General Flashcards
What are the 6 functions of law in commerce?
- Articulates values
- Recognises kinds of property
- Foundation of corporate activity
- Provides a mode of dispute resolution that has authority
- Legitimises state regulation over commercial activity
- Facilitates business activities
What is the rule of law?
No one is greater than the law.
What are two types of rights?
Real rights
Personal rights
What is a real right?
Right in a thing
What is a personal right?
Right to performance
What does every right have?
A corresponding duty.
From where does delictual liability arise?
Failure to comply with a duty to not cause harm.
What are the two types of legal persons?
Natural
Juristic
What are the sources of law in order?
Constitution
Judicial precedents
Customary law - Common law - Customs
What are the types of legislation?
Original - made by legislature
Subordinate - made by executives
What is common law in SA?
Based on Roman-Dutch law.
What are the proceedings under civil litigation?
Ex parte - no dispute
Motion - dispute of law only, no oral evidence
Action - question of fact or law
What are the categories of law?
International
______________
National
Procedural - Substantive - Conflicts of law
_____________Private - Public ___________
What is the court hierarchy in SA?
ConCourt
SCA
High Court
[The lower courts, being:]
Regional Magistrates Court
District Magistrates court
What is the promissory and will theory?
Focused on the freedom to contract.
What is the reliance theory?
Purpose of a contract is to protect parties from harm.
What is the relational theory?
The effects a contract has on the relationship of trust between parties.
What is consensus?
Meeting of minds.
What is essentialia?
Key terms that must be agreed for a contract to be effective and binding.
What is naturalia?
Terms that arise automatically through the operation of law.
What is incidentalia?
Terms included by parties for their convenience.
What are the essential elements of a contract?
Consensus
Serious intention
Capacity
Certainty and definition
Performance possibility
Contract formalities
Reality of consent
What are the 4 instances in which no real consent has taken place?
Misrepresentation
Duress
Undue influence
Mistake:
- of law
- of expression
- in motive
- of fact (which voids a contract)
What is a curator bonis?
Someone who administers a prodigal’s property affairs.
What minors have no capacity?
Those < 7 years old.
What minors have limited capacity?
Those 7-18 years old.
What are the two types of marriage?
In community of property (shared estate)
Out of community of property (separate estates; may include accrual system)
What is the parole evidence rule?
No evidence may be received to alter contract terms when in interpretation, unless ambiguous or technical words are used.
What are the two condition types?
Suspensive - contract valid after conditions
Resolutive - contract valid until conditions
What are the 5 breaches of contract?
Repudiation (refusal by one party to fulfil obligations)
Mora debitoris (debtor does not perform on time; mora ex persona - no time, to perform in reasonable time; mora ex re - time specified)
Mora creditoris (creditor prevents debtor performance)
Prevention of performance
Positive malperformance
What are the 2 categories of impossibility?
Physical
Legal
What is cession?
One party transfers personal rights to another.
What are the 3 requirements of a contract of sale?
Agreement on the object
Promise to transfer ownership or deliver undisturbed possession
Promise to pay a specific or determinable amount in return
What are the types of objects of sale?
Movable - Immovable
Specific - Generic
Corporeal - Incorporeal (physical or unphysical - shares, etc.)
Exist now - Exist in the future
What is actio rei vindicato?
True owner claiming their goods.
What are the 3 elements in order to pass ownership?
Seller must be owner at time of delivery
Seller must intend to pass ownership at time of delivery
Buyer must intend to acquire ownership at time of delivery
What are the 5 different modes of delivery?
Actual delivery
Delivery with the shorthand - buyer already possesses object
Delivery with the long hand - delivery effected without physical delivery
Attornment - third party possesses object
Constitutum possessorium - seller keeps possession of object after sale
Symbolic delivery - delivery is that of a symbol representing ownership of the object
What is the voetstoots clause?
Exclude seller’s liability for latent defects (those that exist without being visible).
What is dictum et promissum?
A material statement made by a seller during negotiations bearing on the quality of goods.
What is a perfecta sale?
Contract is unconditional
Price is determined
Object is determined
Does the NCA govern all credit agreements?
No.
What are the objectives of the NCA?
Single system of consumer credit regulation;
social and economic welfare;
fair accessible credit markets;
prohibition of unfair credit practices;
protect credit consumers.
What forms are there of credit providers?
Suppliers under discount transactions, incidental credit agreements or instalment agreements
Pawn transactors.
Credit facilitators.
Mortgagees.
Lenders.
Lessors.
Credit guarantee-assured parties.
Party advancing on a credit agreement.
What is arm’s length?
Unaffiliated parties’ agreement to do business, independently in self-interest.
What 3 credit forms qualify a credit agreement?
Credit facility
Credit transaction
Credit guarantee
What are the 8 subcategories of credit agreements?
Pawn transactions
Discount transactions
Incidental credit agreements
Instalment agreements
Leases
Mortgage agreements
Secured loans
Any other agreement in which credit is granted and a fee, charge or interest is payable
Is ownership a requirement for landlordship?
No, however the landlord must make guarantees regarding the party with superior rights.
Describe a mortgage bond.
Based on agreement to pass a mortgage bond over immovable property as security.
Mortgagee is the owner until amount has been settled.
Mortgagor may not grant rights that will prejudice the mortgagee.
What are the 3 essential elements of a lease contract?
Object of the contract
Identity of leased property
Rent
What is a labour tenant?
One that occupies property for labour.
What must be done with a deposit on a lease agreement?
It must be put into an interest-bearing account
When is lease agreement renewal implied?
When the tenant occupies the property after the lease expiration and the landlord implies acceptance.
What is huur gaat voor koop?
The principle that a lease takes priority before sale.
Does death terminate a lease?
Not necessarily.
When may eviction take place?
Once a court order has been issued.
What is required for a tenant to cede their rights in rural property laws?
The consent of the landlord.
What is assignment?
Transfer of both rights and duties to a third-party.
Whose consent is required for assignment?
Everyone involved.
What is the difference between cession and assignment?
Cession transfers only rights. Assignment transfers rights and duties.
How is sub-letting different to cession and assignment?
Sub-letting has no alienation of rights.
What are the 4 formations of an agency contract?
Express authority - expressly given.
Implied authority - authority implied.
Authority by estoppel - authority given by not stopping the “authorised” party (representation).
Ratification - authority given after the fact.
What is personal security?
Creditor has a contract personal right over a person as surety.
What is real security?
Creditor has a limited real right over something tangible.
When does prescription run with personal security?
With the principal contract.
What is co-suretyship?
Both parties acting as surety are liable in solidum (jointly and severally).
What is excussion?
Action to recover debt firstly against principal debtor, before surety.
What are the two types of real security?
Tacit mortgages and express mortgages.
What are the 4 types of tacit mortgages?
Tacit hypothecs
Liens (rights of retention)
Statutory security rights
Judicial pledges
What are the 3 types of express mortgages?
Pledges
Security by means of claims
Mortgages
What is a pledge?
Person places property in the hands of another as security.
What is a mortgage?
Limited real right as security against a principal debt.
What is a tacit hypothec?
For example, a landlord has a tacit hypothec over an arreared tenant’s movables to secure rent.
What is a liens?
The right of retention over a thing which has undergone work by the claimant.
What is the criteria for physical control?
Possession and intention to derive benefit.
What are the 5 sources of labour law?
The Constitution
Legislation
Collective agreement
Contracts of employment
Common law
What section of the Constitution relates to labour rights?
Section 23
What legislation governs labour law?
Labour Relations Act
Basic Conditions of Employment Act
Employment Equity Act
What is a collective agreement?
A written agreement governing terms and conditions of employment and matters of mutual interest concluded by one or more registered trade union and employer or employer’s organisation.
How must employees act regarding their employer?
They must act in good faith towards their employer.
What is vicarious liability?
Employers can be held liable for their employee’s actions.
What is required for a fixed term contract?
It must be justifiable:
1. Replacing temporarily absent workers.
2. Employing recent graduates for the purpose of experience.
When is averaging of working hours permitted?
Only in collective agreements.
What are the 5 forms of industrial action?
Primary strike
Secondary strike
Protest action
Lock-out
Picket
When does the Consumer Protection Act apply to the sale of goods and leases?
When the customer is a natural person or juristic person with annual turnover or asset value < R2mil and the supplier does so in ordinary course of businesses.
What are the 8 rights the CPA protects?
Equal access to the consumer market
Privacy
Choice
Disclosure and information
Fair and responsible marketing
Fair and honest dealing
Fair, just and reasonable Ts & Cs
Fair value, good quality and safety.
