Guide to Business Law 5e by Kopel

Guide to Business Law by Kopel (5th edition) is the fifth edition of the Guide to Business Law textbook authored by Shawn Kopel, and published in South Africa by Oxford University Press Southern Africa (Pty) Ltd, Cape Town in 2012.

• Abrogation through disuse. A law becomes so out of date that it becomes irrelevant.
• Absolute defences. Can be raised against all holders of a cheque, including a holder in due course.
• Acceptance. The express or implied signification by the offeree of his or her intention to be bound contractually in terms of the offer made.
• Access to justice. Being able to claim rights and enforce obligations in our justice system.
• Accommodation party. A person who signs a negotiable instrument as drawer or maker, acceptor or indorser without receiving value for it, for the purpose of lending his or her name to some other person.
• Accountability. Having to report and be answerable for your policies, decisions and actions.
• Accused. Person formally charged by the police with a criminal offence.
• Actio injuriarum. A remedy in the law of delict for a wrong done to an interest of personality. This action relates to an injury to a person's dignity, reputation or bodily integrity.
• Actio quanti minoris. A remedy under the law of sale in which the buyer sues for a reduction in the purchase price, to the true value of the damaged thing being sold in the condition at delivery, that is, the difference between the price paid and the value.
• Actio redhibitoria. A remedy under the law of sale in which the buyer may sue to return the parties to their respective positions prior to the contract.
• Active concealment. The failure to correct a false impression or half-truth.
• Administration order. A debtor who is unable to pay his debts can apply for an administration order in a magistrate's court provided his debts do not exceed R50 000.
• Advocate. A specialist legal practitioner who is instructed to take on cases by attorneys when a specialist skill is needed in a court case or research into the law.
• Aesthetic design. A design applied to an article for the sake of pattern or shape, and which has features that appeal to the eye, irrespective of aesthetic quality.
• Affidavit. Sworn statement made under oath.
• Affirmative action. Measures to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer.
• Affirmative warranty. In an insurance contract, a statement of fact or current knowledge.
• Agency. A contract by which the agent is authorised, and usually required, by the principal to contract or negotiate a contract on the latter's behalf with a third person.
• Ambush marketing. When major public events, like rock concerts or sporting events, are targeted by sellers of products and services in order to promote their goods and services.
• Anonymous partnership. A partnership in which one or more partners, by agreement, do not take an active role in the partnership business, are not disclosed to the public as being partners, and who are liable only towards their co-partners and not to creditors of the partnership.
• Antenuptial contract. A contract between a couple before they get married or enter into a civil partnership.
• Anticipatory breach. A party to a contract makes it known that he or she will not perform on the due date.
• Appeal. A process by which a higher court may reconsider a previous judgment in the same case.
• Appellant. Person noting an appeal to a higher court to consider whether an original judgment is correct based on the facts or law of the case.
• Applicant. Person making an application.
• Aquilian action. A remedy in the law of delict for a wrong done to an interest of substance.
• Arbitration. When an independent person decides on the best and most effective way to resolve a dispute.
• Assignment. Substitutes a third party for one of the parties to a contract in the capacity of both debtor and creditor.
• Attorney. Legal practitioner consulted by members of the public.
• Attorney-and-client-costs. The legal costs between an attorney and a client for all the work done on a case, e.g. the cost of a legal consultation.
• Audit. A systematic examination of the financial and accounting records to verify the accuracy and truthfulness of the financial statements.
• Aval. A surety.
• Average clause. In a contract of insurance, this clause provides that the insured will bear a proportionate share of the loss to the extent that he or she is underinsured.
• Balance of probabilities. Legal test to decide whether you have proved a civil case.
• Bait marketing. The advertisement of goods or services that deceives consumers as to their availability.
• Bank cheque. A cheque drawn by a bank on itself payable to another person.
• Bar association. Association of advocates at each seat of the divisions of the High Court.
• Barter. A contract where goods are exchanged for other goods.
• Bearer. Any person in possession of a bill, cheque, or promissory note payable to bearer.
• Beneficiary. The person for whose benefit a trust was created.
• Benefit of cession of action. A defence available to a surety who has already paid according to his or her suretyship obligation.
• Benefit of division. A defence where there are two or more sureties for a single debt of the principal debtor.
• Benefit of excussion. A defence when a surety is sued, in which the creditor is made to first proceed against the principal debtor before claiming from the surety.
• Bill of costs. The legal practitioner's account for payment by the unsuccessful litigant to a successful litigant.
• Bill of exchange. An unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable time, a sum in money to a specified person, or to that person's order, or to bearer.
• Black Economic Empowerment. Building the capacity of and creating opportunities for people who have been historically disadvantaged through apartheid policies and laws.
• Black people. Africans, coloureds and Indians.
• Blank indorsement. The indorser merely places his signature on the back of an order instrument and does not indicate any indorsee to whom payment must be made.
• Bona fides. In good faith.
• Breach. Breaking or not following a law, code or agreement.
• Bywoner. A tenant under a contract of lease where the rent consists of a certain quantity of agricultural produce.
• Cambial obligation. A warranty by the drawer and each indorser that the cheque will be paid by the drawee, and that if not, the drawer or indorser will pay it.
• Candidate attorney. Person with law degree serving articles of clerkship under a supervisory attorney.
• Capacity. Competence in the eyes of the law to have rights and duties, perform juristic acts, incur civil or criminal liability for wrongdoing, and to be a party to litigation.
• Capital. Assets and money used to start a business or invested to make money.
• Casus fortuitus. Unavoidable situations, such as government actions or changes in the law.
• Caveat subscriptor. Let the signer beware. This means that a person who signs a written contract is deemed to have taken notice of its contents and is bound by its terms, whether he or she has read them or not.
• Cede. Legally give or transfer your rights.
• Cession. The process by which one party called a cedent transfers personal rights to another party called a cessionary.
• Cession in securitatem debiti. A form of pledge to secure a debt by effecting a cession of moveable incorporeal rights.
• Cheque. An unconditional order in writing, addressed by a person to a banker, signed by the former, requiring the banker to pay on demand a sum certain in money to a specified person, or to that person's order, or to bearer.
• Child. A natural person under the age of 18 years.
• Circuit division of the High Court. Temporary mobile courts.
• Citation of a court case. The way the name of the court case is written, printed or the case is referred to.
• Civil procedure. Deals with the steps to be taken to enforce rights between legal subjects.
• Claimant. Person making a claim.
• Class action. When a group of affected people bring a case jointly or on behalf of a wider group of people that may benefit from the outcome.
• Clerk of the magistrates' court. In charge of the administration of a magistrates' court. He or she issues legal documents such as summonses, warrants and subpoenas.
• Close corporation. A juristic person endowed by the Close Corporations Act with legal personality and has powers similar to those of a company.
• Closed shop agreement. Collective agreement requiring all employees to be members of the trade union.
• Collection costs. Legal fees to enforce a consumer's obligations under a credit agreement
• Collusive tendering. Competitors undermine the tender process by agreeing that one of them should not submit a tender, or submit a very high-priced tender so as to ensure that the other competitor wins.
• Commanditarian partnership. A partnership in which, by agreement, the partnership business is carried on in the name of one or more ordinary partners, while the identities of the commanditarian partners are not disclosed to the public but only to their co-partners.
• Common law. This is all law except for legislation, and consists of all the laws considered by South African courts as being persuasive or binding. It includes judicial precedent, judicial interpretation of statute, commentaries, customs, customary law and foreign law.
• Common-law offences. Laws that are not made by Parliament, but have been part of our legal system for centuries, e.g. murder, rape, theft, assault, or a new law created through judicial decision by the courts.
• Complainant. Person making a complaint.
• Compromise. The parties, by agreement, may settle an obligation.
• Compulsory sequestration. A creditor who has an unsatisfied and liquidated claim may apply to court for the sequestration of the debtor's estate.
• Concursus creditorum. A collective of creditors comes into existence on a debtor's estate is sequestrated.
• Conditional contract. An agreement where performance is dependent on the occurrence or non-occurrence of a future uncertain event.
• Condonation. Asking to be legally excused for having to make a late application. Good reasons must be given for the late application.
• Confidential. Information that is personal or private, and should not be publicly disclosed.
• Conflict of interest. When there are competing interests or needs.
• Consent. To agree.
• Consequentialism. An approach to morals which evaluates behaviour according to the end results.
• Constitutional law. This branch of law deals with the composition, authority, and functions of governmental bodies, such as the structure and functions of the State, provinces, State President, executive, legislature, and judiciary.
• Constructive delivery. A fictitious process that the law accepts as equivalent to actual delivery.
• Consumer. A person to whom goods and services are marketed for business reasons, or a person who enters into a transaction with a supplier.
• Consumer credit information. Information usually held by a credit bureau.
• Contingency fee. When legal practitioners are paid if they win a case.
• Contra bonos mores. Against public policy.
• Contract. A lawful agreement made by two or more persons within the limits of their contractual capacity, with the serious intention of creating a legal obligation, communicating that intention without vagueness to each other, and being of the same mind as to the subject matter, to perform positive or negative acts which are possible of performance.
• Contributory negligence. The defendant admits some negligence, but also alleges that the plaintiff was negligent and that the negligence of the plaintiff contributed to the harm suffered.
• Cooling-off period. Contracts may be terminated for any reason by one of the parties within a certain number of days of the agreement.
• Co-operative. A voluntary association of persons who jointly own and control an enterprise run on democratic principles to meet specified collective economic goals.
• Copyright. The legal right granted to an author, composer, playwright, publisher, or distributor to exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work.
• Corporate governance. Structures and processes with checks and balances to enable directors to discharge their legal responsibilities and to oversee compliance with legislation.
• Corporation. An association of parties, created and recognised by law as a separate legal entity, in terms of which the shareholders (in the case of a company) or the members (in the case of a close corporation) generally contribute capital or skills to attain profits.
• Crimen injuria. The common-law crime of wrongful, intentional and serious infringement of another person's dignity or privacy.
• Criminal law. This branch of law defines what constitutes a crime and prescribes the penalties for criminal conduct.
• Criminal procedure. Sets out the rules of how a criminal court operates, the powers of magistrates and judges in criminal matters, and how persons can be brought before a criminal court.
• Criteria. Factors used decide something.
• Crossing on a cheque. An instruction to the drawee bank to pay the cheque only to another bank.
• Curator ad litem. Person appointed by the court to represent a person who lacks legal capacity, e.g. a minor child.
• Curator bonis. Person appointed by the court to assist a person incapable of managing his or her own affairs.
• Custom. A community does things in a particular way.
• Damages. Legal compensation for injury or harm caused by someone's unlawful actions.
• De bonis propriis. An order as to costs that must be paid by the legal representative personally.
• Debt counsellor. A natural person registered with the National Credit Regulator offering a service of debt counselling to an over-indebted consumer.
• Deemed. Regarded or treated as by a law, policy or procedure, e.g. the beneficiary of a trust is deemed to own the assets of the trust.
• Defamation. The unlawful, intentional publication of words or conduct referring to the plaintiff, which tends to lower the esteem of the plaintiff in the minds of right-thinking persons.
• Default judgment. Judgment taken against someone in court when they do not arrive or have not responded to a claim.
• Defendant. A person who has to answer a claim in a civil case.
• Delegation. Substituting a third party for one of the parties to a contract in the capacity of debtor.
• Delagatus non potest delegare. A person to whom something has been delegated may not delegate to someone else or employ a sub-agent without permission.
• Delict. The wrongful act or omission of a person which causes loss to another.
• Deontologicalism. An approach to ethics that requires a person to do the right thing regardless of the consequences.
• Designated groups. Black people, women, and people with disabilities who are citizens of South Africa by birth, descent or by naturalisation.
• Designed concealment. A person purposefully conceals information he or she has a duty to disclose.
• Disbursements. Expenses of a legal practitioner in a case, e.g. telephone calls, photocopies.
• Discretion. When you have the power to do or not to do something. The exercise of a discretion must be reasonable and lawful.
• Dishonour. The person or institution who should have paid on the negotiable instrument refuses to do so.
• District magistrates' court. Deal with less serious criminal cases and civil claims of up to R100 000. A district magistrates' court can impose a maximum criminal sentence of up to three years' imprisonment or a fine of up to R60 000.
• Doctrine of constructive notice. A person contracting or dealing with a company is deemed to be aware of the contents of the company's Memorandum of Incorporation.
• Doctrine of precedent. The authority given to past decisions of courts.
• Doctrine of the undisclosed principal. An agent must disclose to the third party that he or she acts on behalf of a principal. If not, the third party may be entitled to hold either the principal or the agent liable.
• Doctrine of valuable consideration. A contract is not valid unless the other party gives, promises, or does something in return.
• Domicilium citandi et executandi. Official address for receiving all legal documents.
• Dominant impression test. Used to determine whether someone is an employee or an independent contractor.
• Dominant position in a market. If a firm has at least 45 per cent of that market; or over 35 per cent of that market and is unable to prove that it does not have market power (the ability to control prices, exclude competition, or behave to an appreciable extent independently of its competitors, customers, or suppliers); or it has less than 35 per cent of that market and has market power.
• Drawee. The person to whom the order/instruction to pay is addressed.
• Drawer. The person who gives the written order/instruction in a bill of exchange or in a cheque that a sum of money must be paid.
• Due process. An independent, unbiased judiciary must apply the law.
• Duress. A situation in which a person suing was induced by violence, threat, or fear to do something.
• Duty of disclosure. The insured must answer questions put to him or her in the proposal form both truthfully and accurately, and is obliged to volunteer knowledge material to the risk.
• Emancipation. A guardian may grant a minor permission to control his or her own trade, business, or professional affairs. Permission may be granted to a lesser or greater extent.
• Enforce. Legally implementing or making effective.
• Entitled to. Have a right to, e.g. when you are entitled to legal aid under the Constitution.
• Equality court. The name given to a magistrates' court when it hears a case under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
• Essential terms of contract. The characteristic key terms that must be agreed on for the particular type of agreement to be held effective and binding. These terms may sometimes be called essentialia.
• Estoppel. A person is prevented from denying the truth of a representation previously made by him or her (intentionally or negligently) to another person if that person, believing it to be true, acted on this representation to their prejudice.
• Ethics. The application of moral or ethical norms to business.
• Ex post facto. Authority is given after the fact.
• Exceptio non adimpleti contractus. A defence when being sued for breach of a contract. Where one party has not fully performed their obligations under a contract, and sues the other for their performance, the plaintiff will be met with the defence that he or she must perform first before requiring the other party to perform.
• Exception. Something that does not follow a general rule, policy or procedure.
• Excess clause. In a contract of indemnity insurance, this clause holds the insured liable on the first portion of any claim. This is the uninsured portion of any claim.
• Executive. The president, deputy president and ministers.
• Exempt. When you are excused from doing something, e.g. legal aid documents are exempt from stamp duty.
• Expedition theory. When the offeree posts the letter of acceptance.
• Ex turpi causa non oritur actio. An illegal contract can never be enforced, irrespective of whether the plaintiff knew of the illegality.
• Express. Specifically stated or set out, e.g. in a law or policy.
• Expropriation. The State, or a provincial or local authority, forces the sale of land required for public projects or mineral exploration.
• Extraordinary partnership. The liability of certain partners is expressly limited.
• Fact that is material to the risk. In an insurance contract, every circumstance that a reasonable person might suppose could in any way influence the insurer in considering whether it will enter into the contract at all, and on deciding the terms of the contract, such as the amount of the premium.
• False material statement of praise or dictum et promissum. A false statement made by the seller during negotiations before the contract is entered into.
• Forfeiture clause. In a contract of insurance, this clause provides that the insurer can avoid all liability in the event of any fraudulent misrepresentation by the insured.
• Formality. A process or formal step that must be complied with or observed for the validity of certain contracts.
• Franchise. An agreement in which a franchisor grants a franchisee the right to carry on business within a specific part of South Africa. In exchange for payment, the franchisee is allowed to use a system or marketing plan that is controlled by the franchisor.
• Fraudulent misrepresentation. The representation of a false fact, made fraudulently, that was believed by the representee and was one of the factors inducing him or her to contract.
• Fronting practice. A transaction, arrangement or conduct that directly or indirectly undermines the objectives of the Broad-Based Black Economic Empowerment Act.
• Fulfilled. Achieved, implemented or satisfied, e.g. when your rights to things like equality and human dignity under our Constitution are fulfilled.
• Functional design. A design applied to an article with features that are necessitated by the function to be performed by the article. It also includes the circuitry of integrated electrical circuits.
• Generally Accepted Accounting Practice (GAAP). A widely accepted set of rules, conventions, standards and procedures for reporting financial information.
• Good faith. Something done honestly, whether negligently or not.
• Good standing. Being allowed to practise professionally by the relevant law societies, e.g. instructing a legal practitioner who is in good standing.
• Government Gazette. A newspaper issued by the State.
• Guardian. A person who may enter into certain contracts on behalf of another person (usually a minor) regarding his or her maintenance and estate.
• Hacking. The unauthorised access to and tampering with data messages, and also computer-related extortion, fraud and forgery.
• Holder. The payee or indorsee of a negotiable instrument who is in possession of it, or who is the bearer of it.
• Houses of Parliament. The National Assembly and the National Council of Provinces.
• Huur gaat voor koop. The sale of the leased property does not prejudice the tenant, since the buyer at the time of the sale had actual, or constructive, notice of the lease. The new owner simply steps into the shoes of the original landlord.
• Implied. Not stated in words, but may be implied by law or from the surrounding circumstances at the time.
• In pari delicto potior est conditio possidentis. Where both contracting parties are equally at fault, the performing party cannot claim back what he or she has paid to, given to, or done for, the other party.
• Incidental terms of contract. These terms may be included specifically into a contract by the parties for their own convenience.
• Incontestability clause. In a contract of insurance, this clause provides that after a certain period, the insurer may not avoid a claim because of any misrepresentation, fraud, or any material fact.
• Incorporation. The process by which a company is formed. The company will come into existence on the date it is registered officially.
• Indemnify. An agreement to compensate another person if he or she suffers financial loss from a specified cause.
• Indemnity insurance. The insurer undertakes to compensate the insured for an actual loss he or she may suffer in future. The event may never occur, and the amount the insurer will pay is uncertain at the time the policy is issued.
• Independent contractor. Undertakes to perform a certain job, but does not operate under the control and supervision of the employer.
• Indorsee. The person who is specified in an order instrument as the person entitled to payment, may in turn, give instructions that another person must receive payment.
• Indorsement. The signature the holder places on the back of an order instrument when he or she wishes to negotiate (transfer) the instrument which is in his or her possession, to another person.
• Indorser. The person entitled to payment of an order instrument, may in turn, give instructions as to whom payment must rather be made.
• Inferior courts. All magistrates' courts and small claims courts; also known as lower courts.
• Information theory. When the letter of acceptance reaches the mind of the offeror. This means that acceptance happens when the letter is read.
• Insider trading. The illegal buying or selling of securities on the basis of information that is unavailable to the public.
• Insolvency. A declaration by the High Court that a person has committed an act of insolvency, and liabilities exceed assets.
• Instituting action. Starting a legal action.
• Insurable interest. Where a person can show that he or she stands to lose something of an appreciable commercial value by the destruction of the thing insured.
• Insurance. A contract between an insurer and an insured, by which the insurer undertakes, in return for the payment of a price, to give the insured a sum of money or its equivalent, on the occurrence of a specified uncertain event in which the insured has some interest.
• Intellectual property law. Regulates the creation and utilisation of immaterial property and the enforcement of resultant rights. The objects of the various rights typically include patents, copyright, merchandise marks, registered designs, and trade marks.
• Interdict. A court order instructing someone to do something or to stop doing something.
• Interim. In the meantime – something that is temporary, e.g. an interim court order.
• Interlocutory application. An application to do something that is a step to the next necessary stage in the legal process, e.g. applying for condonation for a late application for leave to appeal.
• Intermediate credit agreement. A credit facility where the credit limit is above R15 000 or a credit transaction where the principal debt is between R15 000 and R250 000.
• Interpretation of contracts. Courts first look at the language used, then the circumstances in which the contract was made, and finally they apply particular rules of interpretation to help them understand the meaning intended by the parties.
• Ius civile. Roman law that applied only to Roman citizens.
• Ius gentium. Roman law that applied only to non-Roman citizens.
• Joint and several liability. Liability imposed by law or by agreement on two or more debtors, both jointly and severally, with the result that the creditor can claim the full amount of the debt from any of the debtors, and the debtor so paying is then entitled to reclaim their proportionate share of the debt from each of the other debtors.
• Joint liability. Liability shared by two or more debtors, where each is liable only for his or her proportionate share of the debt.
• Joint venture. An association of persons, natural or juristic, who agree to engage in a common undertaking by combining selected property and expertise resources, without forming a partnership or corporation.
• Judicial precedent. The body of law resulting from decisions on points of law made by other courts with regard to the same circumstances.
• Jurisdiction. The authority that a court has to decide a matter before it.
• Juristic person. Non-living association which is given the capacity for rights and duties by the law, e.g. corporation.
• Justa causa. Provided that an agreement is made for a good reason that is seriously intended by the parties to be binding on them, it is enforceable under South African law.
• Justice. The general sense of people of goodwill as to what is fair and right.
• Justinian. Roman emperor who consolidated Roman law into the Code of Civil Law or Corpus Juris Civilis.
• Kustingbrief. A special mortgage over immovable property made in favour of the seller of that property, for a part of the price that the buyer is allowed to retain on loan, or in favour of other persons, for monies lent by them to the buyer in order to enable the buyer to pay the price of the property mortgaged.
• Large credit agreement. A credit transaction where the principal debt under that transaction is at or above R250 000.
• Latent defect. A fault with the thing being sold that is not apparent to an ordinary person, even if it would be apparent to an expert.
• Law. Law is defined as the body of rules governing human conduct, recognised as binding by people and enforced by the State.
• Law of evidence. Sets out how facts must be proved in a criminal or civil court case.
• Law Society. An association for attorneys in each of the provinces. A practising attorney must by law be a member of at least one of these societies, which seek to promote the interests of the profession and maintain ethical conduct.
• Lay-by. An agreement the consumer will pay instalments while the supplier holds the goods until the full price is paid.
• Lease. A contract between two persons, the landlord and the tenant, for the letting and hiring of specified immovable property, in terms of which the landlord grants the temporary use and occupation of the property to the tenant for a period in time in return for a specific sum of money (or a share in the proceeds or fruits of the property) called rent.
• Leave to appeal. Legal permission to appeal against a judgment or sentence in a case.
• Legal capacity. By law able to have rights and duties.
• Legal personality. A personality under the law, e.g. a company, a close corporation, an association, a trust.
• Legal practitioner. An attorney or advocate.
• Legal precedent. A case or court judgment that sets the law that other cases must follow.
• Legal standing. The capacity to litigate.
• Legal subject. Any person, or entity, who can hold rights and duties in terms of the law.
• Legislation. The setting down of binding rules of law in a formalised way, by an authority that has the legal capacity to do so.
• Lex commissoria. This type of forfeiture clause allows a creditor to keep what was received from a debtor if the agreement is cancelled.
• Liable. Legally responsible for something, e.g. owing money.
• Liabilities. What you must pay others, e.g. your debts.
• Lien. The right acquired by a person who is in possession of someone else's property until he or she is refunded for expenditure on the article, or paid for his or her labour in respect of the article.
• Limited liability. The liability of a shareholder of a company is limited either to the amount unpaid on shares held by that shareholder, or to an amount that that shareholder may have undertaken to contribute to the assets of the company in the event of it being wound up.
• Limping contract. Unequal situation where an innocent minor can choose whether to enforce an unassisted contract or cancel it. The other party is denied this choice and must abide by the decision of the minor.
• Liquidation. Process by which the High Court declares a juristic person insolvent.
• Listed company. A company that has fulfilled the listing requirements of a stock exchange and whose shares are quoted on, and can be bought and sold on that stock exchange.
• Litigant. Person who is one of the parties or sides in a court case.
• Litigation. Taking legal action through a judicial process, normally a court.
• Lock-out. A form of industrial action by an employer where employees are physically excluded from the workplace until they agree on the terms and conditions proposed by the employer.
• Major or adult. A natural person who is 18 years of age or older and has full contractual capacity and legal standing.
• Mala fides. In bad faith.
• Market sharing. Two or more competitors divide markets by allocating customers, suppliers, territories or specific types of goods or services.
• Marking on a cheque. A drawer or indorser of a cheque may add words that restrict or exclude the ability of a holder to negotiate it.
• Master of the High Court. Responsible for the control of the administration of the estates of minors, insane persons, insolvent persons, and deceased estates.
• Matter. Case, dispute or issue that can be taken to court.
• Mediation. A process in which a neutral person facilitates communication between people in a dispute to help them reach a mutually acceptable agreement.
• Merger. When the qualities of debtor and creditor coincide in the same person in respect of the same obligation; or the direct or indirect acquisition or establishment of control by one or more firms over the whole or part of the business of another firm.
• Merx. The thing being sold.
• Metatag. A descriptive keyword inserted in the source code of a website to enable internet search engines to identify a particular site.
• Minimum resale price maintenance. When the supplier or producer of an item dictates to its distributor or retailer the price at which is must on-sell the product to third parties.
• Minor. An unmarried child, i.e. a natural person under the age of 18 years who is not married.
• Misappropriation of advertising value. Consumers are mislead into thinking that a product or service is associated with another that is advertised.
• Misrepresentation. False representation of a past or present fact.
• Mistake. A misapprehension of the existence or non-existence of a fact or a statement of facts.
• Mora creditoris. Where the creditor unjustifiably refuses or delays assistance as required and this obstruction prevents the debtor from performing in terms of the contract.
• Mora debitoris. Where there is wrongful late performance or failure to perform the contract within the proper time, the debtor is in default.
• Mora ex persona. Debtor fails to perform his or her obligations under a contract within a reasonable time.
• Mora ex re. Where a time period for performance is specified in the contract and the debtor fails to perform within that time, the debtor is automatically in default.
• Mortgage. The real right of one person called the mortgagee over the property of another person, the mortgagor, as security for the payment of a debt. The property must be in the form of an immovable asset or assets.
• Mortgage bond. The name of the document which is registered to create a mortgage.
• Motion proceedings. Where there is no dispute of fact (that is, the facts are agreed but there is a dispute of law), then an applicant can start motion proceedings and evidence is given by affidavit.
• Natural person. A human being.
• Negative option marketing. A promotion or inducement by the supplier that the consumer will accept goods or services automatically in future, unless the consumer refuses the offer or inducement.
• Negotiable instrument. A document that contains a promise that the person in possession of the document (the holder) will be paid a specified amount of money.
• Negotiorum gestor or manager without authorisation. A person who undertakes the business of another without the authority of the latter and in the latter's absence, with the sole object of benefiting the other person and with the intention of recovering his or her expenses.
• Nemo plus juris rule. One cannot transfer better rights to another person than the rights that you have yourself.
• Non-compliance. Not following or obeying a law, policy, procedure or contract.
• Non-indemnity insurance. The insurer undertakes to pay an agreed specified amount on the occurrence of a certain event. The amount payable is not related to the extent of loss suffered. The amount is determined at the time the policy is issued.
• Non-litigious. Matters or issues that do not go to court, but may be solved in other ways.
• Non-profit company. Owned by members, and incorporated for a public benefit or a purpose related to social or cultural activities, or communal or group interests.
• Notarial bond. A form of mortgage over movable assets.
• Obiter dicta. Remarks made in passing in a court judgment.
• Obligations. Legal duties.
• Offer. A proposal that expresses a person's willingness to become a party to a contract, to comply with the terms expressed, and to be bound contractually if another person accepts.
• Onus. Legal duty or responsibility, e.g. the prosecutor's onus of proving an accused guilty.
• Option. An agreement in terms of which the person granting the option agrees to keep an offer open to someone else for a specific time.
• Oral argument. Verbal argument in court or another forum.
• Ordinary resolution. A resolution passed by at least 50 per cent of the voting rights exercised on the resolution.
• Organisational reputation. The way the character of an organisation is seen.
• Pacta sunt servanda. The recognition of the sovereignty of states and the obligation to respect agreements between sovereign states.
• Paralegal. Person who is not a legal practitioner, but who has legal knowledge, skills and experience.
• Parol evidence rule. A rule of evidence which also may be used by the court to work out the intention of the parties. Where the court is interpreting a written document, no oral evidence will be allowed if it contradicts or changes the written terms. Similarly, where the terms of a written contract are clear and unambiguous, no evidence may be given to vary their plain meaning.
• Partnership. A contract between at least two persons, in which they all agree to contribute money, labour, or skill in a common stock, and to carry on business with the object of making a profit for their joint benefit.
• Party. Person or side involved in a legal case.
• Party-and-party-costs. Costs between the opposing parties or sides in a legal case, e.g. paying for the time spent by the other side's legal practitioner if costs are awarded against you in a case.
• Passing off. The situation where one person disguises their goods as that of another person by using misleading names, marks, or descriptions.
• Patent. An exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem.
• Payee. The person to whom payment must be made.
• Penal jurisdiction. The court's power to sentence in cases involving crimes, e.g. drug-dealing, drunken driving.
• Pending. Waiting for or until something happens, e.g. pending a court date or judgment.
• Perfecta. A stage in a contract of sale when the contract is complete and the risk passes to the buyer.
• Perpetual succession. A corporation continues to exist until it is wound up or dissolved, even if all the original members of the corporation have changed or ceased to exist.
• Personal liability company. Profit company where the directors and past directors are jointly and severally liable with the company for its debts.
• Personal right. A right you hold against a specific person, e.g. someone who owes you a debt.
• Personal security. A person other than the debtor holds himself or herself liable for the debt.
• Placaat of the Estates of Holland of 1658. An edict in terms of which a tenant may remove useful improvements made to the premises or claim compensation for them in respect of leases over rural property.
• Plaintiff. Person making a claim in a civil case.
• Plea. Saying whether you are guilty or not guilty in a criminal case, or what your defence is in a civil claim against you.
• Pledge. A contract by which a debtor places movable property in the hands of a creditor as security for a debt.
• Power of attorney. A formal document in writing, setting out the scope of the agent's authority, and signed by the principal.
• Praetor's Edict. Roman law proclamation which provides that a hotel is liable if the property of its guests is stolen or damaged.
• Pre-incorporation contract. A contract entered into by someone acting on behalf of a company to be incorporated. Once this is done, the company may ratify the contract or not.
• Prejudice. Unfairly or negatively affect.
• Prescription. Legal time-limit before a case falls away.
• Pretium. Purchase price in a contract of sale.
• Price fixing. Competitors agree to directly or indirectly fix prices, discounts, credit terms, or other price and volume-related trading conditions.
• Prima facie. On the face of it, whether you have a strong enough case or evidence in a case.
• Principal. The party on whose behalf an agent acts.
• Private company. Profit company whose Memorandum of Incorporation prohibits the sale of its securities to the public, and restricts the transferability of its securities. This type of company can have any number of shareholders.
• Privilege. Information that is private between a client and legal practitioner.
• Procedural law. Regulates how legal rules are applied and enforced.
• Prodigal. A person who, through a defect of character or will, squanders his or her assets with such abandon that it threatens to reduce that person or his or her dependants to destitution.
• Profit company. Incorporated by one or more persons for the purpose of financial gain for its shareholders. It may be a private company; public company; State-owned company; or a personal liability company.
• Promissory note. An unconditional promise in writing made by one person to another, signed by the maker, and engaging to pay on demand, or at a fixed or determinable future time, a sum certain in money, to a specified person, or to that person's order, or to bearer.
• Promissory warranty. In an insurance contract, an undertaking by the insured pertaining to his or her future conduct during the period of the policy.
• Proposer. Applicant for insurance cover.
• Prospects of success. The chances of success in a case.
• Prospectus. An invitation or advertisement offering securities to the public for subscription.
• Provisional sentence proceedings. Where a plaintiff wants to sue on the basis of a liquid document.
• Proxy. A person who is duly authorised to represent another at a meeting where that other can not attend.
• Public company. Profit company that is not a private company, State-owned company or a personal liability company.
• Pupil advocate. Person with legal degree serving pupillage under a supervising advocate.
• Quantitative jurisdiction. The court's power to decide claims up to a certain amount of money.
• Quantum. The amount of a claim for money.
• Ratification. A contract entered into by someone without the required authority, can be confirmed subsequently by someone with the required authority.
• Ratio decidendi. The legal principle of each case.
• Real right. A right that you hold in a thing.
• Real security. Where a particular asset belonging to the debtor is earmarked for the satisfaction of the creditor's claim.
• Rear-surety or agterborg. A person who acts as a surety for a surety.
• Regional magistrates' court. Deals with serious criminal cases, civil cases involving claims of between R100 000 and R300 000, and divorces. A regional magistrates' court can impose a maximum criminal sentence of up to 15 years' imprisonment or a fine of up to R300 000.
• Registrar of the High Court. In charge of the administration and running of that division. He or she also issues legal documents such as summonses, warrants and subpoenas. Other important duties of the registrar are that of taxing-master for that particular High Court division. Registrars also compile case lists and arrange available courts.
• Rehabilitation. Ends the sequestration and terminates all debts that were due.
• Relative defences. May be raised against any holder of a cheque, except a holder in due course.
• Relativism. An approach to ethics that suggests moral values are relative to a particular environment.
• Remedy. Legal relief or help, e.g. receiving damages as compensation for injuries, getting a decision against you reviewed and changed.
• Representation. A statement made by one party to another, before or at the time of contracting that induces the contract but does not become a term of the contract.
• Repudiation. The refusal by one party, either in words or by conduct expressly or by implication, to carry out his or her obligations under a contract.
• Rescission. A special application to court to have a judgment cancelled.
• Resile. To cancel or pull out of an agreement.
• Resolutive condition. Performance of a contract must be carried out until the condition is fulfilled.
• Respondent. The person answering an application in a civil case, or an appeal in a civil or criminal case.
• Restitutio in integrum. Restitution to the pre-contractual position.
• Restraint of trade. An agreement in which a person agrees to a future limitation on his or her trade or work.
• Restrictive vertical practice. An agreement between a firm and its suppliers, or a firm and its customers, that has the effect of substantially preventing or lessening competition in a market, unless a party can prove that the technological, efficiency, or other pro-competitive gain resulting from it outweighs the effect.
• Review. When a higher court considers a decision made by a lower court or another body to see if it is correct and followed set procedures.
• Right. Your ability to claim or protect something in which you have a legal interest from another person.
• Right of first refusal. A person agrees to make an offer available for acceptance first by a specific person before anyone else.
• Right of possession. Seller in a contract of sale warrants that the possession of the buyer will not be interfered with or disturbed by the seller or any third party as a result of any defect in the seller's title.
• Risk. The potential for any loss resulting from the accidental damage or destruction of the thing being sold.
• Rouwgeld clause. A contract may contain a provision entitling a party to get out of the contract on the payment of a sum of money.
• Rule of law. When government and people are subject to and respect the law.
• Sale. A contract in which a seller promises to deliver a thing to a buyer who agrees to pay a certain price.
• Sanctity of contract. The principle that agreements freely and seriously entered into should be upheld by the courts and if necessary, enforced.
• Security. When you pay into court an amount to cover costs, e.g. costs of the opposing side in a court case.
• Sequestration. Process by which the High Court declares a natural person insolvent.
• Set off. Balance or cancel off one amount against another.
• Settlor. This person creates a trust by making a settlement of property on the trustee on terms that it should be held by the trustee for a beneficiary.
• Severability. The ability to be deleted, leaving the rest of the agreement still in existence and enforceable.
• Share. Represents one unit of ownership in a company.
• Shareholder. A person who holds a share in a company and whose name is recorded in its share register.
• Sheriff. Responsible for the service of High Court and magistrates' court documents such as summonses, notices, warrants and court orders. Sometimes the sheriff will sell property to satisfy a judgment debt, and may arrest judgment debtors.
• Small claims court. Deals with matters where the claim in dispute is R12 000 or less.
• Small credit agreement. All pawn transactions, or a credit facility or credit transaction where the credit limit or principal debt is at or below R15 000.
• Sole proprietor. A person who conducts business under his or her own name by simply doing business, or he or she can operate under a trade name.
• Solvency and liquidity test. To provide protection to creditors, the company's total assets must exceed its total liabilities and it must appear that the company will be able to pay its debts as they became due for the next 12 months.
• Spam. Unsolicited commercial communications.
• Special resolution. A resolution passed by at least 75 per cent of the voting rights exercised on the resolution.
• Specific performance. A court ordered remedy that requires someone to perform their obligations in terms of a contract.
• Spouse. The partner of a married person, including customary and common law, as well as the civil union partner of a person in a civil union under the Civil Union Act 17 of 2006.
• Stakeholders. People who have an interest in a particular issue or process.
• Stare decisis et non quieta movere. To stand by decisions and do not disturb the undisturbed.
• State-owned company. Profit company that is a State-owned entity or owned by a municipality.
• Statute. Law passed by national or provincial parliament, e.g. an Act, Regulations under an Act.
• Statutory. To do with or in laws passed by national or provincial parliaments.
• Statutory body. Bodies with certain legal powers created by statute.
• Statutory offences. Crimes under statute laws, e.g. corruption, squatting.
• Stipulatio alteri. A contract for the benefit of a third person.
• Stokvel. An informal credit-rotating association.
• Strike. A form of collective industrial action with two or more people, involving a partial or complete refusal to work or the retardation or obstruction of work.
• Subrogation. In a contract of indemnity insurance, the right of an insurer who has paid the insurance money to the insured party, to use the insured's name to sue the third party who caused the loss, so as to recover its money.
• Summary dismissal. The immediate termination of employment without notice.
• Superior court. A higher court, e.g. a High Court compared to a magistrates' court.
• Supervening impossibility of performance. Impossibility arising after the contract has been concluded.
• Supplier. A person who for money sells, markets, or rents goods, or who markets or provides business services.
• Supreme Court of Appeal. Decides all appeals against decisions of the High Courts.
• Suretyship. A form of personal security given by a debtor to a creditor in terms of which a third person undertakes to perform the obligations of the debtor if the debtor fails to do so.
• Suspensive condition. Rights and duties are delayed until the specified event happens.
• Tacit hypothec. The landlord has a real right of security over the movables on any leased premises without any formality or notice to the public.
• Term. Describes the rights and duties that the parties to a contract have agreed to.
• Terms of contract arising by operation of law. These are in the form of rights and duties owed by the parties to each other. These may be called naturalia.
• Third party. An outside or independent person – in other words, someone besides the people or bodies involved on either side of a dispute.
• Time-bar clause. In a contract of insurance, this clause provides that once the insurer repudiates liability for a claim, the insured has only a specified period in which to issue summons against the insurer, failing which the insurer is released from liability.
• Trade description. Label on goods that states the country where the goods were manufactured, produced or adapted.
• Trade mark. Any sign capable of being represented graphically for use on goods or services. It may be a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods.
• Traditional court. An authorised African traditional leader or deputy may hear and determine civil claims arising from indigenous law and custom.
• Trial proceedings. Where the issue is one of dispute of fact, a trial action must be commenced.
• Trust. Legal or equitable title to property belonging to a settler is vested in a trustee for the purposes of being applied for the benefit of another, known as the beneficiary. The trustee must deal with the trust property for the benefit of the beneficiary.
• Trustee. The legal owner of the property settled by the settlor.
• Turquand Rule. When a third party enters into a contract with a company there is a legal presumption that all acts of the company's internal management have been properly carried out and the company will be bound to the contract even if it is proved that the necessary acts of internal management were not carried out, or were irregular or defective, or that the representative of the company had no authority to bind the company.
• Uberrima fides. Utmost good faith.
• Ultra vires. Where subordinate legislation goes beyond the authority it is given by the Act of Parliament.
• Undisclosed principal. A principal whose existence is not disclosed to third parties who contract with the principal's agent.
• Undue influence. The weakening of a person's resistance in order to make his or her will pliable.
• Universal partnership. The partners intend that everything they acquire during the partnership, from all kinds of commercial ventures, shall be partnership property.
• Unjustifiable enrichment. Obtaining recovery or compensation for a benefit that was received without a valid cause.
• Unsolicited goods or services. Delivered without a consumer having requested them, either expressly or impliedly.
• Value. A person gives value for an instrument if he or she gives or does something in return for it.
• Vexatious. When a case is made without sufficient grounds with the aim of annoying or embarrassing the other side.
• Vicarious liability. An employer is liable for the acts and omissions of employees acting in the course and scope of their employment or in seeking to advance the interests of the employer.
• Vindication. The right of the true owner to recover possession from anyone in whose possession the property is found.
• Vis major . Act of God or natural disaster.
• Voetstoots. Goods are sold 'as is,' without the seller being liable for latent defects.
• Void contract. Has a fatal flaw and has no legal existence at all.
• Voidable contract. Has a flaw that entitles the aggrieved party to choose whether to treat it as valid or not.
• Voluntary surrender. The estate of a debtor may be sequestrated at his or her own request, that is, he or she applies to court for the acceptance of the surrender of his or her estate.
• Waive. Choosing not to exercise or use provisions or rights, e.g. waiving the need for documentary proof, waiving the right to a claim.
• Warranty. A statement that becomes a term of the contract and is enforceable.
• Winding-up. The process of dissolving a company and having it formally deregistered.
• With reserve. There is a minimum price that can be accepted at an auction sale. Putting up the article for auction is an invitation to do business.
• Without prejudice. Reserving your rights – in other words, without giving up any of your legal rights, e.g. making an offer 'without prejudice' to settle a dispute.
• Without reserve. There is no lowest price that will be accepted at an auction sale; the item will definitely be sold to the highest bidder.