KRG110
COMMERCIAL
LAW
WHAT IS COMMERCIAL
LAW ? Para 1.15
• Commerce & Law ??
• Necessary to understand the
function of the law :
- to regulate society in a peaceful
manner
• What differentiates the law
from Morality and Religion ?
SOUTH AFRICAN LEGAL SYSTEM
AND ITS HISTORY PARA 1.01-1.03,
• Hybrid System.
• Based on Roman –Dutch Law = Common Law. 1652
• Modern South African law = various influences:
- Roman Law
- English Law - 1806
- Customary Law / indigenous law
- The Constitution; Legislation, and court decisions
ROMAN LAW
PERIOD OF THE KINGS 753BC to
510BC
REPUBLICAN PERIOD 510BC to 27BC
PERIOD OF EMPERORS 27BC to
284AD
THE DOMINATE 284 to Later
THE
REPUBLICAN
PERIOD
• Law is systemised
- Twelve tables
THE REPUBLICAN PERIOD
• Whoever is in need of evidence, he shall go on every third day to call out loud before the
doorway of the witness.
• "A dreadfully deformed child shall be killed.
• "Our ancestors saw fit that "females, by reason of levity of disposition, shall remain in
guardianship, even when they have attained their majority."
• Marriage by `usage' (usus): If a man and woman live together continuously for a year, they
are considered to be married; the woman legally is treated as the man's daughter.
• "If a person has maimed another's limb, let there be retaliation in kind, unless he agrees to
make compensation with him." (Lex talionis)
• "The penalty shall be capital punishment for a judge or arbiter legally appointed who has
been found guilty of receiving a bribe for giving a decision."
• "Marriage shall not take place between a patrician and a plebeian.”
Period of the emperors
and Dominate Period
The Justinian Period 527 AD and 565
AD
Corpus Iuris Civilis :
Emperor Justinian
A.The Digesta;
B.The Institutiones;
C.The codex; and
D.The novellae
Decline of Roman Law (paras 1.07 &1.09)
• Degeneration of Roman empire
• No development in the Middle Ages
• Canon law
• Rediscovered in 11th century
• University of Bologna
• Reintroduced to Europe
ROMAN –DUTCH LAW
• SA’s common law
• Dutch law – Europe Netherlands
• Society in need of a sophisticated legal system
- based on flexible principles
- rather than fixed rules
• “Old Sources”
ENGLISH LAW
• Commercial Law is strongly influenced by English law
- insolvency law
-negotiable instruments
- company law
- Roman –Dutch law is the main influence of our contract law
• Why is South African Law influenced by English Law ?
SA SYSTEM –HYBRID/MIXED (para 1.14)
• Roman –Dutch law
influenced/changed by local customs,
legislation , decisions of the courts and English Law. NB customary law
of the indigenous peoples of South Africa -expressly endorsed by the
Constitution of 1996.
THE END –Continue to Part B