09 Jun
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Some Reflections on the Classification of Goods under the Ethiopian Civil code

In different legal systems of the world, properties are classified into different categories such as personal and real, private and public, movable and immovable, absolute and qualified, corporeal and incorporeal, etc. The distinction between these types of property is significant for a variety of reasons. Firstly, classification ensures the proper application of the law. This is because the legal regime that governs goods depends on their nature and accordingly their legal treatment substantially varies. For instance, one's rights on movables are more attenuated than one's rights on immovable (or real property). The statutes of limitations or prescriptive periods are usually shorter for movable than immovable property. Besides, real property rights are usually enforceable for a much longer period of time and, in most jurisdictions, real estate and immovable are registered in government-sanctioned land registers. More essentially, the manner for transfer of the possession or ownership of things depends on their nature. For example, the possession of ordinary corporeal chattels (movable things) may be transferred upon delivery. On the contrary, possession of immovable things requires more additional formalities like registration. In short, classification of property has a paramount importance in facilitating legal regulation of property rights and economic transactions.


When we come to the Ethiopian legal system, the classification of things is not that much clear. The law simply employs the term “good” which is primarily meant to refer the subject matter of property rights in most civil law countries as a bench mark to classify properties. Accordingly, under 1126 of the civil code it is provided that all goods are either movable or immovable. As Ethiopia is largely a civil law country, the use of the terms movable and immovable like other continental systems seems appropriate. Hence, the law recognizes goods as movable or immovable. The term “all” in this provision seems to signify that any thing to be regarded as good or any thing which is regarded as good must have either movable or immovable nature. In other words, a thing to be considered as subject matter of property right, i.e. good, in our legal system, it must fall in either of the class of immovable or movable things as defined by the law itself. However, as it is clearly provided in the Amharic version of the same provision, those goods which may be immovable or movable shall have material existence. The otherwise understanding suggests that at least in principle things to be considered as subject matter of property they must be tangible (corporeal); that can be perceived in our senses particularly that can be touched. Therefore, in the first glance the law seems to exclude incorporeal (intangible) things from the realm of property. Nevertheless, it puts exceptional instances in the subsequent articles where incorporeal things become goods after being assimilated with corporeal chattels (movable goods). In short, even if the law by definition excludes incorporeal things from the scope of property, it has also devised a mechanism where they may be regarded as goods, that is, by assimilating them with movable chattels.


Once the law classified goods as movable or immovable it also suggested what the terms should connote. Thus, under art.1127 it stipulates that corporeal chattels are things which have a material existence and can move themselves or be moved by man with out losing their individual character. Therefore, goods to be corporeal (tangible) movable thing, they must, first, be able to move by themselves or by the force of human beings. Second, when they are moving by themselves or are moved by human power they must not loss their natural (individual) feature, that is, their displacement or movement shall not result in the destruction of the whole or part of them or change of their physical feature. For instance, a marble which is already used for building may be movable, i.e. may be detachable from the building by using force. However, since in most cases, this result in some sort of destruction up on it, the marble may not be included in corporeal chattels. One top of this the law doesn’t seem clear when it says   “…with out losing their individual character”. What is the extent of losing individual character? Is any insignificant change capable of changing the nature of the thing? In our example above, what if the marble in the process of technical detachment slight crack occurred, will it be movable or remains an immovable? In the opinion of the writer, the intention of the legislator doesn’t seem to include slight changes but only those changes that outwardly affected the individual character, meaning, in our instance, any crack shall change the nature of normal marble may be that turns it to particles. In other words, as long as the change is not substantial, the nature of the thing shall not be changed.


On the other hand, article 1130 tries to describe immovables saying that ‘lands and buildings shall be deemed to be immovables’. Thus, unlike other legal systems, our civil code instead of defining immovables in general terms, it gives which things shall be regarded as immovables and it provided land and building as things that are deemed immovable. However, what about other things such as bridges and dams which are by nature immovable in the ordinary meaning of the term? Is the listing exhaustive or illustrative? In this regard two arguments may be raised; firstly, since the law doesn’t clearly say that ‘only’ land and buildings shall be deemed immovables, other things which are immovable by nature [in the literal meaning of the term] shall also be regarded as immovable in law. By contrast, it may be argued that the listing is exhaustive and no other thing shall be deemed immovable except land and buildings. To supplement the second argument, it may be said that in as long as the law doesn’t put the extent of ‘building’ (what things are referred as building?), we shall interpret it broadly  so as to include dams, bridges, fences  and the like in addition to houses. The general jurisprudence is just making land and any permanent establishment on land which can’t be moved from one location to another with out causing destruction upon it as immovable. In line with this, in whatever way the law is interpreted, it must include things such as fences, dams, bridges and the like as immovable goods so far as they are physically attached with the land and in a manner where it is impossible to displace them with out affecting their individual character.


Another point that the reader must also note is that when the law is referring to immovables it is only corporeals which have material existence by virtue of Art. 1126. As to incorporeal immovables like servitude, and others which are inseparable from the corporeal immovable such as land from which they develop as a right, though the law recognizes them under various provisions like art.1359 ff, it excluded them under article 1130 while describing what things are deemed immovable. Therefore, it doesn’t mean that these incorporeal immovables aren’t immovables because art 1130 is simply the follow up of art 1126 which sticks in classifying goods which have material existence (corporeals) only by excluding those which don’t have physical existence.


Securities to Bearer and Natural Forces

As said above, the Ethiopian civil code at first sight seems to exclude incorporeal (intangible) things from the classification of goods just by taking material existence as a requirement. However, the reading of the subsequent provisions, particularly, articles 1128, 1129 reveals that incorporeals under some circumstances, may be regarded as corporeal chattel (movable things) by way of assimilation with the fulfillment of certain preconditions. Accordingly, art 1128 declares that,Securities to bearer“Unless otherwise provided by law, claims and other incorporeal rights embodied in securities to bearer shall be deemed to be corporeal chattels.”Thus, despite the fact that claims and other rights incorporated in securities to bearer are intangible by nature, the law assimilates them to corporeal chattels, i.e., for all practical purposes they shall be taken as corporeal movables in the absence of any legal provision to the contrary. Nevertheless, an issue may be raised in relation to this assimilation of rights and claims embodied in securities to bearer alone in isolation to other transferable securities or in general other negotiable instruments. As provided under art. 715(1) of the Commercial Code negotiable instruments are documents incorporating rights to an entitlement that is impossible to enforce them in separation with the document. Simply, negotiable instruments are documents embodying rights and claims (intangible things) in them in a manner where it is difficult to enforce the rights without having the documents on which they are vested. The Commercial Code in sub 2 of the same article recognizes three classes of negotiable instruments; commercial instruments, transferable securities and documents of title to goods. Besides, according to the forms provided for their transfer, negotiable instruments may be to bearer, in a specified name or to order (see Art 719). Thus, the civil code selected securities to bearer (one type of transferable security) alone in assimilating rights or claims vested therein to corporeal chattels. Why is the justification of isolating securities to bearer from other negotiable instruments? Is there any interest that the law wants to protect in specifying securities to bearer alone and by assimilating them to corporeal chattels? In the opinion of the writer, other than the special feature of theses documents i.e. being to bearer, there doesn’t seem to exist any convincing logic behind isolating securities to bearer from other negotiable instruments and it is better to take the problem as a result of an oversight by the legislator. In other words, the phrase “securities to bearer’’ shall be construed broadly so as to include all other negotiable instruments. Hence, any claim or right vested in negotiable instruments shall be deemed corporeal chattel for all practical considerations provided that no contrary provision is stipulated by the law.     Article 1129 also provides the second instance where incorporeals are assimilated to corporeal chattels by the operation of the law. It declares that,“Unless otherwise, provided by law, natural forces of an economic value, such as electricity, shall be deemed to be corporeal chattels where they have been mastered by man and put to his use


Therefore, unlike rights or claims embodied in securities to bearer, there are strict prerequisites that must be satisfied for natural forces to be assimilated to corporeal chattels. Firstly, they must have economic value, that is, they must have economic purpose (valuable, in terms of money or any other means of consideration). Secondly, they must be mastered by man. In other words, they must be reduced to the control of human beings; for instance, a natural force like wind from which electric power may be generated shall first be controlled by a man through mechanical means and converted to electricity or the electric power which may be derived from nature must itself be possessed by a man. However, mere control over natural forces of an economic value which are by nature incorporeal such as electric current is not enough to assimilate them to corporeal chattels unless they are put to use. That means, in addition to having control, humans must exploit the economic purpose these forces.


Intrinsic Vs Accessory

The Civil code of the Empire of Ethiopia also classifies goods into intrinsic and accessory goods. What do we mean when we say intrinsic or accessory goods? First, let us see what intrinsic elements are.Article 1132 tries to define what intrinsic elements are. The law prefers to use the term “element” instead of ‘good or thing’ because once a thing is intrinsic, it shall cease to be a distinct thing rather part (element) of another thing. (See art. 134(1)). And it provides that (art.1132 (1)),“Anything which by custom is regarded as forming part of a thing shall be deemed to be an intrinsic thereof.” Thus, a thing which is by way of custom known to be part of another thing shall also be regarded as part (intrinsic element) by law. By doing so the law seems to adopt the definition resulting from the perception of the society towards a thing. That is in so long as the custom of a given society regards a given thing part of another thing the former shall be taken as intrinsic to the latter. However, the problem with this provision is in its failure to give the scope of application of the term as it is a variable concept. Custom is simply the total experience of human beings living in common: including the way we eat, the way we drink, the way we dress, the way we transact, etc. As such, custom varies from one society to another society, from place to place and from time to time. If that is so, which custom shall serve as a benchmark, assume that two persons from different custom came to transact and a dispute arises on the status of a thing which is the subject matter of their transaction, to determine the nature of a given thing as intrinsic or not? For instance, assume that in the town of Nekemte the mouse of a laptop is by way of custom recognized as part of the laptop but in the town of Jimma it is not regarded as such. And also assume that two persons coming from these two towns concluded a sale contract of laptop and then a dispute arose on the status of the mouse of the laptop, one claiming it is part(the person from Nekemte) while the other( from Jimma) responding not. Whose custom shall be observed? Is that the custom of the Nekemte or Jimma? The only way out is to resort to contractual provisions, particularly, on interpretation of contracts (arts 1732-1739, see also art 1713) and at any cost we shall see good faith and equity. Note that physical unity is not always required to exist between the intrinsic thing and the main thing to which it forms part. For instance, the key of a house has no any physical attachment with the house but it is by way of custom regarded as part of the house and if somebody rents you his house, he must deliver the key with the house. Therefore, what is required is the customary attitude of the society towards the thing not its physical relation with the main thing.


Sub-2 of the 1132 also defines things as intrinsic based on the physical relation that they may have with another thing. It says,“Anything which is materially united to a thing and cannot be detached there from with out destroying or damaging such thing shall be deemed to be an intrinsic element thereof.”Therefore, a thing can also be regarded as intrinsic if it is materially (physically) attached with another thing in a manner where it is impossible to isolate it with out causing destruction to the thing to which it forms part. As to what extent of destruction/damage is significant to determine the status of the thing physically related with another is not clear. Obviously it can be argued that we may say destruction when the main thing fails to serve its normal purpose. For instance, a car can’t serve its normal purpose of transportation with out its tire. So, when the tire is detached from it, the car shall be regarded as damaged if not destructed. Therefore, we shall look into the indispensable nature of the thing to the main thing in the exploitation of its normal purpose. Besides, we shall note that the thing regarded as intrinsic element may be indispensable (necessary) not regularly but it may be occasionally. For example, the wiper of a car is not always necessary to exploit the normal purpose of the car, especially in dry seasons [where there may not be rain], it is not that much required. But occasionally; when the rainy season comes it becomes indispensable for the normal purpose of the car. This doesn’t mean that the wiper is part of the car in rainy seasons and ceases to be part in dry seasons. Rather, it shall always be regarded as an intrinsic element of the car despite the fact that its purpose is not regular.Trees and CropsTrees and crops are other things which are deemed intrinsic elements to the land where they grow up. Art. 1133(1) stipulates that trees and crops shall be intrinsic element of the land until they are separated therefrom. Thus, trees and crops are included as part of the land as long as they are not detached from it. The only factor that may probably change their nature is their separation from the land. But this is just in principle and under sub-2 of the same they may be regarded as distinct corporeal chattels where they are subject to contracts made for their separation from the land or implying such separation. This is what we refer movables by destination i.e. though the thing is at the movement immovable being part of another immovable, if there is a contract that has the effect of detaching the former from the latter immovable, even if in the future, the former will be taken as movable corporeal thing. In other words, despite the fact that the trees and crops aren’t separated from the land by anticipation emanating from a contract they may be regarded as distinct corporeal chattels as if they were separated at the moment and for all practical purposes they shall be deemed as such. However, the term ‘trees’ seem to be in appropriate term because in the ordinary sense of the term it refers only some group of plants and the writer doesn’t see any reason why we shouldn’t include all other plant species as intrinsic element of the land they grow up. Therefore, we shall interpret the term ‘trees’ broadly so as to include other plants too.

Rights of Third parties

Sometimes a thing owned by a person may be with or with out his permission be destined to be part of another thing owned by other individuals and the issue will be what will be his rights vested on the thing particularly if it is made part of another thing with out his permission. As we discussed above, by virtue of art. 1134(1), a thing which becomes an intrinsic element of another thing (either movable or immovable) shall cease to exist as a distinct thing. That is, the law will no more recognize it as an independent (distinct) property. If that is so, its owner can no longer claim it as his property. This implies that any right which is vested on that thing (ownership, possession, usufruct, etc.) will no more exist for the owner, possessor, and usufructuary of the thing respectively (art 1134(2)). However, these third parties have the right to claim compensation by showing the damage they suffered due to the extinguishment of their right vested on the intrinsic thing through extra-contractual liability or unlawful enrichment.AccessoriesIn our earlier discussion, we said things may be classified into accessory and intrinsic. We saw intrinsic elements and next we shall discuss on accessories. What is an accessory? When we say an accessory principal relationship is created between two things?Article 1136 tries to define what accessory thing is. It provides that,“Anything which the possessor or owner of a thing has permanently destined for the use of such thing shall be deemed to be an accessory thereof.”Thus, an accessory is a thing which is permanently destined for the use of another thing. The thing to which the accessory is permanently destined for its use is called principal. From the definition, we can understand some points; firstly, it is the possessor or the owner that can create an accessory principal relationship. Can a mere holder create an accessory principal relationship? I don’t think that a mere holder or any other person if any who is neither possessor nor owner can create accessory principal relation. This is because mere holder by virtue of Art.1147 (1) with cumulative reading of art. 1146(1) and (3) he has no a right to exercise except the rights stated under arts.1148 and 1149. Therefore, he can’t create accessory principal relation as long as he is a person who controls a thing on behalf of other persons. As regards other persons who are not owners such usufructuary, they need to have possession to exploit or benefit from their rights. Therefore, if they are possessors they can create accessory principal relationship.Second, the accessory shall be permanently destined for the use of the principal. Temporary destination shall not create accessory principal relation. But the problem is how can we know that a thing is permanently destined or not since unlike in some cases of intrinsic elements physical unity isn’t required. In my opinion, the intention of the owner or possessor shall be seen, i.e. if the possessor or owner has destined a thing for the use of another thing with the intent to make it serve permanently, that is enough to create accessory principal relation.(please see the Amharic version saying ‘…beand sew hasab’). Therefore, as stated under art 1136 temporary detachment between the accessory and principal doesn’t result in cessation of the relationship as far as the intent of permanent destination of the owner is intact.
Thirdly, the thing called accessory must be destined for the use of the principal. That is, a thing may simply be destined for the use of another thing or for any other extra-purpose just may be to store it in another thing. And, to create accessory principal relation between two things one must be definitely destined for the use of the other. Otherwise if one is, for instance, destined to be stored in the other, mere destination doesn’t create accessory principal relationship.


The next point worth discussing is the legal effect of existence of accessory principal relationship between two things. Art 1135(misplaced provision which should have come after the definitional article 1136) provides that,“In doubtful cases, rights on, or dealings relating to things shall apply to the accessory thereof.”Thus, like in case of intrinsic elements, in accessories too, any right, dealing (contract) relating to the principal shall also include the accessory thereof. Nonetheless, this rule is applicable in the absence of any clear agreement (“In doubtful cases…”) to the contrary determining the fate of the accessory. For instance, in sale of a particular thing if there is any clause in the contract specifying the fate of the accessory (say, a clause stating that the seller will retain the thing) that clause will be enforceable (Pacta sunt servanda (Art1731)). However, in the absence of such clear agreement the buyer will be entitled to have the principal with all its accessories.


Rights of Third Parties

In some cases, the property of a person may be destined for the use of another thing with out his consent. For instance, Mr. A may by contract of bailment transfer his tape recorder to Mr. B. However, Mr. be pretending that he is the owner of such tape recorder sold it to Mr. C. Then Mr. C forthwith permanently destined the tape recorder to his car for its use. The issue is what will be the fate of Mr. A’s right over the tape recorder and art 1138(1) provides that the rights which third parties may have on a thing shall not be affected by such thing being destined to the use of a movable or immovable. This implies that unlike incase of intrinsic elements, the sole fact that a thing has become an accessory element of another thing doesn’t extinguish the right of third parties which had some sort of right over such thing before its destination. In other words, the accessory element is a distinct thing and can be claimed as a property by persons who had vested interest before its destination to the principal. In our hypothetical case above, Mr. A is entitled to require the restoration of the tape recorder despite the fact that Mr. C has destined it for the use of his car. However, this is just principle and under sub 2 of art 1138 such right (the right of Mr. A to claim the thing) may not be setup against a third party (Mr. C) in good faith. Good faith is as defined under art.1162 is a genuine belief by the transferee of a given property that the person with whom he is contracting has a legal valid title over the thing transferred to him. That is, if Mr. C had a belief that Mr. B had the legal title transfer the ownership of the tape recorder to him, then he is in good faith and Mr. A can not claim the restoration of the tape recorder. But what if the tape recorder is transferred to Mr. C gratuitously by Mr. B? Shall we favor Mr. C against Mr. A? In my opinion, we shall adopt the “consideration’’ element of art. 1161. That is, the thing which has become accessory of another thing shall be transferred to third parties in good faith for consideration so as to enable these third parties preserve their rights over the thing. Otherwise in all other cases, we shall favor those persons who have former title to the accessory against those persons who are in good faith and who acquired it gratuitously.  Nonetheless, there is an exception to exception provided under the same provision saying that “…unless they are embodied in a written document dated prior to the thing having been so destined.” This is to say that even if third parties are in good faith in so far as other persons have a documented right over the accessory before its destination to the principal, the right of the latter shall prevail. The law seems to prefer a documented right of persons to right of third parties in good faith.

 

Cessation of Character of accessory

 

Principal accessory relation is not an immutable relationship between two things. It may at some point in time be stopped or ceased. Article 1139(1) provides that the owner of a thing may put an end to the character of accessory of such thing. Though a possessor may create accessory principal relation by virtue of art 1136 it is the owner that has legal power to end up such relation. Why is that? What if the possessor destined his own property with the property of another person to whom he possesses something? Should the owner of the principal and the accessory be the same? Be this as it may, the cessation of the relationship by the owner will not affect the right of third parties who have had dealings with the owner on the faith of such character (accessory character of the thing)

Zelalem Mogessie Teferra

Zelalem Moges earned his bachelor Degree in Laws (LLB) from Jimma University in 2007 and his Advanced Masters Degree in International Humanitarian Law (LLM) with honour from Geneva University in 2011. Currently he is a PhD student in International Laws at the Graduate Institute, Geneva University. Zelalem taught various courses in Wollega and Jimma Universities for three years.

Website: zolamoges.blogspot.com