Exam (elaborations)
PVL3703 Law Of Delict Exam
- Course
- PVL3703 - Law Of Delict
- Institution
- University Of South Africa (Unisa)
PVL3703 Law Of Delict Exam
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1PVL3703 Exam Notes LAW OF DELICT
1. Define a delict (2)
The act of a person which in a wrongful and culpable way causes harm to another.
2. List the 5 elements of a delict
- Act
- Wrongfulness
- Fault
- Causation
- Damage
(8) (b) Indicate precisely which types of compensation can be recovered with each of the actions cited above.
(a) Name the three actions that are described as the pillars of our law of delict.
Name the most important delictual remedies available, and briefly indicate what are the differences between
them
I. Actio legis Aquiliae: Claim damages for wrongful and culpable causing of patrimonial damage
II. Actio iniuriarum: Claim satisfaction for wrongful and intentional injury to personality.
III. Action for pain and suffering: Claim compensation for wrongful and culpable impairment of bodily
or physical-mental integrity.
(c) Indicate what form of fault is required for each of the actions cited above.
Culpably includes the concepts of negligence or intention
1. intention or negligence
2. intent is generally required
, 2
3. intention or negligence
(d) Indicate which other group of delictual actions is available in our law.
(e) Name another remedy not an action that may be employed in delictual cases, and explain how its
function differs from that of the delictual actions.
3. Write brief notes on the differences/ similarities between a delict and a breach of contract [5]
1. A contract is an agreement with the intention to create an obligation or obligations.
2. 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).
3. 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.
4. 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.
5. 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.
6. 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.
7. Thus the law of contract provides specific rules and remedies for breach of contract that are not applicable
to the law of delict.
8. At most both are species of the genus “wrongful conduct” in private law.
Write brief notes on the differences/ similarities between a delict and a 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.
, 3
• Criminal sanctions are of penal nature.
• One and the same act may be found delictual and criminal liability but a delict is not necessary a crime
and vice versa.
9. Explain in 4 or 5 sentences how Chpt. 2 of the Constitution may influence the law of delict
1. The Constitution is the supreme law of RSA. Chapter2 (BOR) is applicable to all law, incl Delict.
2. Vertical & horizontal application of Const can take place directly or indirectly.
3. Constitutional remedies are aimed at affirming/enforcing/protecting/vindicating fundamental rights and
deterring future violations of Ch2.
4. There is a distinction between a constitutional wrong and a delict, constitutional wrong gives rise to a
constitutional remedy directed at affirming, enforcing, protecting and vindicating fundamental rights
and preventing future violation unlike a delictual remedy which is aimed at compensation.
5. Indirect application: the term indirect operation of the Bill of Rights means that all private law rules,
principles or norms including those regulating the law of delict are subject of Chapter 2.
6. The boni mores test for wrongfulness, the immutability test for legal causation and the reasonable person
test for negligence, where policy considerations and factors such as fairness and justice play an important
part.
7. “Constitutional delict” infringement of a fundamental right per se constitutes a delict.
Write brief notes on the indirect application of the BOR to the law of delict (5)
Indirect application: the term indirect operation of the Bill of Rights means that all private law rules, principles or
norms including those regulations the law of delict are subject of Chapter 2.
The boni mores test for wrongfulness, the immutability test for legal causation and the reasonable person test for
negligence, where policy considerations and factors such as fairness and justice play an important part.
(1) What is the purpose of private law?
To regulate relations between individuals in a community. As individual interests are continually in a state of real or
threatened conflict private law recognises these interests, delimits them in relation to each other and harmonise
those that are in conflict.
(2) Briefly describe the role of the law of delict.
to indicate which interests are recognised by the law, under which circumstances they are protected against
infringement (that is when the impairment of a legally recognised interest constitutes a delict and how such a
disturbance in the harmonious balance of interests may be restored. In general terms the law of delict determines
the circumstances in which a person is obliged to bear the damage he has caused another.
(3) Why is the law of delict considered to be part of the law of obligations?
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.
(6) The element of delict known as ``causation'' is actually divided into two elements. Name them.
Factual and legal causation
(7) Is fault always a requirement for delictual liability? Briefly discuss with reference to an example.
In certain exceptional cases a wrongdoer can be delictually liable for the wrongful causation of damage, even if
he/she had no fault. Here we are dealing with so-called liability without fault or strict liability.
Eg.oooooooooooooooooooo
(13) Name the fundamental rights relevant to the law of delict that are entrenched in Chapter 2 of the
Constitution of the Republic of South Africa, 1996.
Fundamental rights ito Law of Delict:
1. Right to property
2. Right to life
3. Right to freedom and security of person
4. Right to privacy
, 4
5. Right to human dignity
6. Right to equality
7. Right to freedom of expression
8. Right to freedom of religion, belief, opinion
9. Right to assembly, demonstration, picket, petition
10. Right to freedom of association
11. Right to freedom of trade, occupation, profession
3. The Act or conduct
12. Define an act or conduct
Conduct is a voluntary human act or omission.
(2) Name (but do not discuss) the three characteristics of an act.
13. list the requirements of an act and apply them to practical factual examples
1. Only an act of a human being is accepted as “conduct”. If a human uses an animal as an
instrument a human act is still present. A juristic person may act through its organs (humans).
To determine human conduct to a juristic person for delictual liability:
i. An act performed by or at the order of or with the permission of a director, official or
servant of a juristic person in the exercise of is duties or functions in advancing or
attempting to advance the interests of the juristic person is deemed to have been
performed by the juristic person
ii. Vicarious liability= “employer” is responsible for employee thus acting as a representative
for employee or company.
2. Human action only constitutes conduct if it is performed voluntarily. Voluntariness implies that
the person in question has sufficient mental ability to control his muscular movements.
i. Voluntariness does not mean that a person must have willed or desired his conduct or that a
person’s conduct should be rational or explicable.
3. Conduct may be in the form of either a positive act (active conduct- a commissio) or an
omission (omissio)
(7) X forgets to warn others that an electric current has been switched on. As a result of his neglect
(omission), somebody is electrocuted. Does X act voluntarily? Explain briefly.
X clearly has not willed or desired this omission; however his conduct is voluntary because he was in principle
able to utter a warning.
(8) Can an infans or mentally retarded person act voluntarily?
Conduct by an infans or someone suffering from a mental disease is usually voluntary although the doer my
escape delictual liability for lack of accountability or fault
4. Explain the requirements of the defences of automatism and apply them to practical factual examples
The defence of automatism: i.e acted mechanically
• The following conditions may cause a person to act involuntarily:
Absolute compulsion; Sleep; Unconsciousness; A fainting fit, An epileptic fit; Serious intoxication; A black out;
Reflex movements, Strong emotional pressure; mental disease; hypnosis; duress and certain other conditions.
• The defence of automatism will not succeed if the defendant intentionally created the situation in which
he acts involuntarily in order to harm another= known as actio libera in causa.
• The defendant may not successfully rely on the defence of automatism where he was negligent with
regard to his automatic “conduct”
• This is where the reasonable man would have foreseen the possibility of causing harm while in a state
of automatism.
• If “sane” automatism (no pathology) is used, the onus is on the plaintiff to prove that the defendant has
acted voluntarily and therefore not mechanically. If the defendant raises automatism resulting from
mental illness as a defence such a defendant would bear onus.
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