delict and negligence Flashcards
Define delict
The wrongful and culpable act that causes harm to a person or their property
what are the four checkpoints for delict?
1) Wrongfulness
2) Culpability
3) Causation
4) harm
What is wrongfulness?
We have the legal duty to not harm one another. Must prove that XYZ had the legal duty to provide XYZ
What is culpability?
Can be done with intent or negligence. Ask whether this is an inevitable thing and whether a reasonable person would have been able to force this harm
What is the test for negligence
Negligence forms part of culpability. To test for negligence ask whether a reasonable person could have foreseen the potential harm and whether they would have acted differently to prevent this. Then ask whether the defendant took these steps to prevent the harm
What is causation?
Causation refers to there being a direct link between the harm caused and the actions of the defendant.
What does harm refer to?
Harm can be injury or losses. Under delict can also claim for emotional losses but SA law prefers harm to be quantified
How do crime and delict differ
A crime is any act that is specifically prohibited by common law and if punishable by the state whilst delict is any act that is wrongful and culpable which results in harm.
How does the burden of proof differ in criminal and civil cases
In civil: only have to prove on the balance of probabilities
In criminal: have to prove beyond a reasonable doubt
What is unjustified enrichment
You can claim unjustified enrichment when one party is unjustifiably enriched by another. You can claim an amount to which they remained enriched
How does liability differ under delict and contract
In delict the liability of the wrongdoer arises from the wrongful and culpable act whilst in contract the liability of the wrongdoer arises from agreement between parties which has been breached
How does duty differ under delict and contract
In delict the duty to not cause harm is owed to all people whilst in contract the duty not to breach is only owed to the other party involved in the contract
