It would be best to have an email monitoring policy regarding employees’ private and business use of emails contained in employment contracts. However, how extensive, and intrusive should the policy be? Our Constitution respects a person’s right to privacy. The Protection of Personal Information Act, 2013 (“POPIA”) further entrenches personal data protection rights. An employer… Continue Reading
Batna (Best Alternative to a Negotiated Agreement)
When you’re negotiating a contract, it’s common to focus almost exclusively on exactly what you want, especially when it comes to your key objectives in the contract. However, there’s value in entering those negotiations with a plan B, known as a BATNA (Best Alternative To a Negotiated Agreement) for the things you want most —… Continue Reading
Why a Written Contract Is Better Than a Verbal Agreement
Source: Jesse White (Ed. Note. This is an article written by an American for an American audience, but it is very useful in the South African context). Contracts govern nearly every aspect of day-to-day life in ways one may not even realize. From accepting the Terms and Conditions of an app on our smartphones to… Continue Reading
Why SME’s need contracts.
Just like a person avoids drafting a will (because it’s a concession to mortality), some business owners avoid concluding contracts (with employees, suppliers, freelancers, etc.) because they think this is negative and anticipates problems. Properly drafted contracts do not create problems — they solve them. Written agreements are essential for a good working relationships with… Continue Reading
Must a contract be in writing to be binding?
Elements of a contract A contract consists of an offer by the offeror (the seller or service provider) to the offeree (the buyer or client) to buy goods (movable or immovable) or services, for an agreed price or fee; A contract becomes binding when the offeree accepts the offer; Obviously, there must be agreement as… Continue Reading
Restraint of Trade Agreements – When can they be enforced?
Source: Lara Chidrawi, consultant: lara@bmalaw.co.za Restraint of Trade Agreements are valid until shown to be against public policy and therefore unreasonable and unenforceable. The employee bears the onus to prove the unreasonableness of the restraint. The test to deteremine the reasonableness or otherwise of a restraint was set out in Basson v Chilwan and Others… Continue Reading
Invoice Discounting
What is invoice discounting? Invoice discounting occurs when a Client (“the Client”) enters into an agreement with another business (“the Invoice Discounter”) in terms of which the Client cedes its book debts to the Invoice Discounter, generally on an ongoing basis, for up to 80% of its total value. The Client retains management of the… Continue Reading
Factoring
What is factoring? Factoring occurs when a business (“the Client”) enters into an agreement with another business (“the Factor”) in terms of which the Client sells its book debts to the Factor, generally on an ongoing basis, for a fee plus interest. The benefit is that the Client receives payment immediately and the Factor collects… Continue Reading
Shareholders’ agreements under the new Companies Act of 2008
Grace period to harmonise conflicts between clauses in a shareholders agreement Memorandum and Articles of Association At present, most Shareholders’ Agreements provide that to the extent that the clauses in the agreement are inconsistent with the company’s Memorandum and Articles of Association, the clauses of the agreement will prevail. The new Companies Act of 2008,… Continue Reading
Is the disclaimer at the bottom of your email enforceable?
As far as I have been able to establish, no court has pronounced on the enforceability of email disclaimers. Generally, they seek to impose a contractual obligation between the sender and recipient. In terms of the law of contract, unilateral contracts are generally unemforceable, even in the form of email disclaimers. However, the doctrine of vicarious… Continue Reading
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