Abstract
Two divergent systems are usually differentiated between when it comes to the way in which real rights are transferred from one person to another, namely abstract and causal systems. In this article the features of each system, the respect in which they differ from each other, and the practical implications of the distinction are established. It appears that in a causal system real rights are transferred by conclusion of the obligatory agreement, which should be valid and enforceable. The mutual intention to transfer and to receive real rights is not construed as an independent real agreement as it is contained in the obligatory agreement. In a causal system the transferor finds himself in a favourable position in relation to other parties while bona fide third parties undoubtedly get the worst of the deal since they have no protection against the disadvantageous consequences of delivery owing to a void obligation. In an abstract system the obligatory agreement is not sufficient for the transfer of real rights, the thing should also be delivered and there should be a valid real agreement which consists merely of the mutual intention to transfer and to receive real rights. The real agreement is a characteristic of an abstract system which distinguishes it from a causal system. Compared with the position of those in the causal system, the transferee and third parties find themselves in a favourable position vis-à-vis the transferor. In a causal system the concept iusta causa refers to a valid and enforceable obligatory agreement or other juridical fact which obliges the transferee to deliver the thing. In an abstract system it serves no purpose to describe the causa with reference to the obligatory agreement, since it is not a substantive law requirement for the transfer of real rights. The causa concept refers rather to the mutual intention to transfer and to receive real rights, which is nothing less than the real agreement. Since the causa is contained in the real agreement it is no longer of any use in an abstract system and should be abandoned. The Dutch system displays the characteristics of an abstract system in that a separate act of delivery should exist and a valid real agreement is a requirement for the transfer of real rights. On the other hand it also displays characteristics of a causal system, since a valid obligatory agreement is a requirement for the transfer of real rights.
Highlights
Two divergent systems are usually differentiated between when it comes to the way in which real rights are transferred from one person to another, namely abstract and causal systems
As the agreement's content consists merely of the mutual intention to transfer and to receive real rights, which intention is abstracted from the causa, reference is made to this characteristic of the real agreement as the delivery, it should be kept in mind that the term consensualism is insufficient to distinguish between causal and abstract systems
As against the causal system, in an abstract system third parties find themselves in a favourable position – real rights are transferred to the transferee, even if the thing is delivered by virtue of a void obligatory agreement
Summary
Two divergent systems are usually differentiated between when it comes to the way in which real rights are transferred from one person to another, namely abstract and causal systems. At the centre of the differentiation is the relationship between the obligatory agreement (usually referred to as the causa), delivery in the case of movables (traditio) or registration in the case of immovable property, and the intention of transferring real rights, which is construed as a real agreement in an abstract system. For the purposes of this discussion reference will be made throughout to the South African and German legal systems as examples of an abstract system, which will be compared with the French legal system as being an example of a causal system, and the Dutch system, which can be described as a mixed system.[2]
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