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DELICT (ELEMENTS (3. grounds of justification (consent (voluntarily…
DELICT
ELEMENTS
1. the conduct
determined by will
conscious decision to act voluntarily
not liable
not determined by will
defence
types
postive
commisio
negative
omissio
failing to act
only
legal duty to act
2. wrongfullness
infringement of subjective rights
real rights
intellectual rights
personal rights
personality rights
deemed wrongful?
Boni mores
legal conviction
community
objective test
reasonableness
consider
all facts
situation
competition between subjective rights
balance of rights
reasonable
consider certain factors
liability for omissions
legal duty to act
A
person creates
potentially dangerous situation
fails to remove it
requirements
creates new danger
fails to remove
resulting injury
B
failure
excercise control
dangerous object
fire
C
knowledge and foreseight
possible harm
faulty traffic lights
fail to repair
D
rules of law
duty of police officer
E
occupation
public office/ position
F
special relationship
between parties
G
contractual undertaking
safety
3rd party
H
created impression
I
interplay of factors
3. grounds of justification
private defence/ self-defence
necessity
non-human attack
consent
injury
voluntarily
assumption
risk
injury
unauthorised agency
statutory authority
official capacity
power to discipline
provocation
doctrine of the abuse of rights, nuisance and neighbour law
4. fault
blameworthy
intent
dolus directus
directed his will
dolus indirectus
second conseqeunce
unaviodable
dolus eventualis
foresee possibility
conseqeunce
negligence
legally
expected
reasonable person
same situation
reasonable test
contributary fault
victim shares in blame
share in loss
contributory intent
contributory negligence
joint wrongdoers
blameworthiness measured
against total joint blameworthiness of both parties
strict liability
liability
even with no fault
exist
exceptional circumstances
created
legal rule
eg.
damage caused by animals
enviromental statutes
CPA: strict product liability
5. causation
loss
caused
wrongful act
nexus (link)
act and loss
= question in fact
two types
factual causation
condicto sine qua non
but for test
problems
multiple causes
endless chain of events
legal causation
limits
loss too far from act
flexible test
reasonableness
reasonable foreseeability
take your victim as you find him
novus actus interveniens
new intervening causes
break factual chain
6. Patrimonial loss or impairment of personality
damage
awarded to eliminate present and future loss
2 kinds
patromonial loss
compensate for actual loss
impairment of personality
satisfaction
patrimonial loss
caused by
loss of patrimonial element
decrease in value of patrimony
forms of patrimonial loss
damnum emergens
indirect or consequential loss
damage to property
direct loss
loss determined
sum-formula approach
compare
position before
position after
non-patrimonial loss
disturbance
personality interest
reputation/ dignity/ feelings, etc.
solatium
given to compensate for loss
make person feel better
pure-economic loss
not direct result
damage to property
impairment of personality
eg. wasted expense/ revenue losses
not prima facie wrongful
DELICTUAL REMEDIES
1. Actio legis Aquiliae
damages
pecuniary loss
culpable conduct
posssible to cede
right to somebody else
2. Actio iniuriarum
satisfaction
intentional injury
cannot be ceded
3. Action for pain and suffering
negligent conduct
4. Other
animals
throwing things out of the window
GENERAL
definition
act
culpable
wrongful
causes
patromonial loss
impairs personality
delict VS crime
delict
private law
purpose
claim compensation
helps person who suffered loss
crime
public law
purpose
maintain order in public interest
state prosecute and punish
fine goes to state