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Summary Law of Damages Notes 2021
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lOMoARcPSD|3798538Law of Damages Notes
Law of Damages (University of South Africa)
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Damages Notes
1
LAW OF DAMAGES NOTES:
CHAPTER 1:
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
Critical Law Studies CC ©
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Damages Notes
2
Definitions – NB!!
Damage: is the reduction as a result of the damage causing event, of
the use or quality of a patrimonial or personality interest in satisfying
the legally recognized needs of the person involved
Patrimonial loss: is the diminution in the utility of a patrimonial
interest in satisfying the recognized needs of the person entitled to
such interest. It may be defined as the loss or reduction of a positive
asset in someone’s patrimony or the creation or increase of a negative
element
Patrimony: consists of all subjective rights having a monetary value
as well as the expectation of acquiring such rights.
In a factual and economic sense its everything of an individual which
has a monetary value and which may be used by him in satisfying his
legally recognized needs
Non-patrimonial loss: is the reduction in the quality of a highly
personal interest of an individual in satisfying his legally recognized
needs but which does not affect his patrimony
Damage-causing event: it’s a factual situation of an uncertain
nature, which has brought about damage. The factual situation
consists of conduct which may in principle lead to delictual liability or
liability for breach of contract, which may bring about a duty to pay
compensation
Affective loss: this is someone’s emotional reaction caused by having
to suffer any kind of damage or invasion of his rights
Damages: Is the monetary equivalent of damage awarded to a person
with the object of eliminating as fully as possible his past as well as
his future damage.
Compensation: in a narrow sense compensation denotes damage – in
general it’s the reparation of any patrimonial or non-patrimonial loss
Satisfaction: means that the law is upheld through penance and it
denotes the psychological gratification, which the victim of an
injustice receives.
It implies the reparation of damage in the for of injury to personality
by effecting retribution for the wrong suffered by the plaintiff and by
satisfying the plaintiffs and the communities sense of justice
Compensation for non-patrimonial loss: an appropriate amount of
money is awarded to someone who has suffered non-patrimonial loss,
in an attempt to neutralize his loss through the fact that the money
may bring happiness or comfort to him to assist him in overcoming
his loss
Solatium: money
Sum-formula: is a method in which damage is determined by
subtracting the plaintiffs present patrimonial position (after the
occurrence of the damage causing event) from a hypothetical
patrimonial position which he would presently have enjoyed had the
damage causing event not occurred
Concrete concept of damage: damage is determined by comparing
the utility of an element of the plaintiffs patrimony before the damage
Critical Law Studies CC ©
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Damages Notes
3
causing event occurred with its utility after the damage causing event.
“Once and for all” rule: plaintiff may in general only once claim
damages or satisfaction for all the damage based on a single cause of
action – he therefore e has to claim for loss already suffered as well as
all prospective loss
Cause of action: this means that all the elements or facts necessary
to found a claim for damages or satisfaction are present. A cause of
action accrues (if all other facts are present) as soon as some damage
is suffered.
Collateral benefits: this refers to a situation where the plaintiff also
receives some benefit as a result of the damage-causing event. If such
benefit is taken into account in reducing his recoverable damages, it is
said that the collateral source rule doesn’t apply. This means the
defendant’s liability to pay damages is accordingly reduced.
Res inter alios acta: this is a situation where the collateral source
rule does apply
General and special damage: general damage is usually that damage
which is presumed to flow from an unlawful act – in contract general
damage is the damage that flows naturally from a breach of contract
and which the law presumes that the parties have contemplated
would result from such a breach.
Special damage refers to damage which the law doesn’t presume to be
the necessary consequence of the act complained of and which must
be specially pleaded and established by evidence – in contract special
damage refers to loss which is normally too remote and for which
damages may be recovered only if the parties actually or presumably
foresaw that it would result
Nominal damages: this is the payment of a small amount of money to
a plaintiff that has proved an invasion of his rights but no damage
Nominalism: Legal concept that an obligation to pay a certain sum
remains unchanged whether or not the currency in which it was to be
paid appreciates or depreciates.
Id quod interest, interesse: this is the full patrimonial damage or
loss sustained by the plaintiff for which damages are recoverable
Damnum emergens, lucrum cessans: damnum emergens – means
damage (patrimonial loss) which has been suffered and for which
damages are claimed – refers to loss already sustained.
Lucrum cessans – means loss of profits and some forms of prospective
loss.
Prospective loss: this is damage in the form of patrimonial and non-
patrimonial loss which will, with a sufficient degree of probability,
materialize after the time of assessment of damage on account of an
earlier damage causing event
Positive and negative interesse: in contract – positive interesse
usually refers to the total interests which a contractual party has in
the other party fulfilling his contractual obligations = all damage
which he has already suffered and will probably suffer in the future as
a result of the breach.
Critical Law Studies CC ©
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