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definitions Flashcards

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1
Q

What is ‘Roman law’?

A

The legal system of ancient Rome that influenced many modern legal systems.

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2
Q

Define ‘Corpus Iuris Civilis’.

A

A collection of fundamental works in jurisprudence issued by order of Justinian I.

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3
Q

What is ‘Roman-Dutch law’?

A

A legal system that combines Roman law principles with Dutch law, influencing South African law.

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4
Q

List the four periods of the Roman Empire relevant to legal development.

A
  • The Kingdom
  • The Republic
  • The Principate
  • The Dominate
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5
Q

What influence did the Germanic tribes have on the law?

A

They contributed to the evolution of legal principles and practices in Roman law.

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6
Q

What role did Justinian play in legal development?

A

He was instrumental in codifying Roman law, leading to the creation of the Corpus Iuris Civilis.

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7
Q

What are the components of the Corpus Iuris Civilis? Explain each one.

A
  • Codex
  • Digesta
  • Institutes
  • Novellae
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8
Q

How did Roman law influence Dutch law?

A

Roman law provided foundational legal principles that were adapted into Dutch law.

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9
Q

What historical events impacted South African law?

A

Colonialism, apartheid, and the transition to democracy.

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10
Q

How did Roman-Dutch law impact South African law?

A

It served as a foundational legal framework that shaped the development of South African law.

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11
Q

What is the impact of English law on South African law?

A

English law introduced common law principles and procedures that influenced South African legal practices.

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12
Q

What does the change from a parliamentary system to a constitutional dispensation entail?

A

It involves a shift towards a system governed by a constitution that upholds democratic principles.

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13
Q

What is the significance of Chapter 2 of the Constitution in South African law?

A

It outlines the Bill of Rights, ensuring the protection of fundamental human rights.

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14
Q

Define ‘Transformative Constitutionalism’.

A

A concept aimed at addressing past injustices and transforming society through constitutional law.

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15
Q

What does ‘customary law’ refer to?

A

The legal norms and practices that arise from the customs and traditions of a community.

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16
Q

Distinguish between ‘law’ and ‘rights’.

A

‘Law’ refers to the system of rules, while ‘rights’ are entitlements granted by law.

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17
Q

How is law defined in the ‘objective’ sense?

A

Law is seen as a system of rules that governs behavior and is enforced by institutions.

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18
Q

List the categories of subjective rights.

A
  • Personal rights
  • Proprietary rights
  • Intellectual property rights
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19
Q

What are the sources of South African law?

A
  • Legislation
  • Common law
  • Customary law
  • Judicial precedents
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20
Q

What does ‘jurisdiction’ mean?

A

The authority of a court to hear and decide cases.

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21
Q

What are the roles of the various courts in South Africa?

A

They vary in terms of jurisdiction, handling civil, criminal, and constitutional matters.

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22
Q

What is the difference between ‘civil’ and ‘criminal’ matters?

A

Civil matters involve disputes between individuals, while criminal matters involve offenses against the state.

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23
Q

What is the difference between ‘application’ and ‘action’ proceedings?

A

‘Application’ proceedings involve requests for court orders, while ‘action’ proceedings involve formal lawsuits.

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24
Q

Define ‘doctrine of precedent’.

A

A legal principle that requires courts to follow established case law in similar cases.

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25
What is the meaning of 'an appeal'?
A request for a higher court to review and change the decision of a lower court.
26
Differentiate between 'ratio decidendi' and 'obiter dictum'.
'Ratio decidendi' is the legal principle upon which a decision is based, while 'obiter dictum' is a remark made in passing.
27
What are disruptive events affecting the legal system?
* 4th Industrial Revolution * Technology * Artificial Intelligence
28
Explain the foundation of a legal obligation in Roman law.
It was based on the concept of juristic facts that give rise to duties.
29
What is the relationship between 'legal obligation' and 'juristic/legal fact'?
A legal obligation arises from a juristic fact.
30
What are the elements required for a legal obligation?
* Capacity * Consent * Legality * Possibility
31
What is the difference between a 'civil' obligation and a 'natural' obligation?
'Civil' obligations are enforceable by law, while 'natural' obligations are not enforceable.
32
What are the general sources of a legal obligation?
* Contracts * Delicts * Statutes * Custom
33
What is required for a delict to create a legal fact?
A wrongful act causing harm that meets specific legal criteria.
34
How do delict and contract interact?
They may arise from the same set of facts but are governed by different legal principles.
35
Define 'contract'.
A legally binding agreement between parties.
36
What are 'contractual rights'?
Entitlements that arise from a contract.
37
What are 'contractual duties'?
Obligations that arise from a contract.
38
Who is a 'debtor'?
A party obligated to fulfill a duty under a contract.
39
Who is a 'creditor'?
A party entitled to receive a benefit under a contract.
40
What is 'cession'?
The transfer of rights from one party to another.
41
What is 'delegation'?
The transfer of duties from one party to another.
42
What is 'assignment'?
The transfer of rights to another party.
43
How are rights transferred by means of cession?
Through a formal agreement between the parties involved.
44
What are the roles of the parties involved in cession?
* Cedent (transferor) * Cessionary (transferee)
45
What rules apply to cession?
* Must be in writing if required by law * Consent of both parties is needed
46
How are rights transferred by means of delegation?
Through an agreement where one party assumes the duties of another.
47
What are the roles of the parties involved in delegation?
* Delegator (original obligor) * Delegatee (new obligor)
48
What rules apply to delegation?
* Consent of the creditor is usually required * Delegator remains liable unless released
49
How are rights transferred by means of assignment?
Through an agreement where the assignor transfers rights to the assignee.
50
What are the roles of the parties involved in assignment?
* Assignor (original right holder) * Assignee (new right holder)
51
What rules apply to assignment?
* Must be in writing if required * Notice to the debtor may be necessary
52
What is the practical application of these legal principles?
Applying them to unfamiliar scenarios to resolve legal issues.
53
What is the definition of a contract?
An agreement that creates enforceable obligations between parties ## Footnote Requires consensus, lawful purpose, capacity, and certainty.
54
What are the general requirements for a valid contract?
* Consensus * Capacity * Legality * Certainty
55
What are the categories of consensus?
* Actual consensus * Assumed consensus * Consensus through operation of law
56
What is a declaration of intent?
A statement indicating a party's intention to enter into a contract ## Footnote Must meet requirements for consensus.
57
What constitutes a legally valid offer?
* Clear terms * Intent to create legal relations * Communication to the offeree
58
How can an offer be terminated?
* Revocation * Rejection * Expiration * Operation of law
59
What defines legally valid acceptance?
* Unconditional agreement to all terms * Communication to the offeror
60
What are 'public offers'?
Offers made to the general public, inviting acceptance by anyone ## Footnote Examples include advertisements.
61
What distinguishes an 'option' from a 'preferential right'?
* Option: right to accept an offer within a time frame * Preferential right: right to accept before others
62
What impact does the Consumer Protection Act have on offers?
Imposes fairness and transparency in terms ## Footnote Protects consumers from unfair practices.
63
What is co-liability?
Liability shared among multiple parties in a contract ## Footnote Each party is responsible for the entire obligation.
64
What is joint and several liability?
Each party can be held liable for the full amount of the obligation ## Footnote Allows a creditor to pursue any one of the debtors.
65
What are the essentialia of a contract?
Core elements necessary for the validity of a contract ## Footnote Typically includes parties, subject matter, and price.
66
How can consensus be obtained expressly?
Through clear, direct communication of agreement
67
What are suspensive conditions in a contract?
Conditions that must be fulfilled before the contract becomes effective
68
What does 'assumed consensus' mean?
Consensus inferred from the actions or circumstances of the parties
69
What is the common law and naturalia of a contract?
Basic legal principles that govern contracts and their inherent characteristics
70
What defines duress?
Coercion that affects the validity of a contract ## Footnote Must meet specific legal criteria to be applicable.
71
What is undue influence in contract law?
Improper use of power or trust to influence another party's decision
72
What is contractual capacity?
The ability of a party to enter into a legally binding contract ## Footnote Must be of legal age and sound mind.
73
What is the difference between natural and juristic persons?
* Natural persons: individual human beings * Juristic persons: organizations or entities recognized by law
74
What are the legal consequences of a contract with a minor?
Minors may not be bound by all contracts, depending on circumstances
75
What is the effect of the Consumer Protection Act on contracts involving minors?
Provides additional protections and rights for minors in contractual agreements
76
What is the onus of proof regarding mental incapacity?
The burden to prove a party's mental incapacity lies with the party claiming it
77
What are the requirements for misrepresentation to affect a contract?
* False statement * Inducement to enter the contract * Reliance by the other party
78
What distinguishes error from misrepresentation?
Error involves a mistake by one party, while misrepresentation involves false statements
79
What is the significance of the time and place of conclusion of a contract?
Determines when and where legal obligations arise
80
What theories apply to the time and place of conclusion of a contract?
* Declaration theory * Expedition theory * Receipt theory * Ascertainment theory

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