Introduction to Commercial Law and Legal Subjects - Prof. Joel, Slides of Commercial Law

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COMMERCIAL LAW 1A WEEK 2 Introduction to the Science of Law ‹#› LEARNING OBJECTIVES • Understand the differences between public & private law • Understand the term “rights” • Differentiate between a natural person and a juristic person • Name and explain the 4 different types of subjective rights • Explain what is meant by the law of obligations • Define a delict & identify the elements of a delict ‹#› ➢PUBLIC LAW- legal rules which control relationships between the state and citizens eg. criminal law & constitutional law. ➢PRIVATE LAW- legal rules which control the relationships between citizens in their dealings with each other eg. family law (divorce, custody etc) and contract law. ➢Both these divisions can be further subdivided into different areas of specific law ➢Commercial law – refers to those legal rules that have arisen from the common customs of merchants or which relate to business activity. ➢Commercial law encompasses different branches of law, including BUT NOT limited to: contracts of sale, lease, credit agreements, negotiable instruments, insolvency, company law & other business structures, agency, security, intellectual property and consumer law BRANCHES OF LAW ‹#› Rights classified according to a particular legal object: A.Personal rights – Rights to performance may be demanded (Do something or refrain from doing something) e.g can come about through contracts or delicts B.Real rights – Right to property: Ownership/servitude 1.OWNERSHIP -- 2.SERVITUDES – Limited Real Right: Praedial vs Personal 3.MORTGAGE & PLEDGE – C.Personality rights – Right to reputation/good name D.Intellectual property rights – copyrights/trademarks/patents SUBJECTIVE RIGHTS ‹#› PRIVATE LAW  Law of Persons  Family Law  Patrimonial Law  Law of Succession  Law of Intellectual Property  Law of Obligations (contract, delict, unjustified enrichment) ‹#› ➢Law of Personality- rights in respect of ones physical being, their dignity and reputation eg. everyone has the right not to be unlawfully assaulted. Protected in both civil & criminal law. Defamation and the right to a good name ➢Patrimonial Law-law of property = Involves the relationship with people and their patrimony (all their rights + duties which are valued in money – assets + liabilities. ownership (methods of ownership) Possession – physical control + intention to possess Prescription – Passage of time (acquisitive prescription) movable property - delivery Immovable property - transfer LAW OF PERSONALITY AND PATRIMONIAL LAW ‹#› LAW OF SUCCESSION  Regulates the administration of deceased estates;  How assets and liabilities are calculated;  After payment of all the debts, the method of how remaining balance must be distributed amongst heirs and beneficiaries  Testate succession  Intestate succession ‹#› INTELLECTUAL PROPERTY • Things external to a person which are of value to him or her but are incorporeal eg. inventions and works of art. • Copyrights – • Patents – • Trademarks – • Goodwill (reputation of a business) ‹#› DELICT…..CONTINUED… The following requirements must be satisfied before delictual liability can be claimed.  An act;  Unlawfulness/wrongfulness;  Fault;  Causation;  Damage or injury to personality. REMEDIES  actio legis Aquiliae (patrimonial loss)  actio iniuriarum (injury to personality)  Action for pain and suffering ‹#› AN ACT • A person’s conduct determined by his will. • THE ACT MUST BE VOLUNTARY • HUMAN CONDUCT ONLY (Juristic persons are capable of acting if they act through their organs) • COMMISSION (positive act where a person actually does something by their conduct ) VS OMISSION (refrain from acting - where a person fails to do something and harm is caused to another) ‹#› Unlawfulness arises where: 1.An act or omission INFRINGES UPON THE RIGHTS OF ANOTHER, or 2.A DUTY OF CARE IS BREACHED. • Boni Mores or the legal convictions of the community determine whether conduct is wrongful. DEFENCES/GROUNDS OF JUSTIFICATION: (Makes an unlawful act lawful) 1. NECESSITY 2. SELF-DEFENCE 3. CONSENT 4. STATUTORY AUTHORITY 5. PROVOCATION UNLAWFULNESS/WRONGFULNESS ‹#› DAMAGE OR IMPAIRMENT OF PERSONALITY • TO INCUR LIABILITY A PERSON MUST HAVE CAUSED ANOTHER DAMAGE OR IMPAIRMENT OF HIS/HER PERSONALITY • PATRIMONIAL DAMAGE – DAMAGE TO HIS/HER ESTATE – CAR ACCIDENT – ESTATE BECOMES SMALLER AS A RESULT OF THE DAMAGE • ESTATE IS COMPARED TO WHAT WOULD HAVE NOT HAPPENED – PRESENT CONDITION OF ESTATE VS WHAT IT OTHERWISE WOULD HAVE BEEN • RESTORE THE ESTATE TO THE POSITION IT WAS IN BEFORE THE DELICT OCCURRED • DAMAGES WHICH ARISE FROM HIS/HER OWN FAULT CANNOT BE RECOVERED • PERSONALITY RIGHTS CAN BE INFRINGED – COURT CALCULATES COMPENSATION THAT IS JUST AND FAIR ‹#› REMEDIES • A PERSON’S WHOSE RIGHTS ARE THREATENED MAY PROTECT THEM BY APPLYING TO COURT FOR AN INTERDICT TO FORCE OR RESTRAIN ANOTHER PARTY FROM CERTAIN CONDUCT • IF HARM HAS ALREADY BEEN CAUSED TO ANOTHER PERSON A CLAIM FOR COMPENSATION ARISES • THE REMEDY DEPENDS ON THE TYPE OF HARM SUFFERED • PATRIMONIAL DAMAGE = DAMAGE TO ONE’S ESTATE = ACTIO LEGIS AQUILIAE (ECONOMIC LOSS). E.G: CAR ACCIDENT – MONETARY DAMAGES • PERSONALITY LOSS = INJURY TO PERSONALITY ACTIO INIURIARUM (SENTIMENTAL DAMAGES/Reputational) • ACTION FOR PAIN & SUFFERING. E.G. EMOTIONAL SHOCK. Protects the physical-mental integrity of a person, as well as the psychological or mental injury equated to physical bodily injury in the area of emotional shock. • A PERSON CAN INSTITUTE BOTH THE ACTIO LEGIS AQUILIAE & THE ACTIO INIURIARUM ‹#› • What is unjustified enrichment? ✓ It is patently inequitable for one person to be enriched to the detriment/expense of another – i.e.: there is no valid legal ground for the person who has obtained the benefit to have done so and that it was done at the expense of the other. • What if it involves a minor child? ✓ if the contract involves a minor child who is not competent to enter into such contract and does so without the assistance of his/her parent/guardian and which minor child buys something and then refuses to pay for it because s/he is not contractually liable, s/he will be enriched (for the amount of the good purchased) at the expense of the other party. • How will an aggrieved party seek relief from such a transaction? ✓ There is no contractual obligation between the parties as the minor has no contractual capacity & there is no relief in terms of delict. However the aggrieved party has the right to claim back the goods which enriched the minor. ✓ The aggrieved party can only claim the enriched amount – if the goods were damaged then s/he can only claim the amount of the damaged goods UNJUSTIFIED ENRICHMENT