Commercial Law & Intellectual Property Law Notes
South African Legal System
Hybrid legal system: blending Roman-Dutch law, English common law, and African customary law.
Substantive law: content of the law (rules).
Procedural law: how legal principles are enforced (procedure).
Roman-Dutch influence: substantive law.
English common law influence: procedural aspects.
Contract Law
A contract is an agreement with the intention of creating a legal obligation with resulting rights and duties.
Legal obligations create a legal tie between legal subjects, resulting in rights and corresponding duties recognized by law.
Rights and duties are only effective between the specific legal subjects involved in the legal obligation and are therefore known as personal rights.
Real rights can be enforced against all other legal subjects; an example of which would be ownership.
Legal obligations consist of a creditor's right to claim performance and a debtor's corresponding duty to perform accordingly.
Legal Obligations
Arise from:
Contracts
Delict (or tort): culpable wrongful act causing injury, loss, harm, or damage
Unjustified enrichment
Unauthorized agency
Statute
Family relationships
Basic Concepts
Performance: What a party binds themselves to, either positive (do, deliver, pay) or negative (refrain from doing).
Terms and conditions: stipulations of a contract.
Unilateral contract: Only one legal obligation exists.
Reciprocal contract: Both parties act as debtor and creditor.
Nominate contract: Contract with its own name and specific legal rules.
Essentialia: Minimum characteristics to identify a nominate contract.
Naturalia: Contractual provisions that automatically form part of the contract unless excluded.
Incidentalia: additional terms and conditions the parties include in the contract as well as any limits or changes to any naturalia of the contract.
Requirements for Valid Contract
Consensus: Agreement based on mutual understanding and intent.
Contractual capacity: Parties must have the ability to form legal intent.
Lawfulness: Contract must be legal and not against common law, legislation, public policy, or good morals.
Physical possibility: Performance must be possible and determined/determinable.
Formalities: Compliance with legal or agreed-upon external form requirements.
Consensus
Most important requirement.
Based on the wills (intentions) of the parties.
Requires negotiations, offer, counteroffers, and unqualified acceptance.
Offer: Declaration of intent with all contract proposals.
Acceptance: Unqualified assent to the offer.
Contractual Capacity
Competence to perform legal acts.
Ability to form a will and act with sound judgement.
Persons without contractual capacity:
Persons under the age of 7
Mentally incapacitated persons
Persons in a state of automatism or under the influence of medication or alcohol
Persons with limited contractual capacity:
Minors (7-18)
Prodigals
Persons under curatorship
Insolvents
Persons with full contractual capacity:
Adults (18+)
Juristic persons
Anyone not falling within the exceptions above
Legality & Physical Possibility
Contract must be legal, and performance must be possible and determined/determinable.
Formalities
External visible form (usually written and signed).
Not always required; contracts can be oral or tacit.
Legislation or parties may require specific formalities.
Breach of Contract and Remedies
Failure to honor contractual obligations.
Forms of breach:
Mora debitoris: Delay by the debtor.
Mora creditoris: Delay by the creditor.
Positive malperformance: Incomplete or defective performance.
Repudiation: Unequivocal intention to no longer be bound.
Prevention of performance: Performance rendered impossible.
Remedies for breach:
Claim for specific performance (and damages).
Cancellation of the contract (and damages).
Interdict (and damages).
Letter of Demand
Preliminary step to litigation.
Details of parties and agreement.
How breach occurred.
Expectations from opposing party and deadline (usually 14 days).
Consequences of failure to meet the deadline.
Contract of Purchase and Sale
Specific, nominated, reciprocal agreement to buy and sell.
Seller intends to deliver goods with rights; buyer intends to pay.
Applies to general contract requirements: consensus, capacity, legality, possibility, formalities.
Essentialia:
Seller's intention to sell, and buyer's intention to buy.
The thing sold.
The purchase price.
Passing of Ownership
Conclusion of contract alone does not transfer ownership.
Buyer initially obtains a personal right (legal claim).
For immovable property:
Seller is the owner.
Intention to transfer and obtain ownership.
Registration in the buyer's name.
For movable property:
Seller is the owner.
Intention to pass ownership.
Cash sale: delivery and payment.
Credit sale: delivery.
Duties of the Seller
Duty of safekeeping of the thing sold
Warranty against eviction: claiming repayment of the full purchase price from the seller as per the nemo plus iuris rule.
Warranty against latent defects (
South African Legal System
Hybrid legal system: blending Roman-Dutch law, English common law, and African customary law.
Substantive law: content of the law (rules).
Procedural law: how legal principles are enforced (procedure).
Governed by statutes such as the Criminal Procedure Act 51 of 1977 and the Civil Procedure Act.
Roman-Dutch influence: substantive law.
Characterized by comprehensive legal codes and principles derived from Roman and Dutch legal sources
English common law influence: procedural aspects.
This often results in rules and precedents set by court decisions.
Contract Law
A contract is an agreement with the intention of creating a legal obligation with resulting rights and duties.
Legal obligations create a legal tie between legal subjects, resulting in rights and corresponding duties recognized by law.
Rights and duties are only effective between the specific legal subjects involved in the legal obligation and are therefore known as personal rights.
For instance, in a contract of sale, the buyer has a personal right to receive the goods from the seller, and the seller has a personal right to receive payment from the buyer.
Real rights can be enforced against all other legal subjects; an example of which would be ownership.
This could include the right to a servitude, such as where one person is legally entitled to use the property of another within specific bounds.
Legal obligations consist of a creditor's right to claim performance and a debtor's corresponding duty to perform accordingly.
Legal Obligations
Arise from:
Contracts
Delict (or tort): culpable wrongful act causing injury, loss, harm, or damage
Governed by the principles of fault, causation, and wrongfulness.
Unjustified enrichment
This often applies where someone has received a benefit at another's expense without a valid legal ground.
Unauthorized agency
Occurs when someone acts on behalf of another without proper authority.
Statute
Created by parliamentary legislation.
Family relationships
Creates legal obligations such as maintenance and support.
Basic Concepts
Performance: What a party binds themselves to, either positive (do, deliver, pay) or negative (refrain from doing).
Terms and conditions: stipulations of a contract.
Unilateral contract: Only one legal obligation exists.
Example: Donation; Only the donator has the legal obligation.
Reciprocal contract: Both parties act as debtor and creditor.
Example: Lease agreement; the landlord has the obligation to allow use of property and the tenant has the obligation to pay rent.
Nominate contract: Contract with its own name and specific legal rules.
Essentialia: Minimum characteristics to identify a nominate contract.
In a sale agreement, essentialia include agreement on the goods being sold and the purchase price.
Naturalia: Contractual provisions that automatically form part of the contract unless excluded.
Example: warranty against latent defects
Incidentalia: additional terms and conditions the parties include in the contract as well as any limits or changes to any naturalia of the contract.
Example: An agreement to exclude the warranty against latent defects.
Requirements for Valid Contract
Consensus: Agreement based on mutual understanding and intent.
Achieved through a valid offer and acceptance.
Contractual capacity: Parties must have the ability to form legal intent.
This ensures parties understand the nature and consequences of their actions.
Lawfulness: Contract must be legal and not against common law, legislation, public policy, or good morals.
An agreement to commit a crime would be unlawful and unenforceable.
Physical possibility: Performance must be possible and determined/determinable.
The contractual obligation must be objectively possible at the time of the agreement.
Formalities: Compliance with legal or agreed-upon external form requirements.
Certain contracts, such as those for the sale of land, require written and signed agreements to be valid.
Consensus
Most important requirement.
Based on the wills (intentions) of the parties.
Both parties must have a serious intention to create legally binding obligations.
Requires negotiations, offer, counteroffers, and unqualified acceptance.
Offer: Declaration of intent with all contract proposals.
Must be clear, certain, and made with the intention to be accepted.
Acceptance: Unqualified assent to the offer.
Must be a clear and unequivocal expression of agreement to the terms of the offer.
Contractual Capacity
Competence to perform legal acts.
Ability to form a will and act with sound judgement.
Essential for entering into contracts with legal effect.
Persons without contractual capacity:
Persons under the age of 7
Lacks the necessary understanding and judgement.
Mentally incapacitated persons
Includes those with severe mental disorders or cognitive impairments.
Persons in a state of automatism or under the influence of medication or alcohol
Lacks conscious control over their actions.
Persons with limited contractual capacity:
Minors (7-18)
Requires assistance from a guardian.
Prodigals
Declared by the court as incapable of managing their affairs.
Persons under curatorship
Placed under the care of a curator due to mental or physical incapacity.
Insolvents
Ability to contract is restricted in certain circumstances.
Persons with full contractual capacity:
Adults (18+)
Juristic persons
Corporations, companies, and other entities recognized by law.
Anyone not falling within the exceptions above
Legality & Physical Possibility
Contract must be legal, and performance must be possible and determined/determinable.
Formalities
External visible form (usually written and signed).
Not always required; contracts can be oral or tacit.
Legislation or parties may require specific formalities.
Breach of Contract and Remedies
Failure to honor contractual obligations.
Forms of breach:
Mora debitoris: Delay by the debtor.
Debtor fails to perform on time without valid excuse.
Mora creditoris: Delay by the creditor.
Creditor delays or prevents the debtor from performing.
Positive malperformance: Incomplete or defective performance.
Occurs when the performance does not meet the required standards.
Repudiation: Unequivocal intention to no longer be bound.
A party clearly indicates they will not fulfil their contractual obligations.
Prevention of performance: Performance rendered impossible.
A party actions make it impossible for the other party to perform.
Remedies for breach:
Claim for specific performance (and damages).
Court orders the breaching party to fulfil their contractual obligations, and compensation for any losses incurred.
Cancellation of the contract (and damages).
The contract is terminated, and the non-breaching party may claim damages for any losses.
Interdict (and damages).
A court order preventing a party from acting in a way that would breach the contract, along with compensation for any losses.
Letter of Demand
Preliminary step to litigation.
Details of parties and agreement.
How breach occurred.
Expectations from opposing party and deadline (usually 14 days).
Consequences of failure to meet the deadline.
Legal action may commence.
Contract of Purchase and Sale
Specific, nominated, reciprocal agreement to buy and sell.
Seller intends to deliver goods with rights; buyer intends to pay.
Applies to general contract requirements: consensus, capacity, legality, possibility, formalities.
Essentialia:
Seller's intention to sell, and buyer's intention to buy.
The thing sold.
The purchase price.
Passing of Ownership
Conclusion of contract alone does not transfer ownership.
Buyer initially obtains a personal right (legal claim).
For immovable property:
Seller is the owner.
Intention to transfer and obtain ownership.
Registration in the buyer's name.
For movable property:
Seller is the owner.
Intention to pass ownership.
Cash sale: delivery and payment.
Credit sale: delivery.
Duties of the Seller
Duty of safekeeping of the thing sold
Warranty against eviction: claiming repayment of the full purchase price from the seller as per the nemo plus iuris rule.
If the buyer is deprived of ownership by someone with a superior title, the seller must compensate the buyer.
Warranty against latent defects
South African Legal System
Hybrid legal system: blending Roman-Dutch law, English common law, and African customary law.
Substantive law: content of the law (rules).
Procedural law: how legal principles are enforced (procedure).
Governed by statutes such as the Criminal Procedure Act 51 of 1977 and the Civil Procedure Act.
Roman-Dutch influence: substantive law.
Characterized by comprehensive legal codes and principles derived from Roman and Dutch legal sources
English common law influence: procedural aspects.
This often results in rules and precedents set by court decisions.
Contract Law
A contract is an agreement with the intention of creating a legal obligation with resulting rights and duties.
Legal obligations create a legal tie between legal subjects, resulting in rights and corresponding duties recognized by law.
Rights and duties are only effective between the specific legal subjects involved in the legal obligation and are therefore known as personal rights.
For instance, in a contract of sale, the buyer has a personal right to receive the goods from the seller, and the seller has a personal right to receive payment from the buyer.
Real rights can be enforced against all other legal subjects; an example of which would be ownership.
This could include the right to a servitude, such as where one person is legally entitled to use the property of another within specific bounds.
Legal obligations consist of a creditor's right to claim performance and a debtor's corresponding duty to perform accordingly.
Legal Obligations
Arise from:
Contracts
Delict (or tort): culpable wrongful act causing injury, loss, harm, or damage
Governed by the principles of fault, causation, and wrongfulness.
Unjustified enrichment
This often applies where someone has received a benefit at another's expense without a valid legal ground.
Unauthorized agency
Occurs when someone acts on behalf of another without proper authority.
Statute
Created by parliamentary legislation.
Family relationships
Creates legal obligations such as maintenance and support.
Basic Concepts
Performance: What a party binds themselves to, either positive (do, deliver, pay) or negative (refrain from doing).
Terms and conditions: stipulations of a contract.
Unilateral contract: Only one legal obligation exists.
Example: Donation; Only the donator has the legal obligation.
Reciprocal contract: Both parties act as debtor and creditor.
Example: Lease agreement; the landlord has the obligation to allow use of property and the tenant has the obligation to pay rent.
Nominate contract: Contract with its own name and specific legal rules.
Essentialia: Minimum characteristics to identify a nominate contract.
In a sale agreement, essentialia include agreement on the goods being sold and the purchase price.
Naturalia: Contractual provisions that automatically form part of the contract unless excluded.
Example: warranty against latent defects
Incidentalia: additional terms and conditions the parties include in the contract as well as any limits or changes to any naturalia of the contract.
Example: An agreement to exclude the warranty against latent defects.
Requirements for Valid Contract
Consensus: Agreement based on mutual understanding and intent.
Achieved through a valid offer and acceptance.
Contractual capacity: Parties must have the ability to form legal intent.
This ensures parties understand the nature and consequences of their actions.
Lawfulness: Contract must be legal and not against common law, legislation, public policy, or good morals.
An agreement to commit a crime would be unlawful and unenforceable.
Physical possibility: Performance must be possible and determined/determinable.
The contractual obligation must be objectively possible at the time of the agreement.
Formalities: Compliance with legal or agreed-upon external form requirements.
Certain contracts, such as those for the sale of land, require written and signed agreements to be valid.
Consensus
Most important requirement.
Based on the wills (intentions) of the parties.
Both parties must have a serious intention to create legally binding obligations.
Requires negotiations, offer, counteroffers, and unqualified acceptance.
Offer: Declaration of intent with all contract proposals.
Must be clear, certain, and made with the intention to be accepted.
Acceptance: Unqualified assent to the offer.
Must be a clear and unequivocal expression of agreement to the terms of the offer.
Contractual Capacity
Competence to perform legal acts.
Ability to form a will and act with sound judgement.
Essential for entering into contracts with legal effect.
Persons without contractual capacity:
Persons under the age of 7
Lacks the necessary understanding and judgement.
Mentally incapacitated persons
Includes those with severe mental disorders or cognitive impairments.
Persons in a state of automatism or under the influence of medication or alcohol
Lacks conscious control over their actions.
Persons with limited contractual capacity:
Minors (7-18)
Requires assistance from a guardian.
Prodigals
Declared by the court as incapable of managing their affairs.
Persons under curatorship
Placed under the care of a curator due to mental or physical incapacity.
Insolvents
Ability to contract is restricted in certain circumstances.
Persons with full contractual capacity:
Adults (18+)
Juristic persons
Corporations, companies, and other entities recognized by law.
Anyone not falling within the exceptions above
Legality & Physical Possibility
Contract must be legal, and performance must be possible and determined/determinable.
Formalities
External visible form (usually written and signed).
Not always required; contracts can be oral or tacit.
Legislation or parties may require specific formalities.
Breach of Contract and Remedies
Failure to honor contractual obligations.
Forms of breach:
Mora debitoris: Delay by the debtor.
Debtor fails to perform on time without valid excuse.
Mora creditoris: Delay by the creditor.
Creditor delays or prevents the debtor from performing.
Positive malperformance: Incomplete or defective performance.
Occurs when the performance does not meet the required standards.
Repudiation: Unequivocal intention to no longer be bound.
A party clearly indicates they will not fulfil their contractual obligations.
Prevention of performance: Performance rendered impossible.
A party actions make it impossible for the other party to perform.
Remedies for breach:
Claim for specific performance (and damages).
Court orders the breaching party to fulfil their contractual obligations, and compensation for any losses incurred.
Cancellation of the contract (and damages).
The contract is terminated, and the non-breaching party may claim damages for any losses.
Interdict (and damages).
A court order preventing a party from acting in a way that would breach the contract, along with compensation for any losses.
Letter of Demand
Preliminary step to litigation.
Details of parties and agreement.
How breach occurred.
Expectations from opposing party and deadline (usually 14 days).
Consequences of failure to meet the deadline.
Legal action may commence.
Contract of Purchase and Sale
Specific, nominated, reciprocal agreement to buy and sell.
Seller intends to deliver goods with rights; buyer intends to pay.
Applies to general contract requirements: consensus, capacity, legality, possibility, formalities.
Essentialia:
Seller's intention to sell, and buyer's intention to buy.
The thing sold.
The purchase price.
Passing of Ownership
Conclusion of contract alone does not transfer ownership.
Buyer initially obtains a personal right (legal claim).
For immovable property:
Seller is the owner.
Intention to transfer and obtain ownership.
Registration in the buyer's name.
For movable property:
Seller is the owner.
Intention to pass ownership.
Cash sale: delivery and payment.
Credit sale: delivery.
Duties of the Seller
Duty of safekeeping of the thing sold
Warranty against eviction: claiming repayment of the full purchase price from the seller as per the nemo plus iuris rule.
If the buyer is deprived of ownership by someone with a superior title, the seller must compensate the buyer.
Warranty against latent defects
South African Legal System
Hybrid legal system: blending Roman-Dutch law, English common law, and African customary law.
Substantive law: content of the law (rules).
Procedural law: how legal principles are enforced (procedure).
Governed by statutes such as the Criminal Procedure Act 51 of 1977 and the Civil Procedure Act.
Roman-Dutch influence: substantive law.
Characterized by comprehensive legal codes and principles derived from Roman and Dutch legal sources
English common law influence: procedural aspects.
This often results in rules and precedents set by court decisions.
Contract Law
A contract is an agreement with the intention of creating a legal obligation with resulting rights and duties.
Legal obligations create a legal tie between legal subjects, resulting in rights and corresponding duties recognized by law.
Rights and duties are only effective between the specific legal subjects involved in the legal obligation and are therefore known as personal rights.
For instance, in a contract of sale, the buyer has a personal right to receive the goods from the seller, and the seller has a personal right to receive payment from the buyer.
Real rights can be enforced against all other legal subjects; an example of which would be ownership.
This could include the right to a servitude, such as where one person is legally entitled to use the property of another within specific bounds.
Legal obligations consist of a creditor's right to claim performance and a debtor's corresponding duty to perform accordingly.
Legal Obligations
Arise from:
Contracts
Delict (or tort): culpable wrongful act causing injury, loss, harm, or damage
Governed by the principles of fault, causation, and wrongfulness.
Unjustified enrichment
This often applies where someone has received a benefit at another's expense without a valid legal ground.
Unauthorized agency
Occurs when someone acts on behalf of another without proper authority.
Statute
Created by parliamentary legislation.
Family relationships
Creates legal obligations such as maintenance and support.
Basic Concepts
Performance: What a party binds themselves to, either positive (do, deliver, pay) or negative (refrain from doing).
Terms and conditions: stipulations of a contract.
Unilateral contract: Only one legal obligation exists.
Example: Donation; Only the donator has the legal obligation.
Reciprocal contract: Both parties act as debtor and creditor.
Example: Lease agreement; the landlord has the obligation to allow use of property and the tenant has the obligation to pay rent.
Nominate contract: Contract with its own name and specific legal rules.
Essentialia: Minimum characteristics to identify a nominate contract.
In a sale agreement, essentialia include agreement on the goods being sold and the purchase price.
Naturalia: Contractual provisions that automatically form part of the contract unless excluded.
Example: warranty against latent defects
Incidentalia: additional terms and conditions the parties include in the contract as well as any limits or changes to any naturalia of the contract.
Example: An agreement to exclude the warranty against latent defects.
Requirements for Valid Contract
Consensus: Agreement based on mutual understanding and intent.
Achieved through a valid offer and acceptance.
Contractual capacity: Parties must have the ability to form legal intent.
This ensures parties understand the nature and consequences of their actions.
Lawfulness: Contract must be legal and not against common law, legislation, public policy, or good morals.
An agreement to commit a crime would be unlawful and unenforceable.
Physical possibility: Performance must be possible and determined/determinable.
The contractual obligation must be objectively possible at the time of the agreement.
Formalities: Compliance with legal or agreed-upon external form requirements.
Certain contracts, such as those for the sale of land, require written and signed agreements to be valid.
Consensus
Most important requirement.
Based on the wills (intentions) of the parties.
Both parties must have a serious intention to create legally binding obligations.
Requires negotiations, offer, counteroffers, and unqualified acceptance.
Offer: Declaration of intent with all contract proposals.
Must be clear, certain, and made with the intention to be accepted.
Acceptance: Unqualified assent to the offer.
Must be a clear and unequivocal expression of agreement to the terms of the offer.
Contractual Capacity
Competence to perform legal acts.
Ability to form a will and act with sound judgement.
Essential for entering into contracts with legal effect.
Persons without contractual capacity:
Persons under the age of 7
Lacks the necessary understanding and judgement.
Mentally incapacitated persons
Includes those with severe mental disorders or cognitive impairments.
Persons in a state of automatism or under the influence of medication or alcohol
Lacks conscious control over their actions.
Persons with limited contractual capacity:
Minors (7-18)
Requires assistance from a guardian.
Prodigals
Declared by the court as incapable of managing their affairs.
Persons under curatorship
Placed under the care of a curator due to mental or physical incapacity.
Insolvents
Ability to contract is restricted in certain circumstances.
Persons with full contractual capacity:
Adults (18+)
Juristic persons
Corporations, companies, and other entities recognized by law.
Anyone not falling within the exceptions above
Legality & Physical Possibility
Contract must be legal, and performance must be possible and determined/determinable.
Formalities
External visible form (usually written and signed).
Not always required; contracts can be oral or tacit.
Legislation or parties may require specific formalities.
Breach of Contract and Remedies
Failure to honor contractual obligations.
Forms of breach:
Mora debitoris: Delay by the debtor.
Debtor fails to perform on time without valid excuse.
Mora creditoris: Delay by the creditor.
Creditor delays or prevents the debtor from performing.
Positive malperformance: Incomplete or defective performance.
Occurs when the performance does not meet the required standards.
Repudiation: Unequivocal intention to no longer be bound.
A party clearly indicates they will not fulfil their contractual obligations.
Prevention of performance: Performance rendered impossible.
A party actions make it impossible for the other party to perform.
Remedies for breach:
Claim for specific performance (and damages).
Court orders the breaching party to fulfil their contractual obligations, and compensation for any losses incurred.
Cancellation of the contract (and damages).
The contract is terminated, and the non-breaching party may claim damages for any losses.
Interdict (and damages).
A court order preventing a party from acting in a way that would breach the contract, along with compensation for any losses.
Letter of Demand
Preliminary step to litigation.
Details of parties and agreement.
How breach occurred.
Expectations from opposing party and deadline (usually 14 days).
Consequences of failure to meet the deadline.
Legal action may commence.
Contract of Purchase and Sale
Specific, nominated, reciprocal agreement to buy and sell.
Seller intends to deliver goods with rights; buyer intends to pay.
Applies to general contract requirements: consensus, capacity, legality, possibility, formalities.
Essentialia:
Seller's intention to sell, and buyer's intention to buy.
The thing sold.
The purchase price.
Passing of Ownership
Conclusion of contract alone does not transfer ownership.
Buyer initially obtains a personal right (legal claim).
For immovable property:
Seller is the owner.
Intention to transfer and obtain ownership.
Registration in the buyer's name.
For movable property:
Seller is the owner.
Intention to pass ownership.
Cash sale: delivery and payment.
Credit sale: delivery.
Duties of the Seller
Duty of safekeeping of the thing sold
Warranty against eviction: claiming repayment of the full purchase price from the seller as per the nemo plus iuris rule.
If the buyer is deprived of ownership by someone with a superior title, the seller must compensate the buyer.
Warranty against latent defects
South African Legal System
Hybrid legal system: blending Roman-Dutch law, English common law, and African customary law.
Substantive law: content of the law (rules).
Procedural law: how legal principles are enforced (procedure).
Governed by statutes such as the Criminal Procedure Act 51 of 1977 and the Civil Procedure Act.
Roman-Dutch influence: substantive law.
Characterized by comprehensive legal codes and principles derived from Roman and Dutch legal sources
English common law influence: procedural aspects.
This often results in rules and precedents set by court decisions.
Contract Law
A contract is an agreement with the intention of creating a legal obligation with resulting rights and duties.
Legal obligations create a legal tie between legal subjects, resulting in rights and corresponding duties recognized by law.
Rights and duties are only effective between the specific legal subjects involved in the legal obligation and are therefore known as personal rights.
For instance, in a contract of sale, the buyer has a personal right to receive the goods from the seller, and the seller has a personal right to receive payment from the buyer.
Real rights can be enforced against all other legal subjects; an example of which would be ownership.
This could include the right to a servitude, such as where one person is legally entitled to use the property of another within specific bounds.
Legal obligations consist of a creditor's right to claim performance and a debtor's corresponding duty to perform accordingly.
Legal Obligations
Arise from:
Contracts
Delict (or tort): culpable wrongful act causing injury, loss, harm, or damage
Governed by the principles of fault, causation, and wrongfulness.
Unjustified enrichment
This often applies where someone has received a benefit at another's expense without a valid legal ground.
Unauthorized agency
Occurs when someone acts on behalf of another without proper authority.
Statute
Created by parliamentary legislation.
Family relationships
Creates legal obligations such as maintenance and support.
Basic Concepts
Performance: What a party binds themselves to, either positive (do, deliver, pay) or negative (refrain from doing).
Terms and conditions: stipulations of a contract.
Unilateral contract: Only one legal obligation exists.
Example: Donation; Only the donator has the legal obligation.
Reciprocal contract: Both parties act as debtor and creditor.
Example: Lease agreement; the landlord has the obligation to allow use of property and the tenant has the obligation to pay rent.
Nominate contract: Contract with its own name and specific legal rules.
Essentialia: Minimum characteristics to identify a nominate contract.
In a sale agreement, essentialia include agreement on the goods being sold and the purchase price.
Naturalia: Contractual provisions that automatically form part of the contract unless excluded.
Example: warranty against latent defects
Incidentalia: additional terms and conditions the parties include in the contract as well as any limits or changes to any naturalia of the contract.
Example: An agreement to exclude the warranty against latent defects.
Requirements for Valid Contract
Consensus: Agreement based on mutual understanding and intent.
Achieved through a valid offer and acceptance.
Contractual capacity: Parties must have the ability to form legal intent.
This ensures parties understand the nature and consequences of their actions.
Lawfulness: Contract must be legal and not against common law, legislation, public policy, or good morals.
An agreement to commit a crime would be unlawful and unenforceable.
Physical possibility: Performance must be possible and determined/determinable.
The contractual obligation must be objectively possible at the time of the agreement.
Formalities: Compliance with legal or agreed-upon external form requirements.
Certain contracts, such as those for the sale of land, require written and signed agreements to be valid.
Consensus
Most important requirement.
Based on the wills (intentions) of the parties.
Both parties must have a serious intention to create legally binding obligations.
Requires negotiations, offer, counteroffers, and unqualified acceptance.
Offer: Declaration of intent with all contract proposals.
Must be clear, certain, and made with the intention to be accepted.
Acceptance: Unqualified assent to the offer.
Must be a clear and unequivocal expression of agreement to the terms of the offer.
Contractual Capacity
Competence to perform legal acts.
Ability to form a will and act with sound judgement.
Essential for entering into contracts with legal effect.
Persons without contractual capacity:
Persons under the age of 7
Lacks the necessary understanding and judgement.
Mentally incapacitated persons
Includes those with severe mental disorders or cognitive impairments.
Persons in a state of automatism or under the influence of medication or alcohol
Lacks conscious control over their actions.
Persons with limited contractual capacity:
Minors (7-18)
Requires assistance from a guardian.
Prodigals
Declared by the court as incapable of managing their affairs.
Persons under curatorship
Placed under the care of a curator due to mental or physical incapacity.
Insolvents
Ability to contract is restricted in certain circumstances.
Persons with full contractual capacity:
Adults (18+)
Juristic persons
Corporations, companies, and other entities recognized by law.
Anyone not falling within the exceptions above
Legality & Physical Possibility
Contract must be legal, and performance must be possible and determined/determinable.
Formalities
External visible form (usually written and signed).
Not always required; contracts can be oral or tacit.
Legislation or parties may require specific formalities.
Breach of Contract and Remedies
Failure to honor contractual obligations.
Forms of breach:
Mora debitoris: Delay by the debtor.
Debtor fails to perform on time without valid excuse.
Mora creditoris: Delay by the creditor.
Creditor delays or prevents the debtor from performing.
Positive malperformance: Incomplete or defective performance.
Occurs when the performance does not meet the required standards.
Repudiation: Unequivocal intention to no longer be bound.
A party clearly indicates they will not fulfil their contractual obligations.
Prevention of performance: Performance rendered impossible.
A party actions make it impossible for the other party to perform.
Remedies for breach:
Claim for specific performance (and damages).
Court orders the breaching party to fulfil their contractual obligations, and compensation for any losses incurred.
Cancellation of the contract (and damages).
The contract is terminated, and the non-breaching party may claim damages for any losses.
Interdict (and damages).
A court order preventing a party from acting in a way that would breach the contract, along with compensation for any losses.
Letter of Demand
Preliminary step to litigation.
Details of parties and agreement.
How breach occurred.
Expectations from opposing party and deadline (usually 14 days).
Consequences of failure to meet the deadline.
Legal action may commence.
Contract of Purchase and Sale
Specific, nominated, reciprocal agreement to buy and sell.
Seller intends to deliver goods with rights; buyer intends to pay.
Applies to general contract requirements: consensus, capacity, legality, possibility, formalities.
Essentialia:
Seller's intention to sell, and buyer's intention to buy.
The thing sold.
The purchase price.
Passing of Ownership
Conclusion of contract alone does not transfer ownership.
Buyer initially obtains a personal right (legal claim).
For immovable property:
Seller is the owner.
Intention to transfer and obtain ownership.
Registration in the buyer's name.
For movable property:
Seller is the owner.
Intention to pass ownership.
Cash sale: delivery and payment.
Credit sale: delivery.
Duties of the Seller
Duty of safekeeping of the thing sold
Warranty against eviction: claiming repayment of the full purchase price from the seller as per the nemo plus iuris rule.
If the buyer is deprived of ownership by someone with a superior title, the seller must compensate the buyer.
Warranty against latent defects