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LPL4802 ASSIGNMENT 1 solutions for year 2024
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LAW OF DAMAGES
ASSIGNMENT 1
The sum-formula describes a comparative method through which damage is determined
by subtracting the plaintiff’s present patrimonial position (after the occurrence of a
damage-causing event) from the hypothetical patrimonial position which he or she
would presently have been in had the damage-causing event not occurred. An actual
sum of money is compared with a hypothetical sum of money and this is why the
method is referred to as the sum-formula.
Concrete concept of damage is determined by comparing the utility of an element of the
plaintiff’s patrimony before a damage-causing event occurred with its utility after the
occurrence of such event. It may be stated that what was and what is are compared and
no hypothetical position is taken into account. When this approach is adopted, damage
is not expressed as an anonymous (global) sum of money but in terms of individual
heads of damage.
It was held that the method determines the difference, or, literally, the interesse. The
award of delictual damages seeks to compensate for the difference between the actual
position that is obtained as a result of the delict and the hypothetical position that would
have been obtained had there been no delict. That surely says enough to define the
measure. There appears to be no practical value in observing the distinction between
positive and negative interesse in determining delictual damages. It is a distinction that
tends to obscure rather than clarify. If awarding the difference means necessarily
awarding a loss of profits then it does not assist first to ask what positive interesse and
negative interesse comprise.
Reinecke believes that damage should not be ascertained through a comparison
between someone’s position after a damage-causing event and his or her hypothetical
position had the damage-causing event not taken place. The judging of the actual
consequences of an event is sufficient to establish damage and he does not refer to any
comparative method. Elsewhere, he expresses the opinion that the value of an asset
after a damage-causing event must be deducted from its value before such an event.
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