1. Commercial law 2b
Workshop july 2017

2. facilitator
Andrew Tucker
B. Com LLB
Attorney of the High Court of South Africa

3. Resources

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

5. Business enterprises in sa
Sole trader
Partnership
Close corporation
Company
Trust

6. Some principles
Perpetual succession
Limited liability
Separation of ownership and control

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

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

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

10. Non profit associations
Incorporated Associations
Non-incorporated

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

12. 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

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

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

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

16. Contractual capacity
Minors
Mentally insane
Intoxication
Progigals
Insolvency

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

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

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

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

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

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

23. Remedies for breach
Specific performance
Reduced performance
Damages
Cancellation
Interdict

24. 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

25. 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

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

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

28. franchising
Product & trademark or trade name franchising
Business format franchising

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

30. Consumer protection act