Business Law LU1 notes.docx

**Learning Unit 1: Theme 1** **Business Law: An Introduction to the South African Legal System** LO1 Explanation of Law and Legal Rules ====================================== L03 and L04 Role of the State in the Legal System ================================================= Roles of the Three Ar...

**Learning Unit 1: Theme 1** **Business Law: An Introduction to the South African Legal System** LO1 Explanation of Law and Legal Rules ====================================== L03 and L04 Role of the State in the Legal System ================================================= Roles of the Three Arms of Government ===================================== LO5 Historical Development of South African Common Law ====================================================== L06 Legal Systems: Parliamentary Sovereignty vs. Constitutional Supremacy ========================================================================= 1. Prior to 1996, South Africa had a supreme Parliament where any law passed was considered valid, regardless of its contents. Examples include discriminatory laws like the Group Areas Act, 1950. 2. Parliamentary Sovereignty means that Parliament is superior to the executive and judicial branches, allowing it to enact or repeal any law as it sees fit. This concept is observed in countries like the UK and Canada. 3. Under the English constitution, Parliament has the authority to create or abolish any law, and no entity can override its legislation. 1. The Constitution is the highest law, and any law or action conflicting with it is deemed invalid. Compliance with the obligations outlined in the Constitution is mandatory. 2. If Parliament passes a law that contradicts the Constitution, it will be deemed null and void. An example is the debate around the Expropriation of Land Without Compensation Bill. 3. Constitutional supremacy emphasizes adherence to the \'rule of law\' as defined by the Constitution. Any action by the executive or legislature that breaches the Constitution will be invalidated. L07 Authoritative and Persuasive Sources of South African Law ============================================================= L08 Description of Sources of Law ================================= **Mock Questions** - LO1: Explain the term "law"and what it entails. - LO2: Differentiate between the two types of rules that control how people behave in society, namely: a) Legal rules(law) and b) moral/ethical riles - LO3: Explain the role of the state in our legal system. - LO4: Differentiate between the roles of the three arms of government, namely a) The legislature; b) The Executive; and c) The Judiciary. - LO5: Explain the historical development of the South African Common Law. - LO6: Differentiate between a legal system based on parliamentary sovereignty and one of Constitutional supremacy - LO7: Differentiate between the authoritative(primary) sources and persuasive (secondary) sources of South African Law - LO8 : Describe each source of law **Learning Unit 1: Theme 2** **South African Court System** L09 Difference Between Civil and Criminal Cases =============================================== **EXPLAIN THE FOLLOWING TERMS USED IN CIVIL AND CRIMINAL PROCEEDINGS** Plaintiff: The person suing. Defendant: The person being sued or accused. Applicant: The person who starts a legal process. Respondent: The person who must respond in a legal process. Appellant: The person who appeals a court decision to a higher court. Prosecutor: The government official who brings criminal charges. Accused: The person charged with a crime. L010 Hierarchy of South African Court System ============================================ Jurisdiction and Function of Constitutional Court (in Braamfontein) =================================================================== Supreme Court of Appeal (in Bloemfontein) and High Courts ========================================================= Officers and Jurisdiction of Magistrates Courts =============================================== L012 Doctrine of Stare Decisis ============================== Application of Stare Decisis in Court Hierarchy =============================================== L013 Ratio Decidendi and Obiter Dictum ====================================== **Mock questions** - LO9 Explain the difference between civil and criminal cases with specific reference to: - The parties involved; - The standard/burden of proof and the types of sanctions imposed by the courts in each - LO10 Differentiate generally between the superior courts and the inferior courts - LO11 Discuss the hierarchy of South African Court system, with the specific jurisdiction of the different courts in the Republic - LO12 Explain the doctrine of *Stare Decisis* as it relates to the concept of judicial precedent - LO13 Explain the part of a court judgment known as *ratio decidendi* as it relates to judicial precedent **Learning Unit 1: Theme 3** **Branches of the Law and Interpretation of** **Statutes** Branches of the Law =================== International Law Foreign Law South African National Law L015 Divisions of South African National Law ============================================ Public Law Private Law Procedural Law L016 Trial procedure and application procedure as forms of Civil Procedure ========================================================================== The Action or Trial Procedure The Application Procedure L017 Appeals and Reviews ======================== Grounds for Appeals Grounds for Reviews L018 Legal Subjects =================== Natural Persons vs. Juristic Persons Further Analysis of Legal Subjects L019 Interpretation of Statutes 32-44 ===================================== Statutory Interpretation L020 Theories of Statutory Interpretation 1. **Literal approach/text-based: b** 2. **Purposive approach:** 3. **Functional approach:** 4. **Historic approach:** L021 Impact of the Constitution on Statutory Interpretation L022 Internal and External Aids in Statutory Interpretation Rules of Interpretation **Mock questions** - LO14 Differentiate between THREE branches of the law, namely: - International law; Foreign law & South African Law - LO15 Explain the divisions and sub-divisions of South African national Law - LO16 Briefly differentiate between trial procedure and application procedure as forms of civil procedure - LO17 Briefly differentiate between appeals and reviews as application procedures - LO18 Briefly differentiate between natural persons and juristic persons as legal subjects - LO19 Briefly explain what it means to interpret a statute (legislation) - LO20 Briefly explain each of the theories of statutory interpretation - LO21 Explain the impact of the Constitution on the approaches to statutory interpretation - LO22 Identify the internal aids that a statute generally consists of, namely: the short title, the date assented to by the President, the long title or preamble, the purpose, interpretation and application of sections, the provision which set out what the legislature aims to regulate **Learning Unit 2** **Theme 1: General principles of the law of obligations Theme 2: Introduction to the law of contract** General Principles of the Law of Obligations ============================================ LO1 Requirements for Formation of a Valid Contract ================================================== L03 Contractual Capacity ======================== L05 and L06 Contracting with Minors =================================== 1. The Consumer Protection Act (CPA) aims to protect consumers. 2. Section 39(1) of the CPA is crucial as it states that a contract for the supply of goods or services is voidable under certain conditions: Contracting Parties under the Consumer Protection Act ===================================================== L07 and L08 Contractual Capacity of Persons Married in Community of Property and Out of Community of Property ============================================================================================================= L09 Factors Influencing Contractual Capacity ============================================ L010 Differentiation of Contract Capacity Terms =============================================== **Law of obligations** **Nb. Sources of obligations** **1. contract -- an agreement between 2 or more parties e.g. lease agreement** **2. delict -- a culpable act that has caused harm/financial loss to another party e.g vehicle accident** **3. unjustified enrichment -- you are enriched at the expense of another art without lawful justification** **Personal rights, also known as fundamental rights, are rights that belong to an individual and cannot be taken away or interfered with by others. They are rights that are inherent to the individual, rather than granted by the state or any other authority.** **Some examples of personal rights in law are the right to life, the right to freedom from torture, the right to privacy, and the right to free speech.** **Personal rights are also known as \"natural rights\" or \"human rights\" because they are considered universal and fundamental to all humans, regardless of their status or circumstance.** **Real rights are legal rights that cannot be taken away or limited without justification. These rights are generally considered to be inherent and universal, and they\'re often referred to as \"fundamental\" or \"natural\" rights.** **e.g ownership of your laptop** **only learn ownership sn real rights** **Theme 2** **Nb. Requirements for formation of Valid contract** 1. Consensus - agree upon objectives 2. Capacity to act -- parties must be legally capable to performing their rights and obligations in terms of the contract Contracts can be **Valid:** all requirements are met **Void: o**ne or more requirements are not met **Voidable:** is a valid contract at the option of the victim/ a cancelled contract **Unenforceable:** unregistered/ unregulated gambling contract **Voidable contracts** **All contracts entered either through** 1. By a minor (an agreement with a minor) 2. Misrepresentation (intentional, negligent, innocent) 3. Duress (forced) 4. Undue influence (one person has power and the other doesn't, a person with power influences the other to do something or act otherwise) 5. Prodigal without the assistance of a curator (wasteful) 6. Insolvent person '' '''' '' trustee (can't pay debts) 0-7years: no capacity to act = void 7- 18: limited capacity to act = voidable 18+: full capacity to act provided you are of sound mind =valid Mock questions - LO1 Differentiate between personal rights and real rights. - LO2 List and define the legal requirements for a valid contract. - LO3 Explain the contractual capacity as a requirement for a valid contract. - LO4 Differentiate between minors, majors and juristic persons in respect of their contractual capacity, with specific reference to the following categories minors: - Children under 7 years - Minors aged 7 to 18 years; - Minors aged 7 to 18 years in assisted contract in terms of common law - Minors in an unassisted contract in terms of common law - LO5: Explain the legal position of a person contracting with a minor in terms of Common Law - LO6: Explain the legal position of contracting parties in terms of the Consumer Protection Act 68 of 2008 - LO7 Differentiate between the contractual capacity of persons married in community of property and those married out of community of property - LO8: Establish, from a set of facts, what type of consent a person who is married in community of property and who enters into a contract, need to obtain from their spouse - LO9: Apply, to a set of facts, the various factors that influence contractual capacity and indicate the effect on a contract in each instance with specific reference to the following; drunken and insolvent persons - LO10: Explain and differentiate between the following terms as they apply to capacity: Valid, Void, Voidable, Unenforceable.