Ewigdurende oorsaak. Die perpetua causavereiste by erfdiensbaarhede: uitoefening van 'n saaklike serwituut afhanklik van'n positiewe dadigheid deur die eienaar of gebruiker van die dienende erf

Translated title of the contribution: The perpetua causa requirement for real servitudes: Exercise of servitude dependent on positive act by owner or user of servient tenement

Research output: Contribution to journalArticlepeer-review

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Abstract

At least three aspects of the perpetua causa requirement for real servitudes may be distinguished: (1) the possibility of exercising a real servitude may not be dependent on a positive act of the owner or user of the servient tenement; (2) the servient tenement must be suitable on a permanent basis for the purpose of the exercise of the servitude and the subsequent owners of the dominant tenement must as such have a permanent need for exercising the servitude; and (3) a real servitude may not be established subject to a resolutive condition or dies. The first of these aspects is discussed in the current article. The second and third aspects will be discussed in a later article in this journal. D 8 2 28 is the only Roman law text that requires a perpetua causa or eternal cause for the establishment of a real servitude. The various interpretations of this obscure and probably interpolated text are discussed in some detail. Some authors infer from the text that the possibility of the exercise of a real servitude may not be dependent on a positive act by the owner or user of the servient tenement. Roman law, Roman-Dutch law, modern Dutch law and South African law are canvassed in this regard but almost no authority for such a rule could be found. The conclusion is therefore that it does not form part of South African law today. Of course, a servitude may never have a positive act by the owner or user of the servient tenement as object of the right (ie it can never oblige the owner or user of the servient tenement to perform certain positive acts) but the fact that a non-compulsory positive act by the owner or user of the servient tenement is a condition for the possibility of exercising a servitude, does not form an obstacle to the establishment of such a real right.

Translated title of the contributionThe perpetua causa requirement for real servitudes: Exercise of servitude dependent on positive act by owner or user of servient tenement
Original languageUndefined/Unknown
Pages (from-to)660-673
Number of pages14
JournalTydskrif vir die Suid-Afrikaanse Reg
Issue number4
Publication statusPublished - 2009

ASJC Scopus subject areas

  • Law

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