L.R. 266; Ismail v. Marikar (1932) 34 N.L.R. 198.
388
THE LAW OF SUCCESSION
Trusts.
Estate
Kemp v.
McDon-
ald's
Trustee.
burden which attaches to it, or to authorize exchange or
sale or mortgage. But the Court has no general discre-
tionary power to modify the terms of a will,1 and apart
from the limited cases provided for by statute, permission
is rarely given unless the property is of a wasting character,
so as to render exchange or sale desirable in the interest
of all parties presently or contingently interested ;2 and it
is only under special circumstances that the Court will
grant leave to the fiduciary to raise money on the security
of the fideicommissary property.3 On the other hand,
where all the fideicommissaries are ascertained and sui
juris they may agree to the sale or mortgage of the
property or to the total extinguishment of their rights.
If they are minors consent may be given by their guardians
on their behalf, but subject to approval by the Master or
the Court.4
12. Trusts. In directing attention above to the fun-
damental distinctions between fideicommissa and trusts
we reserved the question of the place of trusts in the
modern law. This must now be considered.
In Estate Kemp v. McDonald's Trustee [1915] A.D. 491
the Court had to construe a testamentary trust.
1 Jewish Colonial Trust v. Est. Nathan [1940] A.D. 163 ; Exparte
Burstein [1941] C.P.D. 87.
2 Voet, 36. 1. 63 and 70; V.d.K. 317, Dictat. ad Gr. 2. 20. 11;
V.d.L. 1. 9. 8 ; Goldman N.O. v. Exor. Est. Goldman [1937] W.L.D.
64; Ex parte Boyd [1938] C.P.D. 197, 510. The power to relieve
property of the burden of f.c. was expressly denied to the Courts
by a Placaat of the States of Holland and West Friesland of July
23, 1670 (3 G.P.B. 491). For the modern law see The Removal or
Modification of Restrictions on Immovable Property Act (No. 2
of) 1916 (amended by Act, No. 20 of 1924), and the following
cases: Ex parte Marks [1926] T.P.D. 1; Ex parte Est. Marks
[1927] T.P.D. 316; Ex parte Senekal [1934] T.P.D. 131 ; Ex parte
Blomerus [1936] C.P.D. 368; Ex parte Cohen [1937] T.P.D. 155;
Ex parte Van Vuuren [1937] T.P.D. 144.
8 Ex parte Short [1928] T.P.D. 155 (leave refused); Ex parte
Macdonald [1929] W.L.D. 18 (leave granted); Ex parte Odendaal
[1928] O.P.D. 218 (leave granted to mortgage in order to raise
money for necessary expenses) ; Ex parte Koen [1930] O.P.D. 154
(leave refused) ; Exparte Visagie [1940] C.P.D. 42 (leave granted) ;
Ex parte Hopley's Est. [1940] C.P.D. 60 (leave granted) ; Ex parte
Nell [1941] C.P.D. 314 (leave granted).
4 Ex parte Odendaal, ubi sup.
TESTAMENTARY SUCCESSION 389
Sir James Rose Innes C. J. said (p. 498) : —
' This is a will drawn by an English lawyer and expressed in Judgment
English legal phraseology: but the testator, both at the date °f InneB
of execution and at the date of his death was domiciled in the
Cape Colony ; and his dispositions must be interpreted in the
light of our own law. . . . The English law of trusts forms, of
course, no portion of our jurisprudence: nor have our Courts
adopted it ; but it does not follow that testamentary disposi-
tions couched in the form of trusts cannot be given full effect
to in terms of our law.
The word [trustee] is familiar in our own practice ; trustees
under antenuptial contract, for debenture holders, and for
public purposes are well known, and the term is also used in
connection with testamentary dispositions. The duties of such
a trustee are administrative, and he corresponds no doubt in
many respects to our administrator ; but a testamentary trust
is in the phraseology of our law a fideicommissum and a testa-
mentary trustee may be regarded as covered by the term
fiduciary. In modern practice "fiduciary" is most frequently
used to denote an heir or legatee who holds the bequeathed
property as owner and for his own benefit subject to its passing
to fideicommissaries upon the happening of a certain condition.
But it does not follow that the element of personal benefit on
the part of the first holder is essential to the constitution of
a, fideicommissum, or to the character of a fiduciary.'
The learned Chief Justice went on to say (p. 502) that Separation
'it was quite possible, under the Roman-Dutch Law, to ownership
separate the legal ownership of property from .the right an^ bene-
to its beneficial enjoyment', and (p. 503): — joyment.
' When a fiduciary is deprived of all beneficial interest in the
bequeathed property and is left with the bare dominium to be
held in trust for others, he becomes a mere administrative peg,
from which depend the substantial provisions of the bequest.
And in regard to these provisions a testator has a latitude as
great as he would possess in making a direct disposition of
his estate. Successive beneficiaries or classes of beneficiaries
may be nominated as the objects of his bounty; he may sub-
stitute some for others ; and he may confer upon one benefits
which can under no possibility extend beyond a life enjoyment ;
while to another may be given rights which under certain
390 THE LAW OF SUCCESSION
eventualities embrace a claim to the corpus of the bequest.
While the trust continued the dominium would remain in the
trustee; the beneficiaries would be entitled to call upon him
to carry out in their 'favour the provisions of the trust as and
when their rights accrued ; but the question of the nature of
any right, its vesting and its transmissibility to the heirs
of the beneficiary would depend in every instance upon the
intention of the testator as expressed in the will.'
Identifies- In this account of the matter a trust is afideicommissum,
trust and *ne trustee figures as a fiduciary, and the beneficiaries
fideicom- of the trust as fideicommissaries. But when the trust is
in the nature of a settlement, i.e. a disposition by which
persons are successively entitled, a question may arise as
to the character of the first beneficiary's interest. In
Roman-Dutch Law, as explained above (supra, p. 384), a
life interest may assume the form either of a usufruct or
of a fideicommissum, and in the case under consideration
the Court had to decide to which of these the life interest
given by the will to testator's daughter was to be referred.
Strictly speaking, it could not be to either, for the domi-
nium was outstanding in the trustee, but it was assumed
that interests could be created in the enjoyment of the
trust fund (one is tempted to say equitable interests)
similar to those which might be created in the property
itself so that the question resolved itself into this : ' Was
she vis-a-vis her descendants in a position analogous to
that of a fiduciary or analogous to that' of a usufructuary ?n
Resulting It must be admitted that there is something unsatis-
factory in a terminology which employs the words 'fidei-
commissary', 'fiduciary' to serve a double purpose, so
that the beneficiary under a trust is described as a fidei-
commissary in relation both to the trustee and to a person
entitled previously to him under the trust, while the
description 'fiduciary' is applied both to the trustee and
to a beneficiary in relation to a person subsequently
entitled under the trust.
Judgment Solomon J.A. in his judgment avoids this difficulty.
Salomon He says (p. 512):—
J.A. 1 Per Innes, C.J.
TESTAMENTARY SUCCESSION 391
'In considering the legal rights of the beneficiaries under
the will, I have studiously avoided the use of any of the
technical terms peculiar to our law. For the will itself employs
the phraseology of English law, and the cardinal rule in the
construction of testamentary documents being to endeavour
to discover the intention of the testator, it is, in my opinion,
quite possible to do so in the present case without translating
English legal terms into the corresponding expressions of our
own law. Were it necessary to do this I think that we should
have to speak of the trustees as fiduciary heirs or legatees and
of [the daughter] as a fideicommissary legatee. In doing so,
however, we should be using the terms fiduciary and fidei-
commissary in a wider sense than they have hitherto been
employed [in] in any of our reported cases. For in these cases
a fiduciary heir or legatee has invariably meant a person who
himself had a beneficial interest, usually a life interest, in the
property bequeathed to him, while the fideicommissary has
been one in whom the dominium of the property has ipso facto
vested on the death of the fiduciary, or on the happening of
any other event which terminates the rights of the fiduciary.
In the present case, however, the trustees have no beneficial
interest [in the trust property], nor could the dominium ever
have passed to [the daughter]. ... It appears to me, however,
to be unnecessary for the decision of this case to translate into
the language of the Roman-Dutch law the English terms which
are used in this will. Nor am I sure that it is desirable to do so,
inasmuch as it involves employing the expressions fiduciary
and fideicommissary in a much wider sense than they are
commonly used [in] in our Courts, while the terms, trusts and
trustees are now in general use in South Africa.'
In view of this expression of opinion by so eminent a Fideicom-
Judge, afterwards a Chief Justice of the Union, a regret
may be permitted that the law of South Africa has not
frankly accepted the trust conception, or at least its ter-
minology, as a useful importation from a foreign system.
In an earlier case Innes C. J. said : —
'If by trustee is meant a man occupying some capacity
recognized by our law, and undertaking some obligation known
to our law, to hold property for another, and not for himself, then
the expression is a convenient one and may be safely applied.'1
' Trustee v. Ismail & Amod [1906] T.S. at p. 244.
392 THE LAW OF SUCCESSION
To regard the South African trust as a development
of the Dutch fideicommissum is historically inexact. In
Ceylon the two institutions — fideicommissum and trust —
exist side by side.1
To speak of a trust does not necessarily imply the
admission of equitable ownership. This is unknown to the
law of South Africa.2
Mutual 13. Mutual wills. This topic has been referred to
above. It was in Holland, and is in South Africa, the
common practice for two or more persons, usually but
not necessarily spouses married in community of property,3
to join in making a disposition of property which is known
as a reciprocal or mutual will.4 The principles of law
applicable to such disposition are briefly and accurately
stated by Van Leeuwen in the following passage :5
'A husband and wife may together make their joint will in
one writing. Such joint will, however, is considered as two
separate wills, which either of them may specially and without
the knowledge of the other, or even after that other's death,
always alter ; except only where either of them has reciprocally
benefited the other thereby, and directed how the disposition
of the property of their joint estate after the death of the
survivor is to be regulated ; in this case the survivor, if he or
she has enjoyed or wishes to enjoy the benefit, cannot make any
other disposition or will of his or her half unless the benefit
bestowed has been repudiated and renounced.'
1 Sabapathy v. Mohamed Yoosuf (1935) 37 N.L.R. 70; Sinnan
Chetliar v. Mohideen (1939) 41 N.L.R. 225; Ramanathan v.
Saleem (1940) 42 N.L.R. 80. Ord. No. 9 of 1917 defines and amends
the law relating to trusts. Sec. 3 defines a trust and concludes
with the words 'A trust does not include a fideicommissum^. It
seems that in South Africa a trust is interpreted (or disguised) as
a fideicommissum or stipulatio alteri.
2 Lucas'' Trustee v. Ismail & Amod, ubi sup., at p. 247 ; Princess
Est. v. Registrar of Mining Titles [1911] T.P.D. at p. 1078.
8 Est. Koopmans v. Est. De Wet [1912] C.P.D. 1061 (sisters);
Villefs Est. v. Villet's Est. [1939] C.P.D. 152 (sisters); Bijnk.
O.T. i. 496 (brother and two sisters) ; In re Murray's Est. ex p.
Mulhearn (1901) 18 S.C. 213 (spouses married out of community).
4 Gr. 2. 15. 9; 2. 17. 24, and Groenewegen, ad loc., Gens. For.
1. 3. 2. 15 and 1. 3. 11. 7; Voet, 23. 4. 63; Boel ad Loen. Cas. 137;
V.d.K. 283, 298.
6 Van Leeuwen, 3. 2. 4. (Kotz6's translation).
TESTAMENTARY SUCCESSION 393
In another place he writes :l —
'Whenever two spouses have bequeathed to one another
some benefit, and coupled therewith a direction indicating how
the property of the common estate shall be disposed of upon
the death of the survivor, the latter, having enjoyed the benefit,
cannot alter by subsequent will the disposition of his or her
share.'
The rules laid down by Van Leeuwen in these passages
were approved and adopted by the Privy Council in
Denyssen v. Master? and in many subsequent cases.3
'The judgment of the Privy Council in this case has always Massing,
been accepted in South African Courts as an authoritative
exposition, so far as it goes, of the law on the subject.'4
' It was there decided . . . that the power which a surviving
spouse generally has to revoke a mutual will, so far as it affects
half the property, is taken away on the occurrence of two
conditions :
1. That the will disposes of the joint property on the death
of the survivor, or, as it is sometimes expressed, where the
property is consolidated into one mass for the purpose of a
joint disposition of it.
2. That the survivor has accepted some benefit under the
will.'5
Later cases have developed and qualified the implica-
tions of this decision.
' Bearing in mind the terms of the Roman- Dutch authorities,
it would seem that the distinguishing feature of the "massing"
there referred to must be that the testator has disposed of the
survivor's share of the joint estate (or a specific portion of it)
as well as of his own. Indeed a mutual disposition of joint
property implies that ... so that mere consolidation is not in
itself sufficient ; it is necessary to irrevocability that one spouse
should dispose of the other's share in the consolidated mass as
well as of his own. The two elements then which must concur
1 Van Leeuwen, 3. 3. 8.
2 (1872) L.R. 4 P.O. 236; reported also as Secretary S. A.
Association v. Mostert [1873] Buch. 31.
8 Such as Dias v. Livera (1879) L.R. 5 App. Cas. 123 (Ceylon) ;
Abeyesekera v. Tillekeratne [1897] A.C. 277 (Ceylon); Natal Bank,
Ltd. v. Rood [1910] A.C. 570 (Transvaal).
4 Receiver of Revenue, Pretoria v. Hancke [1915] A.D. at p. 78
per Solomon J.A. B Ibid, at pp. 71-2 per Innes C.J.
394 THE LAW OF SUCCESSION
in order to deprive the survivor of the right to revoke the
mutual will are a disposition of the survivor's property or a
specific portion of it after the survivor's death, and an accep-
tance by the survivor of some benefit under the will. Upon
electing to take the benefit, he automatically assents to the
bequest. On the other hand, if he elects to reject the benefit
he reverts to his legal position before the testator's death, the
mutual arrangement falls away, and the will of the first-dying
operates only upon his share of the property.'1
The conclusion to be drawn from the above passage
is that what is called 'massing' is in fact an application
of the principle of election. If this is borne in mind it is
apparent that there will be no question of irrevocability
of the will of the surviving spouse unless the will of the
predeceasing spouse bears the construction that it disposes
of the whole or part2 of the survivor's share, as well as of
his own share in the joint estate. For it is quite possible
for husband and wife to make a joint will in which each
disposes exclusively of his or her share of the joint estate
without disposing in any way of the share of the other
spouse.3 Such a will sometimes takes effect as the will
of the first-dying only, viz. of husband or wife alone, as
one or other may happen to die first ;4 or it may be con-
strued as 'two dispositions of two equal portions of the
1 Receiver of Revenue, Pretoria v. Hancke [1915] A.D. at pp. 71-2
per Innes C.J.
2 In Mostert's case itself the massing of the joint estate was only
partial, but 'their lordships decided that the will had so dealt with
the joint estate that the survivor would not have had the power
to revoke any part of it if she had adiated'. De Villiers C.J. in
Barry v. Mundell (1909) 26 S.C. at p. 480. Other cases of partial
massing — Exors. Est. Viljoen v. The Master [1922] C.P.D. 208;
Est. Smuts v. Est. Rust [1923] C.P.D. 449.
3 For a mutual will which did not effect a massing of the joint
estate see Kleyn v. Est. Kleyn [1915] A.D. 527. Note that the use
of the words 'joint estate' or 'the whole of the joint estate' in a
will does not point conclusively to an intention to mass the joint
estate (ibid, and Est. Coaton v. The Master [1915] C.P.D. 318).
For another case where there was no massing see De Kock v. Est.
De Kock [1922] C.P.D. 110. 'As the ordinary and natural course
for a testator is to dispose only of his own property' the presump-
tion is against massing. Van Reenen v. Est. Van Reenen [1925]
O.P.D. 239.
4 Est. Coaton v. The Master, ubi sup.
TESTAMENTARY SUCCESSION 395
joint patrimony',1 or (to vary the phrase) as 'two separate
wills embodied for convenience in one document'.2 Finally,
it must be remembered that for the rule to apply actual
acceptance or, as it is called, 'adiation' by the survivor
is essential. The opinion expressed by Fitzpatrick J. in
S. A. Association v. Mostert,3 that the parties to a joint
will were mutually bound by contract not to change their
dispositions except by mutual consent, and that this was
so whether benefit was accepted or not, was dissented
from by his colleague Mr. Justice Denyssen, and was
overruled by the Judicial Committee.
It remains to consider the effect of a mutual will and Effect of
acceptance of benefits upon the property of the survivor. ^Ul on
In Rosenberg v. Dry's Exors* and Receiver of Revenue, property
Pretoria v. Hancke5 the Appellate Division held that the vivor.
heirs did not acquire a real right in such property, but
a personal right against the survivor to compel him or her
to recognize and give effect to the will of the first dying.6
There was, however, much authority for the proposition
that the dominium in the survivor's share, as well as in
the share of the first dying, passed under the will. In
South Africa this second alternative received statutory
authority from the Administration of Estates Act, 1913,
sec. 115, which provided that: —
'Where two spouses, married in community of property,
have by their mutual will massed the whole or any specific
portion of their joint estate, and disposed of it after the "death
of the survivor, conferring upon the latter a fiduciary, usufruc-
tuary or other limited interest therein, then upon the death of
either of such spouses after the commencement of this Act,
1 Receiver of Revenue, Pretoria v. Hancke, ubi sup., at p. 72 per
Innes C.J.
2 Warren and Turpin v. The Master and Silberbauer [1913]
C.P.D. at p. 791 ; Scheidel v. The Master [1936] C.P.D. 287 ; Bijnk.
O.T. i. 450 is to the same effect. For Ceylon see Paramanathan v.
Saravanamuttu (1928) 30 N.L.R. 188. For mutual wills at com-
mon law see Gray v. Perpetual Trustee Co. [1928] A.C. 391 (on
appeal from the High Court of Australia). 3 [1869] Buch. 231.
4 [1911] A.D. 679. 5 [1915] A.D. 64.
5 The Ceylon Court in construing an old will came to the same
conclusion. Sangaramorihy v. Candappa (1932) 33 N.L.R. , p. 361.
396 THE LAW OF SUCCESSION
adiation1 and the acceptance by the survivor of benefits under
the will shall have the effect of conferring upon the heirs
entitled to the said property after the expiry of the said
limited interest the same rights in respect of the survivor's
half share of such property as they may by law possess in
respect of the half share which belonged to the spouse who has
died first.'
It will be remarked that this enactment applies only to
the case of the mutual will of spouses married in com-
munity.
The result is that : —
'When there is a mutual will [of such spouses] made irre-
vocable by massing and acceptance of benefits . . . this will
operates as one will and as that of the first dying. . . . The
estate is consolidated into one mass and is in every real sense
one estate falling under the dispositions of the one will, namely
that of the first dying.'2
1 Adiation means acceptance of an inheritance. The word is a
strange perversion of the Latin aditio hereditatis.
2 Meyer's Exors. v. Meyer's Exors. [1927] T.P.D. at pp. 339-40
per Stratford J.
Ill
INTESTATE SUCCESSION
A MAN is said to die intestate when he dies without leav- The law of
ing a valid will, or if no one accepts a benefit under his ^f^6
will.1 Further, since one may in the modern law die sion.
partly testate, partly intestate, an intestacy also arises
with regard to any property of the deceased which falls
under either of the above-mentioned categories, although
he may not die intestate in respect of other property.
The law of intestacy in the United Provinces presented Bewilder-
a bewildering picture. It varied from province to pro- ^iety
vince and almost from town to town. In Holland and i*1 the
West Friesland in particular two systems of intestate iands.
succession principally prevailed, the geographical limit
which defined the two being, in the main, determined by
the River Ijssel.2 This stream (which is not to be con-
founded with another river of the same name, which dis-
charges into the Zuyder Zee) was from ancient times the
boundary line between North and South Holland. South
of it prevailed a system of intestate succession known as
Schependomsrecht, so called because it was laid down in Schepen-
the dooms or judgments of the local magistrates called r°c™t~
Schepenen.3 North of it prevailed a system known as
Azingdomsrecht or Aasdomsrecht, because the law was Aasdoms-
anciently found in the dooms of neighbours presided over recht-
by an officer called the asega or azing* in Friesland and
the adjoining districts of Holland. These two systems Different
differed toto caelo.5 The principal characteristic of each is thesTtwo
1 Inst. 3. 1. 1 pr. In Kunz v. Swart [1924] A.D. 618 the Court systems,
held by a majority (Solomon and Kotze JJ.A., de Villiers J.A.
dissent.) that a will regular on the face of it is presumed to be
valid until its invalidity has been established in a Court of Law.
Therefore if the heir ab intestato alleges that such a will is a forgery,
the onus probandi lies on him and not on the person maintaining
the validity of the will. 2 Gr. 2. 28. 2. 3 Gr. 2. 28. 10-11.
4 Gr. 2. 28. 7-9 ; Wessels, History of the Roman-Dutch Law,
p. 544; de Blecourt, sec. 17.
5 Vinnius ad Inst. lib. iii, tit. 5, in appendice 'forma succedendi
ab intestato apud Hollandos et Westfrisios', sec. 1.
398 THE LAW OF SUCCESSION
expressed in the proverbial maxims, 'Het goed moet gaan
van daer het gekomen is' and 'Het naaste bloed erft
het goed'. By the Schependoms Law 'the goods must go
whence they came ' ;l which means that the goods of a
deceased person were taken by a fiction of law to have
devolved upon him mortis causa from both parents equally.
If, therefore, the deceased left one surviving parent, the
deceased's estate was supposed to have come to him
wholly from the dead parent and not at all from the
living one. Accordingly it reverted to the side from which
it was supposed to have come (paterna paternis — materna
maternis), viz. if the father were dead, to the relatives ex
parte paterna to the exclusion of the mother ; if the mother
were dead, to the relatives ex parte materna to the exclusion
of the father. This rule, together with the further principle
of unlimited representation2 in the descending and colla-
teral lines, was the key-note of the old Schependoms Law,
which accordingly determined the succession as follows:3
Canons of i. Children succeed equally, males and females alike,
succession . .
under with representation per stirpes in injimtum.
the Old 2. Failing children, if both parents are alive, they
Schepen- . '
domsLaw. succeed to equal moieties.
3. If one parent only survives, the whole estate goes to
the children of the deceased parent, i.e. to the brothers
and sisters of the intestate, whether of the whole or of the
half blood, with representation per stirpes in infinitum.
4. If both parents are dead, the estate goes in equal
moieties to the children of the deceased father and to the
children of the deceased mother, i.e. one moiety to brothers
and sisters of the intestate ex parte paterna, whether of the
whole or of the half-blood, with representation as before
stated ; the other moiety to brothers and sisters of the
intestate ex parte materna, whether of the whole or of
the half-blood, with representation as before stated. From
this it will be seen that whole brothers and sisters take
1 Gr. 2. 28. 6 ; Vinnius, ubi sup., sec. 2 ; V.d.K. 347.
2 Van der Vorm, Versterfrecht, ed. Blondoel, p. 34.
8 Van der Vorm, pp. 36-6.
INTESTATE SUCCESSION 399
'with the whole hand', i.e. take twice over; once as chil-
dren of intestate's father, once as children of intestate's
mother. Half brothers and sisters, however, take with the
half-hand, i.e. take only once — viz. in concurrence with
the brothers and sisters of the whole blood in respect of
the father's or of the mother's moiety according as they
are related to the deceased on the father's or on the
mother's side.1
5. Failing children, parents, and issue of parents, the
estate goes in like manner to the four quarters (vier vieren-
deelen), i.e. to the grandparents of the intestate per lineas,
viz. one moiety to the paternal grandparents, the other
moiety to the maternal grandparents. Within each line
identically the same principles are applied as have been
stated above in rules (2), (3), and (4) — a sole surviving
grandparent taking nothing — representation of uncles and
aunts by their issue being admitted per stirpes in infinitum
— the half-blood always taking with the half-hand.
6. Failing children, parents and issue of parents, grand-
parents and issue of grandparents, the estate goes in like
manner to the eight eighths, viz. to the stocks of the eight
great-grandparents, and so on in infinitum.
By the Aasdoms Law ' the nearest blood inherits the Canons of
goods'.2 This rule, together with the preference of descen- 8ion under
1 If only one parent is dead, the half-blood on the side of the
deceased parent takes with the whole hand in concurrence with
the children of the whole blood. This principle is of universal
application, and will be assumed as known, wherever the half-
blood is said to take with the half -hand. The reader must be
cautioned against the mistake of supposing that, when there are
full brothers or sisters, and also half brothers and sisters, the full
brothers and sisters take one -half of the estate and divide the
other half with the half brothers and sisters. This conclusion
rests upon a misapprehension of the effect of the Interpretatie
(of the Political Ordinance) of 1594 (infra, p. 402). The Inter-
pretatie itself is a little misleading because it does not deal
explicitly with the case in which there are half brothers and sisters
on both sides, but the intention is plain enough. It would make the
situation plainer if we might say that the whole blood takes with
both hands, the half blood with one hand, right or left, as the
case may be.
3 Gr. 2. 28. 3 ; Vinnius, ubi sup., sec. 3 ; V.d.K. 346,
400 THE LAW OF SUCCESSION
the Old dants to ascendants and of ascendants to collaterals, and
A rJ
L^ OI ' the total exclusion of all representation, furnishes the key
to this system ; which, further, makes no distinction be-
tween the whole and the half-blood, and has no theory as
to the source from which the goods may be supposed to
have come.
Accordingly the order of succession is i1 —
1. Descendants — children excluding grandchildren,
grandchildren excluding great-grandchildren, &c.
2. Ascendants — two surviving parents equally; one
surviving parent solely ; in default of parents, grand-
parents (on both sides or on one side) equally; a single
surviving grandparent solely; and so on, to the exclusion
of collaterals.
3. Collaterals — brothers and sisters, of the whole or of
the half-blood equally, to the exclusion of nephews and
nieces ; collaterals of the third or remoter degrees equally
without representation.
Succession In 1580 the States of Holland and West Friesland, desir-
Political6 in§ to establish one uniform system of intestate succession
Ordinance for the whole Province, enacted the Political Ordinance
1580^" ' °f April 1 of that year.2 The system therein laid down,
which came to be known as the New Schependoms Law,
departs from the Old Schependoms Law in one particular
only, viz. in restricting representation in the collateral line
to the fourth degree,3 i.e. it does not go beyond the grand-
children of brothers (sisters), and the children of uncles
(aunts).
Succession under the Political Ordinance therefore is as
follows :
1. Children4 (ut supra) ;
2. Parents5 (ut supra) ;
1 Van der Vorm, pp. 79-80.
2 Ordonnantie van de Policien binnen Hollandt, in date den
eersten Aprilis 1580, Arts. 19 ff. (1 G.P.B. 335); Gr. 2. 28. 11;
Vinnius, ubi sup., sec. 4 ; Van Leeuwen, lib. iii, cap. xiii.
8 Van der Vorm, p. 37. * P.O. Art. 20.
6 P.O. Art. 21.
INTESTATE SUCCESSION 401
3. Brothers and sisters being the issue of a deceased
parent, their children and grandchildren, according to the
system above described.1
4. Remoter descendants of such brothers and sisters
per capita according to proximity of degree.2
5. Grandparents per lineas3 and the children and grand-
children (but not remoter descendants) of a deceased
grandparent, according to the system above described.4
6. Remoter descendants of grandparents per capita
according to proximity of degree.
7. Great-grandparents and the descendants of a de-
ceased great-grandparent according to the system above
described, collaterals of equal degree taking per capita to
the exclusion of remoter degrees5 and so on in infinitum.6
8. Failing all relatives whatsoever, the fisc succeeds
to the property as bona vacantia7 to the exclusion of a
surviving spouse.8
It must be borne in mind that the principle of splitting
the inheritance, when the two parents are dead (or alive),
and in case one parent alone is dead, of carrying the whole
inheritance to the issue of the deceased parent, persists
throughout the whole scheme of intestate succession. Each
ascendant in his (or her) own person, together with his
(or her) descendants, makes a fresh line, and when such
line is exhausted (but not before) the share belonging to
that line is divided into halves, and carried half and half
to the father and mother of such ascendant and, their
respective descendants. This is why grandchildren of
uncles and aunts (though in the fifth degree) come in
before great-grandfathers or great uncles, though in the
1 P.O. Arts. 22 and 23. 3 P.O. Arts. 22, 24, and 28.
8 P.O. Art. 25. * P.O. Arts. 24 and 28.
5 P.O. Art. 28. 6 V.d.K. 364.
7 V.d.K. 366. If there is a complete failure of kin on one side
only the relatives on the other side are admitted before the fisc.
Ibid. In the case of bastards the whole estate goes to the relatives
ex parte materna. This is so both by Schependoms and by Aasdoms
Law. V.d.K. 368.
8 V.d.K. 365. This, however, is not universally accepted.
Kotze, Van Leeuwen, vol. i, pp. 501 ff.
4901
402 THE LAW OF SUCCESSION
third and fourth degree respectively. Though this conse-
quence is not clearly stated in the Political Ordinance, it
is a necessary inference from the root principles of the
Schependomsrecht ; and is expressed in the maxim ' Het
goed klimt niet geern ' (the property does not like climbing) ;
or, in other words, a nearer ancestor and his (or her)
descendants (the nearer line) are called to the succession
before a remoter ancestor and his (or her) descendants (the
remoter line).1
The Inter- This new system of succession and an Interpretation2
of M^yTs, °f **» dated May 13' 1594> failed t0 win the adhesion of
1594. most of the towns and districts of the northern part
of Holland. Accordingly in 1599 the States, yielding to
the representation of fourteen principal towns, enacted
a placaat, under date December 18, designed to supply
a common law for North Holland in substitution for the
ThePla- Political Ordinance.3 The order of succession in the
December placaa*> though known as the New Aasdoms Law, departs
18, 1599. considerably from the Old Aasdoms Law, approaching
more nearly in some respects to the Schependoms Law,
in other respects to the Roman Law.
It is unnecessary to recall the details of this complicated
system, which is not in its entirety in force in any part of
the modern world. Its salient feature is that, in default
of descendants of the intestate, one parent being dead, it
admits the survivor to one half of the estate, the other
half going to brothers and sisters of the intestate (being
children of the deceased parent) and to their children
and grandchildren by representation ; failing brothers and
sisters the surviving parent takes the whole.4
This provision (with a variation) is incorporated in the
law of South Africa by the Octrooi of 166 1.5
Thus far we have described the two prevailing systems
1 Van der Vorm, Versterfrecht, p. 68. 2 1 G.P.B. 342.
3 Placaet op 't stuck van de Successien ab intestate, December
18, 1599 (1 G.P.B. 343); Gr. 2. 28, 12; Vinnius, ubi sup., sec. 4;
Van Leeuwen, lib. iii, cap. xiv, and cap. xii, sec. 8, where a list is
given of the towns and places which followed the Placaat of 1599.
4 Placaat, Art. 3. * Infra, pp. 404, 408.
INTESTATE SUCCESSION 403
of intestate succession of the province of Holland. Each of
the other provinces had its own scheme, and there were,
besides, numerous local variations. In view of this great Intestate
. , f. ., ,. f . , . succes-
vanety of usage the question of intestate succession in 8ion ^ the
the Dutch Colonies must have been insoluble except by
, * Colonies.
legislative authority.
Accordingly, we find the States-General prescribing the
canons of intestate succession for the East and West
Indies, in a way, however, which sometimes tended rather
to deepen than to remove the obscurity in which the
subject was involved.
We shall speak first of the East Indies, including Ceylon
and South Africa.
In the year 1632 one Gregorius Comely, domiciled at 1632-4.
Middelburg in Zeeland, died in the Indies leaving two
children, who also died. The States-General (1634) Comely.
directed that the succession should go according to the
Schependoms Law observed in the Province of Zeeland.1
This was merely an application of the general principle
that succession to movables is governed by the law of the
domicile.2
In 1642 Governor-General A. Van Diemen promulgated 1642.
mi^ C\\f\
his collection of statute law known as the Old Statutes of statutes of
Batavia (or India).3 It is expressed to be provisional in Batavia.
character,4 and to remain in force until the Council of
Seventeen with the authority or approbation of the States-
General should otherwise determine. With regard to in-
testate succession in particular it provided that 'the law
of the towns of North Holland shall be followed as was
ordained in the year '16 on directions from the Council of
Seventeen'.5 The detailed rules which follow correspond
in all particulars with the Placaat of 1599.
1 2 G.P.B. 1322; J. A. Van der Chijs, Nederlandsch-Indisch
Plakaat Boek, vol. i, p. 365. 2 Supra, p. 133.
3 Op. cit., p. 472. 4 Op. cit., p. 474.
6 Op. cit., p. 543. There is some mistake here. Perhaps '1625'
was intended. See Nederlandsch Intestaaterfrecht buiten Europa
door M. H. Van der Valk, Tijdschrift voor Rechtsgeschiedenis,
deel x, p. 412, which contains much interesting matter.
404 THE LAW OF SUCCESSION
1661. In 1661 the States-General, moved thereto by repre-
fTTL -.
Octrooi to sentations from the Company's officials, issued the Octrooi
the East or Charter of January 10.1 Having considered the regula-
Company; tions of 1629 and 1636 issued for the West Indies, which
introduced the Political Ordinance into those regions, they
resolved 'after ripe deliberation' that the same law to-
gether with the Interpretation of 1594 should apply to all
Lands, Towns and Peoples in India obedient to the State
of the United Netherlands and under the direction of the
East India Company, and also in respect of succession
to persons dying on the outward or homeward voyage.
in what The Octrooi does not contain the terms of the Political
differs 1 Ordinance, but incorporates them by reference, subject
from the to deviation in the sense of the Aasdoms Law in favour of
Ordin- a s°le surviving parent, who by the Political Ordinance
ance. js no^ admitted to the inheritance of a deceased child.
This interpolated section corresponds closely, but not
exactly, with Art. 3 of the Placaat of 1599, and lends some
colour to the statement that the Octrooi is based upon the
law neither of North Holland nor of South Holland, but
is partly derived from both. The statement, however, is
misleading, for except for the above-mentioned modifica-
tion it enacts that the law of South Holland shall be
observed.
1766. In 1766 Governor-General Van der Parra submitted for
StatuteiTof *^e aPProval °f *ne Seventeen and of the States-General
Batavia. the collection known as the New Statutes of Batavia (or
India).2 This Code, though in use in the Courts — so Van
der Chijs informs us — for nearly a century, never received
recognition from the highest authority. It had not, there-
fore, strictly, the force of a statute.3 In respect of intestate
succession, it reproduces seriatim the substance of Van
Diemen's earlier Code, together with the express provi-
sions of the Octrooi above cited. But it is plain that the
Old Statutes of Batavia as regards succession cannot have
1 2 G.P.B. 2634; Van der Vorm, p. 631; Burge, vol. i, pp.
103-4. The Charter was promulgated in Batavia on February 7,
1662. Van der Chijs, vol. ii, p. 340.
3 Van der Chijs, vol. ix. * Op. cit., p. 25.
INTESTATE SUCCESSION 405
continued to remain in force side by side with the Octrooi,
which is inconsistent with them. That the Octrooi, and
therefore the Schependomsrecht, was in fact the law of
succession for Batavia appears inter alia from another
portion of Van der Parra's Statutes, where it is laid down
that Orphan Masters are not liable to actions, except on
the ground of wilful default, or if they act contrary to the
clear language of statutes or of the Octrooi on intestate
succession.1
So far we have spoken of the East Indies in general. Intestate
It remains to see how the law stood, and stands, in Ceylon
and in South Africa in particular. In neither of these Ceylon:
countries was the matter free from doubt. opinions,
For Ceylon we have two cases in which the question
of intestate succession was carefully considered. In the
first of these, decided in 1822,2 Sir Hardinge Giffard C.J.,
delivering the judgment of the Court of Appeal, pro-
nounced, not without considerable hesitation, in favour
of the view that the North Holland law obtains in Ceylon.
In 1871 the same Court, over which Sir Edward Creasy
then presided as Chief Justice, clearly indicated an oppo-
site opinion.3
Today the question is of merely historical interest. The now
law of intestate succession in this colony is now regulated statute.
by the Matrimonial Rights and Inheritance Ordinance
(No. 15 of) 1876, which provides (sec. 40) that 'in all
questions relating to the distribution of the property of
an intestate, if the present Ordinance is silent, the rules
of the Roman-Dutch Law as it prevailed in North Holland
are to govern and be followed'.4
1 Op. cit., p. 229. A like provision recurs more than once in
later volumes of Van der Chijs.
2 Dona Clara v. Dona Maria (1822) Ramanathan, 1 820-33, p. 33.
3 Anon. Van der Straaten, p. 172.
4 The Ordinance itself in its detailed provisions is to a great
extent, but with considerable variations, based upon the Placaat
of 1599 (for particulars see Appendix K). In particular (com-
munity of goods being at the same time abolished as regards
marriages contracted after the promulgation of the Ordinance)
a surviving spouse in any event inherits one half of the property
406
THE LAW OF SUCCESSION
Intestate
succes-
sion in
South
Africa :
at the
Cape;
in Natal ;
The law of South Africa, like the law of Ceylon, exhibits
some confusion between the two systems of succession.
In Cape Colony, in the case of Spies v. Spies,1 ' the counsel
for both parties admitted that, by the Placaat of January
10, 1661, the law of North Holland, including the Political
Ordinance of April 1, 1580, and the Interpreting Ordi-
nance of May 13, 1594, was made the law of the Colony'.
This is plainly a mistake. For 'North Holland' we must
substitute 'South Holland'. In Raubenheimer v. Exors.
of Van Breda? which settled the law for Cape Colony, De
Villiers C.J. referred to a Resolution of the Governor-
General in Council, bearing date June 19, 1714, whereby
the Board of Orphan Masters was directed in all cases
of succession ab intestato to follow sees. 19 to 29 of the
Ordinance of 1580 and the Edict of 1594, in so far as they
have been adopted by the charter of 1661. The charter
therefore determines the law for the Cape Province. The
learned Chief Justice indeed goes on to say that 'it is
a mistake to speak either of the North Holland law or
of the so-called South Holland law as the law of this
Colony'; nevertheless, since the Octrooi itself rests upon
the Schependoms Law, except where it expressly departs
from it, we may accept as generally true the dictum of
Mr. Justice Smith in the same case, that ' the South Holland
law, as included in the Political Ordinance of 1580, is the
law of inheritance ab intestato in this Colony'.
Upon a total failure of blood relations the Crown is
entitled to a vacant inheritance,3 but only after a lapse of
fifty years.4
For Natal the case of In re the intestate estate of P. K.
Gledhill5 decides in favour of the Schependoms Law. Rau-
benheimer v. Exors. of Van Breda was cited and followed.
of the deceased (sec. 26), and takes the whole to the exclusion of
remote collaterals (sec. 36). x (1846) 2 Menz. 454.
* (1880) Foord, 111 ; and cf. Green v. Fitzgerald [1914] A.D. at
pp. 99, 100.
3 Ex parte Leeuw (1905) 22 S.C. 340.
4 Administration of Estates Act, 1913, sec. 98.
8 (1891) 12 N.L.R. 43. See also In re Gordon's Intestate Estate
(1909) 30N.L.R. 325.
INTESTATE SUCCESSION 407
In the Transvaal and Orange Free State Provinces, in the
intestate succession does not seem to have been the subject
of legislation or of judicial decision. The common law on State,
this subject may be assumed to be the same in all four
provinces.1
In British Guiana the Roman-Dutch Law no longer Intestate
obtains, but the history of the law of intestate succession sion ^
in this colony claims attention, if only to show that here the West
Indies.
too the course of legislation was uncertain and incon-
sistent. In 1629 the States-General issued an Order of
Government for the places conquered and to be conquered
in the West Indies.2 This applied to such lands 'the
Political Ordinance of 1580, and further the common
customs of South Holland and Zeeland, since the same
are most known, can easily be applied, and will introduce
the least obscurity and alteration'. Thus the settlements
in the West Indies were to be governed by the Schepen-
domsrecht, the law of succession of South Holland.
In the year 1732 a new rule was enacted for the colony
of Berbice. The charter of December 6 of that year,3
after reciting the importance of providing for the intestate
succession to colonists and others who shall have estab-
lished themselves in the colony aforesaid, enacted that
every person going thither shall be allowed to choose such
known law of intestacy as shall please him,4 but in default
thereof, the charter given to the East India Company
under date January 10, 1661, shall be followed. This
charter, as mentioned above, is in its main features (with
one important modification) Schependoms Law. Finally,
for Demerara and Essequibo, by resolution of October 4,
1774,5 the States-General enjoined the observance of the
Aasdoms Law of North Holland as contained in the
Placaat of 1599.
For Southern Rhodesia see The Deceased Estates Succession
Act, 1929; 47 S.A.L.J. (1930), p. 171.
2 Ordre van Regieringe, October 13, 1629, Art. 59 (2 O.P.B. 1235) ;
Van der Vorm, p. 634. 3 Van der Vorm, p. 637 ; V.d.K. 352.
4 Verkiezing van landrecht. Gr. lib. ii, cap. xxix.
6 The Laws of British Guiana (ed. 1905), vol. i, p. 1.
408 THE LAW OF SUCCESSION
Intestate The three settlements of Demerara, Essequibo, and
Berbice have from 1831 been combined in the colony of
British British Guiana. .Since no statutory change had harmo-
nized the law of intestate succession in the three counties,
this colony until January 1, 1917, retained within its
limits the two principal schemes of intestate succession
which obtained in the old motherland, viz. for Demerara
and Essequibo the Aasdoms Law, for Berbice the Schepen-
doms Law as modified by the Octrooi to the East India
Company of 1661.
The result of our inquiry is that in Ceylon the law of
intestate succession is now defined by statute. In Deme-
rara and Essequibo the Aasdoms Law obtained ; over the
whole of Roman-Dutch South Africa the rules of intes-
tate succession are (subject to statutory alterations to be
presently mentioned) those of the New Schependoms Law
as modified by the Octrooi of 1661, and this was also law
for Berbice.
Octrooi of We conclude this chapter with a translation of the
^n?~!T Octrooi1 and a summary of the order of succession which it
lu, lobl.
establishes.
' Charter for the East India Company of these Lands relating to
the law of Intestate Succession in the East Indies and on the
voyage thither and thence.'
' The States-General of the United Netherlands make known
that we, after report received from Mr. Huygens and our other
Commissioners having viewed and examined the Memorial pre-
sented to us by or through the Administrators of the East India
Company of the United Netherlands aforesaid, tending thereto
that a settled law in the matter of the succession ab intestato to
those who die in the East Indies or on the voyage thither or
thence should be introduced by us; and taking into consideration
that we heretofore in the years 1629 and 1636 have permitted
and ordained that the Political Ordinance issued by the States
of Holland and West Friesland over the said province in the
year 1580 in the places conquered by those of the West Indian
Company and Brazil should be followed and there accepted as
a general rule : after ripe deliberation have found good to con-
1 2 G.P.B. 2634; Van der Vorm, p. 631.
INTESTATE SUCCESSION 409
sent, grant, and allow to the East India Company, as we
consent, grant, and allow hereby, that in the matter of succes-
sion ab intestato and what therefrom depends, over all Lands,
Towns, and Peoples in the Indies aforesaid, being subject to
the State of the United Netherlands and to the administration
of the Company aforesaid, as also with regard to the same on
the outward and homeward voyage, the said Political Ordinance
shall be followed and ensued; so and in such manner as the
same by further declaration of the States of Holland aforesaid
dated May 13, 1594, was elucidated, and with this understand-
ing that, the bed between parents (oudereri) of the deceased
being severed, and one of them, whether father or mother, alone
surviving, the surviving parent shall along with the brothers
and sisters of the deceased, whether of the whole or of the half
blood, and their children and children's children by representa-
tion succeed to the deceased's whole inheritance; that is to
say, the surviving father or mother to the one half, and the
sisters and brothers, their children and children's children, to
the other half; it being understood that in such case the half
brothers and sisters together with their children and children's
children must be related to the deceased on the side of the
deceased parent. And in case the deceased left no sisters and
brothers, but left sisters' and brothers' children and children's
children, in such event the said children and children's children
of the deceased brother and sister by representation alike and
along with the surviving father or mother shall succeed to the
one half of the estate.1 And if there are no brothers or sisters,
nor children or children's children of brothers or sisters living,
in that case the surviving father or mother shall succeed as
universal heir to all the goods of the deceased and be preferred
to all collateral relatives; all with the understanding that in
so far as the inheritance of such deceased persons shall be
found to include Lands, Houses, or other fixed and immovable
goods, in regard thereof shall be followed the Law and Custom
of the Provinces, Quarters, or Places, under which the same
fixed and immovable goods are situated.'
The combined effect of the Political Ordinance of 1580,
1 This is the point at which the Octrooi departs from the
Placaat and follows the P.O. By the Placaat, if there were no
brothers and sisters alive related to the intestate on the side of
the deceased parent, descendants of deceased brothers and sisters
had no independent right of succession to the inheritance, which
in that case went wholly to the surviving parent. Van der Vorm,
p. 95; V.d.L. 1. 10. 2.
410 THE LAW OF SUCCESSION
Canons of the Interpretation of 1594, and the Octrooi of 1661 is to
inCSouth°n establish (subject to legislation in favour of a surviving
Africa. spouse) the following order of succession as a general law
for the Union of South Africa i1—
1. Children succeed equally, males and females alike,
with representation per stirpes in infinitum.
2. Failing descendants, both parents surviving succeed
to equal moieties.
3. If one parent survives, one moiety goes to such
parent, the other moiety to brothers and sisters of the
intestate being the children of the deceased parent, their
children and grandchildren by representation. If there
is no such brother or sister alive, but only children (grand-
children) of deceased brothers and sisters, such children
(grandchildren) take per stirpes by representation.
If there are no brothers or sisters, being the children
of the deceased parent, or children or grandchildren of
deceased brothers or sisters surviving, the whole estate
goes to the surviving parent.
4. If both parents are dead, the estate goes in equal
moieties to the issue of the deceased father and to the
issue of the deceased mother, i.e. one moiety to brothers
and sisters of the intestate, whether of the whole or of the
half-blood, expartepaterna, their children and grandchildren
by representation ; the other moiety to brothers and sisters
of the intestate, whether of the whole or of the half-blood,
ex parte materna, their children and grandchildren by
representation. The whole brothers and sisters (and their
children and grandchildren) take with the whole hand;
half brothers and sisters (their children and grandchildren)
take with the half hand, as above explained.
5. Failing brothers and sisters, their children and grand-
children on either side the related moiety goes to remoter
descendants of such brothers and sisters per capita accord-
1 The late Mr. Justice Scheepers in an unpublished thesis, sub-
mitted for the degree of LL.D. at the Cape University, now in the
Library of the Appellate Division, maintained that the law of
North Holland, not of South Holland, is the law of South Africa.
I leave the law as I find it.
INTESTATE SUCCESSION 411
ing to proximity of degree without representation ; whom
failing, to grandparents and so forth, as described below.
6. Failing all descendants of all brothers and sisters,
the estate goes to the four quarters (vier vierendeelen), i.e.
to grandparents of the intestate, viz. one moiety to the
paternal grandparents (both living), the other moiety to
the maternal grandparents (both living). If on either side,
paternal or maternal, one grandparent alone survives,
such surviving grandparent takes no part of the moiety of
the inheritance belonging to that side, but such moiety
goes wholly to the uncles and aunts of the intestate, being
the children of the deceased grandparent, and to their
children (but not grandchildren) by representation.1
If both grandparents on either side are dead, the moiety
of the inheritance belonging to that side is again divided
into moieties, of which one (i.e. a quarter of the whole)
goes to the uncles and aunts of the intestate, being the
children of the deceased grandfather, and to their children
(but not grandchildren) by representation, the other (i.e.
a quarter of the whole) goes to the uncles and aunts of
the intestate, being the children of the deceased grand-
mother and to their children (but not grandchildren) by
representation ; whom failing (in either case), the related
portion goes to the remoter descendants of such uncles
and aunts per capita according to proximity of degree with-
out representation; whom failing, to great-grandparents
and their issue.
7. Failing all descendants of all uncles and aunts the
estate goes to the ' eight eighths ', viz. to great-grandparents
and to the descendants of deceased great-grandparents,
according to the system above described, collaterals of equal
degree taking per capita to the exclusion of remoter degrees.
9. In default of all2 blood relations of the deceased, the
estate goes to the fisc as bona vacantia*
1 In other words, a grandparent never takes any share of the
inheritance unless his or her wife or husband is alive. Caney v.
Est. Johnsson [1928] N.P.D. 13; and see Bijnk, O.T. ii. 1379.
2 V.d.K. 364, non obstante Gr. 2. 30. 1 (in fine).
8 Supra, p. 401.
412 THE LAW OF SUCCESSION
It will be noticed that under the above scheme, as
under the Schependoms Law, the estate is divided into
halves, quarters, eighths, &c. Suppose that there is a
complete failure of inheritable blood under any one of
these heads, a case might be made for carrying the vacant
share to the fisc as bona vacantia, and this view commends
itself to Grotius,1 who in this and other respects has been
charged (perhaps unjustly) with official bias. However,
a different view has prevailed, and the law is settled in
the sense that the fisc is only admitted on failure of all
heirs whatever ; where there is a failure of heirs on one
side only, the heirs on the other side take jure acrescendi?
Statutory It remains to notice the changes introduced by statute
changes. jn tne rujes of intestate succession in the law of South
Africa.
The law of South Holland did not admit the canon of
succession unde vir et uxor, and by consequence a surviving
spouse had no right of succeeding ab intestato to a deceased
spouse's estate.3 A Natal Law (22 of 1863, sec. 5) gave
a surviving wife married out of community the right to
succeed to one third of her deceased husband's estate in
case there was lawful issue of the marriage, otherwise to
one half. This followed the English Statute of Distribu-
tions of 1670, now replaced by the Administration of
Estates Act, 1925, sec. 46.
The The Natal Law has been repealed by the Succession
Act' No' 13 of 1934> which for the fir8* time introduced
throughout the Union a succession ab intestato of a sur-
viving spouse. It enacts that a surviving spouse shall be
entitled as intestate heir of the deceased spouse to receive :
(a) in competition with descendants of the deceased en-
1 Gr. 2. 28. 6 ; 2. 30. 3. It was anciently so, Het Aasdoms- en
Schependoms -recht in Holland en Zeeland door Mr. L. M. Rollin
Couquerque ('s Gravenhage, 1898), p. 21, who cites a decision dated
1539 (Sentent. v. denHoog. en Provincial. Eaadin Holland, No. 113).
2 V.d.K. 366; Ex parte Spangenberg (1907) 24 S.C. 288; Est.
Baker v. Est. Baker (1908) 25 S.C. 234.
* Ex parte Leeuw, ubi sup. ; R. W. Lee, The Intestate Succession
of Husband and Wife in Roman-Dutch Law, Joum. of Comp. Leg.
(N.S.) xii (1911), p. 310.
INTESTATE SUCCESSION 413
titled to succeed oh intestato a child's share; (6) in com-
petition with a parent, brother or sister of the deceased
(whether of the whole or of the half blood) entitled to
succeed ab intestato a half share ; and (c) failing any of the
above, the whole of the deceased spouse's estate.
In the alternative the surviving spouse in cases (a) and
(6) may claim from the estate so much as does not exceed
six hundred pounds in value. In case (a) in computing
this amount the survivor's share in the community (where
there is community) is taken into account.
For the purposes of the Act any relationship by adoption
under the provisions of the Adoption of Children Act, 1923,
is declared to be equivalent to blood relationship.1
By the Children's Act No. 31 of 1937, which takes the The
place of the above-mentioned Act, an adopted child is 9hild[qo~s
for all purposes (with qualifications which do not here
concern us) deemed in law to be the legitimate child of
the adoptive parent, but not so as to inherit ab intestato
from any relative of the adoptive parent. On the other
hand the adopted child retains the right to inherit ab
intestato from his natural parents and their relatives.2
1 Sec. 1 (2). 2 Sec. 71, subsecs. 2 and 3.
[Some further observations on the Law of Intestate Succession
in South Africa will be found in an article contributed by the
author to the South African Law Journal, November, 1944, if he
may be permitted to refer to it.]
APPENDICES
APPENDIX A
FORMS AND PRECEDENTS
By His Excellency
Sir Henry Edward McCallum, Knight Grand Cross of the
Most distinguished Order of Saint Michael and Saint George,
Governor and Commander-in- Chief in and over the Island
of Ceylon with the Dependencies thereof.
(Sgd.) HENRY MCCALLUM.
To all to whom These Presents shall come Greeting.
Whereas A. B. of by his Petition to us dated the
solicited Letters of Venia Aetatis to supply his want of age
and to enable him to manage transact and administer his
affairs and property as fully and effectually to all intents and
purposes as if he had attained his full age.
And whereas it appears to us that the said A. B. is capable
of managing his own affairs.
Now these presents witness that having taken the said
Petition into consideration we do hereby grant these our
Letters of Venia Aetatis to the said A. B. thus supply ing his
want of age as fully and effectually to all intents and pur-
poses as if he had attained the age of twenty-one years.
And we do hereby also authorize him the said A. B. to ad-
minister or cause to be administered all and singular his affairs
and property and to manage and dispose of such property
according to the Laws and Customs of this country as if he had
attained the said age of twenty-one years provided that he the
said A. B. shall not alienate any immovable property whatso-
ever without the sanction of the District Court within the Terri-
torial Jurisdiction of which such property shall be situated, and
except as aforesaid all and singular the acts matters and things
that the said A. B. shall or may do by virtue of these presents
shall be considered valid and legal to all intents and purposes
without the same being impeached or called in question on the
ground of minority of the said A. B.
FORMS AND PRECEDENTS 417
And we do hereby require and command the several Courts
of Justice in this Island and all subjects of His Majesty the
King to conform themselves to these presents all objections
to the contrary notwithstanding.
Given under Our Hand and the Public Seal of the Said
Island on this day of in the year of Our Lord one
thousand nine Hundred and
By His Excellency's Command
Colonial Secretary.
II
FORM OF GRANT OF VENIA AETATIS IN
SOUTH AFRICA
(The Government Gazette, Pretoria, June 20th, 1924)
No. 125, 1924
VENIA AETATIS— RICHARD FOX
Whereas Richard Fox at present residing on the farm Freda-
dale in the district of Frankfort in the Province of the Orange
Free State, did on the 2nd day of April 1924, by petition to me
as Governor-General of the Union of South Africa pray for
venia aetatis, which said petition was duly referred to the
Honourable the Supreme Court of South Africa, Orange Free
State Provincial Division, for consideration and report :
And whereas the Hon. Sir J. E. R. de Villiers, Judge Presi-
dent of the said Court holden at Bloemfontein on the 15th day
of May 1924, did, after due inquiry at a sitting of such Court,
report to me that in the opinion of the said Court it was desirable
to grant venia aetatis to the said Richard Fox ;
And whereas it appears to me that all the other formalities
required by law have been duly complied with ;
Now, therefore, under and by virtue of the powers in me
vested by chapt. Ixxxix of the Orange Free State Law Book,
I do hereby grant to the said Richard Fox venia aetatis with
all rights and privileges appertaining thereto, but excluding
the right of alienating or encumbering immovable property belong-
ing to him, to have and enjoy as fully and effectually to all
intents and purposes as he, the said Richard Fox, might or
could do if he had already attained the full age of twenty-one
years.
God Save the King.
4901
418 APPENDIX A
Given under my Hand and the Great Seal of the Union of
South Africa at Borkerton this Ninth day of June One Thou
sand Nine Hundred and Twenty-four
Athlone
Governor- General
By Command of His Excellency
The Governor-General in Council
N. J. de WET.
Ill
[From The Notarial Practice of South Africa, by C. H. Van Zyl,
p. 201]
KNOW all whom it may concern,
That on this the day of one thousand nine hundred
and before me, A. B. of Cape of Good Hope,
Notary Public, by lawful authority, duly sworn and admitted,
and in the presence of the subscribing witnesses, personally
came and appeared C. T>. of Bachelor, and E. F.
of Spinster, who declared that whereas a marriage has
been agreed upon, and is intended to be shortly had and
solemnized between them, they do, by these presents, contract
and agree, each with the other, as follows:
FIRST. — That there shall be no community of property or
of profit or loss between the said intended spouses, but that
he or she respectively shall retain and possess all his or her
estate and effects movable or immovable, in possession, rever-
sion, expectancy or contingency, as fully and effectually as
if the said intended marriage did not take place.
SECOND. — That the one of them shall not be answerable
for the debts and engagements of the other of them, whether
contracted before or after the said intended marriage.
THIRD. — That all inheritances, legacies, gifts, or bequests
which may devolve upon, or be left, given or bequeathed to
either of the said intended spouses, shall be the sole and
exclusive property of him or her upon whom the same shall
devolve, or to whom the same may be left, given, or bequeathed.
FOURTH. — That each of the said intended spouses shall
be at full liberty to dispose of his or her property and effects
by will, codicil or other testamentary disposition, as he or she
FORMS AND PRECEDENTS 419
may think fit, without the hindrance or interference in any
manner of the other of them.
FIFTH. — That the marital power which the husband by
law possesses over the property and the estate of his wife,
is hereby excluded, and that he is expressly deprived thereof
over the estate of his intended spouse.
UPON ALL WHICH conditions and stipulations the
appearers declared it to be their intention to solemnize the
said intended marriage, and mutually promised and agreed
to allow each other the full force and effect hereof under
obligation of their persons and property according to law.
THUS DONE, contracted and agreed at aforesaid,
the day, month, and year first aforewritten, in the presence
of the subscribing witnesses.
As witnesses: (Sgd.)
1. G .H . C .D
2. I . J . E . F
Quod Attestor.
A .B
Notary Public.
IV
PRECEDENTS OF MUTUAL WILLS
NOTARIAL WILL
BE it hereby made known that on this twentieth day of
December in the year of our Lord one thousand eight hundred
and eighty- seven before me Conrad Christian Silberbauer of
Cape Town Cape of Good Hope Notary Public duly admitted
and sworn in the presence of the subscribed witnesses per-
sonally came and appeared [name, description, place of abode]
and his Wife [name]. And these Appearers being in health
of body of sound and disposing mind memory and under-
standing and capable of doing any act that required thought
judgment or reflection declared their intention to make and
execute their last Will and testament — Wherefore, hereby
revoking and annulling all Wills codicils and other testa-
mentary acts heretofore passed by them or either of them the
Appearers declared to nominate and appoint the survivor of
420 APPENDIX A
them together with the child or children begotten by them
during their marriage to be the sole and universal heirs of
the first dying of all his or her estate goods effects stock
inheritance chattels credits and things whatsoever and where-
soever the same may be nothing excepted which shall be left
at the death of the first dying of them whether movable or
immovable and whether the same be in possession reversion
remainder or expectancy. And if the Testator the said . . .
shall happen to survive the Testatrix the said . . . then the
Appearers declared to nominate and appoint the Testator to
be the Executor of this their Will and administrator of their
estate and effects and guardian of their minor heirs. And if
the Testatrix shall happen to survive the Testator then the
Appearers declare to nominate and appoint the Testatrix
together with the Testator's brother [name, description, place
of abode] to be the Executors of this their Will administrators
of their estate and effects and guardians of the minor children
of the Testator hereby giving and granting unto them all such
powers and authorities as are required or allowed in law and
especially those of assumption substitution and surrogation.
The Testators declare to reserve to themselves jointly dur-
ing their joint lives the power from time to time and at all
times hereafter to make all such alterations in or additions to
this Will as they shall think fit either by a separate act or
at the foot hereof desiring that all such alterations or additions
so made under their own signatures shall be held as valid
and effectual as if they had been inserted herein.
All which having been clearly and distinctly read over to
the Appearers they declared that they fully understood the
same and that it contains their last Will and testament
desiring that it may have effect as such or as a codicil or
otherwise in such manner as may be found to consist with law.
This done and passed at Cape Town aforesaid the day
month and year first aforewritten in the presence of the con-
signatory witnesses.
As Witnesses
(Sgd.) C. E. J. (Sgd.) G. P. H. [Husband]
(Sgd.) J. J. E. (Sgd.) F. E. S. [Wife].
Quod Attestor
(Sgd.) C. CHRISTIAN SILBERBAUER
NOTARY PUBLIC.
FORMS AND PRECEDENTS 421
B
UNDER-HAND WILL
[From Foster's Legal Forms']
WE, A. B. and L. B., born S, married in community of pro-
perty, do hereby revoke all former testamentary dispositions
made by us, either jointly or severally, and declare this to be
our last will and testament.
(1) We appoint the children born of our marriage to be the
sole and universal heirs, in equal shares, of all the estate and
effects of whatsoever kind which shall be left by the first dying
at his or her death.
(2) We appoint the survivor of us, together with G. H. of
... to be the executors of this our will, administrators of
our estate and guardians of our minor children, granting to
our said executors and guardians all power and authority
allowed in law, and especially those of assumption.
(3) We reserve to ourselves jointly the power to make all
such alterations in or additions to this our will as we shall
think fit, either by a separate act or at the foot hereof, desiring
that all such alterations or additions so made under our
signatures shall be held as valid and effectual as if they had
been inserted herein.
In witness whereof we have hereunto set our hands at ...
this . . . day of ... nineteen hundred and ... in the presence of
the subscribing witnesses.
A. B.
Witnesses L. B.
C. D.
E. F.
APPENDIX B
THE CONTRACTS OF MINORS
Pending decisions of the Appellate Division some questions
perhaps remain open.
1 . Can a minor ever bind himself ex contractu without con-
sent of parent or guardian, e.g. by an advantageous contract
of employment (apart from statute) ? Apparently not. Tanne
v. Foggitt [1938] T.P.D. 43.
2. A person is tacitly emancipated when he is allowed by
422 APPENDIX B
his guardian to carry on business on his own behalf. But he
is only tacitly emancipated to the extent of contracts by or in
connexion with that particular business. Ochberg v. Ochberg's
Est. [1941] C.P.D. at pp. 36, 37 per Sutton J.
Can a minor who is not carrying on a business be tacitly
emancipated ? Apparently not.
3. Is a minor who falsely represents himself to be of full age
bound by his contract to a party who believes him to be of
full age ?
The question is quite open. Wessels, i. 830 ff. ; Fouche v.
Battenhausen & Co. [1939] C.P.D. 228.
The books distinguish (a) contracts of minors unassisted by
parents or guardians which are ipso jure void, in the sense
that restitutio in integrum is not positively necessary to avoid
them (De Beer v. Est. De Beer [1916] C.P.D. 125), though it
may be matter of prudence to invoke its aid (Voet, 4. 1. 13 ;
Breytenbach v. Frankel [1913] A.D. at p. 398 per Lord de
Villiers C.J.) ; and (b) contracts of minors duly assisted, or of
tutors acting for minors, which are not void, but voidable by
restitutio in integrum (Gr. 3. 48. 10; Cens. For. 1. 4. 43. 1-2;
Van der Byl & Co. v. Solomon [1877] Buch. at p. 28). This
distinction has important consequences : —
1. In (a) minority is a defence without proof of lesion,;
in (6) lesion must be proved.
2. The grounds for refusing the extraordinary remedy of
restitutio in integrum which apply to (6) do not necessarily
apply to (a). Such are: (i) the fact that the minor has falsely
represented himself to be of full age; (ii) the fact that he
has conducted himself as of full age, and is generally supposed
to be so — communi omnium errore pro majorenne habitus
... sic agens publice, sic muneribus fungens, ut majorennes.
(Voet, 4. 4. 43.) This distinction was perhaps somewhat over-
looked in Pleat v. Van Staden [1921] O.P.D. 91.
3. In (a) and (&) the burden of proving minority is on the
minor ; but this being established — in (a) the burden of proving
benefit (Net v. Divine Hall & Co. (1890) 8 S.C. 16), or
emancipation (Venter v. De Burghersdorp Stores [1915] C.P.D.
at p. 255; Ochberg v. Ochberg's Est., ubi sup.), is on the other
party ; in (b) the burden of proving lesion is as a rule on the
person who relies upon it. Voet, 4. 4. 13.
423
APPENDIX C
MARRIAGE: PROHIBITED DEGREES
Cape Province
Act No. 40 of 1892, sec. 2, enacts:
'It shall be lawful for any widower to marry the sister of
his deceased wife, provided such sister be not the widow of
a deceased brother of such widower, or to marry any female
related to him in any more remote degree of affinity than the
sister of his deceased wife, save and except any ancestor of
or descendant from such deceased wife.' By sec. 4 nothing
in the Act contained 'shall be deemed to legalize or render
valid the marriage of a man with the sister of a wife from
whom he has been divorced'.1
Transvaal
Law No. 3 of 1871, sec. 4, enacts: 'Under the prohibited
degrees of blood-relationship are included: (a) all persons in
the ascending and descending line ad infinitum, and in the
collateral line to the third degree inclusive, consequently uncle
and niece, aunt and nephew, whether by blood or marriage ;
(b) first cousins when both the parents of the one are related
to both the parents of the other, as own brothers and sisters.'2
The law is silent as to the prohibited degrees of affinity, which
therefore depended upon the common law. It followed that
marriage with a deceased wife's sister was not allowed. Hex v.
Paterson [1907] T.S. 619.
But now by Union Act No. 11 of 1920, sec. 1 (2): 'Anything
to the contrary notwithstanding in Law 3 of 1871 of the
Province of the Transvaal or in any other law in force in that
Province, it shall be lawful for any widower to marry the sister
of his deceased wife or to marry any female related to him
through his deceased wife in any more remote degree of
affinity than the sister of his deceased wife, save and except
1 Nor with his divorced brother's daughter. Fuchs v. Whiley
N.O. [1934] C.P.D. 130.
2 But persons so related who have sexual relations are not guilty
of the common law crime of incest. So held in the case of a similar
provision in S.W.A. (Procl. No. 31 of 1920). Rex v. Blaauw [1934]
S.W.A. 3.
424 APPENDIX C
any ancestor of or descendant from such deceased wife.' And
(sec. 3): — 'Notwithstanding anything contained in this Act it
shall not be lawful for a man to marry the sister of his divorced
wife, or of his wife by whom he has been divorced, during the
lifetime of such wife.'
Orange Free State
Ord. No. 31 of 1903, sec. 1, enacts — 'Marriage is prohibited
between all persons related to one another in the following
degrees of consanguinity or affinity: (1) In the ascending and
descending lines between persons related to one another either
by legitimate or illegitimate birth, or by marriage. (2) In the
collateral degrees: (a) Between brother and sister by birth
legitimate or illegitimate ; (6) between uncle or great-uncle and
niece or great-niece by birth legitimate or illegitimate; (c)
Between aunt or great-aunt and nephew or great-nephew by
birth legitimate or illegitimate. (3) (a) Between cousins whose
fathers are brothers and whose mothers at the same time are
sisters by birth legitimate or illegitimate ; (6) Between cousins
of whom the father of the one is brother of the mother of the
other and at the same time the mother of the one is sister of
the father of the other by birth legitimate or illegitimate.
Sec. 2. No marriage shall be deemed unlawful by reason
only that the persons contracting such marriage are related
to one another in any other degree of consanguinity or affinity
than those in sec. 1 mentioned.'
Natal
In this Province the prohibited degrees are left to the com-
mon law except that Act No. 45, 1898, sec. 2, legalizes the
marriage of a man with his deceased wife's sister; and by
Union Act No. 11 of 1920, sec. 1 (1) : 'Anything to the contrary
notwithstanding in any law in the Province of Natal, it shall
be lawful for any widower to marry any female related to him
through his deceased wife in any more remote degree of affinity
than the sister of his deceased wife, save and except any
ancestor of or descendant from such deceased wife.' Sec. 3
(supra) applies also to Natal.
Union of South Africa
The Marriage Law Amendment Act No. 17 of 1921 provides
(sec. 1): 'Anything to the contrary notwithstanding in any
MARRIAGE: PROHIBITED DEGREES 425
law in force in any Province of the Union it shall be lawful
for any widow to marry the brother of her deceased husband
or to marry any male related to her through her deceased
husband in any more remote degree of affinity than the
brother of her deceased husband, save and except any ancestor
or descendant from such deceased husband ' ; and (sec. 3)
'Notwithstanding anything contained in this Act it shall not
be lawful for a woman to marry the brother of her divorced
husband, or of her husband by whom she has been divorced,
during the lifetime of such husband.'
By the Children's Act No. 31 of 1937, sec. 79, 'the adoption
of a person whether under this Act or under the Adoption of
Children's Act, 1923, shall not prohibit or permit a marriage
between that person and any other person which would not
have been prohibited or permitted if the adoption had not
taken place, provided that no marriage shall be contracted
between an adopted person who is under the age of twenty-one
years and his adoptive parent'.
Ceylon
Ord. No. 19 of 1907, sec. 17, enacts:
'No marriage shall be valid:
(a) Where either party shall be directly descended from
the other ; or
(6) Where the female shall be sister of the male either by
the full or the half blood, or the daughter of his brother or
of his sister by the full or the half blood, or a descendant from
either of them, or daughter of his wife by another father, or
his son's or grandson's or father's or grandfather's widow ; or
(c) Where the male shall be brother of the female either by
the full or the half blood, or the son of her brother or sister
by the full or the half blood, or a descendant from either of
them, or the son of her husband by another mother, or her
deceased daughter's or granddaughter's or mother's or grand-
mother's husband.'
It has been held that by the law of the Colony there is no
objection to a man's marrying his wife's sister. (Valliammai
v. Annammai (1900) 4 N.L.R. 8.)
426
APPENDIX D
This note is designed to supplement the account of this
matter given above, pp. 64 ff. The ground is by no means
covered by authority. So far as this is so the following remarks
are submitted as a tentative solution of questions which call
for, but have not yet received, judicial decision.
Persona standi in judicio
In Van Eeden v. Kirstein (1880) Kotze, at p. 184, Kotze J.
states the general rule of incapacity and the exceptions from
it in the following terms: 'The general rule of our law is
that a married woman, being a minor, has no persona standi
in judicio, and must in law proceed by, or with the assistance
of, her husband. To this rule only three exceptions are ad-
mitted, viz. 1st, in the case of married women carrying on a
public trade in regard to all transactions connected with such
trade ; 2nd, where a woman married by antenuptial contract
has reserved to herself the free administration of her separate
property ; and 3rd, in a suit by the wife against the husband
(V. d. Linden, Judicieel Practijcq, 1. 8, § 3). ... I have been
unable to find a single Roman-Dutch authority giving a married
woman the right to appear in a civil suit unassisted by her
husband, in any but the three exceptions above enumerated.'
The above statement of the law has ' been adopted generally
in the South African Courts ' : McCullougk v. Ross [1918] C.P.D.
at p. 395. It applies equally whether it is a question of bringing
or of defending an action.
The first two exceptions are referred to below; the third
finds its most frequent application in matrimonial causes such
as suits for divorce, judicial separation, or for declaration of
nullity of marriage. Van Zyl, Judicial Practice (3rd ed.), pp. 79
and 80; Barnett v. Milnes [1928] N.P.D. 1.
In South Africa (exceptions apart) when action is brought
upon a contract concluded by a woman married in community
the practice is for the husband to sue and be sued in his own
LEGAL CAPACITY OF MARRIED WOMEN 427
name. Smith v. Bard [1917] C.P.D. at p. 618 ; Olufsen v. Fielder
[1930] N.P.D. 260. The reason is that (exceptions apart) 'a
woman married in community cannot contract save as agent
for her husband' (Smith v. Bard, loc. cit.). It is his contract,
and he must sue or be sued upon it. But when action is
brought upon a delict the wife may sue or be sued in her own
name assisted by her husband. She is the person immediately
concerned. Harms v. Malherbe [1935] C.P.D. 167 (dissenting
from Buck v. Green [1932] N.P.D. 425, in which it was held
that the wife could not sue in her own name). In the alterna-
tive the husband may sue or be sued in his capacity as husband
and legal guardian of his wife. Klette v. Pfitze (1891) 6 E.D.C.
134; Harms v. Malherbe, ubi sup. If the husband's assistance
is required and he cannot or will not give it, or if he is absent
from the jurisdiction, the Court will in a fit case give the wife
leave to bring (McGregor v.S.A. Breweries, Ltd. [1919] W.L.D.
22; Lacey v. Lacey [1929] W.L.D. 132), or to defend (Ex
parte Gerber [1928] W.L.D. 228), an action in her own name.
McCullough v. Boss, at pp. 395, 397. Note that 'ability to
litigate does not follow from her right to contract'. Kotze,
Van Leeuwen, vol. i, p. 489.
If the husband has deserted his wife and disappeared from
the jurisdiction, it may be that she can sue and be sued in her
own name without leave from the Court. Kunne v. De Beer
[1916] C.P.D. 667 ; McCullough v. Ross, ubi sup. at p. 396.
II
Capacity to Contract
The general rule is that a married woman cannot bind herself
or her husband or the community without the consent or sub-
sequent ratification of her husband. But this rule is subject
to exceptions and may be excluded by antenuptial contract.
Further, like minors, a woman can confirm the contract when
the disability ceases, i.e. after the dissolution of the marriage,
and hold the other party to his bargain. Voet, 23. 2. 43.
The cases in which a married woman's contract is followed
by legal consequences during and after marriage are the
following : —
1. // she contracts with her husband's consent or if he subse-
quently ratifies her contract. Voet, 23. 2. 42. In this case the
contract is the wife's contract. Therefore it binds her ; and if
428 APPENDIX D
she is married in community, it binds the community also.
Accordingly : (a) during the marriage it may be enforced against
the husband as head of the community, and, when community
has been excluded, against the wife 'duly assisted by the
husband' (1 Maasdorp, p. 48).
(6) After the dissolution of the marriage it may, if the
marriage was in community, be enforced against the common
estate (previous to distribution) or against the wife, but not
against the husband individually, since he was not a party to
the contract. If, however, the marriage was in community
and the wife has satisfied the whole debt, she will have regressus
pro semisse against her husband, just as the husband in like
case has regressus pro semisse against the wife (supra, p. 71,
n. 6).
2. // she contracts as her husband's agent. In this case the
contract is the husband's contract. It binds him. Aird v.
Hockley's Est. [1937] E.D.L. at p. 42. Whether it also binds
the wife depends upon the general principles of the law of
agency and the special rules of law relating to the contractual
capacity of married women. To this head may be referred
cases in which the husband has held out his wife to third
parties as having authority to pledge his credit.
3. // she, contracts in relation to a public trade which she is
carrying on with the consent of her husband. Grotius (1. 5. 23)
says that she binds herself and her husband. Voet speaks of
an implied agency resulting from the fact that the husband
allows his wife to manage his business for him. Voet 4. 4. 51 ;
23. 2. 44; Hott. Cons. vi. 95.
On Roman Law principles she would bind herself and her
husband also (actio institoria), but in the modern law if she
were a mere agent she would bind her husband and not herself.
On the other hand the husband is not necessarily liable.
Christinaeus ad leg. Municip. Mechlin, tit. ix, art. 10, citing
Gaill, Pract. Observ. lib. ii, no. 90. The contract may bind the
wife alone. As regards the husband it seems that he will be
bound in solidum, or pro semisse (Sande, Decis. Fris. 2. 4. 4),
or not at all, according to circumstances. The wife's liability
also depends upon the circumstances ; thus she may be correa
debendi with her husband (Gaill, ubi sup.) ; but where the con-
tract is her contract she is answerable in solidum both during
and after the dissolution of the marriage. This is a logical
LEGAL CAPACITY OF MARRIED WOMEN 429
consequence of her personal liability and does not (it is sub-
mitted) rest, as suggested by Mason J. in Hern & Co. v. De
Seer [1913] T.P.D. at p. 725, upon the special provision of the
Perpetual Edict of Charles V, Art. 2 (Gr. 2. 11. 18-19), which
relates to a different situation. The case of the wife who is
carrying on a public trade is, as remarked above, one of the
exceptional cases in which a married woman may sue and be
sued apart from her husband. V.d.L. 3. 1. 2; Mclntyre v.
Goodison [1877] Buch. 83; Hill & Co. v. McClure [1909] T.H.
212 ; Grobler v. Schmilg & Freedman [1923] A.D. at p. 501. But
according to the practice of the Cape Court even when a woman
is a public trader she ought to be sued assisted by her husband.
Bown v. Mowbray Munic. [1911] C.P.D. at p. 436. When the
husband is also liable, a creditor is under no obligation to sue
the wife before suing the husband. Matson v. Dettmar [1917]
E.D.L. 371.
4. // she contracts for necessaries for the joint household.
Grotius tells us (1. 5. 23) that by such contract she binds her-
self and her husband. Voet (23. 2. 46) says the same. But this
statement requires qualification. The legal result varies with
the circumstances.
Thus : (a) If the wife contracts as agent for her husband it
is his contract, not hers. If the marriage is in community the
usual results follow, viz. the community is liable in solidum;
after the dissolution of the marriage, the wife is liable pro
semisse. Grossman v. Hoffman (1885) 3 S.C. 282 ; Copeland &
Creed v. Ditton (1895) 9 E.D.C. 123.
(6) If the wife contracts in her own name so that the other
party looks to her credit it is her contract, not his. She binds
herself and the community (where there is community) as in
the case of the woman trader. In such case 'an action will lie
against her and . . . execution might issue against the goods
in community' (Hilder v. Young (1890) 11 N.L.R. at p. 157).
Upon the dissolution of the community, the wife remains liable
in solidum and the husband is liable pro semisse (the converse
of case (a)). Bijnk. 0. T. i. 280. When the spouses are not
married in community and the wife purchases in her own name
she is personally liable. Mason & Co. v. Williams (1884)
5 N.L.R. 168 ; Pocklington v. Cowey & Son (1885) 6 N.L.R. 118.
(c) It has been said that 'the wife in ordering necessaries is
prima facie the agent of the husband and contracts the debt
430 APPENDIX D
on his behalf. Hern & Co. v. De Beer [1913] T.P.D. at p. 725
per Mason J. This is reminiscent of English Law. In the
Dutch Law the husband was liable pro semisse for goods sup-
plied for the use of the joint household. This was a consequence
of marriage. It had nothing to do with agency and applied
indifferently to all marriages whether in or out of community.
This proposition rests upon decisions of the Court of Holland
cited in the notes to Neostadius, Observationes de pactis ante-
nuptialibus, Obs. ix, and is accepted without question by Van
Leeuwen (R.H.R. 1. 6. 8), Groenewegen (ad Cod. 4. 12. 4), Voet
(23. 4. 52) ; van der Keessel (Th. 99) ; and Fockema Andreae
(ad Gr. 1 . 5. 24). For the text of the note to Neostadius see Lee,
Commentary, p. 105. The rule applies to the wife just as much
as to the husband and rests upon the principle that it is
fair that the spouses should contribute equally to household
expenses. In Hern & Co. v. De Beer, ubi sup. Mason J. said
(at p. 723) ' Even if she has by antenuptial contract excluded
community of profit and loss and liability for her husband's
debts, she is liable [upon the dissolution of the marriage] for
half the price of the goods supplied to her and her husband for
domestic purposes, though recourse against her husband or
his estate is reserved to her to recover what she pays'. Lower
down (at p. 726) the learned Judge referred to 'the special
and equitable provision by which creditors are entitled to
recover [from the wife] upon the dissolution of the marriage
half of the debts for household necessaries of which she has
had the benefit'. In Van Rensburg v. Swersky Bros. [1923]
T.P.D. 255 the Transvaal Court (Stratford and Tindall JJ.)
held that this liability attached also during marriage to a
wife married with an antenuptial contract which excluded
all community and the marital power for half the cost of
necessaries purchased by the husband hi his own name. Strat-
ford J. qualified the generality of the rule by saying (at p. 259) :
'It may be that by express terms the husband or wife may
assume the whole liability for the purchase of necessaries, and
if the vendor agrees to look only to him or her I do not think
he can, thereafter, sue the non-contracting spouse.'
(d) Whether the wife's capacity to pledge her husband's
credit for necessaries is based upon agency or is, independently
of agency, an incident of marriage, gave rise to a difference
of judicial opinion in Reloomel v. Ramsay [1920] T.P.D. 371.
LEGAL CAPACITY OF MARRIED WOMEN 431
Gregorowski J. took the first view, Wessels J.P. and Bristowe J.
the second, and this has been preferred in later cases : Frame v.
Boyce & Co. [1925] T.P.D. 353 ; Stern v. Schattel [1935] C.P.D.
at p. 80; and (Ceylon) Lalchand v. Saravanamuttu (1934) 36
N.L.R. 273. Can the opposing views be reconciled in the sense
that the husband is liable in any event pro semisse, but only
in solidum if the wife contracted as his agent ? See Tydskrif,
vol. ii, p. 96 (-Lee, A married woman's contracts in relation to
household necessaries).
(e) The question agency or no agency is of crucial importance.
If and so far as the husband is liable only because the wife is
his agent, he can escape liability (subject to (i) infra and apart
from estoppel by holding out) by showing that he forebade
her to pledge his credit or made her a reasonable allowance.
If the husband's liability is an incident of marriage, then
according to the old writers (Gr. 1. 5. 23 ; Voet, 23. 2. 46, &c.)
the wife's capacity to bind her husband can be determined
only by judicial injunction and publication. It has been judi-
cially suggested that ' a public notice on the part of the husband,
or, at any rate, a notice to the individual trader' might be
sufficient for the purpose. Reloomel v. Ramsay, ubi sup., at
p. 376 per Wessels J.P. But can a husband by his unilateral
act disembarass himself of a duty imposed by law ?
(/) The term 'necessaries' is a useful importation from
English Law. It includes goods and services, as of a midwife.
Mason v. Bernstein (1897) 14 S.C. 504. The question what falls
under the head of necessaries depends upon circumstances.
'Whether in any particular case goods purchased by the wife
are necessaries or not is for the Court to judge and in deciding
that question it must have regard to the social standing and
means of the parties and their habits of life in the past.'
Reloomel v. Ramsay, ubi sup. at p. 380 per Bristowe J. ; and
see Smith v. Philips [1931] O.P.D. 107.
(g) The wife's capacity to contract in re oeconomica and
thereby to bind the husband depends, it seems, upon the con-
tinued existence of a joint establishment. Excell v. Douglas
[1924] C.P.D. at p. 484; Stern v. Schattel [1935] C.P.D. 78;
MacNaught v. Caledonian Hotel [1938] T.P.D. 577.
(h) If the spouses are not living together the wife (subject
to (j)) cannot pledge her husband's credit unless she is autho-
rized to do so as his agent, expressly or by holding out. There
432 APPENDIX D
is no presumption of agency. Excell v. Douglas, ubi sup. The
presumption is against it.
(j) But, in any event, a husband must provide for his wife,
unless she has left him unlawfully. Bing & Lauer v. Van der
Heever [1922] T.P.D. 279. In all other circumstances the wife
is an 'agent of necessity' to pledge her husband's credit for
food and clothing, if he leaves her 'destitute or manifestly
inadequately supplied with things which are necessary and
which she ought reasonably to have '. Reloomel v. Ramsay, ubi
sup. at p. 388 ; Coetzee v. Higgins (1887) 5 E.D.C. 352. This
situation might also arise if the spouses were living together,
and the husband gave the wife 'nothing but the shelter of
his house'. Debenham v. Mellon (1880) 5 Q.B.D. at p. 398 per
Bramwell L. J.
It will not have escaped notice that the above rules are
derived partly from Dutch, partly from English Law. It is
not easy to reconcile them.
5. Unilateral contracts. Supra, p. 65.
6. // the wife has taken a benefit under the contract. Ibid.
7. // the husband has deserted his wife and is absent from the
jurisdiction. Supra, p. 67.
8. // the wife by antenuptial contract has reserved to herself
the free administration of her own property, or has excluded the
marital power. Pepler v. Liebenberg [1928] C.P.D. 266 ; supra,
p. 81.
It has been said (and often repeated) that 'if a woman
married in community enters into a contract she either con-
tracts as agent for her husband or she has no power to contract
at all'. Nestadt v. Hope [1928] W.L.D. at p. 33 per Solomon J.,
citing Smith v. Bard [1917] C.P.D. 616. Made without reserva-
tions, this statement is misleading; for not only may she
contract in the circumstances set out above, but, generally,
she may bind herself by contract with her husband's consent.
Supra, p. 65. The law is stated in more detail in Pretorius v.
Hack [1925] T.P.D. at pp. 646-7, where all these exceptions
are admitted by Curlewis J.P.
433
APPENDIX E
THE LIMITS OF THE JUS VINDICANDI
The following note indicates very cursorily certain exceptions
from the general rule (Gr. 2. 3. 5) that an owner may recover
his lost possession even from a bona fide possessor who has
given value. They are not all valid in the modern law.
1 . Sales in a free market (op een vrije mart — in publico em-
porio). The following texts may be consulted: Gr. 2. 3. 6 ; Van
Leeuwen, R.H.R. 2. 7. 3; Cens. For. 1. 2. 11. 4; 1. 4. 19. 20;
Bellum Juridicum, Casus I ; Groenewegen ad Gr. 2. 3. 6 and de
leg. abr. ad Cod. 6. 2. 2 ; Zypaeus, Notit.jur. Belg. p. 96 ; Wasse-
naar, Praxis Judiciaria, c. ix, num. 4; Christinaeus, In leg.
municip. Mechlin. Comment, tit. 2, art. 2 ; Voet, Comment, ad
Pandect. 6. 1. 8; and Compendium Juris, 6. 1. 12; Antonius
Matthaeus, Paroem, vii. 17 ; Schorer ad Gr. 2. 3. 5. Scheltinga
commenting upon Grotius (hoc loc.), says (author's manuscript) :
'Alwaar onder meer andere staat aan te merken dat niet overal
dit recht stant grypt ; by gevolge wanneer iemand moet resti-
tutie doen van goed dat hy op een vrye markt heeft gekogd,
dan zal men altoos onderzoeken of de plaatselyke wet of costu-
men sodanige uitsonderingen maaken ; . . . de reeden daar van
is om dat deeze uitsonderinge strekt tot vermindering van het
regt van den eigenaar, en die heeft geen grond ten sy die door
de wetten of oude costumen is bevolen.' [Wessels, History of
the Roman-Dutch Law, p. 507, translates a somewhat different
version of the above.] Van der Keessel (Dictat. ad loc.)
hesitates to come to any conclusion, but points out that the
rule was jus commune in Zeeland, as appears from Groene-
wegen's note, and that the statutes of Zeeland formerly en-
joyed considerable authority in Holland.
The cases in which the question has been discussed are Van
der Merwe v. W ebb (1883) 3 E.D.C. 97 ; Retief v. Hamerslach
(1884), S.A.R. 171 ; Kotze v. Prins (1903) 20 S.C. at p. 161 ; and
Woodhead, Plant and Co. v. Ounn (1894) 11 S.C. 4. See further
Lee, Commentary, p. 72. There are no public markets in Ceylon.
Northmore v. Meyapulle (1864) Ramanathan 95.
The claim of privilege for a purchaser at a private auction
sale was rejected in Retief v. Hamerslach, ubi sup.
2. Sales or pledges to licensed 'table-holders' (lombarden).
Gr. 2. 3. 6; V.d.K. 184. This exception is not admitted in
4901 j. f
434 APPENDIX E
South Africa. Muller v. Chadwick & Co. [1906] T.S. 30. The
business of pawnbrokers is now regulated by statute. See Cape
Act No. 36 of 1889 ; Transvaal Law No. 13 of 1894 (as amended) ;
Natal Act No. 22 of 1895.
3. Sales to old clothes dealers. Gr. and V.d.K. ubi sup. ; local
in Holland, not admitted in South Africa.
4. Sales to gold- and silver-smiths. Van Leeuwen, R.H.R.
2. 7. 4; V.d.K. ubi sup.; statutory in Holland, not admitted
in South Africa. Muller v. Chadwick & Co. ubi sup. at p. 40.
5. Judicial sales. Voet, 6. 1. 13; Math. Paroem. vii. 17 and
de auctionibus, 1.11. 70-1 ; 1. 14. 5 ; V.d.K. Dictat. ad Gr. 2. 3. 6.
For South Africa consult Adams v. Mocke (1906) 23 S.C. at
p. 788; Willoughby's Consolidated Co. v. Copthall Stores Ltd.
[1913] A.D. at p. 270 per De Villiers C. J. arguendo. The result
is that a fiscal sale gives a good title to a purchaser, at all events
against an owner of full age who has notice of the sale and fails
to assert his right. S. A. Association v. Van Staden (1892) 9 S.C.
at p. 98; Conradie v. Jones [1917] O.P.D. 112. By the Magis-
trates' Courts Act, 1917, sec. 59: 'A sale in execution by the
messenger shall not, in the case of movable property after
delivery thereof or in the case of immovable property after
registration of transfer, be liable to be impeached as against
a purchaser in good faith and without notice of any defect.'
Pound sales are regulated by provincial statutes, and confer
an unassailable title on the purchaser. Caganoff v. Zacks [1917]
T.P.D. 334. Cf. for Southern Rhodesia Roberts & Letts v.
Fynn [1920] A.D. 23.
6. Sales in insolvency. 'A public sale in insolvency is to all
intents and purposes a judicial sale.' Lange v. Liesching (1880)
Foord at p. 62 per De Villiers C.J. See Insolvency Act, 1936,
sec. 36 (subsecs. 5 and 6).
7. Goods sold and delivered without an agreement for credit and
not paid for. The owner who fails to revindicate within a short
time loses his right. V.d.K. 203 ; V.d.L. 1. 7. 2 ; Mackeurtan,
p. 262 ; supra, p. 294.
8. Money and negotiable instruments payable to bearer: —
cannot be recovered from a person who has received them in
good faith and for value. Woodhead, Plant 6s Co. v. Gunn
(1894) 11 S.C. 4; Adams v. Mocke (1906) 23 S.C. at p. 788. As
to scrip certificates endorsed in blank see United S. A. Associa-
tion Ltd. v. Cohn [1904] T.S. 733.
LIMITS OF THE JUS VINDICANDI 435
9. Goods entrusted to agents for sale and factors. — If they sell
or pledge goods entrusted to them though contrary to the
instructions of their principals they give a good title to a
purchaser or pledgee to the extent that the owner cannot
vindicate the goods without making good the price or redeem-
ing the pledge. Voet 6. 1. 12; Morum Bros. v. Nepgen [1916]
C.P.D. 392. For English Law see The Factors' Act, 1889, sec. 2.
10. Estoppel. The same principle applies to other cases in
which an owner ' has led others into the reasonable belief that
the person to whom he has entrusted the goods is entitled to
dispose of them'. Adams v. Mocke, ubi sup. ; Morum Bros. v.
Nepgen at p. 403. This may be regarded as an application of
the principle of estoppel, which forms part of R.-D. L. Whether
it applies or not depends upon the circumstances of each case.
11. Sale by a trustee or fiduciary. In Ceylon, where the
English Law of Trusts has been received with the consequent
distinction between legal and equitable ownership, the legal
owner can undoubtedly give a good title to a bona fide pur-
chaser for value. But a fideicommissum is not the same as a
trust. If movable property is alienated contrary to the terms
of a fideicommissum the fideicommissary has no right of pur-
suit— mobilia non habent sequelam. Voet, 36. 1. 64. As regards
immovables, it cannot be asserted as beyond question that
by the law of South Africa a person who in good faith
purchases burdened property from a fiduciary may hold it as
against the fideicommissary. But, ' although in theory [immov-
ables] can be followed into any hands, the courts of South
Africa would certainly be disinclined to interfere with, a bona
fide purchaser without notice who had obtained registered
transfer'. Morice, English and Roman-Dutch Law (2nd ed.),
p. 321. 'There is no title which the law is more inclined to
respect than that of a bona fide purchaser for value without
notice of the defect of title of the seller ' . Michelsen v. Aaronson
& Baikie [1914] T.P.D. at p. 167 ; Mare v. Grobler N.O. [1930]
T.P.D. 632. A fideicommissum created by act inter vivos does
not in any circumstances give a real right over movable pro-
perty. Brit. S. A. Co. v. Bulawayo Municipality [1919] A.D.
84 ; Kruger v. Verster [1925] C.P.D. 6. The same may be said
of a donatio sub modo of movables. The person for whose
benefit the modus is imposed cannot vindicate the property,
but has a personal action to compel observance of its terms.
436 APPENDIX E
Groen. de leg. abr. ad Cod. 4. 6. 3; 8. 54 (55). 1 ; Windscheid,
ii. 316.
12. Sale by executor. 'Where an executor has sold property
belonging to an estate, the property cannot be followed into
the hands of a bonafide purchaser, who, without knowledge of
the rights of the legatees or fideicommissaries, has received
transfer or delivery of the property. It is the duty of an
executor to pay the debts of the estate and to realize so much
of the assets as is required for that purpose. If he unnecessarily
sells property which is specifically bequeathed by the testator's
will, he renders himself liable to the legatees, but the transfer
or delivery made by him to the purchaser cannot be set aside
unless such purchaser was aware, or ought to have been aware,
of the breach of trust.' Williams v. Williams (1896) 13 S.C.
at p. 203 per De Villiers C.J.
In conclusion, note that the wider application of the rule
mobilia non habent sequelam to the case of alienations by a
borrower, depositary, &c., was not generally admitted by
writers on the R.-D. L. and does not exist in the modern law.
The principle Possession vaut litre in this extended sense has
no place in the law of South Africa or of Ceylon.
APPENDIX F
CONTRACT AND CAUSA
In this note I propose to say something about the treatment
of the subject of contract by Grotius with special reference to
the theory of causa.
Legal obligation, Grotius tells us, arises from two sources:
(a) promise (toezegging), (b) inequality (onevenheid) (Gr. 3. 1. 47).
Promise is express or by implication of law (uitdruckelick —
door wetduiding) (sec. 49). Express promise is spoken or
written (sec. 50).
Promises by implication of law are with agreement or with-
out agreement (3. 6. 1). Agreement, otherwise termed contract,
is a union of wills of two or more persons for the benefit of one
or more of them. — Overkominge die anders Tiandeling genoemt
werd is de eendracht des willes van twe ofte meer luiden tot eens
ofte beider nut (sec. 2).
To some contracts of daily occurrence the law annexes
CONTRACT AND CAUSA 437
terms, which bind the parties in the absence of agreement to
the contrary. These are promises by implication of law.
Some of these contracts of daily occurrence are real, others
consensual (sec. 10).
In addition to the above the law sometimes raises an
obligation or implies a promise without any agreement at all.
To this head are referred obligations quasi ex contractu, e.g.
the relation between heir and legatee, guardian and ward,
negotiorum gestor and dominus rei gestae, or between co-owners
(chaps. XXVI-XXIX).
To revert to express promises: To make a verbal promise
binding the Roman Law required a formal stipulation, or,
later, an oath (3. 1. 51). 'But since the Germans from of old
have esteemed no virtue above good faith, such subtlety has
not been accepted by them, but it has been understood and
used that all promises, which proceed from any reasonable
causes, whatever be the form of words employed, whether the
parties were together in one place or not, gave a right of action
and of defence to an action' (sec. 52). Reasonable cause is
understood [to exist] whenever the promise (toezegging ofte
belofte) takes place by way of gift or is incidental to some other
contract (dient tot eenige andere handelinge), whether such takes
place at the time of the contract or after it (sec. 53).
Gift forms the subject of chap. II. Promises incidental to
some other contract are treated in chap. III. They take place
either to confirm or to depart from the usual incidents of such
contract (3. 3. 1): to confirm, e.g. if a purchaser expressly
promises payment or a vendor delivery; to depart from, e.g.
if a vendor promises to furnish security against eviction, or a
purchaser promises not to hold the vendor liable in case of
eviction. Van der Keessel, Dictat. ad loc.
Chap. IV treats of compromise (transactio — dading) which
is said to belong to the genus 'promise'. Its place in the
system is not further indicated.
It is noticeable that Grotius has not thrown off the shackles
of the Roman Law. His verbal express contract is still the
stipulation in modern dress. He nowhere frames a compre-
hensive definition of contract as we understand it hi the
modern law.
Further, he nowhere says that all promises must proceed
from a reasonable cause. It may be conceded, however, that
438 APPENDIX F
this was his meaning, for in 3. 30. 14 he evidently supposes
reasonable cause to be, in principle, a requirement of the
contract of sale; and in 3. 31. 3 (in fine) he describes the
sources of obligation as (a) inequality, (b) a reasonable promise
(redelicke toezegging), which is equivalent to a promise pro-
ceeding from a reasonable cause.
There are some cases of contract which do not easily find
a place in the Grotian system. Instances are compromise
(already mentioned), and promises leading up to real contracts,
nominate and innominate, e.g. a promise to lend, to accept
a deposit, to constitute a pledge (3. 6. 11) ; a promise to give hi
exchange (3. 31. 8). In view of the circumstances in which
Grotius wrote and published his Inleiding occasional flaws
are not surprising. It seems from the above instances that
Grotius fully accepts the principle that 'every paction begets
an action', but he does not make this plain. Further, pact
or promise (he says) must spring from a reasonable cause.
What is meant by reasonable cause ? It is not the same
as lawful cause. A promise may be reasonable but unlawful.
Put the case of a contract relating to a future succession, a
contract of purchase and sale concluded on the Lord's Day.
It is not enough that a contract should be lawful, it must be
reasonable ; but if it belongs to a class of transactions to which
legal consequences are commonly attached the law will not
readily regard the promise of a party to it as unreasonable.
'Now although in case of sale, hire and so forth, any promise
which exceeds or falls short of the real value seems to that
extent to be destitute of reasonable cause (ontblootet te zijn van
redelicke oorzaeck), nevertheless, inasmuch as the very founda-
tion of the contract has a cause known to the law (rechtelicke
oorzaeck) and the value often cannot be precisely determined
. . . the law has thought fit to allow such promises to have their
effect provided that if the prejudice resulting to one of the
parties is too great and apparent [laesio enormis] it is open to
him to claim the remedy of restitution.' (Gr. 3. 30. 14.)
In another passage (3. 5. 7), speaking of promises in writing,
Grotius uses the phrase wettelicke oorzaeck, which plainly has
reference to the texts of the Roman Law, more particularly to
Cod. 4. 30. 13, upon which the practice of making express
mention of the cause in written instruments was founded.
When Grotius speaks of an unlawful cause he does not say
CONTRACT AND CAUSA 439
' onredelijke' , but uses the phrase 'oneerlijcke oorzaeck ofte
inzicht' (3. 1. 43) or 'oneerlicke ofte verboden oorzaeck' (3. 3. 44),
just as in another passage speaking of the condictio ex turpi
causa he writes : Hier onder is mede begrepen alle 't gunt iemand
heeft gegeven om een onrechtmatighe ofte andersins oneerlicke zake
(3. 30. 17). If reasonable cause does not mean lawful cause,
what does it mean ? Surely nothing but this — a cause of a
nature to induce a reasonable man to give his promise, a cause
which another reasonable man, the judge, considers apt to
produce a legal obligation. Where this condition is present the
promisor is bound in law, where it is absent he is not bound in
law. This rules out promises which are merely silly and foolish
(Voet, 2. 14. 16) and promises which burden the obligor
without having any interest for the obligee (Voet, 2. 14. 20).
Practically we arrive at the same result when we say that
a promise binds if it is given serio et deliberato animo (Vinnius
ad Inst. 3. 14. 2, sec. 11 ; Voet, 2. 14. 9).1
Upon the basis of certain texts in the Roman Law, and the
traditional interpretation of them, modern civilians, following
Domat (Les loix civiles, 1689-97), have constructed what has
been termed 'the theory of cause in obligations'. Through
the medium of Pothier this passed into the French Civil Code2
and thence into the other modern codes, which have taken it for
their model. The essence of the theory seems to be this. Just as
tradition, or handing over, is nothing in itself but only acquires
legal significance so far as it is an 'act in the law' (nunquam
nuda traditio transfert doininium, sed ita, si venditio vel ali-
qua justa causa praecesserit propter quam traditio sequeretur.
Dig. 41. 1. 31 pr.), so an obligation apart from its cause has no
1 It seems that this identification was made, or implied, by the
canonists (with whose works Grotius was, of course, familiar).
For them 'le pacte n'est valable que si le promettant a manifesto
son intention, et . . . d'autre part cette intention profbnde donne
force a son engagement, meme si elle ne se realise point dans le
cadre des anciens contrats, a la seule condition qu'elle soit raison-
nable. De sorte que la theorie canonique du pacte nu aboutit a
sanctionner toute promesse donnee avec une volonte re"fl6chie '
(Henri Capitant, De la cause des Obligations (3me ed.), p. 142).
Van Leeuwen in his early work, Paratitla Juris Novissimi (Lib.
iv, cap. 1, in fine), says that the reasonable cause of Grotius is the
same as the serio et deliberato animo of Voet. Sir John Kotze
(Causa in the Roman and Roman-Dutch Law of Contract, p. 45, n. 1 )
mentions this passage, but does not accept it as correct.
2 C.C. Arts. 1108, 1131.
440 APPENDIX F
juristic significance. The element in the situation, whatever it
be, which gives vitality to the obligation is termed its 'cause'.1
This is variously,, according to circumstances, conceived of
as an intention of the party to produce a legal result, or as
the result apprehended and desired.2 Further, the cause thus
understood must be a lawful one. But this is not what Grotius
means by 'reasonable cause'. What he is looking for is a test
of the validity of contracts in general, more particularly of
the verbal contract. Following in the steps of the canonists,
he finds this in the reasonableness of the transaction. The
distinction between 'cause' as Grotius understands it and
' cause ' as it is understood by modern exponents of the ' theory
of cause ' is the distinction between actionability and liability.
Actionability is a quality of promise or agreement. Is this
agreement actionable, i.e. a contract ? Yes, if reasonable (aliter,
serious and deliberate). Liability attaches to the person. Is
this person bound ? Yes, if his obligation has a lawful cause.
The first relates to the inception of the contract. The second
relates not to the inception merely, but to the continuance of
the obligation. The cause of a contract is one thing ; the cause
of an obligation is another.
To speak, lastly, of the place of cause in the modern law of
contract, it must be said that if the decisions of the Privy
Council and of the Appellate Division, cited in the text, have
told us what causa is not, neither they nor the earlier decisions
of the Courts of South Africa, nor the discussions to which the
question has given rise, have made clear what it is. It is
variously described as (a) ' the ground or reason of the contract
— that which brought it about ' (Innes C. J. in Rood v. W attach
[1904] T.S. at p. 199) ; 'the reason or ground of the transaction
or agreement' (Kotze, Causa in the Roman and Roman-Dutch
Law of Contract, p. 31); (6) 'the particular transaction out of
which the obligation is said to arise, be it sale, hire, donation,
or any other contract or kandeling' (De Villiers A.J.A. in
Conradie v. Rossouw [1919] A.D. at p. 314). This last view is
subjected by Mr. Justice Kotze to critical examination at p. 56
of his monograph, where he says that it fails to distinguish
1 La cause est le soutien necessaire, indispensable qui supports
1'obligation. Capitant, op. cit., p. 31.
2 There are variations on the theme into which it is unnecessary
to enter.
CONTRACT AND CAUSA 441
between causa contractus and causa obligations. Mr. Justice
de Villiers adhered to his view, as appears from his article in
39 S.A.L.J. (1922), p. 169. Non nostrum tantas componere lites.
It will, perhaps, be more helpful to remark that on the question
what is necessary and sufficient to constitute a binding contract
by the law of South Africa there is room for little, if any,
difference of opinion. In Conradie v. Rossouw Solomon A.C.J.
says [p. 288]: 'The rule may be simply stated as follows: "An
agreement between two or more persons entered into seriously
and deliberately is enforceable by action'" ; De Villiers A.J.A.
says [p. 320] : 'According to our law, if two or more persons, of
sound mind and capable of contracting, enter into a lawful
agreement, a valid contract arises between them enforceable
by action'; Wessels A. A.J.A. says [p. 324]: 'I agree with the
conclusion arrived at that a good cause of action can be founded
on a promise made seriously and deliberately and with the
intention that a lawful obligation should be established.'1
[In France and other countries of the Continent of Europe the
theory of cause has given rise to an extensive literature. It is
sufficient here to refer to Prof. Henri Capitant, De la cause des
Obligations (3me e"d., 1927), and to Georges Chevrier, Essai sur
L'Histoire de la Cause dans les Obligations, These pour le doctoral
en droit, Sirey, Paris, 1929. See also Prof. E. G. Lorenzen on
Causa and Consideration in the Law of Contracts, Yale Law Journal,
vol. 28, no. 7 (May, 1919), and Dr. F. P. Walton, Cause and
Consideration in Contracts, 41 L.Q.R. (1925), p. 306. For more
than a century battle has been joined between causalists and
anticausalists. Prof. Marcel Planiol (Traite elementaire de droit
civil, tome ii, no. 1039) rejects the notion of cause as useless,
and many modern codes, such as the Swiss Code of Obliga-
tions, the German Civil Code, and the Japanese Code (largely
inspired by the draft German Code), do not follow the French
Code in specifying 'une cause licite dans 1'obligation' as one of
'the conditions essential for the validity of conventions'. The
older Codes of the last century e.g. the Civil Code of the Nether-
lands 1838, of Italy 1865, of Quebec 1866, do so. Colin & Capitant,
Cours elementaire de droit civil francais (tome 2me), and Josserand,
Cours de droit civil positif francais (tome 2me, 1930), maintain the
traditional doctrine.]
1 The last formula is repeated verbatim with the substitution
of ' legal ' for ' lawful ' by Solomon J. A. in Robinson v. Randfontein
Ests, O.M. Co. Ltd. [1921] A.D. at pp. 236-7.
442
APPENDIX G
STIPULATIONS FOR THE BENEFIT OF A
THIRD PERSON
The rule of the Roman Law, alteri stipulari nemo potest (Inst.
3. 19. 19; Dig. 45. 1. 38, 17), prohibited a person [C] who was
not a party to a contract from bringing an action to enforce
a stipulation in his favour made between the parties [A stipula-
tor, B promisor] ; and if the stipulation was wholly in favour of
such third person the stipulator himself could not sue, for
want of interest. (Buckland, Textbook, p. 427.)
The writers upon the Roman- Dutch Law are generally agreed
that the rigid rules of the Roman Law were not in force in
their system, but they fail to distinguish between the case in
which A contracts with B intending to constitute a contractual
relation between B and C, and the entirely different case in
which A and B by contract between themselves confer some
benefit upon C. The first situation is fully covered by the law
of agency taken in connexion with the principle of ratification ;
the second raises questions of a different character. It is to
this situation only that the phrase 'stipulation for the benefit
of a third person ' properly applies.
What is the juristic nature of the stipulatio alteri ? The
question has been much discussed by continental writers, who
have propounded different 'systems'. In France the doctrine
has passed through various stages. The situation was first
analysed into the acceptance of an offer (A or B offerer,1 C
offeree and acceptor), next into a negotiorum gestio (A gestor,
C dominus rei gestae). But neither of these solutions meets our
case. They are both open to the objection that they suppose
as a consequence of C's acceptance a contractual relation
established between B and C, which is not in accordance with
the true juristic aspect of the stipulatio alteri. Consequently
the most recent commentators upon the French Civil Code
advocate a third 'system', different from either of the above:
viz. that the right of C springs directly and immediately from
the contract between A and B, but is not a right ex contractu.
1 On the first hypothesis A offers to C the benefit of the contract
which A has made with B ; on the second hypothesis B makes an
offer direct to C.
STIPULATIONS FOR A THIRD PERSON 443
It results from the unilateral will of one of the parties to the
contract [B] who undertakes to do something for a third person
[C] (Colin & Capitant, Cours elementaire de droit civil francais,
t. ii, p. 328 ; Josserand, Cours de droit civil positif francais , t. ii,
no. 303). The parties to the contract are the stipulator A and
the promisor B. The relation between stipulator and third
party (unless the object is to extinguish a debt of the former
to the latter) approaches most nearly to that of donor and
donee ; but the transaction is an indirect donation and exempt
from the usual requirements of form (in French law). All this
seems to bring us near to the English conception of a declara-
tion of trust ; and it is pertinent to notice that in the one case
in which English statute law admits the stipulatio alteri, the
resulting situation is conceived of as a trust. By the Married
Women's Property Act, 1882, sec. 11, a policy of insurance
effected by any man on his own life, and expressed to be for
the benefit of his wife, or of his children, or of his wife and
children or any of them [or a corresponding policy executed by
a wife] creates a trust in favour of the objects therein named.
The value of the analogy is that it shows that English law, so
far as it gives effect to the stipulatio alteri, interprets it as
creating in favour of the beneficiary a right which though
originating in contract is not itself contractual. In the Roman-
Dutch system the concept of quasi-contract is wide enough
to meet the situation. If this is the true doctrine of the
stipulatio alteri, many of the dicta in South African cases,
based upon the older and now rejected theories of offer and
acceptance or of negotiorum gestio, require reconsideration.
It would be interesting, but space does not permit, to extract
from the South African cases the principles of law applicable
to this topic so far as they can be gathered from the decisions
of the Courts.1 Particular reference may be made to McCullogh
v. Fernwood Estate Ltd. [1920] A.D. 204, in which the effect of
a stipulatio alteri was considered in connexion with the ques-
tion whether a company can take advantage of a contract
made for its benefit before it is formed. Innes C.J. referred to
Grotius, de Jure Belli ac Pacis, 2. 11. 18, where a distinction
is drawn between contracts made between principals in favour
of third persons and contracts made with agents (negotiorum
1 See remarks of Watermeyer C.J. in Commr.for Inland Revenue
v. Est. Crewe [1943] A.D. at p. 674.
444 APPENDIX G
gestores) purporting to act on behalf of third persons. In his
view the case under consideration fell under the first head, and
the company was held entitled in accordance with the principle
of Tradesmen's Benefit Society v. Du Preez (1887) 5 S.C. 269.
If the contract had been held to have been made with a person
purporting to act as agent for an unformed company, the result
would have been different, ' because the rule that there can be
no ratification by a principal not in existence at the date of
the transaction is recognized by our law as well as by the law
of England' (p. 207). The P.C. decision in Natal Land and
Colonization Co. v. Pauline Colliery Syndicate [1904] A.C. 120,
25 N.L.R. 1, in which Kelner v. Baxter (1866) L.R. 2 C.P. 174
was followed, no reference being made to Roman-Dutch Law
authorities, was distinguished as a case of purported agency.
The peculiarity of McCullogh's Case is that the company
was held to be not only entitled, but also liable. 'It may
happen that the benefit carries with it a corresponding obliga-
tion. And in such a case it follows that the two would go
together. The third person could not take advantage of one
term of the contract and reject the other' (per Innes C.J. at
p. 206). This is an unusual application of stipulatio alteri,
and a doubt suggests itself. If in consequence of a transaction
between A and B, rights and duties run through A and vest
in C, so as to establish a contractual relation between C
and B (A falling out of the contract altogether — McCullogh
v. Fernwood Estate Ltd. at p. 217), call it what you will, it is
agency and nothing else. The stipulatio alteri is a triangle.
It cannot by any manipulation be transformed into a straight
line.
So far as concerns contracts made for the benefit of com-
panies in course of formation the law has been changed by the
(Union) Companies Act, 1926, sec. 71, which enacts as follows:
'Any contract made in writing by a person professing to act
as agent or trustee for a company not yet formed, incorporated
or registered shall be capable of being ratified or adopted by
or otherwise made binding upon and enforceable by such
company after it has been duly registered as if it had been
duly formed, incorporated and registered at the time when the
contract was made, and such contract had been made without
its authority : Provided that the memorandum contains as one
of the objects of such company the adoption or ratification of
STIPULATIONS FOR A THIRD PERSON 445
or the acquisition of rights and obligations in respect of such
contract.' But this section does not exclude the application of
the principle of Tradesmen's Benefit Socy. v. Du Preez to the case
of company promoters contracting for the benefit of a company
in course of formation in their own name and not as agents.
Ex parte Vickerman [1935] C.P.D. 429.
[For the theory of the stipulatio alter! J. P. Moltzer's masterly
essay, De overeenkoinst ten behoeve van derden, remains unsurpassed.
A recent work of great merit is Die Ontwikkeling van die Ooreenkoms
ten Behoeve van 'n Derde door Johannes Christiaan de Wet (Leiden,
1940). The French doctrine is to be found in the commentaries on
the Civil Code of Planiol, Colin & Capitant, Josserand, &c. The fol-
lowing cases exhibit the treatment of this topic in the law of South
Africa. (The most important cases are indicated by an asterisk.)
*Louisa & Protector of Slaves v. Van den Berg (1830) 1 Menz. 471 ;
^Tradesmen's Benefit Society v. Du Preez (1887) 5 S.C. 269 ; Hyams
& Wolfv. Simpson [1908] T.S. 78; * Mutual Life Insurance Co. of
New York v. Hotz [1911] A.D. 556; Van der Plank N. O. v. Otto
[1912] A.D. 353; Wallaces Trustee v. Wallach [1914] A.D. 202;
Brovm's Executrix v. Me Adams [1914] A.D. 231 ; *McCullogh v.
Fernwood Estate Ltd. [1920] A.D. 204; Baikie v. Pretoria Munic,
[1921] T.P.D. 376; Kynochs .Ltd. v. Transvaal Silver and Base
Metals Ltd. [1922] W.L.D. 71 ; Est. Oreenberg v. Rosenberg &
Greenberg [1925] T.P.D. 924; * African Universal Stores Ltd. v.
Dean [1926] C.P.D. 390; Goldfoot v. Myerson [1926] T.P.D. 242;
London Chemists and Opticians Ltd. v. Shapiro [1926] T.P.D. 690;
Commissioner for Inland Revenue v. Est. Crewe [1943] A.D. at
p. 674; Ex parte Clarke [1944] W.L.D. 17.]
APPENDIX H
THE THEORY OF MORA
The word mora means delay or default. In its technical
sense it means a culpable delay in making or accepting per-
formance. Voet, 22. 1. 24: mora est solutionis faciendae vel
accipiendae frustratoria dilatio. Victoria Falls & Transvaal
Power Co. v. Consolidated Langlaagte Mines [1915] A.D. at
p. 31 ; Breytenbach v. Van Wijk [1923] A.D. at p. 549. The
definition includes both mora debitoris and mora creditor is. In
French law and other civil law systems mora debitoris seems
(sometimes, if not always) to occur as a mean term between
failure to perform a duty timeously and liability for breach.
Speaking generally, one party cannot proceed against the
446 APPENDIX H
other for delay in performance until he has with more or less
formality, according to the circumstances, called upon the
other to perform, -and the other has failed to do so. By so
doing he ' puts him in default ' and, so to say, fixes or crystal-
lizes his right of action against him by making the delay
culpable.1 When default follows upon demand or requires
demand as a condition of its existence it is called mora ex
persona. Voet, 22. 1. 25: si interpellate opportune loco et
tempore non solverit. But there are cases in which demand is
out of the question, e.g. if the obligation is not to do something
and the thing has been done, and there may be other cases in
which the law does not insist upon demand as a condition of
liability. In all such cases mora is said to arise by force of
circumstances — mora ex re. Voet, 22. 1. 26-7. When perform-
ance is to take place by a certain time and the time has elapsed
without performance, according to one view demand of per-
formance is unnecessary. The time-limit expressed in the
contract makes its own demand. 'Dies adjectus interpellat
pro homine.' Voet, 22. 1. 26. But this view, which, it seems,
cannot be supported by the texts of the Roman law,2 has,
from the time of the glossators onwards, been the subject of
controversy. The contrary view is that even in this case
demand is necessary to put a party in default.3
Mora usually attaches to a debtor, but it may also attach
to a creditor who fails to accept performance duly tendered;
Voet, 22. 1. 24: si rem legitimo modo oblatam non acceptet.
Windscheid, ii. 345. The consequences of mora debitoris are to
render him liable for raora-interest and accrued profits ; for an
agreed penalty ; for damages ; for increase in value of a thing
to be delivered, if the thing perishes before delivery; and,
generally, for accidental destruction, unless the thing would
have perished equally in the hands of the creditor if there had
1 The Latin word for demand is interpellatio, for which the
Dutch use interpellatie or maaning. The modern equivalents for
mora are verzuim, verzug, demeure.
2 Buckland, p. 550. But see Windscheid, who concludes (vol. ii,
sec. 278 in notis) that dies adjecttts may have one or other effect
according to circumstances.
3 This, exceptions apart, is the rule in French Law. Dies non
interpellat pro homine. Planiol, Traite elementaire de droit civil,
vol. ii, sec. 168. The English reader will find a lucid account of
the French theory of mise en demeure in Dr. F. P. Walton's The
Egyptian Law of Obligations, 2nd ed., vol. ii, pp. 213 ft.
THE THEORY OF MORA 447
been no mora. Voet, 22. 1. 28. This is what is meant when it
is said that mora perpetuates the obligation.1 The consequences
of mora creditoris are to transfer to him the risk, and to ' purge '
the mora of the debtor, i.e. to relieve him of the consequences
which would otherwise attach to his default. Voet, 22. 1. 28, 30.
Mora is further distinguished as judicial and extra-judicial.
Voet, 22. 1. 11. The first is a consequence of the institution
of legal proceedings. The second may exist where there is no
demand or where demand is extra-judicial.
South African practice admits the principle dies interpellat
pro homine. In other cases demand should precede summons.
If this is omitted, and upon summons defendant makes an
adequate tender, the costs of the summons must be borne by
the plaintiff. Van der Linden, Judicieele Practijcq, 1. 8. 8;
J. Herbstein, Demands, 44 S.A.L.J. (1927), p. 6.
The question of raora-interest has been elucidated by a deci-
sion of the Appellate Division. If B owes A a sum of money
and, when payment falls due, fails to pay, A may claim the
amount due with interest even where there is no agreement for
interest in the contract. This is mora-interest. It begins to run
from the time when the debtor is in default ; and, therefore,
where demand is necessary, from the date of demand. But
what constitutes demand for this purpose ? Some writers con-
sidered an extra-judicial demand sufficient ; others required a
judicial demand, i.e. a writ of summons ; others postponed the
currency of interest to the moment of litis contestatio, which in
modern practice is reached when the pleadings are closed and
matters are at issue between the parties. Meyer's Exprs. v.
Oericke (1880) Foord at p. 18 per De Villiers C.J. So far as
concerns South Africa, this doubt has been resolved in West
Rand Estates Ltd. v. New Zealand Insurance Co. [1926] A.D.
173, which established the rule (per Solomon J.A. at p. 183)
that 'mora begins from the date of receipt of the letter of
demand. It of course follows that, where there has been no
letter of demand, there would be no mora until summons has
been served on the defendant.' Summons is equivalent to a
demand and places a debtor in mora from the time of service
of the summons. Ridley v. Marais [1939] A.D. 5. Where the
claim is for unliquidated damages the Court will seldom, if
ever, award interest previous to judgment. Victoria Falls and
1 Momsen v. Mostert (1881) 1 S.C. 185; Wessels, i. 2704.
448 APPENDIX H
Transvaal Power Co. v. Consolidated Langlaagte Mines [1915]
A.D. at p. 32.
[Readers of Afrikaans will find Dr. I. Van Zijl Steyn's Mora
Debitoris volgens die Hedendaagse Romeins-Hollandse Reg (Nasio-
nale Pers, Kaapstad, 1929), instructive. For Ceylon Law see
Fonseka v. Fonseka (1938) 40 N.L.R. 539.]
APPENDIX I
THE PRACTICE OF THE SOUTH AFRICAN COURTS
WITH REGARD TO SPECIFIC PERFORMANCE
This note is designed to supplement what is stated in the
text on pp. 268 ff. See also Philip Gross, Specific performance
of contracts in South Africa, 51 S.A.LJ. (1934) p. 347.
In South Africa it is a common practice to add to a prayer
for specific performance an alternative prayer for damages or
for damages and rescission of the contract. Duclcett v. Ochberg
[1931] C.P.D. 493. On what basis are damages to be assessed ?
In Van der Wesfhuizen v. Velenslci (1898) 15 S.C. at p. 240,
De Villiers C.J. said: 'It is usual to fix an amount as damages
in case of refusal to comply with the order of Court. The
Court in such cases has never gone very minutely into the
question of damages sustained, but has taken a round sum for
the purpose of enforcing its own judgment.' This passage
suggests that damages are decreed as an indirect means of
compelling specific performance. But this suggestion was repu-
diated in Woods v. Walters [1921] A.D. 303 at p. 310, where
Innes C.J. said: 'Damages so claimed must, of course, be
proved and ascertained in the ordinary way. The authorities
do not warrant a punitive assessment.'
Such is the law where damages are asked for as an alterna-
tive to specific performance. It has been questioned whether
damages may be obtained in addition to a decree of specific
performance. It has been said that, as a rule, damages for
delay are not so given. Philip v. Metropolitan Railway Co.
(1893) 10 S.C. 52. But this supposed rule was rejected by the
Transvaal Court in Silverton Estates Co. v. Bellevue Syndicate
[1904] T.S. 462, where Innes C.J. said (p. 470): 'The Court
will lay down the rule that where a seller has made default
in the delivery of the thing sold, and is in mora, the purchaser,
SPECIFIC PERFORMANCE 449
in addition to demanding specific performance, may, where he
has sustained damages which the law recognizes and allows,
claim those damages in the same action.'
The remedy of specific performance lies very much in the
iiscretion of the Court. Woods v. Walters, ubi sup. at p 309
.Jbviously it will not be given where it is impossible for the
fondant to comply, nor where compliance would involve
injustice to a third party (Shakinovsky v. Lawson [1904] T S
326); nor where the Court cannot ensure that the contract is
carried out, e.g. to enforce a contract of service (Ingle Colonial
Broom Co. v. Hocking [1914] C.P.D. 495; ScUerhout v. Min
of Justice [1926] A.D. at p. 107), or a contract to build, repair
or insure (Barker v. Beckett & Co. [1911] T.P.D. at p. 164);
or a contract to withdraw defamatory words spoken of the
plaintiff (Keyter v. Terblanche [1935] E.D.L. 186) ; and it will
only be granted to a party who has fulfilled or is ready and
able to fulfil his own obligation. Wolpert v. Steenkamp [1917]
A.D. 493 ; Geldenhuys & Neethling v. Beuthin [1918] A.D. 426.
There are cases, however, in which though the Court will
not grant a decree of specific performance it will indirectly
produce the same result by interdict. Thus if the Court cannot
order A to serve B, it can at all events interdict A from serving
anyone else (African Theatres Ltd. v. Jewell [1918] N.P.D. 1),
or again it will grant an interdict to enforce an agreement that
licensed premises shall be used by a lessee as a tied house, and
that this shall be a condition of any sublease or assignment.
Ohlssons Cape Breweries Ltd. v. Cossey [1905] T.H. 16.
When the Court grants the decree it may either do so with-
out an alternative decree for damages (Stacy v. Sims [1917]
C.P.D. 533), or with the alternative of damages. If the order
is strictly alternative the defendant has the option of paying
damages in lieu of specific performance. Payn v. Lokwe [1912]
E.D.L. 33. But the case is otherwise if the intention of the
order is that the plaintiff should be entitled to the remedy
principally sued for, viz. specific performance, 'unless the de-
fendant can show that he is unable to give it, in which case
only can the defendant satisfy the judgment by giving the
other relief sued for'. Estel v. Novazi [1919] N.P.D. 406.
Generally speaking, a plaintiff will not be entitled to an alter-
native decree of damages unless he both claims and proves
specific damages; but it is competent to the Court to award
450 APPENDIX I
damages even though not specifically claimed in the declaration.
National Butchery Co. v. African Merchants [1907] E.D.L. 57 ;
Hertzog v. Wessels Est. [1925] O.P.D. 141.
It is not possible to state exhaustively the classes of cases
in which the Court will decree specific performance. The most
frequent cases relate to the sale or leasing of land, and in
Worcester Municipality v. Colonial Oovt. (1909) 3 Buch. A.C.
538 specific performance was decreed of a contract to exchange
immovable properties. Specific performance has also been de-
creed of an informal agreement to enter into a formal contract,
e.g. to execute a notarial deed in terms of an antenuptial
contract, Twentyman v. Hewitt (1833) 1 Menz. 156 ; in which
case the Court also ordered the defendant to carry out the
provisions of the contract thus to be executed ; and in Van der
Westhuizen v. Velenslci (1898) 15 S.C. 237 specific performance
was decreed of an agreement to sign a formal contract in terms
of a written memorandum. In Thompson v. Pullinger (1894)
1 O.R. 298 specific performance was ordered of a contract for
the delivery of shares, and in Shill v. Milner [1937] A.D, 101
of export quota certificates. The Court will not as a rule decree
specific performance of a contract to conclude a partnership,
but there may be exceptions from this rule. Flanagan v.
Flanagan [1913] N.P.D. 452.
It remains to ask what recourse is open to the plaintiff if
defendant fails to obey the decree of the Court.
1. He may apply to the Court, which will thereupon either
(a) commit the defendant for contempt, ShaJcinovsJcy v. Lawson,
ubi sup. ; or (6) in a fit case direct its own officer to attach the
property by order of Court and transfer it to the plaintiff,
who will acquire a good title by such transfer. Van der Byl v.
Hanbury (1882) 2 S.C. 80.
2. He may acquiesce in the refusal and claim the damages
awarded by the Court hi default of specific performance, and,
if the order of the Court is merely alternative, he must accept
whichever alternative the defendant chooses to give him.
3. Where no such order has been made he may (semble)
maintain a new action to recover damages for defendant's
failure to comply with the order of the Court. Schein v. Joubert
[1903] T.S. 428.
451
APPENDIX J
COMPENSATION FOR IMPROVEMENTS
The right of a non-owner to be compensated for money
expended upon the property of another rests upon the principle
neminem cum alterius detrimento et jactura locupletari debere.
It has been admitted in the following cases : —
• 1. The bona fide possessor is entitled to compensation for
necessary and useful improvements (Grot. 2. 10. 8) and for
voluptuary improvements, if the landowner elects to retain
them, in a case where the possessor would but for such election
have the right of removal (jus tollendi). Dig. 6. 1. 38 ; 25. 1. 9 ;
Windscheid, i. 195. Fructus percepti must be set off against
outlay and the possessor's right to compensation is reduced
accordingly. Voet, 6. 1. 38 ; Fletcher v. Bulawayo Water Works
[1915] A.D. 636 ; Burns v. Burns [1937] N.P.D. 67. But fruits
of improvements need not be set off. Voet, 6. 1. 39 ; Beebee v.
Magid (1929) (Ceylon) 30 N.L.R., 361.
2. The mala fide possessor is entitled to compensation for
necessary, but not for useful, expenses. So the law is stated
by Grotius (loc. cit.) and by Van der Keessel, Th. 214. Other
authorities, however — as Groenewegen (de leg. abr. ad Inst.
2. 1. 30), Van Leeuwen (Gens. For. 1. 2. 5. 10; 1. 2. 11. 7 and 8),
Schorer (ad Gr. 2. 10. 9), and Voet (6. 1. 36 ad fin.)— hold that
in the modern law the mala fide possessor, no less than the
bona fide possessor, is entitled to compensation for impensae
utiles. The former view was declared by the Supreme Court
of Ceylon to be in conformity with the usage of that Colony
(General Ceylon Tea Estates Co. v. Pulle (1906) 9 N.L.R. 98).
The case of Sinnetamby Chetty v. De Livera [1917] A.C. 534
leaves the question undetermined. The more liberal view has
been asserted at the Cape (Bellingham v. Bloommetje [1874]
Buch. 36; De Beers Consolidated Mines v. London & S. A.
Exploration Co. (1893) 10 S.C. at p. 372).
3. The right to compensation, when it exists, may in the
modern law be enforced not only by retention and exception,
as in the Roman law, but also by action. Voet, 5. 3. 23 (ad fin.) ;
Groen. de leg. abr. ubi sup.; Acton v. Motau [1909] T.S. at
p. 847; Badroodien v. Van Lier [1928] C.P.D. 311; and any
possessor bona fide or mala fide may remove what he has
452 APPENDIX J
annexed to the soil provided he can do so sine laesione prioris
status rei. Cod. 3. 32. 5.
3. The case of the lessee has been considered above, pp. 305 ff.
4. A fiduciary or his estate can claim as against fideicommis-
saries for beneficial expenditure upon property, the subject of
the fideicommissum. Du Plessis v. Est. Meyer [1913] C.P.D.
1006. A usufructuary is not entitled to claim compensation for
improvements except in special circumstances. Brunsdon's Est.
v. Brunsdon's Est. [1920] C.P.D. 159; supra, p. 182.
5. In Rubin v. Botha [1911] A.D. 568 plaintiff and defendant
entered into an agreement for a lease for a period of ten years.
Plaintiff was to pay no rent, but to erect a building on the
land, which at the expiry of the term was to become the
property of the defendant. Plaintiff erected the building and
remained in occupation for three years. Thereafter defendant
gave him notice to quit on the ground that the lease was void
for want of notarial execution as required by law. The Court
was unanimous in holding that the plaintiff was entitled to
compensation (Innes J. differed from de Villiers C.J. and
Maasdorp J. on the basis of calculation). This case decided
'that the equitable rule of the Roman-Dutch Law that no one
should be enriched at the expense of another, applied to the
case of a bona fide occupier equally with that of a bona fide
possessor'. Fletcher v. Bulawayo Waterworks Co. [1915] A.D.
at p. 655 per Solomon J.A. This last was a case in which
lessees had inadvertently encroached upon and improved neigh-
bouring land. The same principle has been applied to a case
of occupation under a contract of purchase afterwards re-
scinded. Brown v. Brown [1929] N.P.D. 41. In Uriel v. Jacobs
[1920] C.P.D. 487 compensation was refused, the improve-
ments having been made by a person who was employed as
overseer and had no right of occupancy for a fixed period.
6. The case of the precario tenens was considered but not
decided in Lechoana v. Cloete [1925] A.D. 536. 'The appellant
is neither a bona fide nor mala fide possessor nor a lessee. And
whether a person who occupies precario, as the appellant does,
is entitled to any compensation, under the equitable principles
of our common law, is a point which I prefer to leave an open
one ' ; per Kotze J.A. at p. 553. Cf. Maharaj v. Maharaj [1938]
N.P.D. 128.
7. For the husband's right to claim compensation for ex-
COMPENSATION FOR IMPROVEMENTS 453
penses incurred in respect of the wife's property kept out of
community see Schorer ad Gr. 2. 12. 15; Van der Keessel,
Dictat. ad loc. ; and Voet, lib. xxv, tit. 1. On the whole subject
see further Lee, Commentary, pp. 96 if.
APPENDIX K
INHERITANCE AB INTESTATO IN CEYLON
The Matrimonial Rights and Inheritance Ordinance 1876
directs that any property as to which any person dies intestate
shall devolve as follows, viz. : —
1. One-half to a surviving spouse (sec. 26) and subject
thereto —
2. To descendants, viz. to children equally with representa-
tion in infinitum1 (sec. 28) ; failing whom —
3. To fathers and mothers equally ;2 and if either parent is
dead half to the survivor, half to brothers and sisters (children
of the deceased parent related to the deceased by the full or
the half blood) and their issue by representation.3 But if there
is no such brother or sister alive at the death of the deceased,
then wholly to the surviving parent (sec. 29) ;4 and if both
parents are dead, then —
4. Half to brothers and sisters, children of the deceased
father, and their issue by representation ; hah0 to brothers and
sisters, children of the deceased mother, and their issue by
representation (sees. 30-2). If there are no fuU brothers and
sisters or their issue living, and there are living half brothers
and sisters or their issue related to the deceased on one side
only they take half, the other half going to the nearest ascen-
dants on the other side. Failing such ascendants, they take
the whole (sec. 33).5
5. 'Except where otherwise expressly provided, if all those
who succeed to the inheritance are equally near in degree to
the intestate, they take per capita and not per stirpes '6 (sec. 34).
6. All the persons above enumerated failing, the inheritance
goes to the nearest ascendants equally (sec. 35) ;7 failing whom —
1 Placaat of 1599, Art. 1. 2 ibid., Art. 2.
3 Ibid., Art. 3. The Placaat says 'children and children's chil-
dren by representation '. The Ordinance has substituted 'issue'.
Ibid- 6 Ibid., Arts. 4, 5, 6.
8 Ibid., Art. 11. i Ibid., Art. 7.
454 APPENDIX K
7. To uncles and aunts, and the children of deceased uncles
and aunts per stirpes ;l but if there are no uncles and aunts
living, then to their children and to great-uncles and aunts
with their per capita2 (sec. 35).
8. 'All the persons above enumerated failing, the entire
inheritance goes to the surviving spouse, if any, and, if none,
then to the next heirs of the intestate per capita' (sec. 36).
9. ' Illegitimate children inherit the property of their intes-
tate mother, but not that of their father or that of the relatives
of their mother.3 Where an illegitimate person leaves no sur-
viving spouse or descendants, his or her property will go to the
heirs of the mother, so as to exclude the Crown'4 (sec. 37).
10. 'If any one dies intestate without heirs, his or her
estate escheats to the Crown. If, however, any heirs can be
found, even beyond the tenth degree,5 they take the inheritance '
(sec. 38).
11. 'Children or grandchildren by representation becoming
with their brothers and sisters heirs to their deceased parents
are bound to bring into hotchpot or collation all that they
have received from their deceased parents above the others
either on the occasion of their marriage or to advance or
establish them in life, unless it can be proved that the deceased
parent, either expressly or impliedly, released any property
so given from collation'6 (sec. 39).
12. 'In all questions relating to the distribution of the
property of an intestate, if the present Ordinance is silent, the
rules of the Roman-Dutch Law as it prevailed in North Holland
are to govern and be followed'7 (sec. 40).
1 Placaat of 1599, Art. 9 sell. Children of the first degree, not
remoter issue.
2 Ibid., Art. 10. 3 Supra, p. 34.
4 Gr. 2. 31. 4; V.d.K. 368. 6 Gr. 2. 30. 1 ; V.d.K. 364.
6 Supra, p. 355. ' Supra, p. 405.
455
APPENDIX L
CONFLICT OF LAWS
This short note is intended to serve as a finger-post for
readers who may seek direction on this subject. Broadly
speaking there is little difference between the law of South
Africa (the same may, no doubt, be said of the law of Ceylon)
and the law of England in the field of private international law.
Thus (to take one example) 'the principles regulating domicile,
founded as they are upon the civil law, have been developed
in England and in Holland upon very similar lines'. Webber v.
Webber [1915] A.D. 239 per Innes C.J. at p. 242. English cases
and English text-books such as Dicey, and more recently,
Cheshire, are commonly cited. The classical writers of the
seventeenth century, particularly Johannes Voet and his
father Paul Voet, and Ulrik Huber, occupy the background.
At one point there is a conspicuous divergence from accepted
English doctrine (Cheshire (2), p. 493). In a series of cases
beginning with Blatchford v. Blatchford's Exors. (1861) 1 E.D.C.
365, the Courts have laid down that 'the law of the matri-
monial domicile is ubiquitous' ; and 'the tacit contract is of
equal force with the express as to the regulation of the pro-
perty of the spouses' (per Watermeyer, J. at p. 382), i.e. the
original proprietary relation of the spouses persists notwith-
standing a subsequent change of domicile, whether the mar-
riage was with or without an antenuptial contract.
The South African Courts recognize wills of movables as
formally valid if they satisfy the requirements either of the
lex domicilii (Ex parte Alison [1940] C.P.D. 586), or of the
lex actus. In re Robinson (1866) 1 Roscoe 411. For information
as to the jurisdiction of the South African Courts and the
recognition of foreign judgments the reader is referred to
Walter Pollak, The South African Law of Jurisdiction, 1937.
Since the publication of Dr. Pollak's book, the Matrimonial
Causes Jurisdiction Act, 1939, has given any provincial or
local division of the Supreme Court jurisdiction, if the wife
has been ordinarily resident within the area of jurisdiction of
that division for a period of one year immediately preceding
the date on which the proceedings are instituted and if at
that date — (a) in the case of an action for divorce or for resti-
tution of conjugal rights, the husband is domiciled within the
456 APPENDIX L
Union ; or (6) in the case of an action for judicial separation,
the husband is domiciled or resident within the Union. The
Matrimonial Causes Jurisdiction Act, 1945, gives the Supreme
Court temporary jurisdiction in, and in relation to, proceed-
ings for divorce, for restitution of conjugal rights or for nullity
of marriage where the husband was domiciled outside the
Union and South-West Africa at the time of the marriage, and
provides for the recognition of foreign decrees and orders sub-
stantially corresponding to those declared by this Act to be
competent to the Supreme Court on conditions of reciprocity.
INDEX
Aasdoms Law, succession under
the new, 402.
succession under the old, 399.
Aasdoms-recht, 397.
Abduction, 336.
Abrogation of statutes by disuse,
9, 10 (n. 1).
Absence prolonged, not a ground
of divorce, 90.
Absolute liability, 320, 338, 343.
Accession, 138.
Accrescendi jus, 354, 412.
Acquests, see Profits.
Acte van beraad, 352 (n. 2).
van opening, 358 (n. 6).
van superscriptie, 358.
Actio de damno in nave aut cau-
pona facto, 343.
de effusis vel dejectis, 343.
de pastu pecorum, 338 (n. 4).
de tigno juncto, 141.
doli, de dolo, 228, 333, 337.
hypothecaria, 204.
institoria, 420.
legis Aquiliae, 338.
pauliana, 143 (n. 6), 239 (n. 12).
positi aut suspensi, 343.
quanti minoris, 298.
quod metus causa, 233.
rationibus distrahendis, 116.
redhibitoria, 298.
tutelae, 115.
Actions, cession of, 238, 246.
ex delicto, generally assignable,
250.
limitation of, 281, 343.
transmission of, 251.
Actus, 168.
Adire hereditatem, 351.
Administration of minor children's
property, 37, 110.
Administrators, 354.
Adoption of children, 41.
Adulterine bastards, intestate suc-
cession of, 34 (n. 2).
testamentary incapacity of, 365.
Adultery, damages for, 336.
dissolution of marriage on
ground of, 87.
ground of testamentary inca-
pacity, 365.
marriage prohibited between
persons who have committed,
54.
Aedilitian actions, 298.
Affront, 335.
Age of marriage, 53.
Agency, 311.
Law of, in Ceylon, 312 (n. 1).
Agents for sale, can give title, 435.
Agreement, forms required for,
227.
requires union of minds, 215,
217.
Agreements, how made, 214.
vague or uncertain, 217.
Agri limitati, 139.
Air, rights in respect of, 128.
Alienation, by guardians, 110.
in fraud of creditors, 143 (n. 6).
prohibition of, 377.
under mistake, 222.
Alimony, 92, 250.
Allodial ownership in Holland,
156.
Alluvion, 138.
Alphen, W. van, 19.
Alteri stipulari nemo potest, 245,
434.
Altius non tollendi jus, 171.
tollendi jus, 171 (n. 2).
Ambassadors, wills of, 361.
Amende honorabel en profitabel,
335.
Animals, acquisition of wild, 135.
liability for injury by, 338.
Animus injuriandi, 331, 333.
nocendi vicino, 151 (n. 2).
revertendi, 136.
Annus luctus, 33, 366.
Antenuptial contracts, 72-87.
classification of clauses in, 76.
clauses in, relating to succession,
241.
exclusion of community of goods
by, 76.
exclusion of community of goods
and of profit and loss by, 76.
exclusion of marital power by,
76.
form of, in use in South Africa,
418.
irrevocable inter vivos, 85.
parties to, 73.
registration of, 73.
revocable by mutual will, 86.
revocable by order of Court, 85
(n. 7).
rights of succession under, 86.
settlements effected by, 82.
458
INDEX
Antenuptial contracts (continued) :
terms permitted in, 76.
writing, whether necessary for,
73.
Antichresis, 204.
Appropriation of payments, 267.
Aquae ductus, 169.
Aquae haustus, 169.
Artificial personality, 121.
Assignatio, 248 (n. 2).
Assignation, 279.
Assignment, 308 (n. 2).
of actions ex delicto, 250.
of contractual duties, 246.
of contractual rights, 246.
of lease, 308.
Assistance, wife sues, or defends,
with husband's, 65, 426.
Attorney, right of retention of
papers by, 198.
Auction, sale by, 240, 294 (n. 1),
433.
Aurea of Gaius quoted, 211.
Austen, J. E., translation of
Schorer's notes to Grotius, 18.
Authentica si qua mulier, 315.
Authorities, 17th century, 15.
18th century, 17.
Authority, books of, 15.
of guardian, 114.
Banns, publication of, 39, 58, 62.
Bastards, right of succession of, 34.
right of succession to, 34 (n. 3),
401 (n. 7).
testamentary incapacity of
adulterine and incestuous,
365.
Basutoland, Roman-Dutch Law
in, 12.
Batavia, Statutes of, 8 (n. 4), 403,
404.
Bechuanaland Protectorate, Ro-
man-Dutch Law in, 12.
Bejaerde wezen, 105 (n. 6).
Belet van hoger timmering, 171.
Belofte, 215 (n. 5).
Beneficium abstinendi, 350.
cedendarum actibnum, 318.
competentiae, 290.
divisionis, 115, 285, 318.
excussionis, 115, 317.
inventarii, 351, 352.
ordinis sive excussionis, 317.
Beraad, Acte van, 352 (n. 2).
Berbice, 11.
intestate succession in, 407.
Octrooi for, of December 6,
1732, 407.
Bergloon, 137 (n. 1).
Besloten testament, 358.
Betaling, 253,
Bewijs, 98.
Bewoning, recht van, 185.
Bier, going out before the, 72.
Bijnkershoek, Cornelis van, 17.
on reception of Roman Law,
5 (n. 1).
Birth, 31.
Blind person, will of, 364 (n. 1).
Boedelhouderschap, 97.
Boedelscheiding, 71 (n. 3).
Boey, Woorden-tolk, 19.
Bona fide possessor, compensation
for improvements, 451.
Bona vacantia, 401, 411.
Book-keeper's lien, 199 (n. 1).
Borgtocht, 315 (n. 2).
Branches, overhanging, 152.
severed, 152 (n. 3).
Breach of contract, consequences
of, 265.
Breach of promise to marry, action
for, 52.
Breach of statutory or common
law duty, 336.
British Guiana, 7, 11.
abolition of Roman-Dutch Law
in, 24.
criminal procedure in, 6 (n. 7).
intestate succession in, 407.
transfer of immovables in, 145
(n. 5).
Bruick, 185.
Bruyn, de, Opinions of Orotius, 21*
Building, right of support for, 153.
removal of, by order of Court,
176.
Bynkershoek, see Bijnkershoek.
Caedua, 183 (n. 5), 307 (n. 6).
Canon Law, 3, 225, 439 (n. 1).
Capacity, contractual, 243.
of married women, 65, 427.
of minors, 45, 421.
Cape of Good Hope, British occu-
pation of, 9.
Dutch occupation of, 7.
General Law Amendment Acts,
23, 32 (n. 1).
intestate succession at, 406.
statutory limited partnerships
in, 313.
Capitant, Prof. Henri, on Cause,
439 (n. 1).
Casus fortuitus, 305, 341 (n. 6).
Carriage, by land and by water,
319.
INDEX
459
Cattle, trespassing, 338 (n. 4).
Causa, the doctrine of, 226, 436.
Cautio fructuaria, 185 (n. 4).
Cession of actions, 238, 246.
Ceylon, British occupation of, 10.
constitution of servitudes in,
174.
Dutch occupation of, 7.
English law in, 24.
intestate succession in, 405, 453.
law of agency in, 312 (n. 1).
of corporations in, 121 (n. 3).
of mortgage in, 191.
of remission of rent in,
305 (n. 5).
of partnership in, 312.
of prescription in, 147
(n. 13).
of trusts in, 392.
restitutio in integrum in, 50
(n. 2).
Roman-Dutch Law in, 10, 24.
rule against perpetuities in, 387
(n. 3).
transfer of land in, 144 (n. 6).
wills, how made in, 363.
Champerty, 238.
Charles V, legislation of, 6.
Charles the Bold, 4 (n. 3), 5 (n. 1).
Chijs, Van der, 19.
Child, benefited by contracts of
parent, 245.
Children, minor, acquisitions by,
49.
administration of property of,
37, 110.
consent of guardians to mar-
riage of, 60.
consent of parents to marriage
of, 39, 55, 58.
contracts of, 38, 45-7, 422.
custody and control of, 36,
109 (n. 3).
parents' rights in respect of
property of, 40.
penalty on marriage of, 56.
right to provide guardians for,
39, 104.
young, not liable for delict, 339.
Children and parents, reciprocal
duty of support, 42.
Cijnsrecht, 157.
Clandestine marriages, penalties
of, 56, 61, 365.
Clausula codicillaris, 371.
Clausule derogatoir, 362.
Clausule reservatoir, 361.
Closed will, 358.
Co-creditors, 285.
Co-debtors, 284.
distinguished from sureties, 284.
Codex Theodosiamis, 3.
Codicils, 370.
Codicillary clause, 371.
Codification, in Holland, 3 (n. 1), 7.
in South Africa, 25.
Co-lessees, 285 (n. 1).
Co-lessors, 285 (n. 1).
Collatio bonorum, 71 (n. 5), 358.
Collusion, effect on divorce, 87.
Colombo, capitulation of, 11 (n. 4).
Colonus partiarius, 312 (n. 2).
Common Law duty, breach of, 336.
Community, matrimonial, varie-
ties of, 69 (n. 1).
Community of Goods, 68-72.
abolished in Ceylon, 69.
in Southern Rhodesia, 69.
contrasted with community of
profit and loss, 77.
effects of, 70.
ends on dissolution of marriage,
71.
exceptions from, 69.
exclusion of, by antenuptial
contract, 76.
Natal law as to, 69 (n. 3).
Community of Profit and Loss, 77.
Compensation or set-off, 250
(n. 2), 275.
effect of, 276.
Compensation for improvements,
305, 451.
for trees planted, 307.
Complainte, Mandament van, 163.
Compound interest, 259.
Compromise, 437.
Concubine, gift to, 288 (n. 7).
testamentary gift to? 364, 365
(n. 4).
Condictio causa data, causa non
secuta, 347 (n. 2).
indebiti, 48, 65, 233 (n.. 8), 347.
ob turpem causam, 235.
Condition subsequent, 280.
suspensive, 263.
Condonation, in action for divorce,
87.
Conflict of Laws, 133.
in South Africa, 455.
Confusion or merger, 178, 185,
207, 274, 310.
Consents for marriage, 39, 55, 58,
60.
Consideration, the English doc-
trine of, unknown to Roman -
Dutch Law, 226.
failure of, 347 (n. 2).
460
INDEX
Consignation, 255 (n. 5), 274, 314
(n. 5).
Consolidatio, 185.
Consortium, loss of, 329, 336.
Constitutum possessorium, 142.
Contract and Causa, 436.
Contract, assignment of, 246.
capacity of parties, 243.
consequences of breach of, 265.
construction of, 271.
damages for breach of, 265.
decree of specific performance
of, 268, 448.
definition of, 212.
determination of, 273.
duty of performance, 252.
effect of fraud on, 229.
of illegality on, 235.
of innocent misrepresenta-
tion on, 231.
of mistake on, 217-22.
essentials of, 214.
excuses for non-performance,
263.
failure to perform, 263.
formation of, 214.
historical development of, 223.
impossibility of performance,
253, 279.
inducing breach of, 337 (n. 7).
intention to make, 222.
interpretation of, 271.
novation of, 246, 277.
objective theory of, 220.
operation of, 244.
part performance of, 256.
parties must be competent, 243.
must intend to create legal
relations, 222.
performance of, 253, 274.
before due, 262.
by whom, 253.
to whom, 254.
persons affected by, 244.
possibility of performance, phy-
sical and legal, 223.
proof of, 276.
rectification of, 221.
requisite forms or modes of
agreement must be observed,
223.
rescission of, 230.
specific performance of, 52, 268,
448.
must be physically and
legally possible, 223.
substituted performance of, 256.
suspensive condition in, 263.
to marry, 61.
transmission of rights and duties
under, 251.
writing when required for, 227,
317.
Contracts, antenuptial, 72.
concluded through the post, 216.
gaming and wagering, 241.
illegal, 234-42.
in Roman Law, 224.
in Roman-Dutch Law, 225.
of married women, 65, 427.
of minors, 38, 45-7, 422.
special, 287-319.
terms imposed by law in, 252,
287.
uberrimae fidei, 231.
valid, 212, 214.
void, 212, 218, 235.
voidable, 212, 229.
Contribution, between co-credi-
tors and co -debtors, 286.
between sureties, 318.
Contributory negligence, 326, 330.
Contumelia, 329, 335.
Comely, Gregorius, 403.
Corporations, 121.
actions of, for delict, 340.
liable for wrongful acts of
agents, 339.
Correi promittendi, 284.
stipulandi, 284.
Council of X, 8.
of XVII, 8.
of Mechlin, 4.
Counterclaim, 275.
Covenants, restrictive, 170 (n. 5).
Covering bond, 187 (n. 3).
Creditors, agreements in fraud of,
143 (n. 6), 239.
plurality of, 285.
Crimen suspecti, 116.
Culpa, 323.
Curators, ad litem, 106.
assumed, 105.
bonis, 105, 118 (n. 1).
dative, 105, 107 (n. 1).
nominate, 105.
Custody of children, 36, 109 (n. 3).
in case of divorce, 90.
Custom, a source of law, 21.
Cynsrecht, 157.
Dading, 437.
Damage-interest, 258.
Damages, 265.
exemplary, 342.
liquidated, 268.
measure of, 265, 330, 342.
nominal, 267, 342.
INDEX
461
Damages (continued) :
patrimonial, 323.
sentimental, 323.
Damnum, 322.
emergens, 323.
fatale, 319, 341 (n. 6).
injuria datum, 322, 323.
sine injuria, 322.
Deaf-mute, will of, 364.
Death, compensation claimable in
respect of, 329.
fidei-commissum, taking effect
on, 382.
of fidei-commissary, effect of,
383.
of fiduciary, effect of, 383.
presumption of, 90 (n. 7), 118.
transmission of contractual
rights and duties on, 251.
of delictual rights and
duties on, 340.
Debtors, plurality of, 284.
Deceased husband's brother, mar-
riage with, 425.
Deceased wife's sister, marriage
with, 423.
Deceit, action of, 337.
Decisien en Resolution van den
Hove van Holland, 20.
Decisiones Frisicae, 20.
Decisions, Judicial, a source of
law, 14, 19, 21.
Decker, C. W., his edition of
van Leeuwen's Roomsch-Hol-
landsch Recht, 16.
on essentials of contract, 225.
on stipulatio alteri, 245.
Dedication to the public, 178.
Deductio servitutis, 174 (n. 3).
Deeds registry, in South Africa,
145, 191.
Defamation, 330, 344.
of a class, 345.
of the dead, 331 (n. 2).
Defects, warranty against, 297.
Defloratie, 327.
Del credere contracts, 318 (n. 3).
Delata hereditas, 351 (n. 1).
Delectus personae, 250, 253.
Delegatio, 248 (n. 2).
Delegation, 278.
Delicts, 320.
actions for, when transmissible,
340.
classification of, 322.
limitation of actions for, 343.
theory of, in Roman Law, 320.
in Roman-Dutch Law, 323.
who are liable for, 339.
who may sue for, 340.
Delivery, 141.
Demerara, capitulation of, 11.
intestate succession in, 407.
Deposit, 314.
with bank, 314.
Depositum miserabile, 314.
Desertion, constructive, 88.
Diemen, Governor van, 403.
Disclosure, duty of, 231.
Dissolution of marriage, 87.
Division, benefit of, see Benefit.
Divorce, 87.
Dogs, injuries by, 338.
Dolus [see Fraud].
dans locum contractui, 228.
incidens in contractum, 228.
Domat, his theory of cause, 439.
Domestic relations, wrongs
against, 336.
Domestic servants, wages during
illness, 304 (n. 2).
Domicile, wife acquires husband's,
64.
Dominium, see Ownership.
Donatio mortis causa, 291.
capacity to make, 49 (n. 2), 293.
Donatio sub modo, 291.
of movable property, 435.
Donation, 287, 437.
between spouses, 96, 288.
by father to son, 40, 288.
by guardian, 114, 288.
by minors, 49, 288.
by parents, 288.
father may accept on behalf of
minor child, 288 (n. 6).
no implied guarantees, 290.
not presumed, 288.
reciprocal, 289.
registration of, 289.
remuneratory, 114 (n. 3), 289,
291.
revocation of, 290.
to concubine, 288 (n. 7).
to medical attendant, 233 (n. 9).
Douarie, 82.
Dower, wife's hypothec for, 195.
Dreef, 168.
Drenthe, 5.
Drop, 172.
Drop-vang, 172.
Drunkenness, as affecting con-
tract, 119 (n. 4).
as affecting delict, 339 (n. 1).
as affecting will, 363 (n. 10).
Dumb person, will of, 364 (n. .1).
Duress, 232.
of goods, 233 (n. 8).
462
INDEX
Dutch Statute Law in Dutch
Colonies, 8.
Duty, breach of statutory or
common law, 336.
Duty of the 40th Penny, 145, 189.
Duyck, Anthony, 20 (n. 1).
East India Company, Dutch, 7
[see Octrooi].
Eigendom, 126.
Eigentiimerhypothek, 208 (n. 3).
Election, in mutual wills, 394.
Elopement, 365 (n. 1).
Emancipation, from parental
power, 41, 421.
Emphyteusis, 158.
English Law, reception of, 22, 23.
of torts, influence of, 321.
Enrichment, 47, 66, 113 (n. 12),
264 (n. 1), 346.
Ereption, for indignitas, 366 (n. 8).
Erfpacht, 157.
Error, see Mistake.
Espousals, 51.
Essequibo, capitulation of, 11.
intestate succession in, 407.
Estoppel, 212 (n. 2), 220 (n. 1),
435.
Everardus, Nicolaus, 4.
Eviction, 256, 296.
of lessee, 304.
warranty against, 296.
Exceptio doli, 228.
Exchange, 300.
Executor, testamentary, 352.
sale by, 436.
Exemplary substitution, 369 (n. 7).
Expenses, necessary, useful, volup-
tuary, 79 (n. 8).
Expropriation, 149.
Factor, can give title, 435.
Fair comment, 333.
False imprisonment, action for,
326.
Father, administration of, 37.
consent to marriage of minor
child, 39.
gift to child by, 40.
natural guardianship of, 37, 110
(n. 6).
represents son in court, 38.
right to appoint guardians, 39.
rights in respect of child's
property, 40.
when bound by child's contract,
38.
Fear, denned, 232.
effect of, on contract, 232.
Ferries, 130 (n. 4).
Feuds, in Holland, 156, 180.
Fidei-commissa, 374.
compared with trusts, 375, 390.
how created, 376.
of movable property, 435.
presumption against, 385, 386.
relief from, 387.
Fidei-commissaries, tacit hypo-
thec of, 197.
Fidei-commissum, conditional,
378 (n. 4), 379.
effect of, 381.
familiae, 378 (n. 3).
life interest created by, 384.
relief from, 387.
residui, 378.
when fails to take effect, 383.
Fiduciary, payment to, 255.
right to compensation for im-
provements, 452.
Filiale portie, 98 (n. 4).
Fire, damage by, 338 (n. 5).
Fire-arms, use of, 338 (n. 5).
Fiscus, a juristic person, 121.
forfeiture to, 366 (n. 8).
tacit hypothec of, 196.
Fishing-rights, 130, 185.
Fixtures, compensation for, 305,
451.
right to remove, 306, 451.
when immovable property, 134.
Fockema Andreae, on the recep-
tion of the Roman Law, 6.
Foreclosure, unknown in Roman -
Dutch Law, 205.
Forfeiture for crime, 149.
of lease, 310.
no relief against, 310.
Form, not a requisite of contract
in Roman-Dutch Law, 226.
Forms and Precedents, 416.
Fortieth penny, duty of, 145, 189.
Foundations, 121.
Frankish Empire, 3.
Fraud, action for, 337.
definition of, 227.
effect of, 229.
inducing mistake, 221.
Labeo's definition of, 227.
remedies for, 230.
Free grazing, 170 (n. 4).
Free market, 297 (n. 4), 433.
Free wood, 170 (n. 4).
Friesland, Province of, 5 (n. 4).
Fructus, 181 (n. 8).
decidentes, 152 (n. 4).
Fruit trees, tenant may not cut,
307 (n. 6).
INDEX
463
Fruits, 181 (n. 8).
included under profits, 77.
overhanging, 152.
perception and separation of,
141.
right to, on sale, 295.
usufructuary takes, 181.
Frustration of contract, 280.
Gaming and wagering contracts,
241.
Gebreckelicke eigendom, 126, 161
(n. 1).
Gelderland, Province of, 5 (n. 4).
Gemeenschap van goederen, see
Community of Goods.
General bond, 190.
Gerechtigheid, 187 (n. 2).
Gestation, period of, 32.
Getimmer, 306.
Gezicht-verbod, 171 (n. 5).
Ghosts, 304 (n. 10).
Gift, see Donation.
God-parents, see Sponsors.
Going out before the bier, 72.
Goot-recht, 172.
Grant, implied, of servitude, 177.
Grazing, right of, 170, 185.
Great Privilege of Mary of Bur-
gundy of 1476, 147.
Groenewegen van der Made, works
of, 16.
on law of leases, 159.
on treasure, 137.
Groningen, Province of, 5, (n. 4).
Groot, Hugo de, see Grotius.
Groot Placaat Boek, 19.
Groote Raad, 4 (n. 3).
Grosse, 358.
Grotius, Inleidinge tot de Holland-
sche Rechts-geleertheyd, 15.
Opinions of, translated by de
Bruyn, 21.
his classification of delicts, 322.
his theory of contract, 436.
Guarantee, see Suretyship.
Guardians, accounts of, 110 (n. 8),
113.
actions against, 115-16.
actions by, 115.
administration of property by,
110.
alienation of property by, 110.
appointment of, 101-6.
assumed, 101.
authority of, when unnecessary,
47.
authority of, wrongly given, 46
(n. 6).
authorize minor's acts, 46, 49,
114.
cannot make gifts in name of
minor, 114.
cannot take under minor's will,
364.
confirmation of, 101, 103 (n. 3).
consent of, to contracts of
minors, 46.
consent of, to marriage of
minors, 60.
contract in the name of minors,
113, 245.
dative, 102, 104.
insolvency of, 118.
inventory required of, 108.
kinds of, 100.
lawful, 102.
leases by, 111 (n. 4).
liability of, 114.
maintenance and education of
minors by, 109.
marriage of, with wards, 54.
plurality of, 110, 115, 116.
powers, rights, and duties of,
107.
removal of, 117.
remuneration of, 115.
represent minors in court, 113.
secure portions of minors, 108.
security required from, 107.
testamentary, 101.
who may be, 106.
Guardianship, 100-18.
actions arising out of, 115.
determination of, 117.
disqualifications for, 106.
excuses from, 107.
natural, of father, 37 (n. 4), 104,
255.
of mother, 59 (n. 1), 104.
of blood relations, 102.
upper (opper-voogdij ), 101.
voluntary in South Africa, 107.
Guiana, see British Guiana.
Habitatio, 185.
Handvesten, 3.
Harbouring, 336.
Heir, institution of, 354, 369.
position of, hi Justinian's Law,
352.
in modern law, 353.
substitution of, 369.
Hereditary lease, 157.
Hereditatem adire, 351.
Heres extraneus, 350.
Heres suus et necessarius, 350,
352.
464
INDEX
Herewegen, 128 (n. 6).
Hire, 300.
determination of, 309.
of land, see Lease.
Hof van Holland, 4 (n. 3).
Hofs-kinderen, 105 (n. 6), 363.
Holland, Codification in, 3 (n. 1), 7.
Counts of, 3.
law of the Province of, in South
Africa, 9.
Province of, 5.
Provincial Court of, 4 (n. 3).
Hollandache Consultation, 20.
Hooge Raad van Holland en
Zeeland, 4 (n. 4).
Hoon, 335.
Huber, Ulrik, works of, 16.
Husband, action of, for wife's
death, 329.
binds wife by his contract, 245.
for injury to wife, 329.
for insult to wife, 335.
not answerable for wife's delicts,
79, 339.
right to compensation for im-
provements, 452.
Husband and Wife, gifts between,
96, 288.
intestate succession of, 401, 412.
other contracts between, 96
(n. 4).
Huur-cedulle, 159 (n. 8).
Huur gaat voor koop, 158, 304
(n. 8).
Hypothec, see Mortgage.
Illegality in contract, 234-42.
Illegitimate issue, see Bastards.
Immemorial user, 176.
Immissie, Mandament van, 164.
Immovables, mortgage of, 189.
transfer of, see Transfer,
what things included under,
132.
Impensae, see Expenses.
Impetratio dominii, 205.
Impossibility of performance, 223,
263 (n. 2), 279, 280 (n. 2).
Impotency, renders marriage
voidable, 95.
Improvements, compensation for,
307, 451.
effected by lessee, 305, 306.
necessary, 307, 451.
Inaedificatio, 141.
Inbalcking ofte inanckering, 170.
Inbreng, 355.
Incestuous bastards, testamentary
incapacity of, 365.
Indebiti solutio, 347.
India, Statutes of, 8 (n. 4), 403,
404.
Injuria, meaning of, 322, 323
(n. 1), 335.
sine damno, 322.
Injuries to wife, child, &c., 335. -
Injurious falsehood, 337.
Injury by animals, 338.
Inleiding, 164.
Innkeeper's lien, 199, 319.
Innocent misrepresentation, effect
of, on contract, 231.
no action for damages for, 231.
Insane persons, curators of, 105.
contractual incapacity of, 119,
243.
incapable of making a will, 363.
of marriage, 53.
may sue for delict, 340.
not liable for delict, 339.
Insanity, 119.
a ground of divorce, 88.
suspends marital power, 71
(n. 3).
Insolvency of lessor does not
determine lease, 311.
sales in, 434.
transmission of rights on, 251.
Insolvents, contracts of, 243.
Instalments, payment by, 262.
Institutio a die, in diem, 370.
Institution of heir, 369.
Intercessio, 315 (n. 8).
Interdiction of prodigals, 120.
Interest, 258.
cannot be claimed in excess of
principal, 259.
compound, 259.
legal rate of, 258.
prescribed with principal debt,
282.
Interpellate, interpellatio, 446
(n. 1).
Interpleader, 255 (n. 5).
Intestacy, presumption against,
354, 355.
Intestate succession, 397.
in British Guiana, 408.
in Ceylon, 405, 453.
in Dutch Colonies, 403.
in East Indies, 404.
in Roman -Dutch Colonies, sum-
mary of, 408.
in South Africa, 406, 412.
in West Indies, 407.
of bastards, 34«,
to bastards, 34 (n. 3), 401 (n. 7).
Inundation, 140, 305.
INDEX
465
Invecta et illata, 193.
Inventory, benefit of, 351, 352,
353 (n. 2).
duty of fiduciary to make, 392
(n. 3).
duty of guardians to make, 108.
duty of surviving parent to
make, 98.
duty of usufructuary to make,
182.
Investment by father of child's
money, 38, 110 (n. 6).
by guardian of ward's money,
110.
Island rising in river, 139.
Iter, 168.
Joint-purchasers, 285 (n. 1).
Joint will, see Mutual will.
Judicial decisions, a source of law,
19, 21.
Judicial immunity, 341.
Judicial precedent, 20 (n. 2).
Judicial sale, 205, 208, 434.
Judicial separation. 91.
Juristic persons, 121.
Jurists, opinions of, 20.
Jus accrescendi, 354, 412.
altius non tollendi, 171.
altius tollendi, 171 (n. 2).
arenae fodiendae, 170 (n. 3).
calcis coquendae, 170 (n. 3).
cloacae mittendae, 172.
fluminis, 172.
in re aliena, 126, 168.
in rem, 126.
luminum, 171 (n. 5).
oneris ferendi, 170.
pecoris ad aquam appulsus, 170.
retentionis, 197 (n. 6).
retractus, 300.
stillicidii, 172.
tigni immittendi, 170.
tigni projiciendi vel protegendi,
170.
tollendi, 306, 451.
vindicandi, 155, 294, 433.
Justification, 332.
Keessel, D. G. van der, on recep-
tion of Roman Law, 6.
works of, 18.
Kersteman, Woorden-boek, 19.
Keuren, 3 (n. 5).
Kinderbewys, 99.
Kindsgedeelte, 98 (n. 4).
Koop breeckt huur, 158.
Kotz6, Sir John, on causa, 439
(n. 1), 440.
on fraud, 229.
on judicial precedent, 20 (n. 2).
on the reception of the Roman
Law, 5 (n. 1).
Kraam-kosten, 327.
Kramp, L. W., 19.
Kusting-brief, 133 (n. 8), 203, 300.
Laesio enormis, 113, 234.
Land, contracts relating to,
whether need be in writing,
227.
kinds of ownership of, 156.
leases of, 158.
tenure of, 161.
villein tenure of, in Holland, 158.
Landlord's hypothec, 193.
right to retain improvements,
306 (n. 4).
Landowner's duties to neighbours,
151.
Lastering, 330, 335 (n. 4).
Latent defects in goods sold, 297.
Lease of land, 158, 301.
assignment of, 308.
forfeiture of, 310.
history of, in Holland, 158.
in South Africa, 160.
in the modern law is a kind of
land tenure, 161.
of mineral rights, 301.
registration of, 160.
requirements of Political Ordi-
nance, 1580, 159 (n. 3).
writing, whether necessary for,
159.
Leen-goed, Leen-recht, 156.
Leeuwen, Simon van, 2.
his classification of delicts, 322.
on causa, 439 (n. 1).
works of, 16.
Legacies, 370.
revocation of, 371.
Legatees, tacit hypothec of, 197.
Legislation, under Spanish rule, 6.
under Dutch rule, 19.
in Ceylon and South Africa, 24.
Legitim, 368.
Legitimacy, 31, 53.
presumption of, 32.
Legitimation, 34, 41.
Legitimate portion, see Legitim.
Lesion, a ground of relief, 49, 234.
Lessee, duties of, 302.
eviction of, 304.
right to compensation for im-
provements, 305.
for trees planted, 307.
to remission of rent, 304.
4901
Hh
466
INDEX
Lessee, right (continued)
to remove fixtures, 306.
to retain against claim for
compensation, 307, 451.
Lessor, assignment by, 309.
duties of, 302.
statutory hypothec of, 306.
tacit hypothec of, 193.
Lex Anastasiana, 248 (n. 1).
Lex commissoria, 205.
Lex hac edictali, 98, 365 (n. 5).
Liability, absolute, 320, 338, 343. -
for delict, general exceptions
from, 341.
for injury by animals, 338.
principles of, in the law of
delict, 320.
Lien, 197, 202, 319.
Life-interest, how created, 384.
Light, rights of, 171.
Lijftocht, 158.
Lime -kiln, right of having, 170.
Limitation of actions, 281, 343.
Linden, Joannes van der, 18.
his classification of delicts, 322.
on parental power, 36.
on reception of Roman Law,
6.
rules for construction of con-
tracts, 271.
statutory authority of, 13 (n. 2).
works of, 18, 20.
Liquidated damages and penalty,
267, 268.
Litis contestatio, 279, 447.
Loan, for consumption, 314.
for use, 314.
Locatio conductio, 301.
Lombard, 433.
Losses, meaning of, in antenuptial
contracts, 79.
Lost property, 136.
Lucrum cessans, 323.
Lunatics, see Insane Persons.
Maaning, 446 (n. 1).
Magt van assumptie, 101 (n. 4).
van surrogatie of substitutie,
101 (n. 5).
Maintenance and champerty, 238.
Maintenue, Mandament van, 163.
Majority, acceleration of, 44, 117
(n. 8).
age of, 44, 363 (n. 9).
Mala fide possessor, right to com-
pensation for improvements,
451.
Malice, see Animus injuriandi.
in defamation, 331.
Malicious desertion, divorce for,
87-9.
judicial separation for, 91.
Malicious prosecution, 334.
Mandament van complainte, 163.
immissie, 164.
maintenue, 163.
sauvegarde, 163.
spolie, 164.
Mandate, 311.
Mandated Territory of South- West
Africa, 14.
Marital power, 64, 67.
exclusion of, by antenuptial
contract, 76.
insanity, how affects, 71 (n. 3).
Market, sales in, 156, 433.
Marriage, 51-99.
action to compel, 52, 327.
agreements in restraint of, 239.
to procure, 239.
between female ward and guar-
dian, 54.
between persons who have com-
mitted adultery together, 54.
breach of promise of, 52.
capacity to marry, 53.
clandestine, 56, 58, 364.
consent of parents to, 55, 58.
of relatives to, 59.
of tutors to, 60.
decree of nullity of, 33, 58, 95.
dissolution of, 87.
effect of, in respect of the pro-
perty of the spouses, 68.
on status of wife, 64.
formal requirements of, 64.
impediments to, 53.
legal consequences of, 64-72.
legal requisites of, 52-64.
polygamous, 53.
prohibited degrees, 54, 423.
promise of, 51.
putative, 63.
puts an end to minority, 45.
to parental power, 41.
second marriages, 98.
voidable, 53, 58.
wife becomes minor on, 65.
Marriage-settlements, 75, 82.
in antenuptial contracts, legis-
lation as to, in South Africa,
84.
power of Court to order, 61
(n. 3).
provisions of Perpetual Edict
as to, 82.
Married Women: donatio mortis
causa of, 293.
INDEX
Married Women (continued)
household contracts of, 66, 8
(n. 1), 429.
legal capacity of, 65, 427.
payment by, 254.
payment to, 255.
persona standi in judicio of, 65
426.
unable to contract without hus
band's authority, 65, 254.
when agent for husband, 428
430
will of, 364.
[see Wife.]
Massing, 393.
Master of ship binds shipowner by
his contracts, 245.
Masters liable for delicts of ser-
vants, 339.
Maxims: Alteri stipulari nemo
potest, 245.
Breekt koop geen huur, 158.
Conventio vincit legem, 252.
Die den man of de vrouw
trouwt, trouwt ook de schul-
den, 71 (n. 1).
Dien water deert die water
keert, 154.
Dies interpellat pro homine, 446.
Eene moeder (wijf ) maakt geen
bastaard, 34.
Ejus est caelum cujus est solum,
152 (n. 2).
Erfnis is geen winste, 78 (n. 3).
Furiosus nullum negotium
gerere potest, 119.
Hand muss Hand wahren, 155.
Het goed klimt niet geern, 402.
Het goed moot gaan van daer
het gekomen is, 398.
Het naaste bloed erft het goed,
398.
Huur gaat voor koop, 158, 304
(n. 8).
Impossibilium nulla obligatio
est, 263 (n. 2).
In delicto pari potior est pos-
sessor, 235 (n. 5).
In pari delicto potior est con-
ditio defendentis, 235.
Koop breekt huur, 108.
Man ende Wijf hebben geen
verscheyden goet, 70 (n. 7).
Meubelen en hebben geen gevole
155, 201.
Mit der Hand stirbt das Pfand
199 (n. 7).
Mobilia non habent sequelam
155, 201, 435, 436.
467
Moribus hodiernis ex nudo
pacto datur actio, 225 (n. 5).
Nam hoc natura aequum est
neminem cum alterius detri-
mento fieri locupletiorem, 47.
346.
Nemo promittere potest pro
altero, 244.
Non videntur qui errant con-
sentire, 217.
Nuda pactio obligationem non
parit sed parit exceptionem,
224.
Nulla promissio potest consi-
stere quae ex voluntate pro-
mittentis statum capit, 217.
Nulla voluntas errantis est, 217.
Nulli res sua servit, 178, 223.
Pater is est quern nuptiae de-
monstrant, 31.
Paterna paternis, materna
maternis, 398.
Plus valet quod agitur quam
quod simulate concipitur,
192.
Possession vaut titre, 155, 436.
Qui prior est tempore, potior
est jure, 202.
Qui prohibere potest, tenetur,
339 (n. 7).
Regula est, juris quidem igno-
rantiam cuique nocere, facti
vero ignorantiam non nocere,
217 (n. 8).
Servitus servitutis esse non
potest, 179.
Volenti non fit injuria, 342 (n. 1 ).
Voluntas coacta est voluntas,
232.
Wat aerd- ofte nagheh vast is,
werd ghehouden als een gevolg
van het ontilbare, 132 (n. 5).
Measure of damages, 265, 330, 342.
Hechlin, Great Council of, 4.
Merger, 178, 185, 207, 274, 310.
tferula, Paul, 19.
Met de handschoen trouwen, 52
(n. 5).
tfet de voet stoten, 297.
letus, see Fear.
Mineral rights, grant of, 186.
lease of, 300 (n. 9).
flines, 137.
Minority, 44.
determined by marriage, 45.
by venia aetatis, 44.
Minors, actions on behalf of, 38,
113, 340.
alienations by, 49.
468
INDEX
Minors (continued)
contracts of, 38, 45-7, 422.
delicts of, 48, 339.
donatio mortis causa of, 49
(n. 2), 293.
donation by, 288.
legal status and capacity of, 45.
liable for delicts and crimes, 48.
misrepresentation of age by, 50,
422.
mortgage of immovable pro-
perty of, 119, 188.
no persona standi in judicio, 113.
payment of debt due to, 254.
promise of, to marry, 51.
release from tutelage, 45.
restitutio in integrum of, 47,
49, 422.
rights in respect of property,
49.
widower (widow) may re-marry
without consent of parents,
59.
wills of, 49, 363.
[see Children, minor.]
Minute, 358.
Misdaad, 322*
Misdaed jegens eer, 330.
Misrepresentation, innocent, 231.
Mistake, 217.
common, 219, 221.
effect of, 217.
induced by fraud, 221.
mutual, 219.
of fact, 217.
of law, 217.
property alienated under, 222.
Modern law, sources of, 21.
Moltzer, J. P., De overeenkomst
ten behoeve van derden, 445.
Mora, the theory of, 445.
Mora-interest, 446.
Morgen-gave, 82.
Mortgage, 187-208.
contract to create, 192.
conventional, 188, 199.
disguised, 191.
general, 190, 201.
judicial, 188.
special, 189, 190.
tacit, 192, 197.
of fideicommissaries, 197.
of fiscus, 196.
of legatees, 197.
of lessee, 196, 306.
of lessor, 193.
of ward, 117, 197.
of wife for her dower, 197.
Mortgagee, rights of, 203.
Mortgages, assignment of, 206
(n. 6).
covenants in, 204.
effect of, 199.
enforcement of, 205.
extinguishment of, 206.
of incorporeal property, 190, 200.
of land, classed with movables,
133.
priorities among, 202.
registration of, 189, 191, 199.
Mortgagor, rights of, 204.
Mother, natural guardianship of,
59 (n. 1), 104.
right to custody of child, 37,
109 (n. 3).
Motive, error in, 221.
Movables, general mortgage of,
190, 199.
special mortgage of, 190, 199.
what things included under, 133.
Mutual will, 86, 361 (n. 6), 392.
precedents of, 419-21.
Muurbezwaring, 170.
Naasting, 300.
Naeranus, Joannes, 20.
Nahuyr, 159 (n. 4).
Napoleonic Codes, 7.
Natal, annexation of, 12.
community of goods in, 69 (n. 3).
disqualification of guardians in,
107 (n. 1).
divorce for malicious desertion
in, 89.
intestate succession in, 406.
leases of immovables in, 160.
postnuptial contracts in, 72.
Roman-Dutch Law in, 12.
statutory limited partnerships
in, 313.
wills, revoked by marriage in,
373.
witnesses of, in, 360 (n. 4).
Nathan, Dr. Manfred, 22.
Natural guardianship, see Guar-
dianship.
Necessaries, what, 66, 431.
father's liability for, supplied to
child, 38.
minor's liability for, 47.
wife's liability for, 66.
Necessity, way of, 168, 177.
Nederlandsch - Indisch Plakaat
Boek, 19.
Negligence, general principles of
liability for, 323, 324.
contributory, 326.
[see Culpa.j
INDEX
469
Negotiorum gestio, 255, 347, 442.
Nemo promittere potest pro
altero, 244.
Neostadius, Cornelius, 20.
Non-access, evidence of, 32.
Non-performance, consequences
of, 263.
Non-user of servitudes, 1 78.
Nood-weg, 168.
Notarial will, 357, 362.
Notice, of mortgage, effect of, 192.
of servitude, effect of, 172.
Novatio necessaria, 279.
Novation, 246, 277.
Nuda paesio, 224.
Nuda proprietas, 126.
Nude prohibition, 378.
Nuisance, Law of, 328, 338 (n. 4).
what amounts to, 153.
Nulli res sua servit, 178, 223.
Nullity of marriage, 33, 58, 95.
Nuncupative wills, 356, 361.
Obligatio generis, 255.
Obligation, definition of, 210.
Obligations, arising from contract,
212.
from delict, 320.
from miscellaneous sources,
346.
civil, 210.
natural, 48, 210.
quasi ex contractu, 346, 437.
quasi ex delicto, 343.
Occupation, 135.
Occupier, right to compensation
for improvements, 452.
Octrooi for Berbice of December 6,
1732, 407.
to the East India Company of
January 10, 1661, 404.
text of, 408.
Offer and acceptance in contracts,
214.
Onevenheid, 436.
Opinions of Jurists, a source of
law, 20.
Opper-voogdij, 101.
Option to purchase, 215 (n. 6).
Orange Free State, annexation of,
13.
intestate succession in, 407.
Roman-Dutch Law in, 13.
Ordre van Regieringe of 13 Octo-
ber, 1629, 407.
Orphan Chamber, 97, 102, 108.
appointment of guardians by,
102, 104.
confirmation of guardians bv
103.
consents to sale of movable pro-
perty by guardians, 111.
exclusion of, 103.
functions of, 103.
in South Africa, 103 (n. 5).
inventory to be delivered to,
108.
Outspan, 177.
Overdracht, 144 (n. 6).
Overhanging branches, 152, 171
(n. 4).
Overijsel, Province of, 5 (n. 4).
Overkominge, 436.
Owner of land, duty to neighbour,
151.
Ownership, acquisition of, 135.
extinction, or loss of, 149.
full and qualified, 125.
incidents of, 151.
meaning of, 125.
of land, kinds of, 156.
Pacta nuda, 224.
Pactum commissorium, 205.
de non cedendo, 250.
de non petendo, 277 (n. 6).
Pand ter minne, 190.
Papegay, 19.
Parate executie, 205.
Paratitla Juris Novissimi, 2, 16,
439 (n. 1).
Parent, benefited by contracts of
child, 245.
consent of, to contracts of minor
child, 46.
consent of, to marriage of child,
39, 55, 58.
duty to make inventory, 98.
gifts by, to child, 40, 288.
guardianship of, 37, 103.
rights in respect of minor child's
property, 40.
Parent and children, reciprocal
duty of support, 42.
Parentage, 36.
Parental Power, 36-42.
Parra, Governor van der, 404.
Part performance of contract, 256.
Partners, duty of disclosure be-
tween, 232 (n. 1).
Partnership, 312.
English and Roman-Dutch Law
of, compared, 312.
Passing off, 337 (n. 7).
Pasture, right of, 170, 185.
Pater is est quern nuptiae demon-
strant, 31.
470
INDEX
Paterna paternis, materna mater-
nis, 398.
Pawnbrokers, 188, 434.
Payment, 253.
by whom may be made, 253.
into court, 255 (n. 5), 273.
married woman unable to make,
254.
of debt due to minor, 254.
place of, 260.
proof of, 256.
time of, 261.
to a fiduciary, 255.
to whom, 254.
Payments, appropriation of, 257.
Pecoris ad aquam appulsus, 170.
Peculium adventicium, 40.
profecticium, 40.
Penalty, and liquidated damages,
267-8.
Perception of fruits, 141.
Performance, 252, 273.
alternative, 256.
duty of, 252.
effect of, 256.
impossibility of, 223, 262 (n. 2),
279, 280 (n. 2).
part, 256.
specific, 268, 448.
substituted, 256.
[see Payment.]
Perpetual Edict of Charles V,
October 4, 1540, 6 (and see
Table of Statutes),
art. 6 (Marriage Settlements),
82
art. 8 (Rate of Interest), 258.
art. 12 (Testaments of Minors),
364.
art. 16 (Limitation of Actions),
283.
art. 17 (Clandestine Marriages),
56.
Perpetual imprisonment, a ground
of divorce, 87.
Perpetuities, rule against, in
Roman and Dutch Law, 386.
in Ceylon, 387 (n. 3).
Persons, Law of, 30.
Philip the Fair, 4 (n. 4).
Philip the Good, 4 (n. 4).
Philip II, Code of Criminal Pro-
cedure, 6.
Pia causa, 121, 359.
Pignus, 190.
praetorium or judiciale, 188,
194, 202.
Place of payment, law as to, 260.
Pledge, 190, 314.
Plurality of creditors and debtors,
284.
Political Ordinance of April 1,
1580, 7 (and see Table of
Statutes),
consent of parents to marriage
of children, 57.
formal requirements for leases,
159.
formal requirements for mar-
riage, 62.
formal requirements for mort-
gage of immovables, 189 (n. 6).
priorities between mortgagees,
203.
prohibited degrees, 54.
publication of banns, 63.
rules of intestate succession,
400.
transfers, registration of, 145.
Political Ordinance, 'Interpreta-
tion' of, 402.
Pollicitation, 215.
Possession, 162-6.
duty of respecting, 152.
Possessors, right to compensation
for improvements, 451.
Possessory Remedies, in Roman-
Dutch Law, 162.
in the modern law, 165.
Post, contracts concluded by, 216.
Postnuptial contracts in Natal and
Southern Rhodesia, 72.
Pothier on Obligations, translated
by van der Linden, 19.
Pound sales, 434.
Praedial Servitudes, see Servitudes.
Praedium dominans, serviens, 167.
rusticum, urbanum, 309.
Precario tenens, right to com-
pensation for improvements,
452.
Precious stones, 137.
Pre-emption, 300.
Prescription, acquisition by, 146.
in Ceylon, 147 (n. 13).
acquisition of praedial servi-
tudes by, 174.
of actions, 281, 343.
of mortgages, 207.
Principals liable for delicts of
agents, 339.
Priorities between mortgagees, 202.
Privilege (in defamation), 332,
344.
Prodigals, consent to marriage of
children, 61 (n. 1).
curators of, 105.
interdiction of, 120.
INDEX
471
Prodigals (continued)
marriage of, 61 (n. 1).
wills of, 363.
Profits, meaning of, in ante-
nuptial contracts, 77.
Prohibited degrees, see Marriage,
Political Ordinance.
Prohibition of alienation, effect of,
377, 378 (n. 4).
Promise not to sue, 277.
Promulgation of statutes, 8.
Property, Law of, 124.
acquired during marriage, 70,
76 (n. 2), 77.
of spouses, 68.
Prospect, right of, 171.
Protectorate of South-West Africa,
14.
Provinces of the United Nether-
lands, 5 (n. 4).
Provincial Court of Holland, 4
(n. 3).
Puberty, age of, 31.
Public market, see Market, sales in.
Public policy, 275.
roads, 128.
servitudes, 177.
trade, 66.
ways, 169 (n. 1), 177.
Publication, necessary in defama-
tion, 334.
Pupil, see Guardians, Minors.
Purchaser, bona fide, 383, 433.
Putative marriage, 63.
Quarta Falcidia, 369.
Trebelliana, 369.
Quasi-contracts, 211, 346.
Quasi-delicts, 343.
Quasi-pupillary substitution, 369
(n. 7).
Querela inofficiosi testamenti, 368.
Quick pursuit, 194.
Quid pro quo, 226.
Quit rent tenure, 157.
Railway tickets, &c., acceptance
of, 216.
Rain-water, diversion of, 154.
Ravisher and ravished, marriage
between, 54.
Reasonable cause, 437, 439.
Reception of the Roman Law, 4.
unequal in the various pro-
vinces, 5.
Recht van bewoning, 185.
Rechtsgeleerde Observatien, 18.
Recredentie, 163.
Redelijk oorzaak, 226, 437.
Regalia, 130, 139.
Registration of antenuptial con-
tracts, 73.
of gifts, 289.
of leases, 160.
of mortgages, 189, 191, 199.
of transfers, 145.
Registry of deeds, 145, 191.
Release, of debt, 276.
of servitude, 178.
Relief from fideicommissum, 387.
Relocation, tacit, 303.
Re-marriage, restrictions on, 33,
98, 365.
Rent, 302.
remission of, 304.
Reputation, wrongs against, 330.
Res aliena, bequest of, 363.
sale of, 296.
litigiosa, 241 (n. 5), 251.
Res communes, 126, 131.
derelictae, 135.
extra commercium, 241 (n. 5).
extra nostrum patrimonium,
128 (n. 2).
in nostro patrimonio, 128 (n. 2).
ipsa loquitur, 325.
nullius, 131.
publicae, 128.
sacrae, religiosae, sanctae, 131.
singulorum, 131.
universitatis, 131.
Restablissement, 164.
Restitutio in integrum on the
ground of duress of goods,
233 (n. 8).
of minority, 49, 114, 422.
of mistake, 222.
wife, not available to, 68.
Restitution of conjugal rights, 88.
Restrictive covenants, 170 (n. 5).
Retention, right of, 197, 319, 451.
Retorsion, 334.
Retractus, 300.
Revocation of gifts, 290.
of legacies, 371.
Reward, offer of, 215 (n. 2).
Rhodesia, Southern, Roman-
Dutch Law in, 13.
Riebeek, Van, 7.
Rights of action, prescription of,
281, 343.
of way, 168.
Rij-pad, 168.
River-beds, 139, 140.
Rivers, navigable, 130.
private, 129.
public, 129.
{see Streams.]
472
INDEX
Rixa, 333.
Roman Law, infiltration of, 3 (n. 4).
reception of, 3, 4, 5, 6.
Roman-Dutch Law, development
of, 3.
extension of, in South Africa, 12.
future of, 24.
in British Guiana, 11.
in Cape Colony, 9.
in Ceylon, 10.
in Natal, 12.
in the Dutch Colonies, 7.
meaning of, 5.
origin of, 3, 4.
origin of the term, 2.
present state of, 24.
sources of, 14-21.
superseded in Holland, 7.
Rylands v. Fletcher, rule in, 338
(n. 4).
Sale, 293.
by auction, 240, 294 (n. 1), 433.
by fiduciary or trustee, 435.
in a free market, 433.
in insolvency, 434.
judicial, 205, 208, 434.
of res aliena, 296.
of res extra commercium, 241
(n. 5).
of res litigiosa, 241 (n. 5).
on credit, 294, 434.
warranties on, 296, 297.
Salvage, 137.
Sand, right of taking, 170.
Sand-drift, 140.
Sande, Joannes a, 20.
Sauvegarde, Mandament van, 163.
Schade en interesse, 322.
Schependoms Law, succession
under the new, 400.
succession under the old, 398.
Schependomsrecht, 397.
Schorer, Willem, his notes to
Grotius, 15, 18.
Seashore, limits of, 129.
use of, 129.
Second marriages, 98.
Seduction, action for, 327, 341.
Self defence, 334, 341 (n. 7).
Senatus - Consultum Macedonia-
num, 314 (n. 4).
Velleianum, 315.
Sententien en gewezen Zaken van
den Hoogen en Provincialen
Road, 19.
Separation a mensa et thoro, 91.
by agreement, 93.
of goods, 71.
Servitudes, 167.
personal, 180.
cannot be ceded, 250 (n. 3).
public, 177.
real and personal distinguished,
167.
real or praedial, 167.
acquisition of, 172.
extinguishment of, 178.
interruption of, 175.
rules as to, 179.
rustic, 168.
urban, 170.
Servitus ne luminibus officiatur,
171.
Servitus servitutis esse non potest,
179.
Set-off, 275.
Settlements, see Marriage Settle-
ments.
Sex, 31.
Si sine liberis decesserit, 380.
Silva caedua, 183 (n. 5), 307 (n. 6).
Socage tenure unknown in Hol-
land, 157.
Sodomy, a ground of divorce, 87.
Solutio, 253.
Solutionis causa adjectus, 254
(n. 5).
South Africa, intestate succession
in, 409, 410.
Roman-Dutch Law in, 9, 24.
the Union of, 13.
works on law of, 22.
South African Republic, see Trans-
vaal.
Southern Rhodesia, 2.
intestate succession in, 407 (n. 1 ).
Roman-Dutch Law in, 13.
South- West Africa, Protectorate
of, 14.
Spanish rule in Holland, 6.
Spatium deliberandi, 351, 352.
Special contracts, 287.
Specific performance, 268, 448.
of contract to marry, 52.
Spolie, Mandament van, 164.
Sponsalia, 51.
Sponsors, could not take under
wills of minors, 364.
Spouses, antenuptial liabilities of,
70, 71.
gifts between, 96, 288.
Stads-kinderen, 105 (n. 6).
States-General, The, 8.
States of Holland, 8.
Statute Law, of Cape Colony, 10.
of Holland, how much in force,
8,27.
INDEX
473
Statutes of Batavia, 8 (n. 4), 403,
404.
Statutory authority, 341 (n. 7).
duty, breach of, 336.
will, 358.
Stillicidii, jus, 172.
Stipulations for the benefit of a
third person, 245, 442.
in antenuptial contracts, 86.
Stream, duty not to interfere with
flow of, 154.
Streams, public and private, 154.
'Structure', 306.
Stuprum, antenuptial, effect of,
33, 96.
Sublease, 308.
whether consent of lessor neces-
sary for, 308.
Sublessee, payment of rent by, 255.
Sub-mortgage, 187 (n. 6).
Subsidence, duty not to cause, 153.
Substitution of heirs, 369.
Succession, 350.
agreements as to, 84, 240.
intestate, 397.
testamentary, 356.
Support of children, of parents,
&c., 42.
Support of neighbouring land, right
to, 153.
Sureties, 315.
benefits available to, 317.
contribution between, 318.
discharge of, 318.
privileges of women, 315.
Swaziland, Roman-Dutch Law in,
13.
Tacit emancipation, 41, 421.
hypothecs, 192, 197.
relocation, 303.
Tender, 260, 273.
Testaments, see Wills.
Testamentary executor, 352.
succession, 356.
Testamentum, ad pias causas, 359.
militare, 359, 360, 363 (n. 1).
parentis inter liberos, 359.
revocation of, 372.
ruri conditum, 359.
tempore pestis conditum, 359.
Testation, freedom of, may not be
limited by contract, 240.
restrictions on, 368.
Thing, definition of, 124.
Things, classification of, 128.
corporeal and incorporeal, 131.
immovable and movable, 131.
law of, 124.
Third person, stipulations for
benefit of, 246, 442.
Tijnsrecht, 157.
Time, calculation of, 44 (n. 4), 261
(n. 9).
Time of payment, law as to, 261.
Tithes, 180.
Title, vendor not bound to make,
296.
Toezegging, 215 (n. 5), 436.
Torts, see Delicts, English Law.
Trade, competition, 333.
Trade-marks, infringement of, 337
(n. 7).
Traditio brevi manu, 142, 190.
longa manu, 142.
Tradition, 141 [see Transfer].
Transactio, 437.
Transfer of immovables in British
Guiana, 145 (n. 5).
in Ceylon, 144 (n. 6).
in South Africa, 145.
in the Dutch Law, 144.
Transmission of actions, 251,
340.
Transmission of contractual rights
on death, 251.
on insolvency, 251.
Transvaal, actions against regis-
tered partnerships in, 313.
intestate succession in, 407.
leases of immovables in, 160.
Roman-Dutch Law in, 13.
Treasure, 137.
Treatises on Roman-Dutch Law,
15-19.
Trebellian portion, abolished in
the modern law, 369.
Trees, planted by lessee, com-
pensation for, 307.
overhanging, 152, 171 (n. 4).
Trek-path, 168, 177.
Trespass, Law of, 329.
Treur-tijd, 33.
Trouwbeloften, 51.
Trusts, 388.
compared with fidei-commissa,
375, 390.
law of, in Ceylon, 392.
in South Africa, 388.
Tutors, see Guardians.
Uitkoop, 98.
Ultra vires, 339 (n. 4).
Underhand will, 358, 362.
precedent of, 421.
Undue influence, effect of, on con-
tract, 233.
Union of South Africa, 13.
474
INDEX
United Netherlands, Republic of,
2 (n. 2), 5 (n. 4), 7.
Universities, influence of, 3.
Unpaid vendor, right of, to reclaim
property, 294, 434.
Unsoundness of mind, 119.
Use, see Usus.
Use and occupation, 302 (n. 7).
Usufruct, 181-5.
life interest created by, 385.
with power of alienation, 379
(n. 1), 385 (n. 4).
Usufructuary duties of, 182.
rights and powers of, 181.
Usurpatio, 148.
Usus, 180, 185.
Utrecht, Province of, 5 (n. 4).
Vacant possession, 296.
Veer-recht, 130 (n. 4).
Veinster-recht, 171 (n. 5).
Veld-dienstbaerheden, 168.
Venia aetatis, grant of, 44, 117
(n. 8), 363 (n. 9).
precedents of, 416, 417.
Venia agendi, 36.
Verkiezing van landrecht, 407
(n. 4).
Vertigting, 98.
Vesting and divesting of rights
under a will, 381 (n. 1).
Vetustas, 176.
Via, 168, 169 (n. 1).
Vier vieren-deelen, 102, 311, 399.
Villein tenure in Holland, 158.
Vindicandi, 155, 170, 294, 433.
Vinnius, Arnoldus, 16.
on alluvion, 139.
Vis major, 175, 255, 305, 319, 341
(n. 6).
Voet, Johannes, 7, 17.
on antenuptial contracts, 75.
on measure of damages, 265.
on 'profits', 78.
Voet-pad, 168.
Voetstoots, 297.
Voluntary corporations, 122 (n. 1).
Voorkeur, 215 (n. 6).
Vrij gezicht, 171.
Vrij licht, 171.
Vrije hout, 170 (n. 4).
Vrije mart, 297 (n. 4), 433.
Vrije vee-weide, 170 (n. 4).
Wagers, 241.
Ward, see Guardians.
tacit hypothec of, 117, 197.
Warranty against defects, 297.
against eviction, 296.
none on gift, 290.
Warranty of authority, 311 (n. 7).
Waste, usufructuary liable for,
183.
Water, contamination of, 154.
Water-gang, 170.
-haling, 169.
-leiding, 169.
-loop, 175 (n. 2).
-lozing, 169.
-rights, 154, 170.
Way, rights of, 168.
Ways, public, 169 (n. 1), 177.
Weg, 168.
West India Company, Dutch, 7.
West Indies, Law of, 8 (n. 4), 11
Widow, legal position of minor, 45 .
Wife, acquires rank, forum, and
domicile of husband, 64.
action by, against husband for
delict, 340.
becomes a minor on marriage,
65.
benefited by contracts of hus-
band, 68, 245.
contracts of, 65, 427.
for household expenses, 66,
429.
with husband, 96 (n. 4).
gifts between husband and, 96,
288.
husband administers property
of, 67.
husband contracts in name of,
68.
husband may mortgage pro-
perty of, 67, 188.
husband's action for injuria to,
335.
for injury to, 329, 330.
liability of, for husband's con-
tracts, 68, 81 (n. 1), 245.
not liable for husband's delicts,
79.
postponed to husband's credi-
tors, 82.
repudiation of the community
by, 72.
right of preference and legal
hypothec of, 83, 197.
Wild animals, 135.
Wills, closed, 358.
how made in Holland, 356.
joint, see mutual,
military, 360.
mutual, 86, 361 (n. 6), 392.
notarial, 357, 362.
nuncupative, 356, 361.
open, 358.
INDEX
475
Wills (continued)
precedents of, 419-21.
privileged, 359, 360, 362.
restrictions on making, 368.
revocation of, 371.
solemn, 359.
statutory or underhand, 358,
362.
way of necessity, 168, 177.
what may be left by, 363.
who may make, 363.
who may take under, 364.
who may witness, 357, 360
(n. 2), 367.
Woest-ballingen, 364 (n. 6), 366
(n. 8).
Women sureties, 315.
Wreckage, 136.
Writing, effect of agreement to
reduce contract to, 216.
in modern law some contracts
require to be in, 227 (n. 3),
312 (n. 3), 317.
Wrongs, see Delicts.
Wrongs, against property, 328.
against reputation, 330.
against the domestic relations,
336.
against the person, 326.
breach of a statutory or com-
mon law duty, 336.
miscellaneous, 337.
Zeeland, Province of, 5 (n. 4).
Zululand, Roman-Dutch Law in,
12.
PRINTED IN
GREAT BRITAIN
AT THE
UNIVERSITY PRESS
OXFORD
BY
JOHN JOHNSON
PBINTEE
TO THE
UNIVEBSITY
•§
O
-P
CJ fl
CD O
•r) -H
-8
f S
University of Toroito
Library
DO NOT
REMOVE
THE
CARD
FROM
THIS
POCKET
Acme Library Card Pocket
LOWE-MARTIN CO. LIMITED