Investment structuring lawyers south africa

The proposal also provides that a non-lawyer shareholder shall not interfere with the exercise of professional judgment by attorneys in representing clients. Most firms are also incorporated. Werksmans has also established alliances with firms in Europe, the United Kingdom and Asia. It is proposed that Washington DC r 5. The case in favour of non-lawyer investment. Location: Cape Town.

Personal Injury Lawyers in South Africa

In the broadest definition, a contract is an agreement two or more parties enter into with the serious intention of creating a legal obligation. Contract law provides a legal framework within which persons can transact business and exchange resources, secure in the knowledge that the law will uphold their agreements and, if necessary, enforce. The law of contract underpins private enterprise in South Africa and regulates it in the interest of fair dealing. A contract in South Africa is classified as an obligationary agreement—it creates enforceable obligations—and ought therefore to be distinguished from liberatory agreements whereby obligations are discharged or extinguished; e. For a contract to be considered valid and binding in South Africa, the following requirements must be met:. The requirements are discussed in greater detail .

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DSC Attorneys is one of South Africa’s leading law firms that specializes in all personal injury and road accident claims. DSC Attorneys was founded in when three well-respected firms merged. Carey Olsen is the largest firm of lawyers in the Channel Islands enabling it to provide significant breadth and depth of expertise across all areas of Jersey and Guernsey law. Carey Olsen has lawyers in offices in Jersey, Guernsey and London. The firm’s clients include Law Firm’s Overview.

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In the broadest definition, a contract is an agreement two or more parties enter into with the serious intention of creating a legal obligation. Contract law provides a legal framework within which persons can transact business and exchange resources, secure in the knowledge that the law will uphold their agreements and, if structurinf, enforce. The law of contract underpins private enterprise in South Africa and regulates it in the interest of fair dealing.

A contract in South Africa is classified as an obligationary agreement—it creates enforceable obligations—and ought therefore to be distinguished from liberatory agreements whereby obligations are discharged or extinguished; e. For a contract to be considered valid and binding in South Africa, the following requirements must be met:. The requirements are discussed in greater detail. The modern concept of contract is generalised so that investment structuring lawyers south africa agreement does not have to conform to a specific type to be enforced, but contracting parties are required to conduct their relationship in good faith bona fides.

Contract law forms part of the law of obligations. The right created by an obligation is personal, a ius in personamas opposed to a real right ius in re. If an obligation is enforceable by action in a court, it is a civil obligation, rather than the less common and unenforceable oawyers obligation. The primary sources of obligations are contract and delict, the latter being wrongful and blameworthy conduct that harms a person.

There is a close similarity between a breach of contract and a delict, in that both are civil wrongs and may give rise to a duty to pay damages as compensation. It is unsurprising, then, that certain conduct may constitute both a breach of contract and a delict as when, in Van Wyk v Lewis[7] a surgeon negligently left a cotton swab inside a patient’s bodyin which case there is concurrent liability, permitting the plaintiff to sue on either basis.

Another source of obligations is quasi-contractin which rights and duties arise from something other than consensus. One example is unjustified enrichmentwhich occurs when wealth shifts from one person’s patrimony to another’s without legal justification. Where a party transfers an asset to another in performance of a contract that is for some reason invalid, the shift of wealth is without good cause or sine causaand an enrichment action for the restitution of the asset lies.

The other main types of quasi-contract are negotiorum gestio and indebiti solutio. Many commercial transactions involve both the law of obligations and the law of propertyand so have both proprietary and obligationary or contractual elements. A contract of sale, for instance, obliges the seller to deliver the thing being sold to the buyer.

As such, it is the causaor underlying reason, for the subsequent transfer of ownership. It does not, however, effect the transfer, which is accomplished by the real agreement the concurring intentions of the parties africaa make and receive transfer of ownership. If the underlying contract is invalid, ownership nonetheless passes, because South African law adheres to the abstract rather than the causal system of transfer. The transferor, however, generally has the option of a restitutionary action to recover the property.

Roman law had a closed system of contracts which recognised only four types e. Only for contracts consensu e. Any agreement that did not rigidly conform to the four types was referred to as a nudum pactum and was not actionable unless there had been part performance. The development of contracts consensu was prompted by the commercial invedtment of the growing Roman state, but Roman law never reached the point of enforcing all serious and deliberate agreements as contracts.

The Roman-Dutch law of contract, on the other hand, is based on canon and natural laws. Adopting the canonist position, all contracts were said investmetn be an exchange of promises that were consensual and bonae fideithat is, based simply on mutual assent and good faith.

Taking the Christian view that it is a sin to break one’s promisecanon lawyers developed the pacta sunt servanda principle under which all serious agreements ought to be enforced, regardless of whether there had been compliance with strict formalities as prescribed by secular law. All of these principles were applied uniformly through European ecclesiastical courts.

In keeping with Enlightenment values, natural lawyers stripped away the Christian morality from contract law. In place of iusta causa developed a general principle of binding force under which any valid contract was both binding and actionable. Canonist substantive fairness shifted to procedural fairness, so good faith and mutual assent were retained as requirements, but just price and laesio enormis were not.

Under English rule, public policy was substituted for bonos mores. Initially under Roman-Dutch law the broad notion of iusta causa was necessary to create obligations; therefore, for a contract to be enforceable, it had to be shown to be based on lawyes causa. This led to differing practice between, on the one hand, Roman-Dutch law jurisdictions applying either iusta causa or the general principle of binding force, and, on the other, English law jurisdictions applying the doctrine of consideration.

During English rule, this difference gave rise to a celebrated dispute in early South African law. Genuine agreement or consensus as the basis for contractual obligations, presupposes an actual mutual assent of the parties. Subjective consensus of this nature exists when all the parties involved:. Where there is a divergence between the true intention and the expressed or perceived intention of the parties, the question of whether or not a legal system will uphold a contract depends on its approach to contract: Is it subjective focused on an actual consensusor is it apparent or objective focused on the external appearance of agreement?

The will theory of contract postulates an extremely subjective approach to contract, whereby consensus is the only basis for contractual liability. The upshot is that, if there is no genuine concurrence of wills, there can be no contract. It is generally agreed, though, that unqualified adherence to this theory would produce results both unfair and economically disastrous.

The true basis of contract, then, is to be found in the concurring declarations of the parties, not in what they actually think or intend. In terms of the compromise reliance theory, the basis of contract is to be found in a reasonable belief, induced by the conduct of the other party, in the existence of consensus.

This protects a party’s reasonable expectation of a contract. The reliance theory should be seen as a supplement to the will theory, affording an alternative basis for contract in circumstances where the minds of the parties have not truly met. South African law, with its Roman-Dutch roots, but strongly influenced by English law, has vacillated between a subjective and an objective approach to contract. The onus of proving the existence of a contract rests on the person who alleges that the contract exists.

There is investmeny competition between. Where terms are not prohibited outright, they are subject to a requirement of fairness and reasonableness.

All law, including the common law of contract, is subject to constitutional control. The Constitutional Court appears to prefer an indirect application of the Constitution between private parties: an approach that tests the validity of a private contractual provision against the requirements of public policy, but also recognises that public policy is now determined with reference to the fundamental values embodied in the Constitution, and particularly in the Bill of Rights.

The courts have shown a willingness to intervene if a party exercises a contractual power in a manner that fails to respect the constitutional rights of another party, and may even, in douth circumstances, be willing to compel one party to contract with another on constitutional grounds. The rules of offer and acceptance constitute a useful, but not essential, analytical tool in understanding the formation of contracts. An offer is a statement of intent in which the offeror expresses to the person to whom the offer is conveyed the performance and the terms to which he is prepared to bind.

Being a unilateral declaration, an offer does not in itself give rise to a binding obligation. For an offer to be valid, it must be:. An offer is usually directed at a definite person or persons, but it may also be directed at undefined persons. An advertisement lawyrs not generally constitute an offer; it qualifies merely as an invitation to do business, although a promise of reward is a form of advertisement that does constitute an offer.

The status in this regard of proposals and tenders is contingent on the intention of the douth, which is in turn determined by the circumstances of each individual case. At a simple ijvestmentnot subject to conditions, the bidder is construed as making the offer. At wtructuring auction with reserve, the potential purchaser is construed as making the offer; at an auction without reserve, the auctioneer is construed as making the offer.

An auction subject to conditions is construed as two potential contracts: The first binds the parties to the auction conditions, while the second constitutes the substantive contract of sale. An acceptance is an expression of intent by the offeree, signifying agreement to the offer.

For an acceptance to be valid, it must be:. When parties contract at a distance, questions arise as to when and where acceptance takes place. The general rule in South African law follows the information theory, which requires actual and conscious agreement between the contracting parties, such that agreement is established only when the offeror knows about the offeree’s acceptance.

The place or venue of the formation of the contract is generally where the acceptance is brought to the offeror’s notice. Zfrica to the information theory include cases where there has been an express structurig tacit waiver of the right to notification.

Another exeception is the postal contract, which is governed by the expedition theory, according to which the contract comes into being as soon as the offeree has posted the letter of acceptance.

Contracts concluded by telephone are governed by the information theory, but contracts entered into by means of email or through other means of electronic communication are governed by the Electronic Communications and Transactions Act.

A pactum de contrahendo is a contract aimed at concluding another contract. Examples include the option steucturing in terms of which the grantor’s right to revoke his offer suth restricted and the preference contract whereby the grantor gives a preferential right to conclude a specific contract should he laayers to conclude this contract.

An option contract constitutes two offers: a substantive offer and an investmemt or option to keep the offer open. If the option holder accepts the first offer by exercising the option, the main contract is created. An option contract is irrevocable. Breach invokes remedies such as an interdict to enforce the contract and damages to place the option holder in the position that he would have occupied had the option been honoured.

It is terminated through the:. Options may be ceded if such is the grantor’s intention. The cession of an option need not be in writing; it may be made orally and without formalities—unless the substantive contract is required to comply, for instance, with the prerequisite that a sale of immovable property be in writing.

A pre-emption right must comply with all the requirements for contracts in general. The capacity of the pre-emption grantor to alienate the thing in question is restricted. If the grantor breaches his undertaking to offer the thing to the holder, the holder’s remedy is an srructuring preventing alienation to a third party. It is uncertain, though, whether a claim by the holder for specific performance would be stfucturing. Whereas a concurrence of wills between the parties is usually regarded as the primary basis of contractual liability will theorymistake error in contract refers lawyerrs a situation in which a contracting party acts under a misapprehension, causing disagreement dissensus between the parties.

The courts tend to categorise a mistake as one of unilateral, mutual or common:. A mistake must have influenced a party’s decision to conclude a contract to be relevant. A crucial distinction in the classification of mistake is between material and non-material mistakes:.

If the parties are in disagreement about one or more of these elements, there is a material mistake. Mistakes have historically been categorised according to type. The materiality of a mistake has been determined on the basis of the type of mistake in question:.

A denial of investment structuring lawyers south africa liability in all instances where the parties are not in agreement could result in undue hardship for a party who has incurred expense in reasonable reliance on the existence of a contract, and would, furthermore, greatly affect the general reliability of contractual commitments. The courts have alternated between qualifying the subjective and objective bases of contract to solve this problem:. In the case of estoppel, a party the estoppel raiser who relies reasonably strjcturing a misrepresentation by the other party the estoppel denierand acts thereon to his own detriment, may hold the estoppel denier to his misrepresentation; that means, the estoppel raiser may prevent the estoppel denier from relying on the true state of affairs.

A successful plea structurng estoppel has the effect that the misrepresented facts are upheld as if they were correct. A fictional contract, in other words, will be recognised. The reliance theory requires a reasonable belief on the part of one party the contract asserterinduced by the other party the contract denierthat the latter had assented to the contract in question.

Starting a business in South Africa: Company types

Several countries are allowing or are moving to allow private investment in and ownership of law firms. Investec Bank Limited with the establishment of an infrastructure private equity fund. Non-attorney owned law firms would still be in the business of providing legal services and could only succeed if they continued to provide sound legal judgment to their clients. Elliott Wood. Location: Cape Town. JP Morgan with the appointment of a juristic representative and general financial services advice. Join us for a breakfast seminar where we will discuss the chal[ Investment structuring lawyers south africa change in British law, introduced by the Legal Services Act c29enables law firms to use external investments and initial public offerings. Investec Asset Management in relation to the establishment of several hedge funds. Boon or tsunami? Permitting outside equity ownership is not likely to change the pressures felt by law firms. If non-attorney involvement were to lead to government regulation of the legal profession, the obligation of lawyers to challenge the government in the interest of alwyers would be diminished as attorneys would face their own regulator as their adversary Sharfman op cit. Managing these diverse issues in a comprehensive investment structuring lawyers south africa holistic fashion requires a specialist commercial service that few law firms can offer. Mbuyu Capital Partners, a UK based fund wfrica, in respect of various investment fund related transactions entered into by its clients, being UK pension funds, as investmebt as in respect of the proposed establishment of a Mauritian feeder fund. Section 36 of the December draft Bill contains provisions similar to s 83 6. A lawyer who breaks ethical rules would be subject to discipline, while a non-lawyer has nothing at stake, so the argument proceeds.