CONTRACT LAW

remy.richman
Flashcards by remy.richman, updated more than 1 year ago
remy.richman
Created by remy.richman almost 5 years ago
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SOUTH AFRICAN CONTRACT LAW

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Corpus Iuris Civilis comprised four parts: Codex Digesta Institutes Novellae
What is Codex? A collection of Imperial Legislation 870eaad8-2fb7-4d1a-8557-fcdc7b75adb8.jpg (image/jpg)
What is Digesta? codification of works of prominent Roman jurists (legal scholars) a5ac8f0f-6036-4ca1-97e5-af906dfdce41.jpg (image/jpg)
What is Institutes? text book for law students a5b7b0f6-747c-4532-846c-271d6c044a63.jpg (image/jpg)
What is Novellae? New legislation passed by Justinian after the formation of the codex b42889b5-8258-49b3-a66b-7cfc366a4f4a.jpg (image/jpg)
The Roman law, when applied together with the law of the Netherlands, formed the Roman-Dutch Law.
Roman-Dutch law, influenced by principles of English law, is referred to as the Common Law.
South African Law consists of..... The Constitution, legislation, the common law, and indigenous customary law
Nature of law rules community must adhere to – they regulate society. “A body of rules governing human conduct that is recognised as binding by the State and which the State will, if necessary, enforce.”
Major purposes of law ensure order and justice in society.
Law can be coercive or regulatory Non-compliance attracts sanction by the State. Law is different from mere behavioural or religious rules. SA is a secular democratic State. No sanction (punishment) from the State for violation of religious or moral standards.
Legal subject Legal subject can be a natural person or a juristic person.
4 types of rights Real rights Personal rights Intellectual Property rights Personality rights
Fundamental rights (Human Rights) Chapter 2 (Bill of Rights). Binds Legislature, executive & judiciary (sec. 8(1)); also binds natural or juristic persons in certain circumstances (section 8(2)). Rights include privacy, speech & access to information; education, housing, health, etc.
An entrenched customary practice treated as law in a particular community. Requirements Reasonable Long existence Accepted & Complied with by the community (society) to which it applies Clear & Certain
Legislative authorities Parliament (Section 44), Provincial Legislatures (Section 104), Municipal Councils (Section 156) , other subordinate legislative bodies
Areas of exclusive provincial competence: e.g. ambulance services; provincial sport, veterinary services, billboards & display of advertisements in public places. Legislation that falls outside the competence of the provincial legislature is can be challenged in the High Court and invalidated.
Types of courts Higher Courts Constitutional Court – Has jurisdiction in constitutional matters or decisions related to constitutional matters. Highest Court on constitutional matters Supreme Court of Appeal- Appellate jurisdiction only. Highest Court on all matters except constitutional matters. High Courts – (See list of names & Geographical locations in Text Book – para. 1.34)- Jurisdiction – both civil & criminal; original as well as appellate. Lower Courts Civil jurisdiction – District Magistrate Court: R100,000 – Regional Magistrate Court: R300,000. Parties may consent otherwise No jurisdiction regarding status of a person except specifically provided otherwise by statute. District Magistrate courts: criminal Jurisdiction excludes murder, high treason & rape Can impose a fine of up to R60,000 Can impose a prison term of up to 3 yrs. Regional Magistrate courts: criminal jurisdiction- only high treason excluded. Can impose fine of up to R300,000. Small Claims Court Claims up to R12,000. No Criminal jurisdiction. Presided by “Commissioner”.
Doctrine of Precedent (Stare decisis) Judicial precedent means the process whereby judges follow principles from previously decided cases where the facts are similar. Decisions of superior courts – absolutely binding Decisions of same court/court with equal jurisdiction – qualifiedly binding – may be departed from if wrong.
A legal obligation is a legal tie (or legal relationship) between two people. One party has a duty to give performance Another party has a corresponding right to receive performance.
The party who has a duty to deliver performance is called a a debtor.
The party who has a right to receive performance is called a creditor.
Some legal obligations are recognized and enforced by law These are called civil obligations.
Others are recognized but not enforced by the law. These are called natural obligations. A good example is a Wager.
Legal obligations can arise out of delict, contracts , or otherwise imposed by law.
delict? a violation of the law;
A Delict creates an obligation on the wrongdoer towards the victim, in terms of which the wrongdoer has the duty to pay compensation to the victim, and the victim has the right to receive compensation from the wrongdoer. A legal obligation arising out of delict does not depend on consent or agreement of the parties. It is automatically imposed by law.
The following elements must be present for a delict to give rise to a legal obligation: An act (or omission) Unlawfulness (of the conduct) Fault (intent or negligence) Causation Damage.
A contract is an agreement made with... the serious intention of creating legal relations that creates rights and duties between the parties and is enforceable by law.
Requirements for a contract. Consensus Intention to create legal relations Capacity Legality Physical possibility Formalities (where applicable)
Transfer of rights Cession: Cession is where one party (the cedent) transfers his/her personal rights to another (the cessionary). There must be a contract of cession between the cedent (grantor) and the cessionary
can only give what you have? Nemo plus iuris
Transfer of Duties ? Delegation Delegation refers to the transfer of the debtor’s duties to another person Creditor’s consent required. Tripartite agreement.
Transfer of Rights and Duties Assignment Assignment happens where cession and delegation occur simultaneously (at the same time).
Consensus Means that the parties have a corresponding will or intention in the creation of legal obligations.
3 Categories of Consensus True consensus Assumed consensus Consensus by operation of law
Consensus & Formation of Contracts offer from one party, and acceptance by another.
Where a contract is void it means it was invalid right from the beginning. This means that there was a defect in the process of forming the contract that was so severe that the contract never came into existence.
Contract is voidable if the innocent party has the option to choose whether to treat is as valid and continue, or to treat it as at an end (terminated). The process of forming the contract has a defect (flaw) but not so severe.
More than one party can make an offer or accept an offer.
Simple joint liability or entitlement Parties equally liable or entitled Performance must be divisible. Applies by operation of law unless parties agree otherwise.
Joint & Several Liability and entitlement Performance has to be divisible
Common liability or entitlement Performance not divisible Joint and several liability not prescribed by law or the parties Parties jointly liable in common (together) for delivery of full performance. Creditors equally entitled in common (no divided portions)
Vicarious liability If the CPA is applicable, an employer/principal is jointly and severally liable for anything done by his/her employee in the course of employment, excluding criminal liability.
Terms that make up a contract Essentialia Incidentalia Conditions Terms Assumptions Guarantee Modal Clauses
Essentialia Parties enter into a specific contract Eg: sale, lease Reach consensus regarding minimum characteristics of the specific contract. Eg: Sale Contract Nature of the contract, to buy or sell Thing to be sold Price
Incidentalia Agreed between parties for their own purposes and to fulfil their own need
Conditions Stipulations or provisions of the contract 2 types: Suspensive Condition Resolutive Condition
Terms Enforcement of continued existence of the contract is made subject to the occurrence of a specified certain future event. 2 types: Suspensive Term Resolutive Term
Assumptions Both parties assume that a certain fact exists and forms part of the contract
Guarantee Contractual undertaking as regards to he absence or presence of a legal fact No fault is required
Modal Clauses Contractual stipulation in terms of which one party places a duty upon the other to deliver a specific performance.
Essentiiallia of contract of Insurance The insurer will compensate the insured for his loss. The insured will pay a premium. The insurers obligation is dependant on the occurrence of a uncertain event
Parties to insurance contract At least two parties are required for a valid insurance contract. Insurer and the insured. There can be more than one insurer and insured. Insurer
Insurer Usually a company or an institution that offers insurance for the acquisition of gain. Mutual insurance, where insurance is offered without profit for the insurer, is also found in practice.
Insured Any person, natural or juristic person may, in principal, take out insurance. The insured is the person who may claim from the insurer, and is the first holder on the policy. Where the contract is concluded for the benefit of a third party it is called a “beneficiary
Subrogration? Where damaged is caused by a third party, the insured has a choice to either claim from his insurer, or from the third party on the grounds of delict. The insured may not claim more than his actual damage. The insured cannot claim the full amount of damages from both parties.
Requirements for Subrogration There must be a valid insurance contract The insurer must have indemnified the insured The insured’s loss must have been fully compensated The right must be susceptible to subrogation
Duty to Disclose Good faith is general not a requirement for the conclusion of a valid insurance contract. Because of he prospective insured’s intimate knowledge of all facts regarding the risk that he wants to transfer to the insurer, a legal duty requires him to disclose all relevant material information within his actual knowledge, to the insurer. This enables the insurer to decide whether he is prepared to accept the transfer of risk from the insured and to reach consensus with the insured
Amount recoverable = insured amount / x damage actual value
Indemnity Insurance The amount of damages claimed is directly proportional to the patrimonial loss/damage suffered, or the amount of the insurance or the amount of the insurance where it is less than the loss suffered. The amount of damages claimed is directly proportional to the patrimonial loss/damage suffered, or the amount of the insurance or the amount of the insurance where it is less than the loss suffered.
Non-Indemnity (capital) Insurance The loss suffered and the amount paid by the insurer are not necessarily proportionate. The nature of the interest insured is non-patrimonial, for example, the unlimited interest a person has in his own life, health of body and mind, or the emotional interest of the life of a spouse or child.
5 Short Term Policies Motor Policy Transportation Policy Accident & Health Policy Property Policy Liability Policy
5 Long Term Policies Longer than a year: Assistance Disability Fund Health Life
Bill of Exchange Unconditional order in writing Addressed one person to another signed by person giving it pay on demand or determinable future some of money to specific person /order/ bearer
Cheque Bill drawn on a bank and payable on demand
Promissory note Unconditional promise from one person to another, signed by maker, engaging to pay on demand or at fixed or determinable future to specific person or to his order or bearer
Drawer Gives instruction (gives written order)
Drawee Person who order is addressed. With a cheque it is always the bank"
Payee If not for bearer, the payee must be named or indicated
5 requirements for validity of bill/cheque (same as definition) An order or promise Unconditional in writing addressed on person to another must be signed
Delict Elements Act / Ommision Unlawful Fault Causation Damage
Requirements of contract Consensus Capacity Legality Physical Possibility Formalities
Illegal contracts Contracts contrary to Statuatory Common Law Good morals Public interest Gambling Wager
3 types of misrepresentations Fraudalent (false statement, knowingly) Negligent(false statement, no due care) Innocent
4 Forms of breach of contract Mora Debotoris Mora Creditoris Positive Malperformance Repudiation Performance rendered Impossible
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