This document provides an outline for a Business Law course. It covers the following key points in 3 sentences:
The course outline covers an introduction to law, the law of contracts, and topics related to sale, credit, leasing and agency. The introduction defines law and outlines the key sources of South African law, including the constitution, legislation, case law, Roman-Dutch common law, customary law and international law. It also discusses legal rights and personality, the branches and structure of law, and provides examples to illustrate key concepts like precedent and the constitutionality of legislation.
This document provides an outline for a Business Law course. It covers the following key points in 3 sentences:
The course outline covers an introduction to law, the law of contracts, and topics related to sale, credit, leasing and agency. The introduction defines law and outlines the key sources of South African law, including the constitution, legislation, case law, Roman-Dutch common law, customary law and international law. It also discusses legal rights and personality, the branches and structure of law, and provides examples to illustrate key concepts like precedent and the constitutionality of legislation.
This document provides an outline for a Business Law course. It covers the following key points in 3 sentences:
The course outline covers an introduction to law, the law of contracts, and topics related to sale, credit, leasing and agency. The introduction defines law and outlines the key sources of South African law, including the constitution, legislation, case law, Roman-Dutch common law, customary law and international law. It also discusses legal rights and personality, the branches and structure of law, and provides examples to illustrate key concepts like precedent and the constitutionality of legislation.
This document provides an outline for a Business Law course. It covers the following key points in 3 sentences:
The course outline covers an introduction to law, the law of contracts, and topics related to sale, credit, leasing and agency. The introduction defines law and outlines the key sources of South African law, including the constitution, legislation, case law, Roman-Dutch common law, customary law and international law. It also discusses legal rights and personality, the branches and structure of law, and provides examples to illustrate key concepts like precedent and the constitutionality of legislation.
Melissa Deacon 3pm B115 Class number: 8026 Course outline A. Introduction B. Law of Contracts C. Sale, Credit Agreements, Lease & Agency 1 PART A: INTRODUCTION 1. What is law? 2. Sources of South African law 2.1. Constitution 2.2. Legislation 2.3. Case law (judicial precedent) 2.4. Roman-Dutch common law 2.5. African customary law 2.6. Custom 2.7. Customary international law 3. Legal rights 3.1. Personal rights 3.2. Real rights 4. Legal personality 5. Branches of law 5.1. International/national law 5.2. Public/private law 5.3. Criminal/delict/contract/ unjustified enrichment 2 PART A: INTRODUCTION 1. WHAT IS LAW? the only body of rules and regulations governing human conduct that is recognised as binding by the state and which the state, will if necessary, enforce. 2. SOURCES OF LAW Not codified Binding sources of law Persuasive sources of law 3 2.1. THE CONSTITUTION Supreme law Constitutional democracy Section 2: Inconsistent = invalid Bill of Rights Section 7(1) and Section S39(2) Three Branches of Government Legislature Parliament (national/ provincial/ local levels) S43 Make Laws Judiciary Courts S165 Apply Laws Executive President; Ministers; Administration (civil service); police S85 Enforce Laws 4 2.2. LEGISLATION Acts / Ordinances or by-laws National / provincial / local (a) Original From the Constitution Eg: Acts of Parliament Set aside if unconstitutional (b) Delegated From original legislation Eg: Regulations of Ministers Set aside if unconstitutional OR ultra vires 5 Example: Unconstitutional Du Toit v Min Welfare 2003 (CC) CHILD CARE ACT 74 OF 1983 17 Qualifications for adoption of children A child may be adopted- (a) by a husband and his wife jointly; (b) by a widower or widow or unmarried or divorced person; (c) by a married person whose spouse is the parent of the child; (d) by the natural father of a child born out of wedlock. The Constitution, 1996: S9(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. 6 Example: Unconstitutional CHILDRENS ACT 38 OF 2005 231. Persons who may adopt child.(1) A child may be adopted (a) jointly by (i) a husband and wife; (ii) partners in a permanent domestic life- partnership; or (iii) other persons sharing a common household and forming a permanent family unit; (b) by a widower, widow, divorced or unmarried person; (c) by a married person whose spouse is the parent of the child or by a person whose permanent domestic life-partner is the parent of the child; (d) by the biological father of a child born out of wedlock; or (e) by the foster parent of the child. 7 Example: Ultra Vires Bezuidenhout v Road Accident Fund 2003 (SCA) The Act provides for the creation of a Fund. S3: [T]he object of the fund is the payment of compensation in accordance with the Act for loss or damage wrongfully caused by the driving of motor vehicles. S17(1) distinguishes between the liability of the Fund in the case of a claim for compensation where the identity of the owner or the driver of the vehicle involved has been established and the case of a claim for compensation involving an unidentified vehicle. Section 17 creates liability in both cases, the only difference being that in the case of an unidentified motor vehicle, the Funds liability is made "subject to any regulation made under Section 26. i.e. No express provision in the Act limiting or excluding liability in the case of an unidentified vehicle. 8 Example: Ultra Vires cont S26(1): The Minister shall or may make regulations in order to achieve or promote the object of this Act. Regulation 2(1)(d): In the case of any claim for compensation referred to in section 17(1)(b) of the Act, the Fund shall not be liable to compensate any third party unless (d) the motor vehicle concerned (including anything on, in or attached to it) came into physical contact with the injured or deceased person concerned or with any other person, vehicle or object which caused or contributed to the bodily injury or death concerned. The question then is whether reg 2(1)(d) was a valid exercise of the powers granted by s 26 to the Minister to make regulations? 9 2.4. ROMAN-DUTCH COMMON LAW Roman law from 6 th century as commented on by the 15-17 th century Dutch writers. Law as applied in Holland when SA was a Dutch colony and now developed by SA courts. 2.5. AFRICAN CUSTOMARY LAW Section 211(3) of 1996 Constitution: The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. 2.6. CUSTOM Oldest forms of law. Custom must be (a) certain and (b) reasonable and (c) long-established and (d) uniformally observed within a community. 2.7. CUSTOMARY INTERNATIONAL LAW Section 232 of 1996 Constitution: Customary international law is law in the Republic of South Africa unless it is inconsistent with the Constitution or an Act of Parliament. 10 2.3. CASE LAW Courts apply & interpret law JUDICIAL PRECEDENT Earlier decisions create binding precedent because of doctrine stare decisis (let the decision stand) 11 SA COURT STRUCTURE 1. CONSTITUTIONAL COURT Seat in Johannesburg Jurisdiction: Constitutional & public importance (s167) Court of first instance/appeal 2. SUPREME COURT OF APPEAL Seat in Bloemfontein Jurisdiction: Constitutional & civil & criminal (s168) Except exclusive jurisdiction of CC Court of appeal only 3. HIGH COURT Nine divisions (eg Western Cape Division at CT) Jurisdiction: Constitutional & civil & criminal (s169) Except exclusive jurisdiction of CC Limited to area of province Court of first instance/appeal (1 judge/full bench) 5. SPECIAL COURTS&TRIBUNALS Eg Labour Courts, Competition Tribunal etc 4. MAGISTRATES COURTS Regional & District (lots) Jurisdiction: Civil & criminal (limited) and own area Limited constitutional jurisdiction section 170 12 Example: COURT STRUCTURE National Parliament has passed a new Act. I believe a section in this Act infringes on my rights in Chapter 2 of the Constitution. Am I able to approach: My business deal goes wrong and I want to sue my business partner for R1 million for breach of contract. Which court do I go to? (a) The CC direct? (b) The SCA direct? (c) The CC on appeal? (d) The SCA on appeal? (e) The HC direct? (f) If so, which HC Division? (g) The HC on appeal? (h) Regional court? (i) District court? 13 JUDICIAL PRECEDENT Courts are bound by (a) the ratio decidendi of (b) higher courts with jurisdiction over lower courts. Principle: HC = Bound by CC and SCA and HC of equal or higher standing (1/2/3 judges) in own province only. MC = Bound by CC and SCA and HC of own province. If no decision on the issue, HC of other province. Full bench HC trumps single judge. If equal HC bench then later in time trumps earlier in time. RATIO DECIDENDI The Reason for the Decision OBITER DICTUM Incidental Statements Not necessary for the judge to reach a decision. 14 Example: JUDICIAL PRECEDENT High Court WC Division (one judge) decides may kill in defence of property. True or False: (a) HC WC Division (full bench) are bound. (b) HC EC Division (one judge) not bound. (c) Stellenbosch Magistrates Court is not bound. (d) Upington Magistrates Court is not bound. What if obiter? 15 3.1. Real Rights That a person has in a thing (object). Are absolute rights that can be enforced against the world at large. Eg Ownership. 3.2. Personal Rights Lie against a particular person or persons only. Enforce against the specific wrongdoer only. Eg To deliver object / delict / contract (most rights are personal rights). 3. LEGAL RIGHTS WHAT IS A LEGAL RIGHT? An interest conferred by and protected by the law which entitles one person to claim that another person give him/her something, or do something, or refrain from doing something. 16 4. LEGAL PERSONALITY Persons with Legal Personality: Can bear legal rights & duties Have the capacity to acquire rights and duties by their own conduct; and Have the capacity to sue/be sued. 4.1. Natural persons ALL Human Beings From birth to death Automatic 4.2. Juristic (artificial) persons All companies Legislation / custom Perpetual succession Separate legal personality 17 Legal persons do not all have the same rights and duties: 4.1. Natural persons: Depends on status Eg nationality, age, marital status (gender, race) etc. Childrens criminal and delictual capacity: 0<7 years 7<14 years 14 + years Childrens contractual capacity: 0<7 years 7-18 years 4.2. Juristic persons: Limited by legislation and/or articles of association. EG: Company or University or Church 18 4. LEGAL PERSONALITY
What about: - Right to vote - Right to inherit - Children - Animals - Joint Ventures - Partnerships - Clubs 19 PUBLIC INTERNATIONAL LAW NATIONAL LAW PUBLIC PRIVATE CONSTITUTIONAL LAW FAMILY LAW COMMERCIAL ADMINISTRATIVE LAW CONTRACT LAW BANKING LAW CRIMINAL LAW LAW OF DELICT INSURANCE LAW
PROPERTY LAW COMPETITION
INHERITANCE LAW COMPANY LAW
20 CRIME: An act specifically prohibited by common law or statute and which is punishable by the state. Eg The unlawful and intentional (vs negligent) killing of a person = murder (vs culpable homicide). Criminal sanction. DELICT: A general duty not to (a) wrongfully and (b) culpably (c) cause (d) harm to the person, property or personality of another. Intention and negligence (blameworthy). Damages. CONTRACT: An agreement between parties giving rise to a legally binding and enforceable rights and duties between the parties. Damages. UNJUSTIFIED ENRICHMENT One person is enriched at the expense of another. 21 Dolus directus (direct intent) Dolus indirectus (indirect intent) Intent Dolus eventualis Negligence = Reasonable person test (a) Would a reasonable person in the circumstances in which X found himself have foreseen the possibility that a particular consequence might result from his act; (b) Would the reasonable person have guarded against that possibility; and (c) Did Xs conduct deviate from that of a reasonable person? Patrimonial (financial) & non-patrimonial loss Pure economic loss Examples: 1. Cricket ball hit out of a cricket ground injures a woman on a public road. Cricket balls have been hit out of those grounds 6 times in the past 28 years. 2. Oil negligently spilt from a ship in harbour and spreads to a wharf where welding repairs are being carried out, leading to a serious fire. 3. Horses escape from an unfenced field and stray onto the road where they are hit by a truck. 22