DLR Chapter one – General introduction
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1. Delict: General nature & place in the legal system
a) Understand the arguments;
b) Give the definition of delict & identify its five elements;
c) Explain the difference between a generalising & a casuistic
approach;
d) Study the contents of footnotes 5-6, 8 & 12;
e) Explain the relation between the law of delict & other legal
fields (refer to study guide).
2. Delict & breach of contract
a) Describe the differences between delict & breach of contract
(only two, each affecting the available remedy, as well as the
field of law applicable);
b) Point out the similarity between delict & breach of contract;
c) What is McKerron’s point of view? (footnote 23)
1 Delict & crime
a) Explain why the same juristic fact can constitute either a crime
or a delict;
b) Explain the fundamental differences between a crime & a delict
one by one;
c) - Provide examples of acts that qualify as both crimes & delicts;
- Acts that are delicts, but not crimes; &
- Acts that are crimes, but not delicts. (see footnotes 30-32)
1
,1 Historical development of delictual liability
a) Study pages 15-16 in detail – Action for pain & suffering
(section 4.4).
1 The law of delict, the Constitution & fundamental Human Rights
a) Give a few examples of fundamental rights contained in the Bill
of Rights;
b) Explain the difference between direct & indirect application of
the Constitution in some detail;
c) Study Dendy v University of the Witwatersrand.
2
,1. Delict: General nature & place in the legal system
a) Understand the arguments
1) The purpose of law (in particular private law) is to regulate
relations between individuals in a community.
✓ Individual interests are continually in a state of
real/threatened conflict.
✓ It is the function of private law to recognise these
interests, delimit them in relation to each other, &
harmonise those that are in conflict.
✓ Role of law of delict: To indicate which interests are
recognised by the law, under which circumstances they
are protected against infringement, & how such a
disturbance in the harmonious balance of interests may
be restored.
1 The fundamental premise in law is that damage (harm) rests
where it falls.
✓ If someone drives his car carelessly & collides with a
tree, or clumsily drops & breaks his watch etc, he has in
principle no legal ground for complaint.
✓ However, 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 – the result that the latter incurs an obligation to
3
, bear the former’s damage, or to provide compensation
for it.
✓ Where damage arises from a delict, the wrongdoer is
legally obliged to compensate the aggrieved party.
✓ Law of delict: Determines the circumstances in which a
person is obliged to bear the damage he has caused
another.
✓ Because the wrongdoer has an obligation to make
compensation for the damage suffered, the person
prejudiced has a corresponding right to claim
compensation. As a result, an obligation between the
two parties is created.
b) Give the definition of delict & identify its five elements
Definition of delict Five elements of a delict
- The act of a person that in a - Act;
wrongful & culpable way causes - Wrongfulness;
harm to another. - Fault;
- Causation; &
- Harm.
(All five must be present before the conduct
complained of may be classified as a delict)
a)
c) Explain the difference between a generalising & a casuistic approach
Generalising approach Casuistic approach
4
______________________________________________________________
1. Delict: General nature & place in the legal system
a) Understand the arguments;
b) Give the definition of delict & identify its five elements;
c) Explain the difference between a generalising & a casuistic
approach;
d) Study the contents of footnotes 5-6, 8 & 12;
e) Explain the relation between the law of delict & other legal
fields (refer to study guide).
2. Delict & breach of contract
a) Describe the differences between delict & breach of contract
(only two, each affecting the available remedy, as well as the
field of law applicable);
b) Point out the similarity between delict & breach of contract;
c) What is McKerron’s point of view? (footnote 23)
1 Delict & crime
a) Explain why the same juristic fact can constitute either a crime
or a delict;
b) Explain the fundamental differences between a crime & a delict
one by one;
c) - Provide examples of acts that qualify as both crimes & delicts;
- Acts that are delicts, but not crimes; &
- Acts that are crimes, but not delicts. (see footnotes 30-32)
1
,1 Historical development of delictual liability
a) Study pages 15-16 in detail – Action for pain & suffering
(section 4.4).
1 The law of delict, the Constitution & fundamental Human Rights
a) Give a few examples of fundamental rights contained in the Bill
of Rights;
b) Explain the difference between direct & indirect application of
the Constitution in some detail;
c) Study Dendy v University of the Witwatersrand.
2
,1. Delict: General nature & place in the legal system
a) Understand the arguments
1) The purpose of law (in particular private law) is to regulate
relations between individuals in a community.
✓ Individual interests are continually in a state of
real/threatened conflict.
✓ It is the function of private law to recognise these
interests, delimit them in relation to each other, &
harmonise those that are in conflict.
✓ Role of law of delict: To indicate which interests are
recognised by the law, under which circumstances they
are protected against infringement, & how such a
disturbance in the harmonious balance of interests may
be restored.
1 The fundamental premise in law is that damage (harm) rests
where it falls.
✓ If someone drives his car carelessly & collides with a
tree, or clumsily drops & breaks his watch etc, he has in
principle no legal ground for complaint.
✓ However, 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 – the result that the latter incurs an obligation to
3
, bear the former’s damage, or to provide compensation
for it.
✓ Where damage arises from a delict, the wrongdoer is
legally obliged to compensate the aggrieved party.
✓ Law of delict: Determines the circumstances in which a
person is obliged to bear the damage he has caused
another.
✓ Because the wrongdoer has an obligation to make
compensation for the damage suffered, the person
prejudiced has a corresponding right to claim
compensation. As a result, an obligation between the
two parties is created.
b) Give the definition of delict & identify its five elements
Definition of delict Five elements of a delict
- The act of a person that in a - Act;
wrongful & culpable way causes - Wrongfulness;
harm to another. - Fault;
- Causation; &
- Harm.
(All five must be present before the conduct
complained of may be classified as a delict)
a)
c) Explain the difference between a generalising & a casuistic approach
Generalising approach Casuistic approach
4
