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n Tydskrif vir die Suid-Afrikaanse Reg - Die dematerialisasie van geld : in die skadu van die sakereg
The dematerialisation of money and the lingering influence of the law of things
The dematerialisation of money forms part of a wider movement towards the dematerialisation or "de-physicalisation" of other forms of property. The law of things, however, still permeates the way in which jurists analyse money. It is suggested, however, that English common-law concepts relating to property (such as "proprietary interest" and "superior title") are of little use to South African law. The author examines whether legal consequences similar to those when making use of notes and coins, should be pursued when making use of modern payment methods. Following a brief historical perspective, the author discusses the most important texts dealing with the property law implications surrounding money, and then examines comparisons drawn by Proctor between money in the physical sense and other forms of money such as bank money. This, in turn, leads to a discussion of the B & H Engineering and Nissan cases. Although these two decisions exert a great deal of influence on current South African banking law, doubts are expressed about the correctness of both cases. In light of the incorrect result in the Nissan case, and the correct outcome in the Pestana decision, it is suggested that, generally, banks cannot unilaterally reverse credits without the intervention of a court.
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