DAMAGES_NOTES_2011

Definition, nature and scope of the law of damages Definition: The law of damage is that part of the law which indicates how the existence and extent of damage, as well as the proper amount of damages are to be determined in the case of delict, breach of contract and other legal principles providing for the payment of damages. Nature and scope The law of damages should be defined as constituting of principles regarding the compensation of all forms of damage. The law of damages determines the content of an obligation to pay damages or satisfaction. The object of the law of damages should be seen as the provision of just, logical and practical rules and principles in solving problems regarding the determination of damage, damages and satisfaction. What will give rise to a claim for damages? 1) Delictual remedies: a) The actio legis aquiliae which provides for damages on account for unlawful and culpable causing of any patrimonial loss b) Actio inuriarum: satisfaction may be recovered for unlawful and intentional personality infringement c) Action for pain and suffering: damages for non- patrimonial loss on account of the unlawful and culpable infringement of the physical-mental integrity 2) Liability without fault and liability based on risk: a) The actio de pauperie: damages for patrimonial and non- patrimonial loss caused by animals are recoverable b) Actio de pastu: compensation for patrimonial loss may be recovered where an animal has caused damage through eating and damaging plants c) Vicarious liability: a duty to pay damages or satisfaction is placed on the defendant because of a delict of another 3) Legislation 4) Breach of contract 5) Contract and realization of risk (insurance contract): the conclusion of a contract and the subsequent realization of risk are a source for the claim of damages where an insurer has given a contractual undertaking to indemnify the insured in terms of a policy if the realization of risk causes damage 6) Claims based on a right of recourse or adjustment .........................................CONTINUED.......................................