General Principles of Commercial Law 9th Edition.pdf

General Principles of Commercial Law NINTH EDITION HEINRICH SCHULZE BLC LLB (Pret) LLD (Unisa) Advocate Professor of Law in the Department of Mercantile Law, University of South Africa ROSHANA KELBRICK BA (Pret) LLB (Stell) LLM LLD (Unisa) Attorney Professor of Law in the Department of Mercantile Law, University of South Africa TUKISHI MANAMELA BProc LLB (Unin) LLM (Unisa) Advocate Associate Professor in the Department of Mercantile Law, University of South Africa PHILIP STOOP BCom LLB LLM (Pret) LLD (Unisa) Associate Professor in the Department of Mercantile Law, University of South Africa EDDIE HURTER BLC LLB (Pret) LLD (Unisa) Senior Lecturer in the Department of Mercantile Law, University of South Africa ERNEST MANAMELA BProc LLB (Unin) LLM (Unisa) Associate Professor in the Department of Mercantile Law, University of South Africa Chrizell STOOP LLB LLM (Pret) LLD (Unisa) Associate Professor in the Department of Mercantile Law, University of South Africa BOAZ MASUKU LLB LLM (Unisa) Senior Lecturer in the Department of Mercantile Law, University of South Africa Downloaded by Qeuwin Coetzee () lOMoARcPSD| Downloaded by Qeuwin Coetzee () lOMoARcPSD| Contents Preface to the Ninth Edition Table of Cases Table of Statutes Section A: Introduction 1 The South African Legal System 2 Introduction to the Science of Law Section B: General Principles of the Law of Contract 3 Law of Contract: Introduction 4 Consensus 5 Capacity to Perform Juristic Acts 6 The Agreement must be Possible 7 Formalities 8 Terms of the Contract 9 Interpretation of the Contract 10 Breach of Contract 11 Remedies for Breach of Contract 12 Transfer and Termination of Personal Rights Section C: Specific Contracts 13 The Contract of Sale 14 The Contract of Lease 15 The Contract of Insurance 16 Credit Agreements Section D: Specific Aspects of Commercial Law 17 Labour Law 18 Intellectual Property Law and Franchising 19 Alternative Dispute Resolution 20 The Law of Agency 21 Forms of Business Enterprise 22 The Law of Competition 23 Security 24 Banking Law: Selected Topics 25 Payment: Negotiable Instruments 26 Other Methods of Payment 27 The Law of Trusts 28 The Law of Insolvency 29 The Law of Administration of Estates 30 Consumer Protection Index Downloaded by Qeuwin Coetzee () lOMoARcPSD| Section A: Introduction Page 1 Chapter 1 The South African Legal System 1.1 A short history of the law 1.2 Sources of the law 1.3 The courts in the Republic 1.4 The doctrine of stare decisis 1.5 Interpretation of statutes 1.6 Court judgments 1.1 A short history of the law Law is a social science; it has to provide for the changing needs of a developing community and consequently is inseparably bound up with the community it has to serve. For a thorough understanding of the law it is essential to have a knowledge not only of the community in which it functions, but also of its history and of the factors which led to its origin and development. This is why every study of the law includes a study of the history of the law. Another reason is that a knowledge of legal history helps to evaluate probable trends of future development. South African law, unlike, for example, most European continental legal systems, is not codified (that is, recorded in one comprehensive piece of legislation). The law applying in the Republic is drawn from various authoritative sources. The principal sources are statutes and decided cases, but sometimes a judge or other jurist has to go further back in history to solve a legal problem, and turns to Roman law or the works of the writers on Roman-Dutch law to shed light on the problems. Roman law and RomanDutch law are also recognised sources of the law. South African law today is the product of different sources. First, it has its origins in Roman law. Secondly, during the fifteenth and sixteenth centuries, Roman law became fused with Dutch customary law — hence the term Roman-Dutch law — and it was this law that Van Riebeeck brought to South Africa. Thirdly, as can naturally be expected in view of the country’s history, English law exerted a considerable influence on RomanDutch law. Each one of these historical sources will be dealt with very briefly.