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PART 1: AN INTRODUCTION to the
HISTORY of SA PRIVATE LAW
WEEK 1
Lecture 1
What is Private Law?
● “Public law is what regards the welfare of the Roman state, private law what
regards the interests of the individual persons; because some things are of
public, others of private utility.”
➔ Ulpian- D.1.1.2
● Protects our freedom to pursue our own objectives; governs our horizontal
interactions in different social settings and private parties.
● Market, business, legal relationships between private businesses.
● Vertical interactions are private parties of the state.
● Body of rules that require or prohibit acts of one person for the benefit of
another; co-relative right of duty relationship between individuals.
Rights and Duties
● When a claim arises it is because A breached a duty owed to B.
● In other words A committed a wrong against B.
Example:
● I sell you my car. You agree to pay R30k and I agree to deliver it today at
12h00.
● You pay the money but I don’t give you the car.
● Contract= legally enforceable agreement
● You have a right to the car and a duty to pay the money
● I have a right to the money and a duty to pay for your car.
● Therefore, relational duties and rights.
● One party has gained while the other has lost.
● Must provide a legal remedy.
● Legal wrong= breach of contract.
What is the remedy?
1. Compel me to deliver the car
2. Get your money back
Some terms
, ● Plaintiff= you want a solution; bringing the case
➔ Must establish that she has been harmed and that she should be
compensated.
● Defendant= case is being brought against me
Private law theories
Approach 1
● Through the lens of social, political, economic or cultural meanings.
Approach 2
● Based on corrective justice.
➔ The idea that liability rectifies the injustice inflicted by one person
on another.
➔ Must be a connection between the wrong and the solution.
Problem Question
● D (defendant) steals P’s (Plaintiff) bike and sells it to a third Party (T).
➔ It is your bike.
● D= criminal law
● P= law of property (owning relationships)
● Sells it= law of obligations (owing relationships)
● Property law says I am the owner of the bike; cannot deprive you of what is
yours; you remain the owner.
● Invalidity in transfer of property
● Private law allows you to recover what is yours from T.
● T will have to give up the bike and hand it back to you as the law says.
● T has bought the bike from me and I delivered it to T
● Legal relationship between T and I= T bought the bike from me not knowing
any better; the law will protect T but not in the law of property but rather in the
law of obligations
● Contractual relationship=sale
● In order to protect T, even though there was invalidity in the law of property
there is validity in the law of obligations; valid sale and contract
● T has a claim to recover all of their losses since I am in breach of contract.
2. I sell you this plane for R100 000
● Legal relationship= I am the seller and you are the buyer (contractual
relationship)
● Valid contract since a contract is just an agreement; agreed to buy and
sell.
● Cannot make you the owner of something you don’t own= invalidity in
the transfer of ownership in the property of law
● When you are unable to possess what I have sold to you, you can sue
me for breach of contract; can claim all your losses from me.
,Law of Property Law of obligations
SAA owns the plane I have a valid contract with you
Law of property (owning) Law of obligations (owing)
● I steal your bike and sell it to a ● T bought the bike from me and I
third party (T) delivered it to T.
● It is your bike-can raise a claim in ● T will have to give up the bike
REM to get the bike back; raven and hand it back to you as the
de catio law says.
● Invalidity in transfer of
● Legal relationship between T and
property because property law
says I am the owner of the bike; I= T bought the bike from me not
cannot deprive you of what is knowing any better; the law will
yours-D is not the owner;have to protect T but not in the law of
be the owner to transfer property but rather in the law of
ownership. obligations since there was a
contractual relationship; valid
sale and contract.
● T has a claim to recover all of
their losses since I am in breach
of contract cause there was
validity in that contract.
● Full consequential loss.
● Validity in contract of sale.
, Lecture 2: Introduction to the history of S.A Private law-
Roman Roots
Roman History
● Monarchy (753 BCE-510 BCE)
● Republic (510 BCE-30 BCE)
● Empire Principate (278 CE-248 CE)
● Empire Dominate (248 CE onwards)
Roman Monarchy
● REX. (King)= Supreme, judge, priest of the people
● SENATE= their job is to propose a new king for the assembly
● POPULAR ASSEMBLY= their job is to accept or reject the king proposed to
them
● Patricians vs Plebians
Roman Republic
● Most of their wealth comes in the form of slaves.
● Julius Caesar (100 BCE-44 BCE)- populist leader
● The imperium had the right to command, however Roman law specified that
only elected persons could hold imperium within the borders of Italy itself.
● Period of time when there was martial law= temporary substitution of ordinary
civilian law with martial law- emergencies, state of exception.
● Idea of the augury= interpreting omens by looking at birds.
● After the assassination of Cesar, the Roman republic became the Roman
Empire.
● Roman (Buzatine) empire under Justinian
● Faith Mehmet II
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