Chapter 3: Introduction To The Law Of Cotract Flashcards
What is personal rights?
Rights and duties were only effective between the specific legal subject involved in The legal obligation.
Explain legal obligation two elements. Write down the recognise sources developed from which legal obligations could arise.
A legal obligation consist of two elements namely the right of the creditor to claim performance (the right to insist that something be done or not to be done) and the corresponding duty of the debtor to perform accordingly.
The following recognise the sources develop from legal obligations could arise.
A. Contact (abiding agreements between persons)
B. Delict (a culpable wrongful act by wrongdoer doing that causes another person some form of injury, loss, harm or damage)
C. Unjustified enrichment
D. Unauthorised agency or administration (where a person, without being instructed to do so, manages the affairs of another by legislation)
E. Exercising administrative or official authority , where person is obliged to act in a manner prescribed
F. Family relationships
Distinguish between crime and a delict
Delict
▪️A delict gives arise to private law action in which one person can institute against another .
The purpose of a delictual action is to allow the victim to claim compensation from the wrongdoer for the loss or injury caused to the former.
Crime
▪️The purpose of a criminal law is to maintain order in the interest of general public.
A crime is an illegal culpable act. The State can prosecute a person for the a crime which he committed and punish him for his violation of the public interest.
These sanctions are of a punitive nature, and entail imprisonment , fine and etc.
Write down the five elements of a delict can be identified
A. Conduct or act B. Wrongfulness C. Fault D. Causation E. Patrimonial loss or impairment of personality
Each of these elements must be present before a person can held liable in delict.
Discuss the characteristics of conduct
In a legal sense, a person’s conduct is determined by his will. The person or wrongdoer can decide how and when he wishes to act.
The wrongdoer must make a conscious decision to act voluntarily in a certain way.
Where a person acts while he is in a state of automatism, the resulting conduct is not determined by his will, such person cannot be held liable for the consequences of his actions.
A conduct may take form of an act or positive conduct, or a omission or negative conduct.
A person can only be held liable in delict for his omission if it constitutes an exception recognised in the South African positive law as basis of such liability
Explain wrongfulness
The first instances any infringement upon a person’s subjective rights is deemed to be wrongful. There is a general legal duty upon legal subjects not to infringe upon another person’s subjective rights.
The second instances there might be a legal duty upon a person to act in specific manner which he fails to do.
Whether such a legal duty exists, depends on the facts and circumstances of the cases.
The legal convictions of the community ( boni mores), determine whether conduct is wrongful or not. This is an objective test based on reasonableness, taking into account all the facts and circumstances of a specific situation.
Problem may occur when various legal subjects subjective rights compete with each other. Where someone protects his own rights by infringing upon another’s rights, the infringement is wrongful.
The objective criterion of reasonableness must be applied to rights: the nature and extent of the harm caused, the value of the loss to the victims and to society, possible preventative measures and the probable degree of success of such measure, the nature of the relationship between Parties, and the motive and the knowledge of the wrongdoer.
Discuss the identified as actionable omissions in our law in terms of wrongfulness in event of liability for an omission, one must ask whether a legal duty to act has been breached.
A) A person creates a potentially dangerous situation and fails to remove the danger
▪️known as prior conduct
▪️if person creates a potentially dangerous situation and fails to remove the danger, which results in the loss or damage being caused to another, he will be held liable for such damage. A legal duty resets on the wrongdoer to prevent the potential danger from becoming a real danger.
▪️3 requirements exists
- the creation of new source of danger
- the failure to remove this danger
- the resulting injury to another person
B. 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 for the loss or damage.
C. Knowledge and foresight of possible harm
▪️where a person had knowledge and foresight that is his omission might cause harm yet fails to act in accordance to legal convictions of the community expect of him his omission is wrongful.
D. Rules of law
Where either the common law or statutory law contains a provision that requires a person to act in a specific way, any omissions to act in accordance with such a rule of law is wrongful
E. Occupation of public office or position
A person who occupies a public office, is expected to act in a certain way. Should his failure to act accordingly cause loss or damage to another, the holder of the office will be held liable for the loss or damage
F. Special relationship between the parties
▪️where a special relationship exists , such as that between a warden and a prisoner, these persons can be expected to act in a specific manner. Should one of them fail to do so, he could be held delictually liable because of his omission.
G. Contractual undertaking for the safety of a third party
▪️ where a person is contractually obliged to protect another from harm, and fails to do so, his omission is wrongful.
H. Creating the impression that the interest of a third party will be protected
▪️ where one person is placed under a reasonable reliance by another that the latter will protect the formers interest, a legal duty rests upon the person creating the false impression to act in accordance with the reliance created. If creating such an impression or reliance was wrongful, and also blameworthy by being either intentional or negligent, delictual liability can occur.
Where a person innocently creates a false impression, he cannot be held liable in delict as fault is absent.
I. Interplay of factors
▪️in some cases more than one of the factors discussed above might come into play. This is especially the cases where the state has common law duties to act well as constitutional duties to protect its citizens.
Explain the grounds of justification
Certain grounds for ones actions are recognised, which have the effect that even where conduct has infringed upon another person’s rights, causing loss or damage, it will not be deemed wrongful because of special circumstances.
The following are factual circumstances deemed to be adequate justification for the wrongdoer conduct :
A. Private defence
▪️where a person protects his or another’s interest by staving off an unlawful attack or imminent unlawful attack, in the process causing harm to the attacker, the former does not act wrongfully.
▪️the requirements for successful plea of self defence are the following:
- a wrongful attack by another person, launched without justification, with the purpose of infringing upon the legally protected interests or subjective rights of another
- the attack must have commenced or be imminent, but not yet completed
- the act of defence must be aimed at the aggressor, although the initial attack does not necessarily have to be aimed against the defendant
- the act of defence must be necessary in order to protect the interest threatened by the attack, and must not be more harmful than is necessary
- fault is not required on the part of the attacker
- the act of defence must be reasonable, although the interest must not be in actual proportion, there should at least be some form of balance. The value and nature of the interests may differ, and the method used for the defence does not have to correspond with the methods used in the attack
B. Necessity
▪️The State of necessity can be caused by human conduct or by forces of nature. Is not the case where a wrongful human attack must be staved off, but any other state of necessity or superior force that forces a person to act and to then cause harm on an innocent third party. The interest of another person be infringed upon lawfully.
▪️the requirements for a successful plea of necessity are the following:
- the state of necessity must be imminent or should already commenced
- a person could protect his own rights or the rights of another during the state of necessity
- conduct during a state of necessity will only be justified if it necessary to protect the threatened interest. A person acting in a state of necessity may not cause more harm than that which is absolutely necessary and unavoidable in the specific circumstances
- the means of averting danger should in the facts and circumstances be reasonable and not excessive. The interest which is infringed upon in the state of necessity should for not be greater than the interest who is protected
C. Consent to injury and voluntary assumption of the risks of injury
▪️a person may waive his rights to bodily integrity and consent to an injury being done on him, or the risks of such injury.
▪️the following requirements have to be met:
- the consent must be given as a conscious expression of the injured party’s will, merely a unilateral act and does not require agreement between the parties involved however, the consent has be apparent or evident.
- the consent can be given but, must be given before the injuring conduct commences
- the injured party must have the serious intention to actually consent to the injury
- the consent must be given freely or voluntarily and not under duress
- not required that the injured party must have full capacity to act, but be capable of volition in that he must at least be mature enough to form a will and to be able to understand the consequences of the conduct so given
- the consent must be lawful, and not against the public interest or good morals
- the consenting party must be fully aware and have full knowledge of the rights he is waiving and the harm that he incurs or the risks that he is taking
- the wrongdoer must act within the limits of the consent given by the injured party
▪️the consent can be revoked at any time before the injurious conduct takes place.
D. Unauthorised agency
If a person acts in order to protect the interest of another, but without the latter’s consent, the former conduct is lawful although the latter suffered a loss or damages in the process. The test applied by the courts is whether the other person, had he been present, would have acted in the same way the former did, and whether the former was reasonably of the opinion at the time of his conduct that it would be to the benefit of the other person.
E. Statutory authority
Where a statutory provisions authorities a person to act in a certain way, his actions performed in terms of the statute will not be wrongful even if someone else is harmed thereby. The statute must clearly authorise the type of infringement, and the infringing act must not exceed the scope of infringement allowed by the statute. The intention of the legislator is therefore utmost importance
F. Official capacity
If a person, because he occupies an official position, must perform certain acts, and another person is harmed thereby, such actions will not be wrongful.
This includes the situation where a person carries out a lawful demand given to him by his superior. Where a person carries out a wrongful demand because he is compelled to do so out of necessity, the application of the reasonable person criterion might indicate that his actions are justified.
G. Power to discipline
Parents and persons acting in loco parentis may administer lawful punishment for correction and education, provided that it is modest and reasonable. This is determined by the nature and seriousness of the transgressions, the purpose, nature and the degree of the punishment as well as the age, gender, mental and physical health of the person so punished.
H. Provocation
Where a person is provoked by the words or actions of another and acts in revenge, the provocation might justify the response of a vengeful act, provided that it is objectively found to be reasonable.
The reaction must also be immediate retaliation, there must be a balance between the nature and extent of the provocation and the reaction to it.
I. Doctrine of the abuse of rights, nuisance and neighbour law
The doctrine of the abuse of rights has over time been implemented and accepted by our court as a ground of justification.
This applies especially in the so-called “neighbour law”, also in general referred as nuisance.
The basic questions is whether a person abused any of his rights to benefit, causing another person such as neighbour some form of prejudice. The benefit and the prejudice must be weighed up against each other, based in the relative concept of reasonableness and fairness.
Discuss Fault
▪️faulty may take 2 forms, intent or negligence
▪️faulty is a subjective element of delict because it concerns itself with the wrongdoer’s attitude or disposition at the firm of conduct
A. Accountability
▪️is a prerequisite for blameworthy conduct. Meaning that he wrongdoer must have the necessary disposition at the time of his conduct before he can be blamed for such conduct. He must possess the necessary capacity to distinguish between right and wrong and then to act accordingly and to understand the possible consequences of his actions.
A subjective test is applied in each situation, in that each cases is judged on its own facts and merit, and each person’s own abilities are judged in order to determine whether he can legally be blamed for his actions.
▪️a person can be incapable of being held accountable due to the following reasons, youth, intoxication, mental illness and irrational anger after severe provocation.
B. Intent
▪️a wrongdoer’s conduct is intentional if he directed his will at achieving a particular result, while being aware that his conduct is wrongful.
▪️the 3 forms of intent exists:
- direct intent ( wrongdoer directed his will at desiring and achieving a particular result)
- indirect intent ( wrongdoer directly intends one consequence, and then proceeds to act, despite being sure of, or aware that, another consequence will be unavoidable)
- dolus eventualis ( wrongdoer foresees the possibility that a certain consequences might follow but proceeds to act spite of this)
C. Negligence
▪️person does not act intentionally, but his conduct does not conform to the standard of conduct which could legally be expected of him in those specific circumstances, his conduct is negligent.
The conduct is tested according to the objective criterion of the reasonable person. This means that the conduct is deemed to be negligent if it is not in accordance with that expected of the reasonable person who finds himself in the same circumstances and have foreseen the consequences of his actions and have prevented them from happening . This would be where a person acts recklessly, carelessly or thoughtlessly.
D. Contributory fault
▪️the time of the wrongdoer’s harmful conduct, the prejudiced party’s own intentional or negligent conduct contributed to his loss or damage, the prejudiced party is expected to bear some portion of such loss or damage.
▪️contributory fault can consist of either contributory intent or negligence, where the conduct of neither the wrongdoer nor the injured party conforms to legally required standard of conduct. Both are at fault in respect of the damage caused
▪️where the plaintiff acted intentionally, he will not succeed with a claim against a negligent defendant. The plaintiff acted negligently but the defendant acted intentionally, the plaintiff is not liable to bear any portion of the his loss. Where both parties acted negligently, the damages must be shared by the parties according to the provisions of the Apportionment of Damaged Acf 34 of 1956
▪️section 1 of the Apportionment of Damages Act provides for the reduction of delictual damages in cases of contributory negligence. The court may to the extent it deems fair and equitable reduce the amount of damages in proportion to each party’s contribution to the damages
E. Voluntary assumptions of risk
This is not consent to injury, but rather conduct that cancels fault. In the absence of fault, delictual liability cannot be incurred.Blame in the form of contributory intent falls on the injured party. Where the acting party is negligent the contributory intent cancels out such negligent conduct
F. Absolute or strict liability
▪️it’s possible that a person will e held liable for his conduct even where he acted without any fault whatsoever ( called liability ), can only exists in exceptional circumstances, where a specific legal rule ( common law) creates this form of liability where one’s innocent conduct is blameworthy
Discuss Causation
▪️the loss or damage must be caused by the wrongful, culpable act. There must be a nexus between the act and the loss or damage suffered. Where this crucial link is missing, the wrongdoer cannot be held liable in delict
▪️a distinction between factual causation and legal caustion
▪️the problem is limited by the fact that the wrongdoer will only be held liable if his conduct, which caused the damage or injury was at the same time also wrongful and culpable
▪️law will not, based on principles of policy and fairness, allow limitless liability and one therefore must determine to which extent a person should be liable for harmful events caused
What is patrimonial loss or impairment personality ?
▪️wrongful act must cause damages
▪️Damage is monetary equivalent of the damage caused, awarded to eliminate present and future loss. Can be divided into claims for patrimonial loss or for the impairment of personality
▪️damages includes patrimonial (pecuniary) loss and non-patrimonial (non-pecuniary) loss
Explain patrimonial loss
▪️patrimonial loss can be caused by the following:
A. The loss of patrimonial element
B. The reduction in the value of patrimony
C. Th creation or increase of negative element or debt
▪️the following forms of patrimonial loss must be distinguished from each other :
A. Damnum emergens , includes all forms of direct damage caused by the delictual conduct and lucrum cessans ( loss of profit or prospective loss). The latter includes the loss of patrimonial expectancy that would have materialised with sufficient degree of certainty
B. Damage of property, the physical object of real right is damaged, financial or pure economic loss, that includes patrimonial loss incurred or not due to damage directly or property or personality of the victim or another person. Conduct that causes a person pure financial loss, is mostly wrongful because of the non-compliance with legal duty that rest upon members of society not to cause damage to others
C. Direct loss is the loss caused directly by the conduct causing the damage, whereas indirect or consequential loss is the loss that flows from the direct loss, and thus flowing indirectly from the damage-causing conduct
What is non-patrimonial loss?
▪️is defined as value allocated to compensate for the detrimental impact by the impairment or disturbance of personality interest.
Explain pure economic loss
▪️pure financial or economic losses do not result directly from property damage or personal injury.
▪️the right not to suffer a pure economic loss is not entrenched as fundamental right in the constitutional, and does enjoy the same reinforced protection as the other fundamental rights
▪️causing pure economic loss is not prima facie wrongful
▪️it is possible to recoup pure economic losses under the South Africa law of delict, provided that the defendant owed the plaintiff a legal duty to act in the circumstances where the defendant acted negligently in causing the pure economic loss.
▪️the once off for all applies. Once a plaintiff claims delictual damages they cannot claim again. Difficulties arise regarding claim of prospective loss such as loss of future income, future profit or incurring future expenses caused by an earlier damage causing event.
▪️the prejudice party has duty to mitigate his damages and not to allow it to accumulate or increase. Any additional benefit or compensating advantage that a plaintiff received due to delictual conduct has to be set off against his claim for damages caused by the delictual conduct.
What is delictual remedies ?
The injured party may institute 3 possible actions against the wrongdoer to claim the damages he suffered. These are actio legis aquiliae, the actio iniuriarum and the action for pain and suffering
