1. Commercial law workshop
B com scm
August 2016

2. Introduction
Lecturer/Facilitator Andrew Tucker B Com LLB, Attorney of the High Court of South Africa Contact details:

3. Course overview SA Law Companies Contracts Sale Agency
Credit and Security
Insolvency

4. www.letslearnmore.weebly.com Resources
Under Subject Area tab click on B Com SCM for

5. 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.

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

7. Requirements of a valid contract
Consensus
Capacity
Formalities
Legality
Possibility

8. The passing of risk General rule Sale perfecta
Agreement on thing & price
Suspensive conditions met

9. Implied Warranties Warranty against eviction
Warranty against latent defects

10. Replaced Companies Act of 1973 with effect from 1 May 2011
The Companies Act
Companies Act 71 of 2008
Replaced Companies Act of 1973 with effect from 1 May 2011
Modernises legislation

11. Memorandum of Incorporation
Company documents
Memorandum of Incorporation
Replaces Memorandum and Articles of Association

12. Company Classification
Profit Company
Not for Profit Company

13. Company Classification
Not for Profit
NPC
Profit
Public
Private
State Owned
Personal Liability

14. Directors duties
See section 77 of Companies Act

15. Assignment questions

16. Question one
Duties of directors – see section 76 for standard of conduct
Liability of directors – see section 77
Read section 4 and section 22 – trading in insolvent circumstances may constitute reckless conduct
Did directors do anything wrong?

17. Question two What is a suretyship?
Suretyship is an agreement by means of which one person (the surety) renders him/herself liable towards a creditor for the debts of another person (the principal debtor) if that person does not pay

18. Question two Requirements for a deed of suretyship Must be in writing
Must be signed by (or on behalf of ) both surety & creditor
Must disclose identity of creditor, principal debtor & surety
Must disclose nature of principal debt
Must disclose amount of principal debt

19. Question two
When is the surety liable?
Discussion
Defences available

20. Question two Mortgage bond Notarial bond Over immovable property
Perfection by registration at deeds office
Security arises by registration
Creates a right of preference
Over movable property
Must be notarially executed
Perfection by attachment
Creates a right of preference

21. Question three Requirements for fraudulent misrepresentation
Misrepresentation that is an untrue statement of existing fact or condition
Made by or on behalf of one contracting party to the other
Misrepresentation must be unlawful
Must have induced the contract (caused party to contract)
Remedy
Specific performance/cancellation/damages
Delictual damages

22. Question three
Innocent misrepresentation
May cancel contract and claim restitution
May claim reduction in purchase price
No claim for delictual damages
Phame (Pty) Ltd v Paizes 1973 (3) SA 397 (A)

23. Question four Forms of breach Mora debitoris Mora creditoris
Positive malperformance
Repudiation
Prevention of performance

24. Resources