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KTH - Chap 3-9.pdf - Historical Overview - The South...

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Historical Overview-The South African law of contract developed from Roman and Roman-Dutchlegal principles.-In terms of Roman law, a legal obligation created a legal tie between legalsubjects, resulting in rights and corresponding duties recognised by law.-These rights and duties were only effective between the specific legalsubjects involved in the legal obligation (called privity of contract) and were,therefore known as personal rights.-In contrast, certain other rights existed in Roman law which, as the generalrule, could be enforced against all other legal subjects and which were knownas real rights (ownership). In addition to personal rights and real rights, twoother subjective rights are acknowledged, namely, intellectual property rights(copyright) and personality rights (the right to bodily integrity, and the right notto be defamed.Obligations-A legal obligation consists of two elements: the right of the creditor to claimperformance (the right to insist that something be done or not be done), andthe corresponding duty of the debtor to perform accordingly.Sources developed from which legal obligations could arise:Contract = a binding agreement between personsDelict = a culpable wrongful act by a wrongdoer that causes another personsome form of injury, loss, harm or damageUnjustified enrichment = where one person is enriched at the expense ofanother without an existing just causeUnauthorized agency or administration = where a person is obliged to act in amanner prescribed (for eg, by legislation)Family relationships = for eg, where a parent has to support his children, orspouses have to support one anotherThe contract is the most important of these sources, as contracting parties intend tobe bound to each other and to create a consensual legal tie between them.
The concept legal obligation-A legal obligation is a legal link or connection between legal subjects,recognized by law, which is created because of certain legal facts (sources ofobligations, such as a contract or a delict), that creates rights (personal rightsor claims) and duties which are recognized by law.-Where these rights and duties are recognized and enforced by law, the legalobligation is known as a civil obligation (the law would, for eg, allow an orderof court for specific performance or for the payment of damages if the duty isnot fulfilled towards the holder of the right. A contract of sale for eg creates acivil obligation). Where rights and duties are recognized but not enforced bylaw, the obligation is known as a natural obligation (for eg, the law allows set-off between the parties but an order forcing either party to perform his dutieswill not be granted).Sources of legal obligations-A legal fact must exist before a legal obligation can be created. Legal factsare those which create, alter or destroy rights.

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Term
Fall
Professor
S van wyk
Tags
South African Law of Contract

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