Corporate & Commercial Law
We assist businesses in all areas of Corporate and Commercial Law
Corporate and Commercial Law involves the interactions and transactions within and between:
- Companies and other juristic entities and individuals.
- Shareholders and companies.
- Shareholders of a company (themselves).
Our large team of specialist corporate and commercial lawyers assists businesses with a wide variety of corporate transactions and agreements, including due diligence investigations, advising on corporate transactions, and drafting and negotiating memorandums of incorporation (“MOIs”), shareholders’ agreements, share purchase agreements, share subscription agreements, sale of business agreements, shareholder loan agreements and joint venture agreements, and are also skilled in drafting and negotiating commercial contracts including service agreements, license agreements, software development agreements, IP assignment agreements, distribution agreements, franchise agreements, goods and/or services procurement agreements, agency agreements, reseller agreements, sponsorship agreements, website terms and related legal documents.
They also advise businesses on applicable laws and regulations, compliance and corporate governance.
A contract should be a work of art. A good contract is one that is aligned with business strategy and objectives, ensures the relationship is carefully and thoughtfully regulated by a set of lawful and watertight provisions that are in simple terms, and over as few pages as possible. This is a creative exercise and is part of why I love what I do.
- Shaylyn McDonald, Caveat Panel Member
- Companies Act, 2008
- Closed Corporations Act, 1984 (applicable to entities registered as CCs before the new Companies Act was promulgated)
- Trust Property Control Act, 1988
- Consumer Protection Act, 2008
- King Code for Corporate Governance in South Africa
- Electronic Communications and Transactions Act, 2002
- Protection of Personal Information Act, 2013
- Promotion of Access to Information Act, 2013
- Insolvency Act, 1936
- Competition Act, 1998
Contract Law includes:
- The creation and negotiation of a broad range of agreements used in the commercial context, regardless of sector or industry.
- Reviewing any agreement to ensure that commercial, operational, financial and legal/regulatory risks are limited.
- Drafting of electronic terms and conditions, and any other documents of a legal nature to be placed on a company’s website.
The services of our contract lawyers are supported and enhanced by the input of specialists in other areas such as tax law, insurance law, environmental law, competition law, banking and finance law, employment law, intellectual property law, IT law and telecommunications law.
We advise on:
- The Companies Act and the consequences attached to the various categories of legal entities through which business can be conducted.
- The purchase and sale of legal entities.
- Mergers and the restructuring of companies and business operations.
- Fiduciary duties that directors and prescribed officers are to adhere to and the legal consequences of failing to adhere to them.
Our company lawyers lead and/or support due diligence investigations required by a party before entering into any agreement for the purchase of shares, assets or a business.
We draft all applicable contracts required for the transactions referred to above and support the related negotiations towards concluding and closing the deal.
When would a company need a commercial lawyer?
As a business finds its feet and matures within the market, it becomes more and more important to use the services of a specialist commercial lawyer. Commercial lawyers are experienced in all matters related to companies, their stakeholders, their operations and activities, and their compliance with the applicable laws.
By regularly using the services of a commercial lawyer, the company improves its robustness and becomes legally compliant, which makes it more sustainable and increases its value.
Frequently asked questions on CORPORATE AND CommerCIAl LAW
Commercial law (or mercantile law) refers to a broad area of law concerned with various business transactions across different industries and sectors, including sale of services and products, leases, license agreements, principal and agent relationships, lending transactions and forms of security, and many more. It interacts with many other areas of law and can be broken up into sub-categories such as contract law, company law, intellectual property law and consumer protection law to name a few. Commercial law is a branch of civil law and involves issues pertaining to both private law and public law.
Company law is the body of law that governs the rights, relations, obligations and conduct of persons, companies and businesses. Businesses can be run through various different forms, whether incorporated such as public or private for-profit companies, non-profit companies or unincorporated entities such as sole proprietorships or partnerships. Company law determines the consequences that flow depending on which form or entity through which a business is conducted.
Contracts provide a written record of an agreement reached between parties. A properly drafted contract will cover the essential elements of the type of legal relationship between the parties (for example an agreement regulating the sale of products must contain certain essential clauses to be a valid sale that results in the transfer of ownership to the purchaser), it will clearly set out the rights and obligations of each party, it will define the duration of the agreement and it will set out the remedies available to the parties in the event of breach. It should provide certainty on the rights and obligations flowing from each relationship. Furthermore, in the absence of a contract the common law principles that have been determined by our courts will apply. These may not be advantageous to a party. Commercial lawyers understand the common law principles and know when to include provisions that ensure that the parties agree on the manner to regulate various aspects that ensures that the common law principle will not apply.
Negotiating, drafting or reviewing agreements, terms and conditions, sureties, and other documents of a business nature.
Commercial lawyers have a grasp of the vast number of laws that play a role in business transactions, including the laws regulating the forms that businesses can take and the laws regulating the diverse area of legal relationships and transactions. Commercial lawyers understand contracts and are able to quickly identify risky provisions, and propose compromises that provide protection and are agreeable to the other party. This is based on their experience and practical knowledge of the types of provisions found in contracts. Commercial lawyers assist with ensuring that any transaction lawfully achieves the businesses strategy and objectives while limiting potential risks.
Caveat is a virtual organisation with lawyers qualified in many jurisdictions and based in locations across the world.
Whatever the type of contract, an attorney needs to approach it clearly and commercially in order to manage their client’s risk and achieve the best result.
- Sarah van Zyl, Caveat Panel Member
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