DLR320: Law of Delict
Chapter 1: Introduction
1. Background to law of delict
Purpose of law (in particular private law): to regulate relations between individuals in
community
Law of delict indicates:
1. Which individual interests recognized
2. When interests protected against infringement
3. How balance restored
o Normally damage rests where it falls: person must bear damages he suffers
- Cannot hold someone liable for damages due to act of God
o When damage does not rest where it falls: law of delict determines when
burden shifts to wrongdoer = civil liability
Legal obligation created between = wrongdoer + aggrieved party
o Delict is legal fact ie fact of which law takes notice. Not legal act because law
attaches consequences to it independent of will/aim of wrongdoer
o In law of delict, primary Q is who must bear loss = wrongdoer of aggrieved
party
o Misleading to define delict as “infringement of another’s interests” because 1.
Omission to state fault as general delictual requirement + 2. Impression
created that all individual interests relevant (when actually only legally
recognized ones that are relevant)
o In last decade: recognition of instances of liability without fault (strict liability)
as distinct from traditional liability where fault is essential req
Definition of delict:
= conduct of person that in wrongful & culpable way causes harm to another
1
,5 requirements of delict must be met:
1. Conduct
2. Wrongfulness
3. Fault (culpability)
4. Causation only req not mentioned in def
5. Harm (damages)
2. Different approaches to law of delict
A. SA law of delict governed by generalising approach
= means that general principles regulate delictual liability; principles apply
irrespective of which individual interest is impaired as well as way impairment
caused
= must satisfy 5 requirements for delictual liability
= flexible
o Generalising approach subject to important qualification in our law
= distinction made between delicts that cause patrimonial damage + cause injury to
personality
3 pillars of delictual liability: (each of actions are specific forms of delicts falling within
broad scope of delict)
i. Actio legis Aquiliae = damages for patrimonial loss (monetary value)
= wrongful culpable causing of patrimonial loss forms basis for Aquillian action
ii. Actio iniuriarum = delicts cause injury to personality; non-patrimonial
damages
= wrongful intentional injury to personality forms inuraria action
iii. Action for pain + suffering = impairment of bodily/physical – mental integrity
= protection particularly apparent ito psychological/mental injury equated with
physical injury in area if
1. Emotional shock
2. Shortened life expectancy
3. Amenities of life/health
Are recognized as injury to personality for which compensation may be claimed
2
,[History]
- Did not originate in Roman law
- No compensation could be claimed under Roman law for negligent causing of
bodily injuries
- Position Roman-Dutch law: pain, suffering, bodily disfigurement as result of
physical injuries founded an action
- So actio legis Aquiliae restricted to patrimonial damage & did not include
compensation for injury to personality as result of pain & suffering
B. Casuistic approach (case by case approach)
= separate torts with own requirements don’t need to comply with 5
reqs for delictual liability
= aggrieved party can only render wrongdoer liable if conduct satisfies all reqs of
specific delict
= English & Roman law of delict follows this approach
= not flexible
Commentary on different approaches in terms of flexibility/inflexibility:
Generalising approach
- Accommodates changing circumstances more easily
- General principles need only be adapted in new way (through speedy judicial
process)
- Able to recognize & protect individual interests which manifested in modern
times
Casuistic approach – requires constant creation of new delicts
(through slow legislative approach)
3. Where does law of delict fit in?
o Part of private law = law of delict protects legally recognizes individual/private
interests
o Part of law of obligations = wrongdoer obliged to make compensation for
damage suffered + person prejudiced has corresponding right to claim
obligations
3
, 4. Delict & breach of contract
- No material difference between these legal phenomena
- Both species of genus “wrongful conduct” in private law
- Fault is req for most forms of breach of contract (EXCLUDING REPUDIATION
& INSTANCES OF POSITIVE MALPERFORMANCE) – in these cases liability is
strict
- Reasonable person test for negligence should apply to all cases of breach of
contract
Delict Breach of contract
When? Infringement of legally When? Non-fulfilment of contractual
recognized interest of another party obligation by contracting party
- Act in wrongful & culpable way
causing harm to other contracting party
Remedies directed @ Remedies primarily directed @:
1) Compensation 1) Enforce
2) Fulfilment
3) Execution of contract
Secondary remedy:
1) Claim for damages
Forms part of private law Forms part of private law
- Law of obligations - Law of obligations
- Not formally treated as part of
law of delict; considered part of law of
contract
- Law of contract provides specific
rules & remedies for breach of contract
not applicable to delict
5. Delict & crime
4
Chapter 1: Introduction
1. Background to law of delict
Purpose of law (in particular private law): to regulate relations between individuals in
community
Law of delict indicates:
1. Which individual interests recognized
2. When interests protected against infringement
3. How balance restored
o Normally damage rests where it falls: person must bear damages he suffers
- Cannot hold someone liable for damages due to act of God
o When damage does not rest where it falls: law of delict determines when
burden shifts to wrongdoer = civil liability
Legal obligation created between = wrongdoer + aggrieved party
o Delict is legal fact ie fact of which law takes notice. Not legal act because law
attaches consequences to it independent of will/aim of wrongdoer
o In law of delict, primary Q is who must bear loss = wrongdoer of aggrieved
party
o Misleading to define delict as “infringement of another’s interests” because 1.
Omission to state fault as general delictual requirement + 2. Impression
created that all individual interests relevant (when actually only legally
recognized ones that are relevant)
o In last decade: recognition of instances of liability without fault (strict liability)
as distinct from traditional liability where fault is essential req
Definition of delict:
= conduct of person that in wrongful & culpable way causes harm to another
1
,5 requirements of delict must be met:
1. Conduct
2. Wrongfulness
3. Fault (culpability)
4. Causation only req not mentioned in def
5. Harm (damages)
2. Different approaches to law of delict
A. SA law of delict governed by generalising approach
= means that general principles regulate delictual liability; principles apply
irrespective of which individual interest is impaired as well as way impairment
caused
= must satisfy 5 requirements for delictual liability
= flexible
o Generalising approach subject to important qualification in our law
= distinction made between delicts that cause patrimonial damage + cause injury to
personality
3 pillars of delictual liability: (each of actions are specific forms of delicts falling within
broad scope of delict)
i. Actio legis Aquiliae = damages for patrimonial loss (monetary value)
= wrongful culpable causing of patrimonial loss forms basis for Aquillian action
ii. Actio iniuriarum = delicts cause injury to personality; non-patrimonial
damages
= wrongful intentional injury to personality forms inuraria action
iii. Action for pain + suffering = impairment of bodily/physical – mental integrity
= protection particularly apparent ito psychological/mental injury equated with
physical injury in area if
1. Emotional shock
2. Shortened life expectancy
3. Amenities of life/health
Are recognized as injury to personality for which compensation may be claimed
2
,[History]
- Did not originate in Roman law
- No compensation could be claimed under Roman law for negligent causing of
bodily injuries
- Position Roman-Dutch law: pain, suffering, bodily disfigurement as result of
physical injuries founded an action
- So actio legis Aquiliae restricted to patrimonial damage & did not include
compensation for injury to personality as result of pain & suffering
B. Casuistic approach (case by case approach)
= separate torts with own requirements don’t need to comply with 5
reqs for delictual liability
= aggrieved party can only render wrongdoer liable if conduct satisfies all reqs of
specific delict
= English & Roman law of delict follows this approach
= not flexible
Commentary on different approaches in terms of flexibility/inflexibility:
Generalising approach
- Accommodates changing circumstances more easily
- General principles need only be adapted in new way (through speedy judicial
process)
- Able to recognize & protect individual interests which manifested in modern
times
Casuistic approach – requires constant creation of new delicts
(through slow legislative approach)
3. Where does law of delict fit in?
o Part of private law = law of delict protects legally recognizes individual/private
interests
o Part of law of obligations = wrongdoer obliged to make compensation for
damage suffered + person prejudiced has corresponding right to claim
obligations
3
, 4. Delict & breach of contract
- No material difference between these legal phenomena
- Both species of genus “wrongful conduct” in private law
- Fault is req for most forms of breach of contract (EXCLUDING REPUDIATION
& INSTANCES OF POSITIVE MALPERFORMANCE) – in these cases liability is
strict
- Reasonable person test for negligence should apply to all cases of breach of
contract
Delict Breach of contract
When? Infringement of legally When? Non-fulfilment of contractual
recognized interest of another party obligation by contracting party
- Act in wrongful & culpable way
causing harm to other contracting party
Remedies directed @ Remedies primarily directed @:
1) Compensation 1) Enforce
2) Fulfilment
3) Execution of contract
Secondary remedy:
1) Claim for damages
Forms part of private law Forms part of private law
- Law of obligations - Law of obligations
- Not formally treated as part of
law of delict; considered part of law of
contract
- Law of contract provides specific
rules & remedies for breach of contract
not applicable to delict
5. Delict & crime
4
