Abstract

The internet of things enables the owner or possessor of devices (ie movable property) to remotely disable them when they are under the unlawful physical control of unauthorised persons. In this article the author reviews more that 2 000 years of legal history to show that those erstwhile authorised holders who ceased to be such holders and still have the devices under their unlawful physical control are not treated by the law as lasting possessors with long lasting status as possessors in durable and peaceful possession who are able to bring the mandament van spolie against the owner or possessor for an order to reactivate the devices. The same applies to the thief caught red-handed by the owner, the latter is not the spoliator but the spoliatus. Freedom to contract is one of the fundamental competencies of legal subjects who have attained majority. Unless a contractor is exercising the alleged freedom in a way that is in conflict with public policy, contracting parties are free to construct the clauses to their agreement at will, and a contracting party cannot plead mala fides after representing to his/her counter-party consensus with the terms of their agreement. Since Roman law times an owner can come to an agreement with a subject renting his property on the terms of the rent agreement. The owner of a car may rent his vehicle to the lessee after agreeing on what the daily rent will be, how many kilometres will be included in the daily tariff and what every additional kilometre will cost. It may also be agreed that the rented vehicle may not be used for cross-border travel because of the risk of hijacking involved and it may be agreed that any breach of the contract will entitle the owner to switch off the engine management system via a built-in remote control system to prevent any further use of the vehicle in contravention of the terms of the contract. Many a secondary or tertiary institution has incorporated into the terms and conditions of the agreement with its students, governing the use of the tablets or computers provided by the institution to the disadvantaged students who are unable to acquire their own devices, the possibility of remotely freezing the device when it is misused or fraudulently being disposed of to a third party under the guise of alleged theft by an unknown person. The disabling of the device should not be classified as spoliation by the institution as the real spoliatus if it was agreed that the student will merely hold the device on behalf of the owner as legal possessor.  Although it has been the legal position since Roman law times that the lessee in principle only holds the rented object on behalf of the owner as the legal possessor, nothing prevents a risk-averse owner from including ex abundanti cautela a clause in the agreement stating that he retains possession throughout the rental period and the lessee only acts as his vassal or holder exercising the corpus element of possession on behalf of the owner as legal possessor. The owner will throughout the term of the rent have the animus domini and the lessee merely the animus tenendi.  If in such circumstances the lessee in contravention of the stated terms of the agreement does enter the prohibited border-crossing area with the rented vehicle, he should not be heard to complain about spoliation if the owner uses the agreed-to remote-control function to prevent the vehicle from crossing the border. In reality the owner as spoliatus was merely exercising contra spolie to regain control over his vehicle after the erstwhile lessee had spoliated the owner by this clandestine change in the lessee’s animus from the animus tenendi to the animus rem sibi habendi without the consent of the owner and in contravention of the well-known rule nemo sibi ipse causam possessionis mutare potest. The erstwhile lessee should not be sanctioned in his self-righteous conduct as the active spoliator by a successful application to court for the mandament van spolie. Up to the clandestine change of his animus the lessee had never been in peaceful undisturbed legal possession of the vehicle or computer device. A spoliation order against a party other than the spoliator is logically beyond the scope of the purpose of the mandament to prevent a person from taking the law into his own hands, because he was merely the holder on behalf of the owner while the owner was throughout the legal possessor.  The only remedies available to the erstwhile lessee should be contractual remedies if he asserts that the owner acted in breach of the contract by remotely switching off the vehicle engine management functions. A spoliation order is not available if it is being used to enforce a merely personal right, such as a contractual right of a lessee to use the rented object in accordance with the lease agreement. The risk of long court delays should also not be shifted onto the prudent owner in such circumstances, resulting in the erstwhile lessee continuing to self-righteously misuse the property of the lessor with the added risk that when the latter does succeed to court in three years’ time the vehicle is long lost and unretrievable after the illegal border crossing and the erstwhile lessee is a hopelessly insolvent peregrinus. The same principles apply when the breach of contract is founded on any other misconduct of the lessee. Notwithstanding a clear term incorporated in the applicable rent agreement allowing the owner of the Scania trucks forming the crux of the case under discussion, in its sole discretion to be entitled to terminate the rental agreement forthwith by a relevant breach of contract, to remotely disable the vehicles and take immediate possession of the abandoned disabled vehicles at the cost of the hirer, the court awarded the erstwhile lessee the mandament van spolie against the owner who disabled and retrieved its vehicles after a clear breach of contract by the erstwhile lessee. It bodes ill for institutions and owners of property made available to their students or lessees who are by agreement merely holding on behalf of the owner as legal possessor if this unconvincing decision should be seen as a new precedent regarding contra spolie. The legal possessor can never simultaneously be defined as the spoliator of his own property that was per agreement to be held by another as his vassal if the latter in reality clandestinely changed his animus tenendi and by doing so acted as the legal spoliator against the owner as spoliatus. The court order against the owner to return the trucks and their keys, with the operating systems activated, to the applicant’s possession who has not been in possession before the spoliation, is unconvincing.