Research Articles (Mercantile Law)
Recent Submissions
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The role of reputation in trade mark infringement
(Juta Law, 2018)The recent decision of the supreme court of appeal in PepsiCo v Atlantic Industries illustrates our courts’ failure to properly engage with the issue of the reputation of a trade mark in the assessment of whether there ... -
The application and interpretation by South African courts of general renvoi clauses in South African double taxation agreements
(North-West University, Faculty of Law, 2019-11-15)General renvoi clauses in DTAs based on article 3(2) of the OECD MTC provide that an undefined term in a DTA shall have the meaning that it has in the domestic law of the contracting state applying the DTA unless the context ... -
Employment discrimination law into the future
(Juta Law, 2018)Important amendments to the Employment Equity Act 55 of 1998 (“EEA”) were introduced in 2014, notably conferring jurisdiction on the Commission for Conciliation, Mediation and Arbitration in employment discrimination cases, ... -
The taxation of trusts in SADC member States
(Juta Law, 2018)Many Southern African Development Community (“SADC”) member states use trusts and they have proved to be very popular in some of these states. This article examines the way in which income acquired by a trust is taxed in ... -
The Common Law is not what it used to be : revisiting recognition of a constitutionally-inspired implied duty of fair dealing in the Common Law Contract of Employment (Part 3)
(North-West University, Faculty of Law, 2018)This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of ... -
The Common Law is not what it used to be : revisiting recognition of a constitutionally-inspired implied duty of fair dealing in the Common Law Contract of Employment (Part 2)
(North-West University, Faculty of Law, 2018)This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of ... -
The Common Law is not what it used to be : revisiting recognition of a constitutionally-inspired implied duty of Fair Dealing in the Common Law Contract of Employment (Part 1)
(North-West University, Faculty of Law, 2018)This piece, which is in three parts, will revisit the importation of fairness into the employment contract (outside and independent of the fairness-based provisions of our labour legislation) by a line of Supreme Court of ... -
The Interplay between Incoterms and the CISG
(University Library System, 2013)INCOTERMS® do not replace the CISG’s provisions on delivery and the passing of risk in toto, but merely supersede them in so far as they are mutually exclusive. For the rest, they function in tandem. Aspects which are not ... -
The role and function of trade usage in modern international sales law
(Oxford University Press, 2015-08)Trade usage reflects consistent and uniform business practices that are regularly followed in a particular trade. Trade usage has always played an important role in international sales as is evidenced by the lex mercatoria, ... -
A pluralist approach to the Law of International Sales
(ASSAF, 2017-04)International trade can support economic development and social upliftment. However, people are often discouraged from contracting internationally due to differences in legal systems which act as a non-tariff barrier to ... -
The convention on the use of electronic communications in international contracts : creating an international legal framework for electronic contracting
(Juta Law, 2006-01)Although international trade can contribute to the economic growth and development of a country, the remoteness of trading parties remains a factor that infl uences the effi ciency of such transactions. Not only are the ... -
The Electronic Communications and Transactions Act 25 of 2002 : facilitating electronic commerce
(Juta Law, 2004-01)INTRODUCTION: The development of new technology expanded the ways and means of concluding a contract beyond the traditional methods of oral or written agreement. The Internet enables businesses and entrepreneurs to communicate ... -
INCOTERMS® 2010 : codified mercantile custom or standard contract terms
(Juta Law, 2012-01)INCOTERMS® reflect the most dominant and consistent commercial customs and practices evident in international commerce. They are regularly updated to keep them in line with changing mercantile practice. However, over the ... -
Incoterms, electronic data interchange, and the Electronic Communications and Transactions Act
(Juta Law, 2003-01)Electronic commerce makes it possible for parties to trade electronically without using paper. Time means money. Electronic trading means that the process can be speeded up and that money can be saved. The past years have ... -
Trade usage : still law made by merchants for merchants
(Juta Law, 2016-03)INTRODUCTION: Trade usage has always played an important role in the legal regulation of international sales. For example, trade usage is used to define the concept of reasonable time in which the buyer or seller has to ... -
The right to just administrative action in the context of suspending the payment of disputed tax
(North-West University, Faculty of Law, 2017)Section 164(3) of the Tax Administration Act 28 of 2011 (hereafter TAA) provides a senior South African Revenue Service official (hereafter, respectively, SARS and senior SARS official) with discretionary powers to suspend ... -
A pluralist approach to the law of international sales
(North-West University, Faculty of Law, 2017)International trade can support economic development and social upliftment. However, people are often discouraged from contracting internationally due to differences in legal systems which act as a non-tariff barrier to ... -
The legal nature of the duty of care and skill : Contract or Delict?
(North-West University, Faculty of Law, 2017)Section 77(2)(b) of the Companies Act 71 of 2008 (“the Act”) provides that a director of a company may be held liable based on the common law principles relating to delict for any losses or damages which the company suffer ... -
The precarious employment position of ministers of religion : servants of God but not of the church
(Juta Law Publishing, 2017)South African courts have in recent years progressively extended protection against unfair dismissal to categories of persons not previously regarded as employees. Courts interpreted labour legislation in light of the ... -
Is South African trademark law out of shape? A comparative analysis of shape marks, in light of the recent SCA and CJEU Kit Kat decisions
(Juta Law, 2016-12)This article examines the recent litigation concerning the shape of the Kit Kat chocolate bar in South Africa, Europe and the UK in order to determine whether the South African legal position relating to shapes as trademarks ...
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