Weeks 1-2 - Introduction & Fiduciary Law Flashcards
what is legal status?
ability to complete legal acts which have legal consequences
what is a common law juristic person?
a group of people who act though they are a company despite not being registered in terms of generally enabling statute
how does a comm law JP work?
- cannot make a profit unless registered (social club, comm hall)
- treated as one if they consistently behave as one
what is a statutory juristic person?
created by statute through specific legislation or generally enabling structures
when will a company be recognised a separate legal person?
ito the Companies Act s19, from the date & time that it is registered
until when will a JP exist?
continuously until its name is removed from the companies register
which legal capacity/powers does a JP have?
all those of an individual, except to the extent that:
- it is incapable of having that power / capacity (marriage, adoption)
- the MOI provides otherwise
key features of a JP?
- ltd liability
- assets/profits belong to the company
- can contract with members and acquire rights/duties sep from members
describe a fiduciary relationship?
the fiduciary has the duty to hold a legal/ethical rel of trust with one or more parties and take care of money/assets for them
what is the standard of conduct of a fiduciary?
- above that of a casual business person
- act in best int of beneficiary (avoid self-dealing and conflict of int)
characteristics of a fid relationship?
1) scope for exercise of a power
2) power can be used to affect beneficiary’s legal interests
3) vulnerability to the exercise of the power
nature of fiduciary duty?
- delictual duty of care
- committing delict creates obl to compensate
what is a delict?
wrongful or blameworthy conduct which causes harm to a person
elements of a delict?
- fault
- loss
- wrongfulness
- causation
what causes fault in delict?
failure to exercise due care
what is an agency contract?
a contract in terms of which one person (A) is authorized and usually required by another (P) to contract/negotiate a contract on P’s behalf with a third person
duties of the agent?
- perform the mandate
- be honest, show good faith
- due care
- act in accordance with P’s instructions
- allow inspection of books to render account to P
duties of the principal?
- pay A the agreed remuneration if mandate is substantially performed
- reimburse A for exp incurred
- indemnify A for all losses suffered as a result of mandate execution
what requirements must the principal meet before an agent can act on its behalf?
- principal must exist and must have contractual capacity
agent requirements to act as an agent?
- have at least ltd con cap
- have authority to perform from P
- make it clear to third party that they act for a P but need not disclose Ps name
what if A fails to disclose the existence of P?
A may incur liability ito contract
commercial adv of empowered agents?
- do not need to enter a contract personally
- may authorize a representative
- they are necessary for comm JPs to function properly
if A acts with authority?
- contract will not be with 3P and A, only 3P and P. A will incur not rights/obl ito of contract with 3P
five ways for A to be authorized?
- express
- implied
- ratification
- ostensible/apparent
- auth by operation of law
when will A’s authority be terminated?
- mutual consent of P and A
- revocation by P / renunciation by A
- insanity/insolvency of P
- death of either
- due performance by respective obligations
