Research Articles (Mercantile Law)
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Browsing Research Articles (Mercantile Law) by Author "Henning, J. J."
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Item Open Access Die vennootskap: goeie huweliksmaat met huwelik of konkubinaat?(Faculty of Law, University of the Free State, 2003-06) Snyman-Van Deventer, E.; Henning, J. J.English: In this article the legal position of people in a concubinate relationship after the breakup or dissolution of the relationship in the American, Dutch and South African law is compared. Various attempts in the American law failed to solve the problems that originate with the dissolution of marriages and concubinates or to establish a just and equitable system. In the Netherlands attempts were made to solve problems with living-together relationships, especially between members of the same sex. The South African courts have solved these problems by application of the partnership principles on these relationships through recognition of the universal partnership and its use as a just and equitable remedy.Item Open Access Identifying the structure envisioned for closely held incorporated business entities under the new statutory dispensation(Faculty of Law, University of the Free State, 2015) Henning, J. J.English: In the process of company law reform, the official belief was expressed that the regime provided in the new Companies Act 71 of 2008 for forming and maintaining a structure that reflects the characteristics of a close corporation had been sufficiently simplified so as to obviate the need to retain the Close Corporations Act 69 of 1984 as an avenue for new incorporations. The question arises as to whether such a structure is indeed provided for under the new Companies Act and, if so, what its salient features are. This contribution briefly addresses these questionsItem Open Access Is die essentialia van die vennootskap ondergeskik aan die bedoeling van die partye? 'n Oorsig oor die Suid-Afrikaanse reg(Faculty of Law, University of the Free State, 2007-06) Snyman-Van Deventer, E.; Henning, J. J.English: When determining the existence of partnership, it is necessary to establish whether the essentialia of a partnership are present. However, apart from the essentialia, the intention of the parties is regularly referred to and it is stated that the intention of the parties shall be conclusive, even in the presence of all the essentials. This article will attempt to illustrate that only the essentials are determinants for the existence of a partnership and that the intention of the parties can only refer to the intention to comply with the essentialia. The essentialia of partnership are: the making of a contribution by each partner; the business must be conducted to the joint benefit of all the parties; and the objective of the partnership should be to make and distribute profit. Although the essentials of the partnership seem cut and dried at first glance, the whole issue is clouded by a series of court rulings in which a further requirement, viz. the intention of the parties to create a partnership was added to the essentials by reference to contrary evidence that the agreement between the parties may not be a partnership agreement. With all due respect, this view cannot be concurred. The question that has to be asked is if the intention referred to is the intention to comply with all the requirements of the partnership or the intention to specifically create a partnership?Item Open Access 'n Verkenning van die soorte vennootskappe in die Amerikaanse reg(Faculty of Law, University of the Free State, 2003-12) Snyman-Van Deventer, E.; Henning, J. J.English: This article briefly comments on the various types of partnerships encountered in American law. The types of ordinary as well as extraordinary partnerships are identified. Ordinary partnerships are only analyzed to the extent that they differ from the standard ordinary partnership. In American literature reference is made to the mining partnership, the family partnership, the partnership in real estate and the farming partnership. This differentiation is primarily based on the type of business with which the partnership is concerned. However, the mining partnership and the farming partnership differ from the ordinary partnership in a number of ways, and, as a result of their unique attributes, are discussed in detail. A brief discussion of the types of extraordinary partnerships is necessitated in order to highlight their differences. The limited partnership is discussed briefly and only the main characteristics are named.Item Open Access Some manifestations of the statutory recognition of a partnership as an entity(Faculty of Law, University of the Free State, 2014) Henning, J. J.English: The general rule in South African law is that a partnership has no existence in itself distinct from the partners of which it is composed. A brief analysis of South African legislation, however, reveals a significant number of instances departing from the general rule to some extent. This leads to a conclusion that, notwithstanding the general rule, whether or not a partnership can be treated as a mere aggregate of individuals or a “juristic person”, “entity”, “person”, “private body” or the like for purposes of a particular statutory provision is a matter of careful interpretatio Afrikaans: Die algemene reël in die Suid‑Afrikaanse reg is dat ’n vennootskap geen afsonderlike bestaan het van die vennote nie. ’n Bondige ontleding van Suid‑Afrikaanse wetgewing toon egter ’n beduidende getal gevalle waar van die algemene reël, in die een of ander opsig, afgewyk word. Dít kan ’n gevolgtrekking regverdig dat, ondanks die algemene reël, dit telkens ’n sorgvuldige uitleg vereis om vas te stel of ’n vennootskap vir die doeleindes van ’n sekere statutêre bepaling as ’n blote versameling individue of eerder as ’n “regspersoon”, “entiteit”, “persoon”, “privaat liggaam” of iets soortgelyks beskou moet word.