lOMoAR cPSD| 48433225
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, lOMoAR cPSD| 48433225
PVL3703
Law of Delict
Chapter 1: General Introduction
• Delict: General nature and place in the legal system:
• The purpose of private law is to regulate relations between individuals in a
community.
• The role of the law of delict is to indicate which interests are recognised by the
law, under which circumstances they are protected against infringement and
how such a disturbance in the harmonious balance of interests mat be restored.
• The fundamental premise in law is that damage (harm) rests where it falls, that
is, each person must bear the damage he suffers (res perit domino).
• However, the damage does not always rest where it falls.
• There are certain legally recognised instances in which the burden of damage is
shifted from one individual to another, with the result that the latter incurs an
obligation to bear the former’s damage or to provide compensation for it.
• The wrongdoer has an obligation to make compensation for the damage
suffered, the person prejudiced has a corresponding right to claim
compensation.
• An obligation or obligation between the two parties is created thus law of delict
belongs to that part of private law known as the law of obligation.
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, lOMoAR cPSD| 48433225
To found liability certain requirements must be met, taken from the definition of the
law of delict: a delict is an act of a person that in a wrongful and culpable way
causes harm to another:
• Act
• Wrongfulness
• Fault
• Causation
• Harm
• Must be met before the conduct complained of may be classified as a delict.
Generalizing approach:
• Means that general principles or requirements regulate delictual liability and is
applied irrespective of which individual interest is impaired and irrespective of
the way in which the impairment is caused.
The casuistic approach:
• The law of delict consists of a group or set of separate delicts (torts or delicta)
each more or less with its own rules.
• The aggrieved party may thus only render the wrongdoer liable if his conduct
satisfies all the requirements of a specific delict
• The South African law of delict, unlike the English law of torts, has therefore
been able to recognise and protect individual interests (eg. privacy and the
goodwill of a corporation).
• A distinction is made in principle between delicts that cause patrimonial
damages (damnum iniuria datum) and those that cause injury to personality
(iniuria).
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, lOMoAR cPSD| 48433225
Delict and breach of contract:
o A contract is an agreement with the intention to create an obligation or
obligations.
o Breach of contract is normally an act by one person (contracting party) which
in a wrongful and culpable way causes damage to another (contracting party).
o Breach of contract is only constituted by the non-fulfillment by a contractual
party of a contractual personal right (claim) or an obligation to be performed.
o The primary remedy for breach of contract is directed at enforcement,
fulfillment or execution of the contract; a claim for damages as a remedy only
plays a secondary part. o A delict is constituted by the infringement of any
legally recognised interest of another party, excluding the non-fulfillment of a
duty to perform by a contractual party. o The delictual remedies are primarily
directed at damages or satisfaction. Breach of contract is not formally treated
as part of the law of delict but is considered to be part of the law of contract. o
Thus the law of contract provides specific rules and remedies for breach of
contract that are not applicable to the law of delict. o Atmost both are species
of the genus “wrongful conduct” in private law.
Delict and crime:
• The principle difference relates to the distinction between private and public
law.
• Private law is directed at the protection of individual interests, while public law
is directed at upholding the public interest.
• Delictual remedies are compensatory in character, compensating or
indemnifying the aggrieved party for the harm the wrongdoer has caused.
• Criminal sanctions are of penal nature.
Downloaded by Vincent master ()
Downloaded by Vincent master ()
, lOMoAR cPSD| 48433225
PVL3703
Law of Delict
Chapter 1: General Introduction
• Delict: General nature and place in the legal system:
• The purpose of private law is to regulate relations between individuals in a
community.
• The role of the law of delict is to indicate which interests are recognised by the
law, under which circumstances they are protected against infringement and
how such a disturbance in the harmonious balance of interests mat be restored.
• The fundamental premise in law is that damage (harm) rests where it falls, that
is, each person must bear the damage he suffers (res perit domino).
• However, the damage does not always rest where it falls.
• There are certain legally recognised instances in which the burden of damage is
shifted from one individual to another, with the result that the latter incurs an
obligation to bear the former’s damage or to provide compensation for it.
• The wrongdoer has an obligation to make compensation for the damage
suffered, the person prejudiced has a corresponding right to claim
compensation.
• An obligation or obligation between the two parties is created thus law of delict
belongs to that part of private law known as the law of obligation.
Downloaded by Vincent master ()
, lOMoAR cPSD| 48433225
To found liability certain requirements must be met, taken from the definition of the
law of delict: a delict is an act of a person that in a wrongful and culpable way
causes harm to another:
• Act
• Wrongfulness
• Fault
• Causation
• Harm
• Must be met before the conduct complained of may be classified as a delict.
Generalizing approach:
• Means that general principles or requirements regulate delictual liability and is
applied irrespective of which individual interest is impaired and irrespective of
the way in which the impairment is caused.
The casuistic approach:
• The law of delict consists of a group or set of separate delicts (torts or delicta)
each more or less with its own rules.
• The aggrieved party may thus only render the wrongdoer liable if his conduct
satisfies all the requirements of a specific delict
• The South African law of delict, unlike the English law of torts, has therefore
been able to recognise and protect individual interests (eg. privacy and the
goodwill of a corporation).
• A distinction is made in principle between delicts that cause patrimonial
damages (damnum iniuria datum) and those that cause injury to personality
(iniuria).
Downloaded by Vincent master ()
, lOMoAR cPSD| 48433225
Delict and breach of contract:
o A contract is an agreement with the intention to create an obligation or
obligations.
o Breach of contract is normally an act by one person (contracting party) which
in a wrongful and culpable way causes damage to another (contracting party).
o Breach of contract is only constituted by the non-fulfillment by a contractual
party of a contractual personal right (claim) or an obligation to be performed.
o The primary remedy for breach of contract is directed at enforcement,
fulfillment or execution of the contract; a claim for damages as a remedy only
plays a secondary part. o A delict is constituted by the infringement of any
legally recognised interest of another party, excluding the non-fulfillment of a
duty to perform by a contractual party. o The delictual remedies are primarily
directed at damages or satisfaction. Breach of contract is not formally treated
as part of the law of delict but is considered to be part of the law of contract. o
Thus the law of contract provides specific rules and remedies for breach of
contract that are not applicable to the law of delict. o Atmost both are species
of the genus “wrongful conduct” in private law.
Delict and crime:
• The principle difference relates to the distinction between private and public
law.
• Private law is directed at the protection of individual interests, while public law
is directed at upholding the public interest.
• Delictual remedies are compensatory in character, compensating or
indemnifying the aggrieved party for the harm the wrongdoer has caused.
• Criminal sanctions are of penal nature.
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