Revision Notes 2015 Business Law

Transcription

1 Revisin Ntes 2015 Business Law Characteristics f the Suth African Superir Curts Cnstitutinal Curt Highest Curt fr cnstitutinal issues One curt, lcated in Braamfntein 11 judges f which minimum f 8 must hear a matter Headed by Chief Justice Is a curt f first instance althugh it prefers t hear matters n appeal Supreme Curt f Appeal Highest Curt fr nn cnstitutinal matters One curt, lcated in Blemfntein nrmally 5 judges hear a matter but must be minimum f 3 Headed by Judge President Is nt a curt f first instance nly hears matters n appeal High Curt Can hear any matter as a curt f first instance Hears appeals frm itself and Magistrates Curt One divisin in each prvince althugh sme prvinces have mre than ne curt Nrmally ne judge hears a matter but 2 r 3 if an appeal Each divisin has its wn Judge President wh heads the curt Real and Persnal rights Real rights are rights that are enfrceable against everyne, fr example wnership Persnal rights are rights that are enfrceable against a specific persn, fr example a delictual claim List the rules relating t ffer and acceptance One f the parties must have made an ffer The ffer must have been cmmunicated t the fferee The ffer must nt have been revked r have lapsed The ffer must have been accepted in the prescribed manner The ffer must be accepted by an intended persn The acceptance must be cmmunicated The acceptance must be cmmunicated in the prescribed manner within the prescribed time & at the prescribed place What are the different types f breach f cntract? Mra debitris (breach by debtr) Mra creditris (breach by creditr) Repudiatin Preventin f perfrmance Psitive malperfrmance

2 What Aedilitin remedies were available in the event f a latent defect? Acti redhibitria Acti quanti minris Acti ex empty What must a plaintiff prve t be successful in a claim based n latent defect? That a material defect in the gds existed at the time f the sale That the defect was latent in ther wrds nt easily nticeable t a nrmal persn That the plaintiff (buyer) was unaware f the defect at the time f the sale That he wuld nt have purchased the item r wuld nt have paid the full purchase price if he had been aware f the defect Discuss the rights and duties f the lessr and lessee The lessr must: Make the prperty available Warrant against evictin Pay the taxes n the prperty Maintain the prperty The lessee must Pay the rent Use the prperty fr the purpse it was intended Lk after the prperty Mve ut and return pssessin t the landlrd at the end f the lease Wh is regarded as a cnsumer in terms f the Natinal Credit Act? A party t whm gds r services are sld under a credit agreement The party t whm mney is paid r credit granted under a pawn transactin The persn t whm credit is granted under a credit facility The mrtgager under a mrtgage agreement The brrwer under a secured lan The lessee under a lease The guarantr under a credit guarantee The party t whm insurance is granted under a credit guarantee Smene t whm mney r credit is granted under any ther credit agreement List the duties f the agent under an agreement f agency T carry ut the mandate T perfrm persnally T accunt t the principal T act in gd faith T act with care and skill Nt t exceed the terms f the mandate Outline the factrs that influence cntractual capacity Age, marital status, mental state, being under the influence and inslvency all affect cntractual capacity Minrs under the age f 7 are called infans and have n cntractual capacity at all

3 Minrs between age f 7 and 18 have limited capacity they can be assisted by a parent r guardian f their cntract can be ratified (apprved) afterwards A minr wh gets married autmatically gets full cntractual capacity Persns married in cmmunity f prperty need the cnsent f their spuse when entering certain transactins that impact their jint estate If a persn is under the influence f drugs r alchl t the extent that they did nt knw what they were ding then they were unable t cnsent and n cntract cmes int being Just because smene is an alchlic r drug addict des nt mean they have n capcity ne must examine what their state f mind was like at the time f cntracting When des a mandate f agency terminate? On cmpletin f the agreed task By mutual agreement r sequestratin f the agent r principal On revcatin by the principal On renunciatin by the agent On the death f either party Explain the dctrine f the undisclsed principal A mandates B t act n his behalf but instructs B nt t disclse that he is acting as A s agent B carries ut the task n A s behalf withut disclsing that he is acting as an agent at all On cmpletin f the task B disclses that he acted n behalf f A The 3 rd party can nw chse t hld either A r B liable but nt bth and cannt change his mind nce he has chsen Discuss the nature f an insurance cntract An insurance cntract is a cntract entered int between the insured and the insurer in terms f which the insurer undertakes t indemnify the insured against lss caused by sme uncertain future event Explain the tw types f insurance and the difference between them The tw main types f insurance are indemnity and nn-indemnity insurance Indemnity insurance is where the insurer agrees t indemnify yu against an undetermined and uncertain future lss fr example mtr vehicle insurance yu dn t knw if yur car will ever be in an accident, and if it is, hw much the damage will be the insurer will indemnify yu against the actual damage that may ccur With nn-indemnity insurance the insurer agrees t pay a fixed amunt f mney if r when the event takes place fr example life insurance we all knw we will die but nt when the insurer will pay ut the amunt yu have insured yur life fr when yu die. Explain the special defences available t a surety Excussin - The creditr shuld first prceed against the principal debtr befre prceeding against the surety

4 Exceptins - Surety has renunced the benefit, Principal debtrs estate already sequestrated, Principal debtr clearly unable t pay, Principal debtr utside SA withut lcal assets, Principal debtr has a persnal defence, Principal debtr hinders creditr in excussin Divisin - Applies if tw r mre sureties. Allws surety t claim nly liable fr pr rata prtin f the principal debt Exceptins - Where benefit renunced, C-surety fails t claim benefit when sued fr whle amunt, C-surety utside SA and cannt be fund, Csurety is inslvent Cessatin f Actin - Available t a surety wh has paid. Can claim cessin f actin frm the creditr (the right t take ver the creditrs claims against the debtr) Wh are the parties t a cheque? The drawer writes ut a cheque The drawee bank is the bank where the drawer has his accunt and wh pays ut the cheque The payee is the persn whm the cheque is made ut t Wh is the hlder f a cheque? A hlder (in the case f a bearer cheque) is the persn in pssessin f the cheque while a hlder f an rder cheque is the riginal payee in pssessin f the cheque r the last endrsee t whm the cheque has been transferred by negtiatin What tests d the curts use t determine whether smene is an emplyee r independent cntractr? There are three tests: The cntrl test this lks at the amunt f cntrl that the emplyer exerts ver the emplyee if there is a significant level f cntrl the persn is an emplyee The rganisatin test this examines whether the persn is regarded as part and parcel f the emplyers business r rganisatin if the answer is yes, the persn is regarded as an emplyee The dminant impressin test this examines all the factrs including cntrl, the nature f the wrk dne, the ecnmic factrs etc and asks what the dminant impressin gained is if n examining all factrs yu are left with the dminant impressin the persn is an emplyee, then they are The dminant impressin test is the ne favured by ur curts Explain the cncept f vicarius liability In terms f vicarius liability the emplyer is liable fr the delicts (civil wrngs) cmmitted by their emplyees during the curse and scpe f their emplyment The requirements are: Must be an emplyment cntract Must be unlawful cnduct (delict) Emplyee was acting in furtherance f emplyers interests and nt n a frlic f his wn

5 Explain the grunds fr dismissal in SA There are nly three grunds r reasns fr a valid dismissal in SA They are: Miscnduct (disciplinary reasns) Incapacity cannt d the jb fr medical r ther reasns Operatinal requirements (retrenchment) All dismissals must be bth prcedurally and substantively fair ne withut the ther is nt enugh Prcedural fairness refers t the prcess fllwed the rules f natural justice must be adhered t - yu cannt just dismiss smene they must be made aware f the charges against them, have a hearing, be able t put their side f the stry and crss-examine the emplyers witness etc Substantive fairness means there must be a valid reasn t dismiss the persn fr example yu cannt dsmiss smene fr being 5 minutes late but if they keep being late they can be dismissed while yu culd prbably dismiss smne immediately fr theft.