Section 103(5) of the National Credit Act 34 of 2005 as Inspired by the Common-Law 'in duplum' Rule (1)

2013 ◽  
Author(s):  
A Friedman ◽  
Jannie Otto
Keyword(s):  
Common Law ◽  
The Common ◽  
National Credit Act

scholarly journals The National Credit Act Regarding Suretyships and Reckless Lending

2017 ◽  
Vol 14 (2) ◽  
pp. 66
Author(s):  
Philip N Stoop ◽  
Michelle Kelly-Louw
Keyword(s):  
Common Law ◽  
The Other ◽  
Financial Assessment ◽  
Credit Guarantee ◽  
The Common ◽  
Credit Agreement ◽  
National Credit Act

In terms of the National Credit Act a credit provider may conclude a credit agreement with a consumer only after he has made a proper financial assessment and concludes that the consumer will be able to satisfy all of his obligations under all his credit agreements. However, a practice of not conducting this affordability assessment has evolved amongst certain credit providers where the credit agreement involved is a suretyship agreement. This article investigates whether or not a suretyship agreement is indeed a credit agreement in terms of the National Credit Act, and if a financial assessment should be conducted in the case of a suretyship agreement. The main aim of the article is to try to identify what the concept of a “credit guarantee”, as defined in the Act, encompasses and ultimately if the common-law contract of suretyship falls under this definition. Our conclusion is that “credit guarantee” is as vague and problematic as many of the other definitions in the Act. If one reads the Act in its entirety (including the regulations to the Act), it seems unlikely that the legislature intended not to regulate common-law suretyships also.

scholarly journals A SHORT DISCUSSION ON THE EFFECTS OF THE IN DUPLUM RULE UPON COMMENCEMENT OF LITIGATION AND AFTER JUDGMENT: A VIEW BOTH “INSIDE” AND “OUTSIDE” THE NATIONAL CREDIT ACT

Obiter ◽  
2021 ◽  
Vol 31 (3) ◽  
Author(s):  
ML Vessio
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Short Discussion ◽  
Litigation Process ◽  
The Common ◽  
National Credit Act

It has repeatedly been confirmed by the courts that the in duplum rule forms part of South African law, and more recently section 103(5) of the National Credit Act 34 of 2005 (hereinafter “the Act”) has concretized the rule into statutory form. This note examines the effects of the in duplum rule once the litigation process has been initiated by the creditor and the implications of the rule after judgment is granted against the debtor. Preceding such discussion, however, one needs first to consider whether South Africa still has a common-law in duplum rule, or whether the statutory in duplum rule has ousted the “old” rule in toto (for ease of reference andpracticality the rule as developed by the courts shall be referred to as the “common law rule” and the rule as set out in s 103(5) of the Act shall be referred to as the “statutory rule”). It is submitted that while the statutory rule has superseded the common law rule in terms of all credit agreements that fall within the jurisdiction or ambit of the Act there are those credit agreements that are not regulated by the Act and it is those credit agreements where the (“old”) common-law rule shall apply and regulate the interest component collectable by the creditor vis-a-vis the debtor. Thus the two rules must now operate together; both rules applying to different sectors of society; at least society whilst it wears its consumer cap. The codified in duplum rule as will be seen below – affects only natural persons and the juristic entity, as defined by the Act, remains to be protected by the common-law rule. Furthermore, the common-law rule will be applicable to those credit agreements which fall outside the auspices of the Act.

Is Style of Reasoning a Fundamental Difference Between the Common Law and the Civil Law?

2017 ◽  
Vol 17 (2) ◽  
pp. 238-290
Author(s):  
Colm Peter McGrath ◽  
◽  
Helmut Koziol ◽  
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Fundamental Difference ◽  
The Common

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

2017 ◽  
Vol 15 (2) ◽  
pp. 175-185
Author(s):  
Edyta Sokalska
Keyword(s):  
United States ◽  
18Th Century ◽  
Common Law ◽  
The United States ◽  
Law School ◽  
Large Measure ◽  
American Colonies ◽  
Late 18Th Century ◽  
American Law ◽  
The Common

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

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