Conceptual Basics

Question 1

What is Delict generally?

Answer 1

Delict is the obligation of a person to compensate another person for the losses sustained as a result of harm caused by the actions of an individual. Thomson

Question 2

Principles?

Answer 2

Often claimed there isn’t generally principles of Delict, there is reluctance to lay down general principles Thomson

Question 3

Social Functions

Answer 3

Compensation, Risk Allocation, Deterrence, Enforcement

Question 4

Aspects to legal decisions

Answer 4

Backward - Living with consequences of past injury, compensation as a function lives here. Forward - Saying it wrongful acts as a deterrent and risk allocation

Question 5

Moral Rationale

Answer 5

Naturally obligated to make up for damage that befalls neighbour due to harm caused. Erskine
Corrective Justice - Putting things right Honore, fixing things between two persons Pillans,

Question 6

Compensation Act 2006

Answer 6

When dealing with compensation they must make sure they do not prevent a desirable activity from being undertaken, or discourage functions connected with a desirable activity.
This is the risk allocation factor of Delict relates more to distributive justice

Question 7

Foundational Concepts

Answer 7

Damnum Iniuria Datum - Harm wrongfully caused.
Ex lege Obligation > Fault (Culpa) > Harm Caused > Liability > Obligation to compensate
Harm - Liability can’t happen without it, general term though meaning worse off
Culpa (Fault) - Heart of delict, wrongful action that causes the harm to the individual, can be intentional or unintentional, wrongful acts and omissions
Usually malice, intent, recklessness and negligence - Kennedy v Glenbelle Ltd

Question 8

Strict Liability

Answer 8

Can be liable for breach of duties, but this is mainly legislated for Pillans. Only harm needed in order to prove it. Some dangerous activities are allowed in society, but the liability lays with the individual in order not to spread the potential mass of the event. Risk Allocation device

Question 9

History

Answer 9

Scots Law based upon remedies apparently, but actually comes from Criminal law, grew out of reforms. Stair drew a distinction between delict and criminal.
Orthodox view - No such thing as a list of Delicts
19th Century - Unintentional delicts as with the industrialisation period, Pillians. Negligence boomed
Legislation has had to be created in order to keep up with it as common law did not.