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Summary

Comprehensive Summary (units 1-9) - KRG 110

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This document serves as a comprehensive summary of units 1- 9 from Nagel's Commercial Law -7th Edition. It is a combination of core lecture notes and textbook summaries, packed with practical examples to help make those complex legal terms more understandable.

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Chapter 1: Development of the South African Legal System

• South African legal system is a mixed or hybrid system

= South • Roman-Dutch law was influenced and amended by local customs
African and legislation. (influenced by Roman Law)
Law
• Influenced by English Law, legislation & decisions of the court

• Customary law of the indigenous peoples of South Africa

(Indigenous law) -> expressly endorsed by the Constitution in

1996. Law originates in a geographic Highest court
area and it is brought forward in the land
by generations



Roman Law

• Roman Law -> doctrines, concepts & rules- as received into

Roman Dutch Law are still applicable today in various areas of

commercial law

• Examples include: Audi alteram partem principle -> right to be

heard and to a fair trial ( for a hearing to be fair – the other side

must also be heard)

o Division of letting and hiring contracts

• History of Roman Law linked with the constitutional history of

Rome and the history of the Roman Empire, but most important

was the systemization and codification of Roman Law

• After Western Rome was conquered Emperor Justinian held

Roman Law in high esteem and instructed a commission to

codify the legal system.




1

,A code is the primary source of law of a particular legal system in

which current law is systematically and comprehensively put into

writing.




This code was called Corpus luris Civilis (Codification of Roman Law)

It was split into 4 parts:

1. Opinions of Roman jurists

2. Textbook for students

3. Collection of legislation

4. Later, rediscovered in the 11th century, Roman

Law studied by various law schools, notes and

commentaries were written (updated

legislation)- explained law

Roman Law was preserved during the Middle Ages, it did not develop

and enjoyed limited application

Roman Law was spread throughout Europe and formed the basis of

most European legal systems

Note: 2 types of contracts – employment contract and service

contract known as letting & hiring contract

Roman-Dutch Law

• By the end of the Middle Ages, because of a rapidly developing

commercial world – society in need of a sophisticated/

developed legal system as tribal & provincial systems could not

solve all legal problems satisfactory




2

, • Also the position in Holland, a province in Netherlands

They realized that their legal system did not cater for the

demands of a rapidly developing commercial world

• Started applying the flexible principles of Roman Law together
with the indigenous law of a particular geographical area.


• This led to the adoption of Roman Law in Holland –referred to as
Roman-Dutch law


• Jurists produced writings on Roman-Dutch Law & their opinions
on the law at the time are still accepted today as authoritative by
SA courts.


• They are known as the “old writer” & their works as “old
authorities”
Note: when they say received it means they adopted the law


South African common Law
• R-D law was introduced to SA by the 1st European settlers in
1652 Roman-dutch law
• Formed the foundation of our common law forms the bases
• English occupation in 1806 introduced aspects of English law as
part of our common law.
• SA mercantile law was strongly influenced by English law:
o insolvency law ; negotiable instruments & company law.
• Many common law principles as developed from R-D law apply
to contracts:
• Sale; lease; pledge; mortgage & suretyship. -> Roman Dutch Law
underlying principles are still applicable
o Much of our legislation is based off English Law




3

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