Theme 2

Law of obligationIntroduction and the delict

Define a legal obligationExplain the number of obligations arising from a contract

Discuss legally relevant agreements

Objectives

The right of the creditor to claim performance (the right to insist that something be done or not be done).

Duty of the debtor to perform accordingly (to do / not do something).

Rights and duties were not created in a vacuum, but developed from recognised sources: Contract, Delict, Unjustified Inrichment, Unauthorised agency, Statute and Family relationships.

In Roman Law not all contracts were recognised. Contracts that were not recognised created no legal obligation. That changed in the Roman-Dutch Law. Any contract concluded with the serious intent by parties to be legally bound, created a legal obligation.

Legal obligation consists 2 elements:

A legal tie between legal subjects, recognised by law, created because of certain legal facts that creates rights and duties recognised by law.

If these rights and duties are recognised and enforced by law, it is known as a civil obligation. If these rights and duties are recognised but not enforced by law, it is known as a natural obligation.

The Concept Legal Obligation

A legal fact must exist before a legal obligation can be created. They therefore create, alter or destroy rights.

Legal facts are divided into events that occur without human intervention or it can be human acts and conduct.

Human conduct is divided into juristic acts (law gives effect according to the intentions of the parties) and non-juristic acts (law gives effect irrespective of the intentions of the parties).

Juristic acts are divided into unilateral and multilateral acts.

Sources of Legal Obligations

A single contract can create more than one obligation. Car sold = right to receive the car / duty to deliver the car / duty to pay the price / right to claim purchase price.

Contract therefore describes the total of all the obligations that exists between contracting parties. Failure to perform properly leads to breach of contract.

The party who has the right to claim = creditor.

The party who has the duty to perform = debtor.

Obligations arising from a Contract

Agreements that create legal obligations, Agreements that extinguish legal

obligations, Agreements that transfer duties in tems of

legal obligations, Rights and duties have an economic value

and form assets and liabilities of one’s estate.

Transfer of rights = cession. Transfer of duties = delegation. Transfer of rights and duties =

assignment.

Legally Relevant Agreements:

Theme 2 Part 2 :LAW OF DELICT

1. Define a delict2. Distinguish between a delict and a

crime3. Name and discuss all the elements....4. Discuss delictual remedies5. Explain vicarious liability6. Name and discuss the four

requirements which must be complied with in order to establish vicarious liability

OUTCOMES

A culpable, wrongful act by a person that causes patrimonial loss to another or which impairs the latter’s personality.

The Delict

Delict Crime

Private Law Criminal Law

Protect the personal interests of the

individual.

Maintain order in the interest of the general

public.

Action instituted by one person against another.

Crime is an illegal culpable act, prosecuted

by the State. .

Purpose: To claim compensation for loss / injury caused

by the delict.

Purpose : Punishment for the

violation of the public interest.

The Delict has 5 elements. All these elements must be present before a person can be held liable.

1.Act2.Wrongfulness3.Fault4.Patrimonial Loss /

Impairment of personality5.Causation

Elements of a Delict

A person’s conscious decision to act voluntarily in a certain way. A person can decide how and when he wishes to act.

A person must make a conscious decision. If a person acts in a state of automatism, he does not act according to his will. Example: Epileptic fit / in a trance. Such a person is not held liable for the consequences of his actions.

Distinguish 2 types of actions:◦ Positive conduct To do something = commissio.◦ Negative conduct Fail to do something =

ommisio. A person can only be held liable for a failure to act if a legal duty to act in such a way rests upon him.

Act

Subjective rights are recognised in Private Law. ◦ Real rights Rights to a thing, eg. Land.◦ Immaterial / Intellectual Property rights Right in

relation to the products of his creativity, eg. Copyright.◦ Personality rights Right as objects of a person’s

personality, eg. Good name. ◦ Personal rights Rights to claim against another to

perform in terms of an obligation , eg. Contract

Infringement of these rights = wrongful. When the subjective rights of 2 legal

subjects are in conflict with each other, the objective criterion of reasonableness must be applied to balance the rights.

Wronfulness

Things to consider:

1. Nature and extent of the harm caused

2. Value of the loss to the victim and to society

3. Possible preventative measures and the possible success thereof

4. Nature of the relationship between the parties

5. Motive and knowledge of the wrongdoer.

In the event of liability for a failure to act, one must ask whether a legal duty to act has been breached. The following are actionable omissions in our law:

A person creates a potentially dangerous situation and fails to remove the danger:

Also known as ommisio per commisionem. If a person creates a potentially dangerous situation and subsequently fails to remove the danger which results in loss or damage being caused to another, he will be held liable for such loss or damage. 3 requirements exist:. (a) creation of a new source of danger; (b) failure to remove this danger; (c)resulting injury to another person. (EXAMPLE: WATER PIPE)

Failure to exercise control over a dangerous object

Where a person controls a dangerous object and fails to exercise proper control over it, with the result that loss or damage is caused to someone else, the wrongdoer is held liable. (EXAMPLE: VELD FIRE)

Rules of law Where either the common law or statutory law contains a provision that requires a person to act in a specific way, and he does not act in accordance with such a rule, his action will be wrongful. (EXAMPLE: REPAIR TRAFIC LIGHTS)

Occupation of a public office or position If a person is expected to act in a certain way due to the occupation of a public office, failure to do so will lead to liablity. (EXAMPLE: POLICE / MASTER OF THE SUPREME COURT)

Special relationship between parties Where a special relationship between parties requires certain action, failure to act in such a manner can result in liablity. (EXAMPLE: EMPLOYER/EMPLOYEE)

Contractual undertaking for the safety of a third party Where a person is contractually obligated to protect another from harm and fails to do so, his failure is wrongful.

Creating the impression that the interest of a third party will be protected Where a person is placed under a reasonable reliance by another that his interests will be protected by the latter, a legal duty rests upon that person. Where such an impression is created innocently – such a person cannot be held liable.

Private defence / Self-defence Where a person protects his or another’s interests by staving off an unlawful attack or imminent unlawful attack and in the process causes harm to the attacker. Requirements:◦ Wrongful attack by another person with purpose

to infringe on rights of another.◦ Attack must have commenced or be imminent,

but not yet complete.◦ Defence must be aimed at the attacker.◦ Act of defence must be necessary in order to

protect the interest threatened.◦ Fault not required on the part of the attacker.◦ Act of defence must be reasonable.

Grounds of justification: Infringement will not be deemed wrongful

Necessity Not a wrongful human attack, but any other state of necessity or superior force that forces a person to act, must be staved off.

Requirements: Danger must be imminent or should

have commenced. Own or other are protected. Conduct is the only way to protect the

interest. Interest infringed upon should not be

greater than interest protected. (EXAMPLE: POISONOUS SNAKE)

Consent to injury Person waives his right to bodily integrity and consent to injury to himself.◦ Consent must be given consciously.◦ Consent can be expressly or tacitly before

conduct commences.◦ Serious intention to consent to injury.◦ Consent given voluntarily and not under duress.◦ Injured must have full capacity to act.◦ Lawful.◦ Knowledge of rights being waived.◦ Wrongdoer must act within limits.

Voluntary assumption of risk: Person expresses willingness to subject himself to the risk and subsequent injury. Example: Boxer. .

Unauthorised agency A protects the interest of B. A acts in the interest of B without his consent, if If A’s actions leads to B suffering damage – it will not be wrongful. Courts will determine if B would have acted in the same way? And if A was of the opinion that his actions would benefit B.

Statutory authority Were a statutory provision authorises a person to act in a certain way, actions performed will not be wrongful.

Official duty Where an official position requires certain action which lead to harm to another, it will not be wrongful.

Power to discipline Parents may administer lawful punishment provided it is modest and reasonable. Coporal punishment to offenders and learners are now unconstitutional and forbidden.

Provocation When someone is taunted or incited towards injurious conduct by words or actions, provocation is acknowledged as a defence. The person who provokes, forfeits his right to claim damages.

Accountability is a prerequisite for blameworthy conduct. The wrongdoer must have the necessary disposition at the time of his conduct before he can be blamed for the conduct. Persons can be unaccountable due to: youth, intoxication, mental illness, etc.

Fault has 2 forms: ◦ Intent◦ Negligence

Fault

Intent Person directed his will at achieving a particular result. 3 forms of intent exist:◦ Dolus directus (direct intent) Will directed at

achieving a particular result.◦ Dolus indirectus (indirect intent) Conse-quence

is intended and proceeds to act even though another consequence will invariably follow.

◦ Dolus eventualis Possibility of a consequence is foreseen and proceeds with action.

Negligence Person does not act intentionally, but his conduct is not in accordance with that expected from a reasonable man. Can reasonable man foresee and guard against loss suffered.

Contributory negligence: Where a person contributes to his own loss, he is liable to bear a portion of his on loss. Example: Vehicle accident.

Voluntary assumption of risk cancels fault. Absolute or strict liability (liability without

fault) also occurs in exceptional circumstances. Example: actio de pauperie, etc.

Damage must be caused by the culpable, wrongful act. There must be a nexus between the act and the damage. .

Distinguish: ◦ Factual causation conditio sine qua non test. If

the act is taken is taken out of the equation – does damage still occur?

◦ Legal causation To which extent will a person be held liable for harmful events caused? (reasonable foreseeability)

Causation

A culpable, wrongful act by a person that causes patrimonial loss to another or which impairs the latter’s personality.

Patrimonial Loss: Hypothetical patrimonial position prior to the commission of the wrongful act compared with his current patrimonial position.

Non-patrimonial Loss: Courts apply com-parative method and use awards made previously in similar cases.

Patrimonial loss / Impairment of personality

Patrimonial loss can be caused by:◦ Loss of patrimonial element◦ Reduction in the value of the estate◦ Creation or increase of debt

Forms of patrimonial loss:◦ All forms of direct damage(damnum emergens)

and loss of profit or prospective loss(lucrum cessans)

◦ Damage to property or personality of the victim or another person

◦ Direct and indirect loss Non-patrimonial loss Value allocated to

compensate for the detrimental impact by an impairment or disturbance of personality interests (reputation, dignity, etc.)

The injured party may institute 3 possible actions against the wrongdoer:

Actio legis Aquiliae Claim damages for pecuniary loss caused INTENTIONALLY or NEGLIGENTLY. Claim can be ceded.

Actio iniuriarum Claim satisfaction for the INTENTIONAL impairment of personality. Claim cannot be ceded.

Action for pain and suffering Claim for impairment of a person’s personality caused by NEGLIGENT conduct.

Delictual Remedies

The purpose of an interdict is to prevent, limit or avoid harm. No compensation or satisfaction can be recovered by means of an interdict. The following requirements must be met before an interdict will be granted:◦ An act occurs or is imminent.◦ The act is wrongful.◦ No other remedy is available on an urgent basis

to protect the applicant’s rights.

The courts will allow an interdict in certain instances where other legal remedies are available:◦ The amount of damages is difficult to determine;◦ Further harm could be caused to the prejudiced

party;◦ Respondent does not have the necessary financial

means to satisfy the applicant’s claim. The period of prescription for all delictual

claims is 3 years. After 3 years no above mentioned actions can no longer be instituted.

Legal Tie

Remedies:- Actio legis Aquiliae- Actio Iniuriarum- Action for pain and suffering- Interdict

DelictDefinition

Act: Willful conduct

Wrongfulness:Infringement

of rights

Actionable Omission

Justification

Fault

Intent

Strict liability

Negligence

Causation:Act causes

damage

Legal causation

Factual causation

Damage

Non-patrimonial

loaa

Patrimonial loss

END