FSAL LU6 - Theme 1

SUBJECT AREAS OF SOUTH AFRICAN LAW
1. LO1
  1. Positive Law
    1. - Whole body of rules as a South African
    2. - A comprehensive to indicate rules that regulates our daily lives.
    3. - Regulates the relationships between persons through PRIVATE LAW
    4. - Concerns relationships on equal footing. Horizontal Relationship
    5. - It keeps track of:
      1. Persons in respect of other's property
      2. Respect to other's intellectual property.
      3. Abide by their agreements (law of contract).
      4. Respect each other's personality & privacy.
  2. Private Law
    1. - Laws viewed as: Rights and Duties
    2. - Private Law regulates relationships between persons through means of subjective rights
    3. Determines that persons can have subjective rights with respect to certain objects.
      1. - Others have the DUTY to respect those rights.
    4. - Subjective rights apply between persons:
      1. e.g. 'the vehicle is mine, I have a right to it
      2. Rights in the subjective sense.
2. LO2
  1. Legal Subjects
    1. - Private Law concerns the relationship between 'persons'.
    2. 'Persons' doesn't indicate 'human beings', as a juristic person is also a 'person'.
      1. The correct term to indicate a 'person' is "Legal Subject".
    3. Juristic Person = a company
    4. There are two kinds of legal subjects:
      1. Human Beings
      2. Juristic Persons
  2. There are four Legal Capacities
    1. 1. Legal Capacity
      1. - The capacity to have rights and duties.
        - Also known as legal subjectivity.
        - All legal subjects have legal capacity.
        - Animals have no legal capacity, however, if the animal causes damages then the owner is held liable.
    2. 2. The Capacity to Act
      1. 0 - 7 = No Capacity
      2. 7 - 14 = Limited Capacity
      3. 18 + = Full Capacity
    3. 4. Capacity to be held liable (accountability).
    4. 3. Capacity to take part in legal proceedings
3. LO3
  1. 1. Legal Subject and Legal Object
    1. - Certain objects may pertain to certain legal subjects.
    2. - Legal subjects can have an interest in certain objects
    3. - Legal subjects can have a subjective right to the object (legal object).
    4. - A characteristic of a Legal Object is that it has MONETARY VALUE
    5. Four legal objects with subjective rights are distinguished.
  2. 2. Legal Subject and Other Legal Objects
    1. - A subjective right gives rise to relationships between legal subjects (inter se).
    2. OTHER legal subjects have to RESPECT the relationships between a person and their objects.
    3. Subjective rights therefore imply a corresponding DUTY.
      1. REAL RIGHTS - Operates against the whole world.
      2. PERSONAL RIGHTS - only a specific person has the duty to respect the right (according to both contract and delict).
4. LO4
  1. Protection of Subjective Rights
    1. Private law has to protect subjective rights.
    2. It must enable the legal subject to enforce his/her rights in case of violation.
      1. Others may be forced to respect a subjective right.
    3. Private Law provides the legal subject with certain legal remedies which act as instruments through which subjective rights can be enforced.
      1. Ubi ius ibi Remedium = Where there is a right, there is a rememdy.
    4. The most common remedy is an action
    5. If there is a violation, a legal subject may claim that the other party make good on the violation
    6. The party that initiates the action is called the PLAINTIFF.
      1. The party whom the action is initiated against is the DEFENDANT.
        The remedy of the defendant is called a DEFENCE
    7. Other remedies include INTERDICT
      1. This is a court order to prohibit a person from violating a right.

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FSAL LU6 - Theme 1

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