DLR (LoD – Law of Delict)
CASE
LEGISLATION
DEFINITION
EXAMPLE
CHAPTER 1: GENERAL INTRO
Delict: general nature and place in legal system
Purpose of private law = regulate relations between individuals in a
community.
LoD –
o Determines the circumstances in which a person is obliged to
bear damaged they have caused another.
o Delict = act of person that in a wrongful and culpable way
causes harm to another (5 elements – all must be present
before can be classified as delict):
An act.
Wrongfulness.
Fault.
Causation.
Harm.
o 3 Pillars –
damages for wrongful and culpable causing of patrimonial
damage (monetary damage) are claimed – using actio
legis Aquilia
satisfaction/sentimental damages is used for wrongful and
intentional injury to personality – remedy for satisfaction =
actio iniuriarum.
, Action for pain and suffering – compensation for injury to
personality as result of wrongful and negligent impairment
of bodily/physical-mental integrity is claimed.
o Delict = legal fact (of which law takes notice) but not legal act
(law attaches consequences to it independent of will/aim of
wrongdoer.
o Indicates which interests are recognized by law.
o Under which circumstances interests are protected against
infringement (when impairment of legally recognized interests
constitutes delict).
o How much disturbance in harmonious balance of interest may
be restored.
Fundamental premise in law = damage (harm) rests where it falls
(each person must bear damage they suffer) –
o HOWEVER, damage DOES NOT ALWAYS rest where it falls:
Instances where damage shifted from one individual to
wrongdoer where wrongdoer incurs obligation to bear the
others damage/provide compensation for it.
Wrongdoer has an obligation to compensate for damage
suffered, victim has a right to claim such compensation
which CREATES obligation between the parties
(therefore law of delict is part of private law under law
of obligations).
Approaches –
o Generalizing approach –
General principles/requirements regulate delictual liability.
, These requirements apply irrespective of which individual
interest is impaired and irrespective of the way in which
the impairment is caused.
Distinction between delicts causing patrimonial damage,
those that cause injury to personality and action for pain
and suffering (although these are different remedies, they
all must comply with 5 general requirements of delict).
o Casuistic approach –
LoD consists of a group/set of separate delicts, each with
their own rules (case by case).
Aggrieved party may only render wrongdoer liable if their
conduct satisfies all requirements of that specific delict
(No general rules).
o Generalizing approach (only need to be adapted and applied in
a new way – speedy judicial process) able to accommodate
changing circumstances easier than casuistic approach
(constant creation of new delicts – lengthy legislative process).
o SA uses generalizing approach.
Delict and breach of contract
Breach of contract & delict similarities –
o Act by one person which in a wrongful and culpable way causes
damage to another.
o Both form part of wrongful conduct in private law.
o No material difference between breach of contract and delict.
Breach of contract & delict differences –
, o Breach of contract only constituted by non-fulfilment by
contractual party of a contractual personal right (claim) or
obligation to perform
o Primary remedy for breach of contract is directed at
enforcement, fulfilment or execution of contract (claim for
damages play secondary part).
o Delictual remedies primarily directed at damages/satisfaction
and not fulfillment.
o Breach of contract not formally treated as part of LoD but rather
law of contract (provides specific rules and remedies for breach
of contract that are not applicable to delict.
Delict and crime
Private law v public law –
o Private law = directed at protection of individual (private)
interests.
o Public law = directed at upholding public interest.
Delictual remedies v criminal sanctions –
o Delictual remedies = compensatory (compensating aggrieved
party for harm the wrongdoer caused).
o Criminal sanctions = penal nature intended to punish criminal
for transgression against public interest.
An act can be both delictual and criminal BUT a delict is not
necessarily a crime and a crime is not necessarily a delict.
Action for pain and suffering
Action for pain and suffering = unique action that cannot be classified
with actio legis Aquilia or actio iniuriarum.
CASE
LEGISLATION
DEFINITION
EXAMPLE
CHAPTER 1: GENERAL INTRO
Delict: general nature and place in legal system
Purpose of private law = regulate relations between individuals in a
community.
LoD –
o Determines the circumstances in which a person is obliged to
bear damaged they have caused another.
o Delict = act of person that in a wrongful and culpable way
causes harm to another (5 elements – all must be present
before can be classified as delict):
An act.
Wrongfulness.
Fault.
Causation.
Harm.
o 3 Pillars –
damages for wrongful and culpable causing of patrimonial
damage (monetary damage) are claimed – using actio
legis Aquilia
satisfaction/sentimental damages is used for wrongful and
intentional injury to personality – remedy for satisfaction =
actio iniuriarum.
, Action for pain and suffering – compensation for injury to
personality as result of wrongful and negligent impairment
of bodily/physical-mental integrity is claimed.
o Delict = legal fact (of which law takes notice) but not legal act
(law attaches consequences to it independent of will/aim of
wrongdoer.
o Indicates which interests are recognized by law.
o Under which circumstances interests are protected against
infringement (when impairment of legally recognized interests
constitutes delict).
o How much disturbance in harmonious balance of interest may
be restored.
Fundamental premise in law = damage (harm) rests where it falls
(each person must bear damage they suffer) –
o HOWEVER, damage DOES NOT ALWAYS rest where it falls:
Instances where damage shifted from one individual to
wrongdoer where wrongdoer incurs obligation to bear the
others damage/provide compensation for it.
Wrongdoer has an obligation to compensate for damage
suffered, victim has a right to claim such compensation
which CREATES obligation between the parties
(therefore law of delict is part of private law under law
of obligations).
Approaches –
o Generalizing approach –
General principles/requirements regulate delictual liability.
, These requirements apply irrespective of which individual
interest is impaired and irrespective of the way in which
the impairment is caused.
Distinction between delicts causing patrimonial damage,
those that cause injury to personality and action for pain
and suffering (although these are different remedies, they
all must comply with 5 general requirements of delict).
o Casuistic approach –
LoD consists of a group/set of separate delicts, each with
their own rules (case by case).
Aggrieved party may only render wrongdoer liable if their
conduct satisfies all requirements of that specific delict
(No general rules).
o Generalizing approach (only need to be adapted and applied in
a new way – speedy judicial process) able to accommodate
changing circumstances easier than casuistic approach
(constant creation of new delicts – lengthy legislative process).
o SA uses generalizing approach.
Delict and breach of contract
Breach of contract & delict similarities –
o Act by one person which in a wrongful and culpable way causes
damage to another.
o Both form part of wrongful conduct in private law.
o No material difference between breach of contract and delict.
Breach of contract & delict differences –
, o Breach of contract only constituted by non-fulfilment by
contractual party of a contractual personal right (claim) or
obligation to perform
o Primary remedy for breach of contract is directed at
enforcement, fulfilment or execution of contract (claim for
damages play secondary part).
o Delictual remedies primarily directed at damages/satisfaction
and not fulfillment.
o Breach of contract not formally treated as part of LoD but rather
law of contract (provides specific rules and remedies for breach
of contract that are not applicable to delict.
Delict and crime
Private law v public law –
o Private law = directed at protection of individual (private)
interests.
o Public law = directed at upholding public interest.
Delictual remedies v criminal sanctions –
o Delictual remedies = compensatory (compensating aggrieved
party for harm the wrongdoer caused).
o Criminal sanctions = penal nature intended to punish criminal
for transgression against public interest.
An act can be both delictual and criminal BUT a delict is not
necessarily a crime and a crime is not necessarily a delict.
Action for pain and suffering
Action for pain and suffering = unique action that cannot be classified
with actio legis Aquilia or actio iniuriarum.
