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Commercial Law > General > Flashcards

General Flashcards

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1
Q

What are the 6 functions of law in commerce?

A
  1. Articulates values
  2. Recognises kinds of property
  3. Foundation of corporate activity
  4. Provides a mode of dispute resolution that has authority
  5. Legitimises state regulation over commercial activity
  6. Facilitates business activities
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2
Q

What is the rule of law?

A

No one is greater than the law.

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3
Q

What are two types of rights?

A

Real rights
Personal rights

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4
Q

What is a real right?

A

Right in a thing

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5
Q

What is a personal right?

A

Right to performance

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6
Q

What does every right have?

A

A corresponding duty.

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7
Q

From where does delictual liability arise?

A

Failure to comply with a duty to not cause harm.

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8
Q

What are the two types of legal persons?

A

Natural
Juristic

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9
Q

What are the sources of law in order?

A

Constitution
Judicial precedents
Customary law - Common law - Customs

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10
Q

What are the types of legislation?

A

Original - made by legislature
Subordinate - made by executives

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11
Q

What is common law in SA?

A

Based on Roman-Dutch law.

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12
Q

What are the proceedings under civil litigation?

A

Ex parte - no dispute
Motion - dispute of law only, no oral evidence
Action - question of fact or law

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13
Q

What are the categories of law?

A

International
______________
National
Procedural - Substantive - Conflicts of law
_____________Private - Public ___________

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14
Q

What is the court hierarchy in SA?

A

ConCourt
SCA
High Court
[The lower courts, being:]
Regional Magistrates Court
District Magistrates court

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15
Q

What is the promissory and will theory?

A

Focused on the freedom to contract.

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16
Q

What is the reliance theory?

A

Purpose of a contract is to protect parties from harm.

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17
Q

What is the relational theory?

A

The effects a contract has on the relationship of trust between parties.

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18
Q

What is consensus?

A

Meeting of minds.

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19
Q

What is essentialia?

A

Key terms that must be agreed for a contract to be effective and binding.

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20
Q

What is naturalia?

A

Terms that arise automatically through the operation of law.

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21
Q

What is incidentalia?

A

Terms included by parties for their convenience.

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22
Q

What are the essential elements of a contract?

A

Consensus
Serious intention
Capacity
Certainty and definition
Performance possibility
Contract formalities
Reality of consent

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23
Q

What are the 4 instances in which no real consent has taken place?

A

Misrepresentation
Duress
Undue influence
Mistake:
- of law
- of expression
- in motive
- of fact (which voids a contract)

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24
Q

What is a curator bonis?

A

Someone who administers a prodigal’s property affairs.

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25
Q

What minors have no capacity?

A

Those < 7 years old.

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26
Q

What minors have limited capacity?

A

Those 7-18 years old.

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27
Q

What are the two types of marriage?

A

In community of property (shared estate)
Out of community of property (separate estates; may include accrual system)

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28
Q

What is the parole evidence rule?

A

No evidence may be received to alter contract terms when in interpretation, unless ambiguous or technical words are used.

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29
Q

What are the two condition types?

A

Suspensive - contract valid after conditions
Resolutive - contract valid until conditions

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30
Q

What are the 5 breaches of contract?

A

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

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31
Q

What are the 2 categories of impossibility?

A

Physical
Legal

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32
Q

What is cession?

A

One party transfers personal rights to another.

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33
Q

What are the 3 requirements of a contract of sale?

A

Agreement on the object

Promise to transfer ownership or deliver undisturbed possession

Promise to pay a specific or determinable amount in return

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34
Q

What are the types of objects of sale?

A

Movable - Immovable
Specific - Generic
Corporeal - Incorporeal (physical or unphysical - shares, etc.)
Exist now - Exist in the future

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35
Q

What is actio rei vindicato?

A

True owner claiming their goods.

36
Q

What are the 3 elements in order to pass ownership?

A

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

37
Q

What are the 5 different modes of delivery?

A

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

38
Q

What is the voetstoots clause?

A

Exclude seller’s liability for latent defects (those that exist without being visible).

39
Q

What is dictum et promissum?

A

A material statement made by a seller during negotiations bearing on the quality of goods.

40
Q

What is a perfecta sale?

A

Contract is unconditional
Price is determined
Object is determined

41
Q

Does the NCA govern all credit agreements?

A

No.

42
Q

What are the objectives of the NCA?

A

Single system of consumer credit regulation;
social and economic welfare;
fair accessible credit markets;
prohibition of unfair credit practices;
protect credit consumers.

43
Q

What forms are there of credit providers?

A

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.

44
Q

What is arm’s length?

A

Unaffiliated parties’ agreement to do business, independently in self-interest.

45
Q

What 3 credit forms qualify a credit agreement?

A

Credit facility
Credit transaction
Credit guarantee

46
Q

What are the 8 subcategories of credit agreements?

A

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

47
Q

Is ownership a requirement for landlordship?

A

No, however the landlord must make guarantees regarding the party with superior rights.

48
Q

Describe a mortgage bond.

A

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.

49
Q

What are the 3 essential elements of a lease contract?

A

Object of the contract

Identity of leased property

Rent

50
Q

What is a labour tenant?

A

One that occupies property for labour.

51
Q

What must be done with a deposit on a lease agreement?

A

It must be put into an interest-bearing account

52
Q

When is lease agreement renewal implied?

A

When the tenant occupies the property after the lease expiration and the landlord implies acceptance.

53
Q

What is huur gaat voor koop?

A

The principle that a lease takes priority before sale.

54
Q

Does death terminate a lease?

A

Not necessarily.

55
Q

When may eviction take place?

A

Once a court order has been issued.

56
Q

What is required for a tenant to cede their rights in rural property laws?

A

The consent of the landlord.

57
Q

What is assignment?

A

Transfer of both rights and duties to a third-party.

58
Q

Whose consent is required for assignment?

A

Everyone involved.

59
Q

What is the difference between cession and assignment?

A

Cession transfers only rights. Assignment transfers rights and duties.

60
Q

How is sub-letting different to cession and assignment?

A

Sub-letting has no alienation of rights.

61
Q

What are the 4 formations of an agency contract?

A

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.

62
Q

What is personal security?

A

Creditor has a contract personal right over a person as surety.

63
Q

What is real security?

A

Creditor has a limited real right over something tangible.

64
Q

When does prescription run with personal security?

A

With the principal contract.

65
Q

What is co-suretyship?

A

Both parties acting as surety are liable in solidum (jointly and severally).

66
Q

What is excussion?

A

Action to recover debt firstly against principal debtor, before surety.

67
Q

What are the two types of real security?

A

Tacit mortgages and express mortgages.

68
Q

What are the 4 types of tacit mortgages?

A

Tacit hypothecs
Liens (rights of retention)
Statutory security rights
Judicial pledges

69
Q

What are the 3 types of express mortgages?

A

Pledges
Security by means of claims
Mortgages

70
Q

What is a pledge?

A

Person places property in the hands of another as security.

71
Q

What is a mortgage?

A

Limited real right as security against a principal debt.

72
Q

What is a tacit hypothec?

A

For example, a landlord has a tacit hypothec over an arreared tenant’s movables to secure rent.

73
Q

What is a liens?

A

The right of retention over a thing which has undergone work by the claimant.

74
Q

What is the criteria for physical control?

A

Possession and intention to derive benefit.

75
Q

What are the 5 sources of labour law?

A

The Constitution
Legislation
Collective agreement
Contracts of employment
Common law

76
Q

What section of the Constitution relates to labour rights?

A

Section 23

77
Q

What legislation governs labour law?

A

Labour Relations Act
Basic Conditions of Employment Act
Employment Equity Act

78
Q

What is a collective agreement?

A

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.

79
Q

How must employees act regarding their employer?

A

They must act in good faith towards their employer.

80
Q

What is vicarious liability?

A

Employers can be held liable for their employee’s actions.

81
Q

What is required for a fixed term contract?

A

It must be justifiable:
1. Replacing temporarily absent workers.
2. Employing recent graduates for the purpose of experience.

82
Q

When is averaging of working hours permitted?

A

Only in collective agreements.

83
Q

What are the 5 forms of industrial action?

A

Primary strike
Secondary strike
Protest action
Lock-out
Picket

84
Q

When does the Consumer Protection Act apply to the sale of goods and leases?

A

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.

85
Q

What are the 8 rights the CPA protects?

A

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.

86
Q
A

Commercial Law (3 decks)

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