Commercial law 2b Workshop july 2017

facilitator Andrew Tucker B. Com LLB Attorney of the High Court of South Africa andrew.tucker46@gmail.com

Resources www.letslearnmore.weebly.com

www.saflii.org.za www.gov.za www.cipc.co.za www.dti.gov.za Other resources www.saflii.org.za www.gov.za www.cipc.co.za www.dti.gov.za

Business enterprises in sa Sole trader Partnership Close corporation Company Trust

Some principles Perpetual succession Limited liability Separation of ownership and control

Companies act 71 of 2008 Replaced 1973 Act Modernised Simplified Improved governance

Categories of company Profit company Non-profit company (NPC) External Company Domesticated company

Profit companies State owned – SOC Private – (Pty) Ltd Public – Limited Personal Liability - Inc

Non profit associations Incorporated Associations Non-incorporated

All contracts are agreements but not all agreements are contracts Remember….. All contracts are agreements but not all agreements are contracts

Real and personal rights Real rights Personal rights Object is a real, tangible thing Affords direct power over object Real right is absolute, enforceable against all – hot pursuit Doesn’t lapse on death (Object is) Personal security, bodily integrity, freedom Not absolute – only enforceable against a specific person Lapse when holder dies

Requirements of a valid contract Consensus Physical possibility Lawfulness Contractual capacity Compliance with formalities Certainty

Valid, void & voidable Valid – correct in all respects Void – (ab initio) – no contract Voidable – contract exists but (may) be set aside

consensus A meeting of the minds Serious intention Offer and acceptance – see rules on pages 31 and 32 Lapsing of an offer

Contractual capacity Minors Mentally insane Intoxication Progigals Insolvency

formalities General rule – no formalities Parties or the law may prescribe Eg: sale of land must be in writing & registered at Deeds Office

lawfulness Must not be in contravention of legislation or the common law (contra bones mores) Ex turpi causa rule

Physical possibility Initial possibility – contract void Supervening impossibility Vis major o– Act of God Causus fortuitis – Unforseen & beyond control Objective and subjective impossibility

certainty Must not be so vague as to render uncertain Unlimited options Vague language Unspecified details

Other factors Mistake – page 42 Misrepresentation – page 43 Duress – page 44 Undue influence – pages 44-45

Types of breach Mora debitoris Mora creditoris Positive malperformance Repudiation Prevention of performance

Remedies for breach Specific performance Reduced performance Damages Cancellation Interdict

damages Only patrimonial damages may be claimed for contractual loss Prove Loss a direct & natural consequence of the breach Loss must have been foreseeable (not too remote) Loss must be measurable in money

Employment contracts Letting and hiring of services Locatio conductio operis Locatio conductio operarum Letting and hiring of services Normal employment contract Services at disposal of employer Under control of employer Protected by labour laws Letting and hiring of work Independent contractor Perform specific task Not under employers control Law of contract

Employment contracts BCEA specifies essentials to be covered Normally would include things like: Working hours Leave Fringe benefits Remuneration etc…..

Termination of employment By employer misconduct, operational requirements, incapacity By Employee Resignation By agreement Retirement, end of fixed term, voluntary separation

franchising Product & trademark or trade name franchising Business format franchising

regulation No specific legislation, but Consumer Protection Act Trade Marks Act Competition Act FASA – voluntary industry body Draft Code of Conduct published for comment

Consumer protection act