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Obligations Law - Lecture 1 - Delict
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Lecture notes for the Obligations 2 (Delict) module. Author achieved a first-class grade for the module.
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Lecture 1 – DelictOK, so what is delict about?
Delict: involuntary obligation. When you cause someone a loss, or you harm someone a duty arises to
compensate that person.
Situations in which people have suffered or not suffered and can require compensation:
• Your car tyre is damaged due to a large pothole;
- The council would be liable, you would not be able to claim back the cost of repairing the
car.
• Your doctor fails to treat your illness in time;
- The doctor would be liable, compensation decided by the court.
• Your lawyers fail to sue him in time;
- The lawyers are liable, they have failed to do their job. The loss in this case would be the
damages that you would have got, your lawyers would have to compensate you with the
compensation that you did not receive.
• You buy a kettle that does not work;
- Faulty product, there is no loss or harm suffered. Get money back that you payed for the
kettle.
• You are knocked down by a man in a work van;
- You sue the person who employed the man in the van, the employer and your damages
would be to compensate you for your pain and suffering.
• You are injured when a car driven by your friend after a night out is involved in an accident.
- Whoever caused the accident would be liable and would have to pay for your pain and
suffering.
When someone does something that does not cause the accident but contribute in some way it is
contributory negligence. Have an accident with multiple people and they are all to blame, even the
victim, for causing the accident.
Delict is a Civil Wrong
• A delict is a civil wrong. Tort.
• BUT not all civil wrongs are delicts, e.g. breach of contract.
• Delict seeks to address the harm caused by the wrongful conduct by remedying the harm
caused by the wrongful conduct.
, Some definitions:
Joe Thomson
“The essence of the modern Scots law of delict is the obligation of a person, A, to compensate
another person, B, for the losses B has sustained as a result of the harm caused to B by the wrongful
actions of A. This obligation to pay compensation is called reparation.”
J Thomson, Delictual Liability (5th edition) p.1
“The obligation to make reparation when loss has been suffered as a result of a person’s wrongful
actions is obediential; it arises ex lege regardless of the will of the wrongdoer. In this respect, delictual
obligations differ from contractual obligations which arise as a result of the agreement of the parties
to a contract.””
J Thomson, Delictual Liability (5th edition) p1.
- You do not get to choose whether to compensate someone and how. The court will tell
you the compensation and you either fulfil the duty or you are in contempt of court. In
this respect, we can see how delict differs from contract law.
Walker
“The fundamental concept of the modern Scottish law of delict is breach of legal duty causing
unjustifiable harm. Principles and rules of statute and common law impose on every individual a large
number of duties of varying standards, owed to all persons who are within the area of risk of harm if
the duty is not observed, to refrain from causing, intentionally or unintentionally, by act or omission,
various kinds of harm to anyone within the area of risk and thereby infringing their legally protected
interests.”
D M Walker, The Law of Delict in Scotland (2nd edition) p.31
- You have a duty not to harm people and if you do it causing someone to be harmed then
it is up to you to compensate them whether the action was done intentionally or
unintentionally. It is up to you to repair the damage you have made.
“If a duty is broken…the law automatically imposes a bond of obligation joining them, conferring on
the wronged person a claim to reparation and imposing on the wrongdoer a duty to make reparation
for the loss caused.”
D M Walker, The Law of Delict in Scotland (2nd edition) p.31
Weir
“People who claim to have suffered harm or an invasion of their rights often seek satisfaction – usually
money – from the party they suppose responsible.”
T Weir, Introduction to Tort Law, (2nd edition) ix
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