LECTURE 2 - Fundamental Legal Concepts - 2024.pdf

INTRODUCTION TO COMMERCIAL LAW (LAWS1IC) 2024 L E C T U R E 2 LECTURER: MR H OOSTHUIZEN  OVERVIEW – SECTION A INTRODUCTION TO COMMERCIAL LAW...

INTRODUCTION TO COMMERCIAL LAW (LAWS1IC) 2024 L E C T U R E 2 LECTURER: MR H OOSTHUIZEN  OVERVIEW – SECTION A INTRODUCTION TO COMMERCIAL LAW SECTION A INTRODUCTION TO LAW AND PRINCIPLES OF CONTRACT LEGAL SYSTEMS Relevance of Law Definition & Essential Elements Formalities Void & Voidable Fundamental Concepts TODAY 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 2: FUNDAMENTAL LEGAL CONCEPTS In this lecture: General definition of law Jurisprudence State & Rule of Law Fundamental concepts in law Legal Relationships Real & Personal Rights Liability Scott et al, p 5-14  DEFINITION OF LAW Law:- “…is defined as the body of rules governing human conduct, recognized as binding by people and enforced by the state.” Law prescribes how citizens of a state should act, and it sets out how they will be punished should they transgress the laws. Note: Where there is no law, there is no transgression.  JURISPRUDENCE Jurisprudence is the branch of philosophy dealing with legal topics. The word jurisprudence derives from the Latin term juris prudentia, which means "the study, knowledge, or science of law." The jurists ask the following questions: ‘What is the law?’ ‘What should the law be?’ There are many competing views in jurisprudence. Jurisprudence helps us to better understand the fundamentals of the law and help us figure out the actual rule of the law. Lawyers and judges can use jurisprudence as a guide to correctly interpret certain laws that require interpretation.  STATE & RULE OF LAW South Africa is a Constitutional state. BASIC CONCEPTS: Constitutional Supremacy Constitutionalism Separation of Powers Rule of Law Due Process  Constitutional Supremacy The Constitution of the Republic of South Africa, Act 108 of 1998 South Africa adheres to a set of principles against which all our laws must comply. The set of principles is contained in the Constitution. Section 2 of the Constitution states: ‘This constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.’ No other law may conflict with the Constitution; nor may the government do anything that violates the Constitution.  Constitutionalism Constitutionalism A doctrine that a government’s authority is determined, and limited, by a body of laws or a constitution – ‘Constitutional Supremacy’. Constitutionalism is often regarded as a synonym for limited government, and generally refers to efforts to prevent arbitrary government. Mechanisms to prevent arbitrary government: Separation of powers Rule of law  Separation of powers Separation of powers South Africa, as a state, is split into three primary branches: The legislature, The executive, and The judiciary Such a separation, it has been argued, limits the possibility of arbitrary excesses by government, since the sanction of all three branches is required for the making, executing, and administering of laws.  The Legislature The legislature is responsible for making laws in the form of primary legislation. Parliament makes laws for the whole of South Africa. They make laws by passing ‘Acts’ of Parliament. Once Parliament has enacted a law, the Ministers of the department responsible for giving effect to that legislation, makes regulations to supplement the act.  The Executive The executive is responsible for implementing laws made by Parliament. The President and the ministers and their deputies constitute what is called ‘the executive’. The people who work in the various government departments are known as the public administration.  The Judiciary The judiciary is responsible for hearing legal disputes between litigants. The court system is split into the lower and higher courts: Lower Courts: small claims court, and magistrates’ court (Regional and District). Higher Courts: High Courts (including Specialist Courts), the SCA and the Constitutional Court.  Rule of Law The rule of law:- is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials; primarily refers to the influence and authority of law within society, particularly as a constraint upon behavior, including behavior of government; supports equality of all citizens before the law; subjects government to existing laws as much as citizens are; flourishes where you have independent, transparent and accountable institutions of the state.  Due Process Due process means that:- legal proceedings must take place according to rules and principles that have been established in a system of jurisprudence for the enforcement and protection of private rights; laws must be written, known, and applied without bias through an established procedural process; Due process allows for a fair playing field where laws may be challenged by persons who feel that they may be unconstitutional in some manner.  FUNDAMENTAL CONCEPTS IN LAW Legal Relationships Legal Liability Legal Personality  Legal relationships In law, a distinction is drawn between Public and Private legal relationships. The key difference lies in who the opposing party to the matter is. Public legal relationships: the opposing party will be the State. Private legal relationships: the opposing party will be another natural or juristic person. Public relations put the full might of the state against a private individual, and therefore the state is in a powerful position.* In private relations, both parties are (theoretically) on equal footing.* *QUESTION: What do you think the reality of the situation is? Is the state always the party with the ‘biggest guns’? Are private parties really equal in standing?  Public legal relationships The state’s authority includes the power to enforce the law in various ways, such as fining you should you drive without a license, charging you criminally if you commit a crime, etc. Where action is taken against you by the state, you are entitled to expect that such action is lawful, reasonable and procedurally fair (due process). Where your rights have been affected, you have a right to be given written reasons. When a person feels that an action by the government was not reasonable or lawful, they may approach the courts for a decision on the matter.  Private legal relationships The private sphere of legal relationships involves the exercise of rights and duties. Parties approach the judiciary to enforce their rights in respect of some other parties' obligation. Not all persons, however, are capable of exercising these rights in their own capacity. E.g., minors need their parents to assist them should they suffer damage. Every right has a corresponding duty.  Real rights v personal rights Real rights may be enforced against anyone. E.g. the owner being able to use and do with his property as he pleases (within the ambits of the law). Personal rights on the other hand have another person’s performance as their object and can only be enforced against that specific person. See table 1.1 on page 12 of the textbook.  Legal Liability Legal liability is the condition of being bound to carry out a legal duty, and to bear the consequences of failing to do so. A good example of a legal duty, is the duty which a parent owes to his or her children in taking care of them. We distinguish between civil liability and criminal liability  Civil Liability Liability in private legal relationships (Civil Law) has three forms: A) Contractual liability; B) Delictual liability; Essentially deals with causing harm. Where you have injured or harmed someone or something, you have caused damages to be incurred by another person. The damages are then quantified, into a liquid amount, and you would then have legal recourse against that person. C) Liability based on Unjustified Enrichment; Arises where a party has been enriched at the expense of another and no legal basis exists for the transfer of the benefit. E.g., Interest received above the legal interest rate, money mistakenly paid into your account, etc.  Criminal Liability To be liable in terms of criminal law you would need to have:- committed an act (or omitted to perform one), in violation of a law forbidding (or commanding) it, and for which punishment is imposed upon conviction. NB The major distinction between civil and criminal liability, and the three categories of civil liability are not, however, mutually exclusive. These may arise together within the same set of facts. For example, a person breaking into a house (criminal liability) would find himself to be delictually liable for the damage he caused to your property (civil liability) whilst breaking and entering your premises. END OF LECTURE 2