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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Roman-Dutch  Law  will  have  been  superseded  in  South 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. 


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