Different GOJ Flashcards
Prior agreement not to claim (pactum de non petendo in anticipando) meaning
It refers to a contractual exclusion clause where there is a prior agreement not to claim damages should the conduct of the other cause harm. Plaintiff agrees that if he suffers some kind of harm he will exclude delictual liability and cannot sue defendant for causing that type of harm
How does prior agreement differ from consent?
Consent refers to a unlateral decision taken by the plaintiff; plaintiff unilaterally consents to something potentially a harm causing conduct. It will negate wrongfulness no question of liability at all
Prior agreement is not unilateral but bilateral conduct. The pactum, all elements are present so there would be liability but you agree to exclude liability
Necessity definition:
necessity can justify causing harm to an innocent person where it is the only reasonable way of protecting one own interest or that of another against danger created by a natural phenomenon or human conduct.
On who is the onus in case of necessity?
Onus is on the defendant. And the effect is there will be no wrongfulness so no delictual liability and the defendant wont have to pay
How is necessity different to private defence?
Necessity is only raised in specific sitautions, situations where an innocent persons legally protected interests have been infringed. Danger created by natural or human conduct.
Private defence is aimed at a wrongful attacker, do not cause harm to an innocent person but someone who is bringing about harm in a wrongful way. Danger caused by wrongful human conduct.
What are the requirements for necessity?
1) The danger must have been actual or imminent
2) Own or other interest
3) Any interest may be protected
4) Source of danger must be a natural phenomenon, animals or human conduct
5) There must be a proportional relationship between harm caused to innocent person and interests the defendant sought to protect
6) Where someone is legally required to suffer harm, the defence of necessity wont succeed
7) The necessity induced conduct must be necessary or the only reasonable means of protecting the interests concerned
