ipl-logo

Common Law Set Off Essay

1040 Words5 Pages

2.1 Introduction In the previous chapter, I discussed the title, purpose and research methodology of this dissertation. The central point of the dissertation surrounds the question whether common law set-off as it relates to credit agreements governed by the NCA, have been superseded by section 90(2)(n) read with section 124B of the NCA. However, before this analysis is undertaken, it is essential to obtain a firm grasp of the general requirements for set-off. In this chapter, I will investigate the general principle, requirements as well as the operation of set-off in South African law. I will further examine whether set-off operates automatically, - ipso iure (operation of law) – or must set-off specifically be raised and pleaded by the …show more content…

It allows the termination of obligations without an exchange of performance. Common law set-off (compensatio) involves the discharge of mutual debts between two persons. This occurs by means of the one debt being set-off against the other. The result may be that both debts are completely discharged or, where one debt is larger than the other, the larger debt is reduced by the amount of the smaller debt. Set-off avoids the need for each party to perform its obligation separately. The principal function of set-off is to circumvent circuity of performances; it is unnecessary for one party to pay the other only to have the same performance returned. It is for this very reason that set-off is commonly used by banks as it is a quick and effective collection …show more content…

The relationship between the bank and its customer, specifically the holder of a current account, must be explained in terms of the general principles of the law of obligations and in particular, the law of contract. However it is difficult to identify the exact type of contract as it does not specifically fit into one category recognised in Roman and Roman- Dutch law. The main differentiating factor of the bank-customer relationship is that it is one of mandate. For the present purposes, we can accept the view that the bank-customer relationship is a multi-faceted relationship. It customarily involves various types of contract, such as, mandate, loan for use, depositum and deposit-taking. The parties to the bank-customer relationship may, depending on the circumstances, fulfil the role of either debtor or creditor. The bank becomes the owner of money that is deposited or paid into the customer’s account. The customer retains a claim or personal right against the bank. This is known as commixtio, whereby the consumer loses ownership of money deposited into the bank because that deposit mixes with other money of different customers. The bank is therefore the customer's debtor in respect of those funds. The concept of commixtio is what gives effect to the bank’s right to set-off

Show More
Related

  • Summary: The Uniform Commercial Code

    291 Words  | 2 Pages

    The Uniform Commercial Code, section 4-406, addresses the responsibility of the bank verses the customers in a paper society. While commerce is evolving to a technological world, there are some foreseeable reasons to evaluate this section of the UCC because of the reliability of human interaction. The relationship between the customer and the bank was very relevant to conduct business in the banking system, as swift as laws and codes change to protect cyber banking, more of the responsibility or duty is placed on the customer. As we examine these two codes, with a focus on forgery, we will analysis the facts of a case in relationship of the codes. Then explore the current paperless society and the duty of banks, business and customers to

    Read More

  • Thelaw Case Study

    1056 Words  | 5 Pages

    Mr. Thelaw’s conduct would likely be considered extreme and outrageous when he manipulated Ms. Smartpants emotions in front of the class. Courts have reasoned that a defendant cannot deliberately attempt to manipulate the emotions of a plaintiff, for a perceived advantage over a plaintiff who is susceptible to emotional distress. KOVR-TV, Inc., 37 Cal. Rptr. 2d at 435; McDaniel, 281 Cal.

    Read More

  • Essay On Knock And Announce Rule

    1170 Words  | 5 Pages

    Unit 4 DB 1 Knock-and-announce rule Introduction Officers today have a hard enough job, so in order for them to comply with certain rules they need to make sure that any type of warrant that are being served is correct. They also need to make sure they do not just enter any type of building without any form of announcement. This paper will discuss the knock-and-announce rule, the exceptions to the rule, and provide the response of how they interpret and apply the knock-and-announce rule. Explanation of the knock-and-announce rule Within the creation of the common law, the knock-and-announce rule was born.

    Read More

  • Persuasive Essay: The Shakespeare In The Courts Program

    188 Words  | 1 Pages

    The Shakespeare in the courts program is just another form of discipline. The kids who do this are learning how be patient and how to work with others, instead of being locked up in a cell. Also many students do really like the program after because they say it helps them. In an interview one of the students said, "Honestly, you would never catch me doing this stuff if I didn't have to, but it's taught me teamwork and to just chill out and listen."

    Read More

  • Supreme Court Cases Essay

    1705 Words  | 7 Pages

    The Supreme Court has been used for basically the entirety of America’s history. Though many think of recent ones or cases in the past century when thinking about the Supreme Court, the 1800s had many Supreme Court cases that were pivotal to America. Marbury v. Madison was a case in the Supreme Court decided in 1803. When John Adams was in his final days of presidency, he nominated people to serve as justices of peace for D.C., but his secretary did not deliver all of the commissions by the time Thomas Jefferson became president, and William Marbury was one whose commission was not delivered. When Jefferson became president, he ended up disallowing his secretary James Madison from delivering the commissions, but Marbury along with other

    Read More

  • Three Major Court Cases

    677 Words  | 3 Pages

    The first major court case to influence our treatment of juveniles today was the Kent v. United States. The case overall, made an impact on the treatment of juveniles today because now juveniles have a right to an attorney, the parents must be notified and either parents or a lawyer must be present during an interrogation, and juveniles must be reminded of his or her right to silence. The main thing that this case influenced was that courts must allow juveniles the right to defend themselves and to be heard when transferring a juvenile over to the adult system. A second major court case was In re Gault.

    Read More

  • Law 531 Week 1 Question Paper

    992 Words  | 4 Pages

    Sem_1 DB#2 QUESTION: What key information will you need to learn in your interview with the client? To collect key information and learn about the client’s situation, it would be important to ask the following questions. Basic Information: • What is your purpose of preparing a prenuptial agreement?

    Read More

  • James Kent's Commentaries On American Law

    364 Words  | 2 Pages

    From the Constitution’s ratification in 1787 through the 1850s, many American historians shared the consensus that the founding fathers had designed the Constitution the way they did because they were trying to protect the citizens and their rights. James Kent was one very prominent historian among this group. In his book, Commentaries on American Law (1826), he stated “THE government of the United States was erected by the free voice and joint will of the people of America, for their common defence [defense] and general welfare...and it is justly deemed the guardian of our best rights, the source of our highest civil and political duties, and the sure means of national greatness.” (Kent) Essentially, James Kent was trying to convey the point

    Read More

  • A Law More Nice Than Just Sarah Willis Parton Analysis

    1085 Words  | 5 Pages

    Sarah Willis Parton or better known as “Fanny Fern” in her columns in the New York Ledger was one of the highest paid columnist in her time. Parton’s writing style was quite controversial for women at the time and she experienced many criticisms from people around her, including many of her family members. Going against the social and gender norms of her time, Parton was able to use her column as an outlet to express her feelings towards the world around her. In her article A Law More Nice Than Just, Parton uses the characterization of both Mr. and Mrs. Fern to speak out about the men and women in 19th century society. By reaching into the events of her past and the hardships she endured, she was able to pave the way for feminists of her time

    Read More

  • Substantive Law Vs Procedural Law Essay

    883 Words  | 4 Pages

    The legal system is a big web with different branches that go off to different areas the two different types of law that needs addressing is substantive law and procedural law. Which sounds similar but two very different parts of the law. Substantial law is how people and/or the state should act. Procedural law is how the legal laws should act in regards to implementation. But in the end procedural law is a stem of a form of substantial law.

    Read More

  • Exit Consents: What´s Exit Consent?

    354 Words  | 2 Pages

    for example, obtaining an “exit consent” with those bondholders who agree to sell their bonds as this may, in certain circumstances, be found to be an abuse of power of the majority bondholders. Thought should also be given to the timing and mechanics of voting on such amendments to ensure that the actual vote by the exiting bondholders to change the terms of the bonds does not take place after they have been effectively disenfranchised by the issuer’s earlier acceptance of their offer to sell their bonds. Exit consents may still be used as a restructuring tool, provided that they are used in a way that is not unacceptably coercive of the minority and it is important for the issuer to delay its acceptance of the bondholders’ offer to sell

    Read More

  • Advantages And Disadvantages Of The Common Law System

    1268 Words  | 6 Pages

    [5] Common law works in a different way, the judges rather than the Parliament make common law or ‘judge-made law’. Considering criminal and civil cases, the judges take decisions based on the stare decisis principle (Latin “to stand by things decided”, the legal principle of determining points in litigation according to precedent [4]), deliver rulings and create precedents, thus applying the law to real life situations. Therefore, the value of the precedent is very high in the English Common Law system. The strengths of common law

    Read More

  • Obligated To Obey Unjust Laws Essay

    870 Words  | 4 Pages

    Are we obligated to obey unjust laws? Laws are important because they are guidelines for a state. Without laws citizens would not know how to act and cause harm to others. Laws are aimed at common good and keep a society together and functioning.

    Read More

  • Good Faith Theory

    1156 Words  | 5 Pages

    National Bank of Canada applied the doctrine of abuse of contractual rights and decided on various factors that may lead to the abuse of contractual rights and obligations. The court was of the opinion that an abuse of contractual rights may occur when the contractual rights are not exercised in a reasonable manner i.e. in accordance with the rules of equity and good faith. Even though the bank in this case acted well within its rights under the contract, the question raised by the court was whether it executed its rights in just and equitable manner. In other words, the appellant did not commit anything wrong by recalling the loan and liquidating company’s assets but, the issue was whether the appellant acted in good faith while doing so? The company and the bank had been doing business for past 50 years and still the bank did not give any notice of such action to the company.

    Read More

  • Essay On Adultery Law

    884 Words  | 4 Pages

    I believe that this is a sensitive topic for both genders and I don’t have adequate knowledge to state whether absolutely agree or disagree with the abolition of adultery law. So, considering from what I understand and believe is that if we are seeing married couples just as living creatures falling in love and cheating, I agree with the abolition of adultery law because it’s not the public business to handle. At the same time, we as humans, we can’t really control our emotions and feelings of love, and after all, what is the difference between cheating in casual couples and married couples? I mean, here is where I get confused because sometimes when we think about love, we are more towards the “animalistic” theme that sometimes sounds romantic

    Read More

More about Common Law Set Off Essay

Open Document