Article by C.G. van der Merwe
The first Part of this Article examines the phenomenon of interpenetration or cross-fertilization that occurs between common law and civil law concepts in mixed legal systems. In mixed legal systems interpenetration seems to have been disproportionate with the scales weighing heavily in favour of penetration of common law notions into civilian systems. This lopsidedness can most probably be explained by the superior authority which English law, as the law of the conqueror, commanded and the fact that English law was well documented in tonnes of legal literature.
The second Part examines the inroads of English law into South African property law, labelled the most unassailable domain of civilian jurisprudence. The English doctrine of natural rights in land paved the way for the harmonization of the English law of nuisance with the civilian doctrine of subjective rights by identifying the right infringed in nuisance as the natural right of a landowner to a comfortable and convenient lifestyle. This doctrine also led to the acceptance of the landowner's right to lateral and subjacent support from his or her neighbour and the recognition in South African water law that the State was the dominus fluminis. This doctrine, combined with the recognition of so-called trade fixtures after the Industrial Revolution, also influenced the South African law of fixtures in ascribing a significant role to the intention of the owner of the movable attached to land. This Part is concluded by a description of how the common law based Conveyancing (Strata Titles) Act of New South Wales on condominiums was transplanted to South Africa in the form of the Sectional Titles Act and woven seamlessly into the civilian fabric of the South African law of property.
The third Part deals with the Scottish case Dyce v. Hays, an appeal from the Scottish Court of Session (1849) to the English House of Lords (1852), which had a material influence on the common law of easements. This Scottish decision, inter alia, establishes a clear distinction between private easements and rights to village greens and playgrounds dedicated to the public. It further endorses the principles that new instances of easements could develop without violence to basic principles when lands are put to novel uses and that easements should benefit the dominant land and not merely satisfy the fancies of dominant owners. Finally it demonstrates that servient property can never be encumbered to such an extent that the rights of the servient owner become totally illusory. These principles have since been enshrined in numerous English and Australian cases.
In conclusion it is suggested that more frequent use of the Internet and the employment of research assistants by judges may make future mutual interpenetration of common law and civil law principles less lopsided.
About the Author
C.G. van der Merwe. LL.B. (O.F.S.), B.A. Hons. (Oxon), B.C.L. (Oxon), LL.D. (S.A.), Professor of Civil Law at the University of Aberdeen, Scotland; formerly Professor of Private Law at the University of Stellenbosch, South Africa.
Citation
78 Tul. L. Rev. 257 (2003)