Business law workshop B Com Mkt/hrm March 2018

Introduction Lecturer/Facilitator Andrew Tucker B Com LLB, Attorney of the High Court of South Africa Contact details: andrew.tucker46@gmail.com

Course overview Introduction to business law Law of contract Law of sale Law of lease Law of insurance Labour law

Resources www.letslearnmore.weebly.com

Books Fouché, M.A. (et al). Legal Principles of Contracts and Commercial Law, Revised 6th edition, 2007, Lexis Nexis Havenga, P (et al). General Principles of Commercial Law, 6th edition, 2007, Juta Kopel, S Guide to Business Law, 4th edition, 2009 or 5th edition, 2012, Oxford University Press Gibson, JTR. South African Mercantile and Company Law, 8th Edition, 2003, Juta. Scott J (et al) The Law of Commerce in South Africa, 2009, Oxford University Press.

resources www.saflii.org www.cipc.co.za www.dti.gov.za www.letslearnmore.weebly.com www.judiciary.org.za

Introduction to law The three branches of government Origins of SA law Natural persons and legal persons Sources of law

Sources of SA law Contitution Legislation Judicial precedent Common law Customary law

Real and personal rights Real rights (eg: ownership) Personal rights (eg: contractual) Object of a real right is a corporeal Absolute, right of hot pursuit Do not lapse on death of holder Flow from juristic acts such as transfer or cession Enforceable against all Object is personal security, bodily integrity or freedom Not absolute – only enforceable against specific persons Lapse on death of holder Flow from contract or delict

What is a contract – general discussion All contracts are agreements but not all agreements are contracts

Requirements of a contract Lawfulness Contractual capacity Consensus Serious intention Communication of intention Certainty Parties of same mind Possibility of performance Formalities Requirements of a contract

Some concepts Offer and acceptance – pages 22-23 Mistake – pages 22-23 Misrepresentation – page 23 Duress – page 24 Undue influence – pages 24-25

Contractual capacity Age Marriage Intoxication Prodigals Insolvency inanity

Suspensive and resolutive conditions Suspensive condition – suspends contract pending occurrence of something Resolutive condition – contract will end if something happens

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

Remedies for breach Specific performance – when will court grant? Cancellation – when can you cancel? Damages – only patrimonial and duty to mitigate Interdict

Termination of the contract See pages 35 – 37 What is prescription?

Law of sale Essentials Agreement to deliver a certain thing at a specific price Effect of the CPA Requirements for transfer of ownership – page 43 Delivery

Forms of constructive delivery Symbolic delivery Delivery with the long hand Delivery with the short hand Constitutium possesorium (transfer of possession) Attornment Forms of constructive delivery

The transfer of risk What is risk? Risk passes as soon as the sale is perfecta When is the sale perfecta?

The common law warranties Warranty against eviction Warranty against latent defects The common law warranties

The law of lease Use and enjoyment of the property Duration Rent

Duties of the lessor and lessee To deliver the property To maintain the property Undisturbed use To pay the rent Proper use of the property To care for the property To vacate and restore the property

Termination of the lease When does the lease terminate? The concept of huur gaat voor koop

Insurance law Indemnity & non-indemnity insurance The concept of insurable interest Promissory & affirmative warranties Ubermae fides Subrogation

Labour law The concept of an employee and an independent contractor Why is it important to be able to tell the difference? The various factors creating a presumption of employment The tests applied by the courts

Duties of the employer To accept the employee into service To provide the employee with work (if necessary) To pay the agreed wage To provide safe working conditions To comply with legislation

Duties of the employee To make services available personally To obey lawful commands To warrant competence and efficiency To be subordinate to the employer To refrain from misconduct To act in good faith Duties of the employee

dismissal The three grounds Misconduct Incapacity Operational requirements Procedural & substantive fairness Automatically unfair dismissals

legislation BCEA LRA EEA

Assignment questions