Résultats 5 ressources
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This dissertation explores the concepts of non-disclosure and misrepresentation in South African law. The principal focus surrounds the effect non-disclosure as a form of misrepresentation has on the liability of contracting parties. In order to explore this effectively, the study explores the concept of duty of disclosure, and whether such a duty exists in South African law. Instances when a duty to disclose arises are explained, such as positive steps taken to conceal facts, the seller having sole knowledge of the material fact, an omission or misleading language, and a change in circumstances. Similarly to the English law duty of disclosure in relation to information in contracts uberrimae fidei, the similar South African law concept in insurance or agency contracts known as ‘utmost good faith’, is discussed and explored. The study determines whether such a concept should be a mandatory requirement in pre-contractual negotiations. Additionally, this study explores the various avenues of relief that are available to those who have fallen victim to misrepresentation. This results in an analysis of the effectiveness and success of the current traditional methods of claiming and quantifying damages that are adopted by South African legislature and the judiciary. The discussion then explores the proposed alternate method which aims to combine a claim into one of delict and that of contractual liability, or on the other hand institute a claim solely based on contractual liability. Lastly, this study explores the effect the Consumer Protection Act 68 of 2008 has had on contractual agreements, remedies and penalties, and how this ground-breaking legislation has altered the approach previously adopted by the common law and whether it has done enough to protect consumers.
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Companies are constantly facing risks, including financial constraints, which may contribute to companies being unable to trade in the manner desired. Unfortunately, companies that find themselves in this predicament have, in reality, been without a remedy from as early as statutory provisions regulating company law were promulgated in 1926. Judicial management, as a remedy, is notorious for being an outright failure, but the current Companies Act 71 of 2008 introduced the remedy of business rescue for financially distressed companies. The scrutiny and spotlight on the new remedy turns on whether it can be truly accessible for the companies in question and what significant changes it has made to favour financially distressed companies. This mini dissertation will aim to discuss whether the remedy of business rescue has been a success or failure.
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Upon the recognition that the implementation of the judicial management process would not be the success that it was anticipated it would be, it became apparent that there was need for a system of corporate rescue appropriate to the needs of a modern South African economy. The legislature then introduced a new business rescue regime when the Companies Act 71 of 20082 (the Act) came into effect in the South African law. This new Act remarkably changed corporate law. One of the central features of the Act is the introduction of business rescue- a procedure which provides for the rehabilitation of financially distressed companies in a manner that seeks to balance the rights of all stakeholders. These provisions are said to be the appropriate method for modern South African economy and they differently affect the stakeholders of a company. This thesis will be discussing the different rights given to affected persons in the new Companies Act and examine how the provisions of business rescue affect different stakeholders of the company and compare such effects with those experienced under judicial management, specifically in light of the improvements of the positions of the stakeholders. Although the new business rescue is a remarkable improvement from the old judicial management system, there is still room for improvement.