Chapter 2 - The Law of Obligations Flashcards
Define Law
Regulates society
- “a system of rules that apply in a community governing human conduct and relationships within that community”
3 Categories of Law
Public law
- governs the relationships between the state and the citizen
Eg criminal law, constitutional law
Private law
- Governs the relations between citizens themselves
Eg. law of persons, family law, law of property and law of delict
Commercial law
- Related to business activity
Eg contract of sale, insolvency
The meaning of right
A legal subject has any right regarding a specific legal object which is protected by law.
A legally protected right is a SUBJECTIVE RIGHT.
Objective law determines the nature of legal subjects and legal objects.
Subjective Law: network of legal relationships between legal subjects and which deal with rights/ responsibilities of legal subject over legal object.
Define a legal subject
A human being or entity which is subject to the law.
This is a person capable of holding rights, duties and capacities.
- legal capacity
All legal subjects are called “persons”
“Human being” and “legal subject” is not synonymous.
“Person” however is synonymous with “legal subject”
Define Natural Persons and Juristic Persons
> > Natural Persons
- refers to human beings from newborn to adults.
- can have rights and duties
Eg. law protects the physical integrity of a new born - He/she can inherit property
- legal subjectivity terminates in death.
> > Juristic Persons
- entities such as close corporations, companies, municipalities and the state.
- has rights, powers and duties
- has perpetual succession
- natural persons act on behalf of jurisdiction persons
- existence is terminated by deregistration
A legal object
An entity which can be the object of subject’s claim to a right.
These are
- property
- intellectual property
- aspects of personality
- performances
Define a Subjective right
4 Categories
A subjective right is a protectable interest which a legal subject has to a particular legal object.
4 Categories of Subjective Rights
- Real Rights
- Immaterial rights
- Personality rights - eg A persons image of good name.
- Personal rights - eg A right to claim against another to perform in terms of obligation. Eg A contract
Law of Obligation
Define an obligation
An obligation is a legal tie between legal subjects recognized by law created from certain legal facts and creates rights and duties.
- a personal right comes into existence between legal subjects
- Generally both parties are simultaneously obliged to perform certain actions
- Personal Rights come about through
- delict- a legal object which is the payment of compensation
- contract - a legal object which is the delivery of performance.
**The Law of Delict
Define
A Delict is an unlawful act committed by a person causing loss or harm to another.
Eg. Cannot pay cellphone bill, the state does not enforce payment but the Cellphone company can sue for payment.
An unlawful act can be both a crime and a delict when there’s an innocent party involved.
Eg a car accident
A criminal court case ( for reckless driving)
And a civil court case ( innocent party sues for accident damage caused to car)
** The elements required to make The Law of Delict valid:
- An act or conduct
- Unlawfulness
- Fault in the form of intention or negligence
- Causation
- Damage or injury to persons
Full definition of Delict
A delict is any unlawful or culpable act whereby a person (the wrongdoer) causes the other party (the person prejudiced) damage or an injury to personality and the prejudiced person is granted a right in law to claim damages and/ or compensation, depending on the circumstances.
Elements of a Delict Explained
> > An Act
- A voluntary human act or conduct
Either commission of an act or omission of an act
Commission: a physical act, statement or comment
Omission: failure to act or say something.
> > Unlawfulness
- An act that infringes on the rights of another
Eg. defamation or assault
Or a Failure of “Duty to take care”
Policewoman or policeman failure to prevent a crime
> > Grounds of Justification
These are special circumstances that convert an unlawful act into a lawful act.
Eg. Case of Self Defense - when a person reasonably defends himself from an actual or in enemy attack by another to defend his/others rights.
This is called NECESSITY
- a A person may be excused from violating the rights of others if they are legitimately protecting their own, or someone else’s right.
Eg. Breaking the window of a hot car of a baby is inside
Consent
A person may either consent explicitly or implicitly to harm being caused to them.
Eg. Enter at own risk disclaimer.
Statutory authority
- a policeman breaking down a door, but they must have a warrant if arrest.
Provocation
- two persons swearing at each other during a heated argument.
Requirements - conduct leads to a reaction that is reasonable and excusable
Relaxation must be reasonable and excusable
The Elements of a delict
Fault
- to be liable the wrongdoer must be at fault.
2 forms of Fault:
Intention
- a person willingly and knowingly does something wrong
- a person foresees the possibility of harm but proceeds to act
Negligence
- a person is negligent of a reasonable person in the same position would have foreseen harm and would have taken reasonable steps to safeguard against such harm.
Causation
- There must be a link between the act of omission of an act and the damage caused.
2 Types
Factual Causation - this is what actually happened
and Legal Causation is the link that builds up to what happened that can’t be too remote.
Types of Damage or impairment of personality
- Financial Loss- A reduction in persons financial position
- Damage to personality- defamation or invasion of privacy
- Pain and suffering
