Article by C.G. Van der Merwe
This Article compares the right of forced passage (way of necessity) of two mixed legal systems, Louisiana and South Africa. Both these institutions have Roman roots. However, the Louisiana Civil Code drew heavily from medieval French law, while South African law was substantially influenced by Germanic law as received in the Netherlands during the eighteenth and nineteenth centuries. This probably accounts for the difference in dogmatic approach. Louisiana law construes a right of forced passage as a legal servitude, while South African law (like the German Civil Code) opted for the construction of a way of necessity as a limitation on the ownership of land situated between the enclaved parcel and the nearest public road. Apart from the consequences that flow from this distinction and the dissimilarities caused by different geographical conditions, there is an uncanny resemblance between the rules pertaining to the two institutions and their practical application in Louisiana and South Africa. The author was overwhelmed by the wealth of Louisiana case law on the subject and the profound scholarship with which the subject is presented by my esteemed colleague, Professor A.N. Yiannopoulos in his work on Predial Servitudes.
About the Author
C.G. Van der Merwe. Professor in Private law and Roman law at the University of Stellenbosch, South Africa. BCL, University of Oxford; LLD., University of South Africa.
Citation
73 Tul. L. Rev. 1363 (1999)