Sessie van die rei vindicatio anderhalf eeu ná Jhering?

Under certain circumstances it is impossible for the transferor to comply with the requirement of traditio to complete the transfer of a real right to the transferee. This is eg the case when an insured vehicle has been stolen and the insurer would prefer to receive the ownership in exchange for the payment of the value of the car under the insurance policy. Unless the insured parts with his ownership, he will technically be enriched by the acceptance of the insurance money. Because ownership cannot be transferred without the acquisition of possession by the transferee and the thief is not likely prepared to act as the holder on behalf of the insurer as new owner, the only alternative would seem to be for the insured to divest himself of his ownership by waiver. This would not benefit the insurer, because there is no mode of abandonment on behalf of somebody else, but it would be to the benefit of the thief. The moment the erstwhile owner consciously waives his ownership, the car becomes a res derelicta and the thief would be able to acquire original ownership by occupatio if he possesses the car with the animus rem sibi habendi. This is clearly not the result the insurer had in mind when insisting on the insured's divesting himself of his ownership. It is commonly accepted that in accordance with sound dogmatic principles the rei vindicatio as typical remedy of the owner cannot be disconnected from the real right, and thus cannot be ceded like a personal right to the insurer as cessionary. This contribution, however, supports the argument put forward more than 150 years ago by Jhering that there is room with reference to some texts in the Digest to recognise in some instances that something akin to cession might be possible to enable the insurer to acquire the entitlement to claim with the rei vindicatio of the insured as recognised owner whenever the vehicle is repossessed in future. The insurer will still become owner only after the successful repossession of the car, but at least this would allow him to act without being at the whim of the often disinterested erstwhile insured, who happens to be quite happy with his new car and does not really desire to re-acquire the stolen car. The only alternative to the possible recognition of such a cession-like construction would be for the legislature to enact an alternative mode of acquisition of ownership to movables whenever it is impossible to comply with the normal requirements of transfer of possession. It is suggested that such legislation may be modelled on the recently formulated section 3:95 of the Dutch Civil Code, which can be interpreted as a more refined and fine-tuned version of the German Code's paragraph 931, which clearly bears resemblance to Jhering's construction. In both instances this alternative mode of acquisition can only come into play in a situation akin to the stated scenario of the stolen insured car, because both pieces of legislation have as a prerequisite that the current holder of the thing to be acquired is not holding it on behalf of either the transferor or transferee. In this sense it differs strikingly from attornment, as it got set as if in cement in South African law.