LECTURE 1 - Law in Context - 2024.pdf

INTRODUCTION TO COMMERCIAL LAW (LAWS1IC) 2024 L E C T U R E 1 LECTURER: MR H OOSTHUIZEN  MODULE OVERVIEW INTRODUCTION TO COMMERCIAL LAW SECTION A SECTION B INTRODUCTION TO LA...

INTRODUCTION TO COMMERCIAL LAW (LAWS1IC) 2024 L E C T U R E 1 LECTURER: MR H OOSTHUIZEN  MODULE OVERVIEW INTRODUCTION TO COMMERCIAL LAW SECTION A SECTION B INTRODUCTION TO LAW AND SPECIFIC TYPES OF LEGAL SYSTEMS CONTRACTS GENERAL PRINCIPLES OF SALE INSURANCE CONTRACT CREDIT AGENCY AGREEMENTS LEASE SECURITY  OVERVIEW – SECTION A INTRODUCTION TO COMMERCIAL LAW SECTION A INTRODUCTION TO LAW AND PRINCIPLES OF CONTRACT LEGAL SYSTEMS Relevance of Law TODAY Definition & Essential Elements Formalities Void & Voidable Fundamental Concepts Lawfulness & Contractual Sources & Categories of Law Serious intention Capacity Decolonization of Law Agreement Consensus Offer & Acceptance Certainty Court Structure Possibility of Breach & Litigation – Parties, Law Professionals and Court Performance Remedies Officials  LECTURE 1: LAW IN CONTEXT In this lecture: General comments on the role of law in Society Discussion of the role of law in Business Scott et al, p 1-5  ETHICAL ROOTS OF LAW Law is not only found in formal legal systems but has its roots within ethical frameworks to which we adhere. Take isolated islanders as an example: what would happen if one islander killed another islander? If they had no written law prohibiting the killing of another human or a court system to enforce the law, would it follow that no law existed against such an act? Or no need for one? Formal laws which we adhere to today are derived from those fundamental laws which arose in earlier ethical frameworks.  LAW IN MODERN SOCIETY In modern day society, we have a complex array of laws which govern our behaviour in respect of the various activities undertaken in our society. For example, our laws range from the morally apparent ‘you may not kill another human being’ or more commonly, murder someone, to the more abstract ‘you have the right to dignity, which all other persons shall respect’. Our legal system has evolved in tandem with our society and economy in an effort to ensure that all aspects of our interactions are certain where possible. During this module, we will mostly be focusing on the laws governing commercial conduct.  THE ROLE OF LAW - GENERAL The role of the law is to:- ensure certainty, and give rise to an orderly manner in which persons interact in society. More formally : Law is defined as “a body of rules governing human conduct that is recognised as binding by the state and where necessary enforced”.  THE ROLE OF LAW - BUSINESS Laws are necessary for the world of business to operate. Sets minimum standards Recognizes different kinds of property Facilitates and upholds business agreements Foundation of corporate activity Legitimise state regulation of commerce activity Provides a recognized method of dispute resolution  LAW SETS MINIMUM STANDARDS The values to which our society ought to adhere are contained in our Constitution (1996) and embodies the values which have been gained by people not only in SA, but throughout the world. The Constitution embodies those rights which are deemed fundamental to any human beings' existence, such as:- dignity, equality, freedom of speech, right to life, freedom of religion, etc. The courts have the power to evaluate any law (statutory, customary, or common law, etc.) against the values contained in the constitution. Where the courts find that a law is ‘unconstitutional’ they have the power to strike it down or suspend its operation and refer it back to parliament to be amended accordingly.  LAW RECOGNIZES PROPERTY Historically, the law of property recognized that persons had rights in and of their physical property. As technology and society progressed, we developed things which were incidentally incompatible with how the law recognized something as property. We thus saw the introduction of incorporeal or intangible property such as shares, broadcast signals, intellectual property rights (rights over an idea or invention). The law governs what rights we have over our property, and how we may interact with it. For instance, although you may own your cricket bat or golf clubs, you may not use it indiscriminately. That is, you may not hit all manner of things within your reach! Essentially your rights over your property are balanced with respect to another person's rights to their own property or bodily rights.  LAW FACILITATES AND UPHOLDS BUSINESS AGREEMENTS The law is inherent to the commercial environment and the trade which occurs therein. It ensures that the various trade agreements are kept, and if they are not, it allows the aggrieved party to enforce the other parties end of the agreement. The courts of law facilitate these disputes. For example, where X and Y enter into a trade agreement for the purchase and supply of goods, and should either party not uphold their end of the agreement, the aggrieved party may enforce their right to performance of either the purchase or the supply through a court of law.  LAW AS FOUNDATION OF CORPORATE ACTIVITY In law there are two forms of persons: Natural persons; and Juristic persons. Both forms of persons (or personae) have legal rights and duties (although juristic persons lack certain rights and duties, for example, a juristic person may not marry, be imprisoned, or obtain a driver's license). The three types of juristic persons closely associated with commercial activities are: Companies; Close Corporations; and Trusts A juristic person can incur debts, have obligations in terms of a contract, employ workers, hold intellectual property rights, etc. A juristic person has a separate legal personality from the persons who comprise it.  LAW LEGITIMATES STATE REGULATION OF COMMERCIAL ACTIVITY The law (specific laws) determines how commercial activity occurs. For instance, labor laws regulate the hours which an employee may work in any given day. Laws are responsible for enforcing the pursuit of social goals, such as BBBEE in the workplace.  LAW PROVIDES A RECOGNISED METHOD OF DISPUTE RESOLUTION The rights and duties undertaken by commercial players will need to be enforced when one party does not meet their obligations in terms of an agreement. The judicial system is responsible for facilitating these disputes through the court system. The courts have very specific laws governing how a dispute is handled when litigated upon. In SA we have a hierarchy of courts which are divided into lower and higher courts. The courts have the power to make final decisions, which are binding over the parties who are party to the litigation proceedings. You will learn more about the hierarchy of courts in Lecture 6. END OF LECTURE 1