UNIVERSITY OF GHANA BUSINESS SCHOOL
COMMERCIAL LAW 1
LECTURER/INSTRUCTOR:
NATHANIEL HEGBOR
ESQ.
1. WHAT IS LAW?
There is no single definition of what is Law
The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties.
“The body of principles recognized and applied by the state in the administration of justice” – Salmond
“Rules forbidding or enjoining certain types of behaviour under penalty”
“Rules specifying what must be done to achieve certain legal effects”
“Rules conferring rights and creating obligations and providing remedies for breach of duties and obligations”
Some have even extended the definition to cover the institutions associated with the law in one way or another.
“Courts and other judicial or administrative bodies to determine what the rules are (interpretation), breaches thereof, remedies thereof, and
enforcement of decisions and orders”
“ A Legislature to make new rules or abolish old ones”
- H.L.A Hart, The Concept of Law
PUBLIC LAW PRIVATE LAW Deals with the legal issues between the
state and the citizenry such as the following…
Deals with the rights and duties of
individuals towards each other. It includes the following branches…
Constitutional Law:- it deals with the constitution of the state, arms of state, powers and limitations, rights and
obligations of the citizen.
Law of Tort
Administrative Law:- deals with organs of state and provides an avenue for the
lodgment of complaints.
Property Law 2. CLASSIFICATION OF LAW
Law can be classified into different categories depending on the basis of classification such as effect, source and nature. For purposes of this course we will look at law
under the following broad classification
(a)Public Law (b) Private Law
Criminal Law:- it deals with conduct of the society as a whole and prescribes sanctions for offenders.
Law of Trust
DISTINCTION BETWEEN CRIMINAL LAW AND CIVIL
LAW
The difference between civil law and criminal law turns on the difference between two different objects which law seeks to pursue - redress or punishment.
The object of civil law is the redress of wrongs by compelling compensation or restitution: the wrongdoer is not punished; he only suffers so much harm as is necessary to make good the wrong he has done. The person who has suffered gets a definite benefit from the law, or at least he avoids a loss.
On the other hand, in the case of crimes, the main object of the law is to punish the wrongdoer; to give him and others a strong inducement not to commit same or similar crimes, to reform him if possible and perhaps to satisfy the public sense that wrongdoing ought to meet with retribution.”
Criminal Law Civil Law Definition Deals with offences against
the State
Deals with disputes between private individuals
Purpose Purpose is to maintain order in society by punishing offenders to deter others
Purpose is to remedy the wrong which has been suffered
Case filed by A Prosecutor brings an action against the Accused
A Plaintiff brings an action against the Defendant
Jury opinion Criminal cases are handled by criminal courts or tribunals
Civil cases are handled by civil courts
Standard of proof
Standard of proof is beyond reasonable doubt
Standard of proof is on the balance of probabilities
Decision Accused may be convicted if found guilty or acquitted if found innocent
Defendant may be found liable or not liable for the claim
Type of punishment
Punishment sanctions are imprisonment and/or fine
Punishment or sanctions are damages, injunction, restitution, and specific performance.
THE LEGAL SYSTEM OF GHANA
The Structures and processes by which the legal machinery of a country is operated.
It encompasses the legal tradition, the sources of law, the court structure and operations among others.
There are several legal traditions :- common law, civil law etc.
Ghana’s legal system is based on the Common Law Tradition.
The Tradition is based on Judicial Precedence
The Court Structure:- Superior Courts and Inferior Courts
SOURCES OF LAW
By sources of law we are looking at how we get our laws in Ghana.
Article 11 of the 1992 Constitution enumerates the sources of law in Ghana as fo
llows;1. 1992 Constitution
2. Enactments made by or under the authority the parliament established by the 1992 Constitution – eg. Banking Act,2004 (Act 673)
3. Orders, Rules and Regulations made under a power conferred by the Constitution – eg. Bye laws of the Assemblies.
4. Existing Law:- both written and unwritten laws before the coming into force of the 1992 Constitution –eg. Contracts Act, 1960 (Act 25)
5. Common Law – the common law, equity and customary law.
THE COMMON LAW AND EQUITY
The term common law is confusing as it has different meanings depending on the context.
So it could be used to refer to law crafted by judges when they decide cases, this is what we refer to as “case law” and this is in contrast to law established by legislation, by the legislature enacting legislation, also known as “statutory law”. It can also be used to refer to law that is not equity. And, finally, it can be used to describe the law of countries which follow the common law, like the United States and England as opposed to countries that follow Roman law or French law or the civil law tradition.
Equity is the name that we give to the set of rules that traditionally supplemented the common law where the application of the common law would have operated too harshly.
This was done to achieve what is sometimes referred to as natural justice, or more simply speaking, fairness.
Maxims of Equity
1. Equity will not suffer a wrong to be without a remedy.
2. Equity follows the law.
3. Where the equities are equal, the law prevails.
4. Where the equities are equal, the first in time shall prevail.
5. He who seeks equity must do equity.
6. He who comes to equity must come with clean hands.
7. Delay defeats equity; equity aids the vigilant but not the indolent.
8. Equality is equity.
9. Equity looks to the intent and not to the form.
10. Equity looks on as done that which ought to be done.
11. Equity imputes an intention to fulfill an obligation.
12. Equity acts in personam.
THE SCOPE OF COMMERCIAL LAW
WHAT IS COMMERCIAL LAW?
The body of laws that deal with the rules and institutions of commercial transactions, including banking, commerce, contracts etc.
GENERAL CHARACTERISTICS
1. Based on contract
2. The main sources of law are statutory and case law
3. It combines both civil remedies and criminal sanction eg. Sale of unwholesome goods for human consumption is a criminal offence – Food & Drugs Law, 1992 s.1(1)(a)
4. It is both enabling and regulatory
RELEVANCE OF LAW IN COMMERCIAL ACTIVITIES
1. Facilitates business planning through improved understanding of rights and obligations.
2. Facilitates assessments of legal and commercial roles and the allocation of protection against risk.
3. Ensures businesses operate within regulatory requirements – failure to comply comes with cost.
4. Avoids unnecessary and costly business transactions and unenforceable contracts.
WHY REGULATE?
5. Consumer protection
6. Public interest
7. Information inadequacies
8. Settlement of disputes
