does not permit an intermeddler or a finder to step into the vacuity or void and mark
ownership. Hypothetically speaking, the abandonment must be in line with the
doctrine of abandonment thus, rendering the abandonment as a legal abandonment.
Although the popular notion is that all rights and interests in a property are lost by
abandonment, the title however, remains unblemished. Title to any property that has
been legally abandoned naturally vests in the intermeddler or finder who reduces it to
possession both actual and constructive. If the owner has relinquished, given up or
renounced the title by any act or public proclamation, the finder’s claim is justified
and valid. If the owner has eschewed performing any of the aforementioned actions,
the finder could reduce the property to possession through “adverse possession” and
bar the true owner from claiming title and ownership. In short, the manifestation of a
bona-fide intention to abandon something creates the regime of legal abandonment.
In maritime law, if a ship is abandoned due to an act of God, there is no relinquishment or permanent abandonment of the ship.
90 In those instances where there is no
hope of recovery of the ship, the owner is under an obligation to deregister the ship
as per statutory law. Even if the ship has been physically abandoned, there remains
constructive possession whereby the right of ownership is not lost through derelicto
and the ship cannot be considered as res nullius or res derelict. If all rights of
ownership are waived, then the abandonment is legal and the quiritarian ownership
is lost through the abandonment of property rights rendering the ship a res nullius.
2.4.2 Lost Property & Illegitimate Possession
While legal abandonment may result in occupation by the finder firmly founded on
the owner’s bona-fide intention to be free from all rights and privileges that are
acquired by dint of title, it is often seen that in “forgotten property”
91 cases—the law
does not support the claim of the finder. Forgotten property or lost property can be
seen a property, the possession of which has been parted with involuntarily. As such,
latter? [footnotes omitted]”. See also Whitford (2001). The author distinguishes a question of fact
from a question of law in the context of damages for breach and states “The most important standard
for distinguishing questions of fact from questions of law is the general/particular distinction. If the
significance of a determination is limited to a particular case, we call it a fact issue, even though by
no means would it be considered a “fact” as that term is used in ordinary language. Consider for
example an issue that often arises in determining expectation damages for breach-in what situation
would the plaintiff be if the contract had not been broken (e.g., how much profit would she make). A
layman would term such a determination an informed guess at best, but because its significance is
limited to the case, we consider it a fact rather than a law question. Consider also a determination
about a person’s subjective intent in doing an earlier act or making an earlier expression. These
determinations require ascertaining a subjective state of mind, something not amenable to an
objective measurement of physical reality (such as the speed at which a car is traveling, which
can be measured by radar), but again because the significance of the findings are limited to a
particular case, we consider them determinations of fact rather than law.”
90 Similar to cargo claims as observed in The Antipolis 1990 (1) SA 751 (SCA), p. 757.
91 Moffat v Kazana [1969] 2 QB 152.
360
T. M. Johansson
ownership. Hypothetically speaking, the abandonment must be in line with the
doctrine of abandonment thus, rendering the abandonment as a legal abandonment.
Although the popular notion is that all rights and interests in a property are lost by
abandonment, the title however, remains unblemished. Title to any property that has
been legally abandoned naturally vests in the intermeddler or finder who reduces it to
possession both actual and constructive. If the owner has relinquished, given up or
renounced the title by any act or public proclamation, the finder’s claim is justified
and valid. If the owner has eschewed performing any of the aforementioned actions,
the finder could reduce the property to possession through “adverse possession” and
bar the true owner from claiming title and ownership. In short, the manifestation of a
bona-fide intention to abandon something creates the regime of legal abandonment.
In maritime law, if a ship is abandoned due to an act of God, there is no relinquishment or permanent abandonment of the ship.
90 In those instances where there is no
hope of recovery of the ship, the owner is under an obligation to deregister the ship
as per statutory law. Even if the ship has been physically abandoned, there remains
constructive possession whereby the right of ownership is not lost through derelicto
and the ship cannot be considered as res nullius or res derelict. If all rights of
ownership are waived, then the abandonment is legal and the quiritarian ownership
is lost through the abandonment of property rights rendering the ship a res nullius.
2.4.2 Lost Property & Illegitimate Possession
While legal abandonment may result in occupation by the finder firmly founded on
the owner’s bona-fide intention to be free from all rights and privileges that are
acquired by dint of title, it is often seen that in “forgotten property”
91 cases—the law
does not support the claim of the finder. Forgotten property or lost property can be
seen a property, the possession of which has been parted with involuntarily. As such,
latter? [footnotes omitted]”. See also Whitford (2001). The author distinguishes a question of fact
from a question of law in the context of damages for breach and states “The most important standard
for distinguishing questions of fact from questions of law is the general/particular distinction. If the
significance of a determination is limited to a particular case, we call it a fact issue, even though by
no means would it be considered a “fact” as that term is used in ordinary language. Consider for
example an issue that often arises in determining expectation damages for breach-in what situation
would the plaintiff be if the contract had not been broken (e.g., how much profit would she make). A
layman would term such a determination an informed guess at best, but because its significance is
limited to the case, we consider it a fact rather than a law question. Consider also a determination
about a person’s subjective intent in doing an earlier act or making an earlier expression. These
determinations require ascertaining a subjective state of mind, something not amenable to an
objective measurement of physical reality (such as the speed at which a car is traveling, which
can be measured by radar), but again because the significance of the findings are limited to a
particular case, we consider them determinations of fact rather than law.”
90 Similar to cargo claims as observed in The Antipolis 1990 (1) SA 751 (SCA), p. 757.
91 Moffat v Kazana [1969] 2 QB 152.
360
T. M. Johansson