Law of Obligations (3)

Question 1

An obligation implies?

Answer 1

that you have to do something, or that you must perform a certain task.

Question 2

An obligation creates?

Answer 2

a legal bond between two (or more) persons. You now owe the other person something, and they can claim it from you in terms of law.

Question 3

True or false: Joanne and Miriam agree to go to the cinema on Friday at 19h00. Joanne does not arrive and Miriam is forced to watch the movie by herself. Miriam can take Joanne to court for not keeping her promise.

Answer 3

False. They must have the necessary intention to be legally bound. This is a natural obligation.

Question 4

True or false: Gary and Woody have a game of golf. They make a bet that the loser must buy a round of drinks at the pub. Gary loses and refuses to buy Woody a drink. Woody can sue Gary.

Answer 4

False. They must have the necessary intention to be legally bound. This is a natural obligation or ‘gentlemen’s agreement’.

Question 5

True or false: Elwyn finds an advert on Gumtree for a PlayStation 4 being sold at R 2 000. He contacts the owner, pays her the R 2 000 via EFT, but she refuses to deliver the PlayStation 4. Elwyn can take her to court.

Answer 5

True. They had the necessary intention to enter into a sale contract. This is a civil obligation.

Question 6

True or false: A delict forms part of the law of obligations because you are obligated to sue someone if they damage your property.

Answer 6

False. A delict forms part of the law of obligations, because if you damage someone else’s property and they take you to court, then you are obligated to compensate them for their loss.

Question 7

What is a contract?

Answer 7

A legally binding agreement, written, oral or flowing from conduct, to give, do or refrain from doing something.

Contracts are important because it legally binds them to the terms of an agreement

Question 8

A contract can be written or?

Answer 8

oral or flowing from conduct

Question 8

A contract can be written or?

Answer 8

oral or flowing from conduct

Question 9

What are the five requirements for a valid contract?

Answer 9

• Consensus
• Contractual capacity
• Legal possibility
• Physical possibility
• Formalities

Question 10

All laws below are included as Private law, as a branch of South African law, except?

Answer 10

Criminal law

Question 11

Requirements for the conclusion of a valid and enforceable contract include all the options below except?

Answer 11

Causation

Question 12

On his way home from a party, Regan drives into his neighbour’s mailbox. Regan will be liable to pay his neighbour R 500 for the damage he caused. This is an example of the law of obligations because it operates in which field?

Answer 12

The law of delict

Question 13

Sipho accidentally deposits his rent into the wrong bank account. The bank account holder refuses to transfer the money back to Sipho. This is an example of the law of obligations as it operates in which field?

Answer 13

The law of unjustified enrichment

Question 14

Ramona sells her car to her friend Sarah. Ramona informs Sarah that the car is in a good working condition, and that it is a 2016 model. However, after Sarah has paid Ramona, and she receives the car, Sarah discovers that it is a 2014 model. Which requirement is not met in the contract between Ramona and Sarah and makes it an invalid contract?

Answer 14

Consensus

Question 15

Explain Consensus?

Answer 15

Consensus is arguably one of the most important requirements, as it is the premise from which a contract is formed. As simple as it sounds, a contract cannot exist unless both parties agree on the same thing.

Question 16

Explain Offer?

Answer 16

There must be a serious intention to form a contract. You must want to form a contract in order to satisfy this requirement. If a party merely wants to enter into negotiations with the intention of hopefully later concluding a contract, then that conduct does not constitute an offer to form a contract.
Offers do not last forever and will eventually lapse

Question 17

Explain acceptance with regards to the law of contracts?

Answer 17

Once an offer is made, it is up to the other party to accept it or not.

The requirements for a valid acceptance are as follows:
- It must only be accepted by the offeree
- Acceptance must be made with the serious intention to form a contract
- It must be made at the time, and in manner and place that the offer stipulates
- It must be unqualified and unambiguous

Only once all the above requirements have been satisfied, can it be said there is a valid offer and a valid acceptance, and now the parties have consensus

Question 18

Only once all the above requirements have been satisfied, can it be said there is a valid offer and a valid acceptance, and now the parties have consensus. Explain these requirements?

Answer 18

• It must only be accepted by the offeree
• Acceptance must be made with the serious intention to form a contract.
• It must be made at the time, and in the manner and place that the offer stipulates
• It must be unqualified and unambiguous
• It must only be accepted by the offeree: The same applies for when an offer is made to a group of individuals. Any person from that designated group may accept. A person to whom the offer was not made, cannot accept it.
• Acceptance must be made with the serious intention to form a contract: Much like an offer, the offeree must be aware that what is accepted to, will form a contract. If the offeree does not have the intention to form a valid contract, then the contract resembles that of a gentleman’s agreement.
• It must be made at the time, and in manner and place that the offer stipulates: If the offeror stipulates in the offer as to when, where and how the acceptance should be made, then the offeree must satisfy those requirements for a valid offer and acceptance to come into being.
• It must be unqualified and unambiguous: It must be clear and certain that the offeree is accepting the offer on the same terms set out by the offeror. Remember, that if the offeree has their own terms, then that is in fact a counter-offer, which the other person can choose to accept or not.

Question 19

There are four general theories of when a contract comes into being, what are they?

Answer 19

• Reception theory
• Information theory
• Expedition theory
• Declaration theory
• Reception theory: An agreement is concluded when the offeror receives notice of the offeree’s acceptance.
• Information theory: An agreement is concluded when and where the offeror is informed of the acceptance by the offeree.
• Expedition theory: This theory only applies when letters are sent via post, which in modern times is becoming far less common.
• Declaration theory: This theory states that an agreement exists when and where the offeree expresses their acceptance

Question 20

The four general theories of when a contract comes into being are?

Answer 20

• Reception theory
• Information theory
• Expedition theory
• Declaration theory
• Reception theory: An agreement is concluded when the offeror receives notice of the offeree’s acceptance. In terms of this theory, if a letter or email is sent, where the offeree accepts the offer, then the offeror does not even need to read the email for the offer to be accepted. As long as the email amounts to an acceptance of the offer, then an agreement will have been concluded. In terms of this theory, Joey will have a right to the laptop even though Andiswa did not read Joey’s email, because his email amounted to an acceptance of her offer, and was sent before Unathi accepted it.
• Information theory: An agreement is concluded when and where the offeror is informed of the acceptance by the offeree. If it is in person or over the phone, then the offeror is informed immediately that the offer is accepted, and therefore the agreement is concluded. But what if, like in the previous Example section, the offeree received a letter beforehand, did not read it, but accepted, another offer? In that case, the person who wrote the letter is prejudiced, as this theory states that it is only when the person learns of the acceptance (Matzukis, 2014: 228). If Andiswa never read the email, she was not informed, and therefore the contract was not concluded. Joey would have no claim to the laptop in terms of this theory.
• Expedition theory: This theory only applies when letters are sent via post, which in modern times is becoming far less common. This theory states that a contract is concluded when the offeree puts their letter of acceptance in the postbox. Therefore, if a person writes a letter accepting the offer, but only sends that letter three days later, then this theory states that the contract is formed only at the time that the letter was actually put into the postbox, and not three days before, when they actually wrote the letter. Therefore, had Joey sent a letter instead of an email, but posted the letter on the Wednesday, then the contract still would have come into existence.
• Declaration theory: This theory states that an agreement exists when and where the offeree expresses their acceptance (Matzukis, 2014: 228). Compare this with the expedition theory discussed above. In terms of this theory, if Joey decides on Wednesday that he wants to accept Andiswa’s offer, but does not send the email yet, then in terms of this theory, the contract is formed when he expressed his acceptance, despite not yet sending the email. But what if Unathi decided on Tuesday that she would accept it, wrote a message to Andiswa on Tuesday via WhatsApp but decided to rather wait and tell her on Thursday? Well, in terms of this theory, Unathi expressed her interest first, and therefore is entitled to the laptop. This theory is not widely accepted in South African law.

Question 21

What theory states that a contract comes into being as soon as the offeree puts his or her letter of acceptance in the post-box?

Answer 21

Expedition theory

Question 22

If an offeree does not have the intention to form a valid and enforceable contract, what sort of understanding is formed?

Answer 22

A gentleman’s agreement

Question 23

What characteristics are required for a valid acceptance to take place?

Answer 23

Unqualified and unambiguous
(Not open to one and more than one interpitation)

Question 24

Diana owns a material shop. Bridget wants to buy a yard of red cotton material from Diana. Diana offers to sell material to Bridget and she points to her shelves where there are a number of different colours and types of material on display. Which requirement needs to be met to make Diana’s offer valid?

Answer 24

An offer must be complete, clear and certain

Question 25

What theory states that a contract comes into being when the offeror receives notice of the offeree’s acceptance?

Answer 25

Reception theory

Question 26

Explain Contractual capacity?

Answer 26

A person must have the necessary legal capacity, or otherwise referred to as contractual capacity, before they can enter into a contract. Briefly put, contractual capacity is a characteristic of a person which ensures that they can appreciate the nature and content of a contract.

Question 27

We will now consider the exceptions to the requirement of contractual capacity, and explain them?

Answer 27

• Age
• Minor
• Infants
• Age
  For children entering into contracts, there are three relevant age categories. The first age group is from 0–7 years of age, also known as infans. From 8–18 years of age is known as a minor. Lastly, any person over the age of 18 is regarded as being a major. Majors are generally regarded as having sufficient contractual capacity and may enter into any contracts of their own will. There are of course a few exceptions which will be discussed below. The two most important age categories, which impact contractual capacity in a material respect, is the infans and the minor.
• Infans
  At the outset, an infans has no contractual capacity. This means that a child below the age of seven cannot enter into any contracts. Should an infans attempt to enter into a contract, then the contract is, strictly speaking, void. Think about those situations where parents often give their child money to buy some sweets from the shop. Once again, a child purchasing a sweet is entering into a contract with the store, and this contract should be regarded as being void. This is seldom implemented in reality. If an infans wants to enter into a contract, then their parent or legal guardian must do so on their behalf. All the rights and obligations that arise as a result of that contract will pass onto the infans, even though it was their parent who entered into the contract.
• Minor
  The minor is a fascinating age group, as minors are regarded as having limited contractual capacity. This is important, as it means they may enter into contracts, without parental supervision, but that a contract will not apply to them in the same way that it would apply to a major. As a point of departure, if a minor enters into a contract with parental guidance, then the contract applies to them as it would any other person – i.e. the minor has both rights and obligations in terms of the contract. This means that the minor has certain benefits from the contract (the rights), but must also perform their role in terms of the contract (the obligations). But, if a minor enters into a contract without parental supervision, then the minor can only acquire rights from the contract and not obligations. This is what makes this age category unique. In essence, a minor can only stand to benefit from the contract, while not having any responsibility to perform in terms of the contract. This can, and often does, result in unfair circumstances for the other contracting party, but fortunately, there are forms of relief available to them (Hutchison et al., 2011: 151).

As alluded to above, if a person enters into a contract with a minor, and the minor does not perform, then there may be certain remedies available to the contracting party. Firstly, a contracting party can rely on the legal remedy known as exceptio non adimpleti contractus. This remedy allows a party not to perform in terms of a contract until the other party (the minor) has performed. For example, if a minor signs a contract to take a six-week cooking course for R 1 000 per class, but the contracting party (i.e. the chef) does not force the minor to pay for the first three weeks, then in those circumstances, the contracting party cannot compel the minor to pay for those three classes. Therefore, the contracting party potentially loses income on those three classes. But, the contracting party can inform the minor that they may not attend any more classes until they have paid, or rather that the contracting party will not be giving any more classes to the minor until the minor has paid. In this circumstance, the contracting party is withholding performance, despite both parties having entered into an agreement. This is perfectly valid.

Secondly, the contracting party may rely on the remedy known as unjustified enrichment. This remedy will be dealt with in greater detail, but by way of introduction, if the contracting party can prove that the minor was enriched at the expense of the contracting party, then this remedy will apply. For example, if a merchant sells a bike to a minor, but the minor only pays half the price upfront, and fails to pay the remainder, then the merchant can rely on this remedy. The merchant can say that the minor was enriched by the full value of the bike, whilst the merchant’s estate decreased; so in those circumstances, the merchant could claim the full amount from the minor.

Question 28

There are several exceptions to the above situations?

Answer 28

• Fraud
• Emancipation
• Ratification
• Statutory exceptions
• Fraud: When a minor fraudulently misrepresent themselves to be over the age of 18, and it could realistically be assumed that the minor is 18 years of age, then the other party may hold the minor liable to the contract, including the obligations that are imposed on them. The other contracting party must, however, act in good faith. If it was clear that the minor was not 18 years old, yet the contracting party still attempted to enter into a contract with the minor, then the contracting party is not bona fide (acting in good faith), and cannot rely on this defence.
• Emancipation: This is a legal term which means that a minor has contractual capacity as if they were a major. To be emancipated, a minor must apply to the court, and the court will make a determination as to whether the minor should in fact be emancipated. The court will usually consider various factors such as the independence of the minor, and whether they have work etc. Once emancipated, a minor will be treated, as far as the law is concerned, as if they are a major.
• Ratification: If a minor enters into a contract, subsequently reaches the age of majority and then ratifies the contract once a major, then that contract, with all its rights and obligations, will fully apply in respect of the person. Ratification, otherwise known as the consent required after the contract has already been entered into, can be either express or tacit – i.e. made obvious that they ratify, or by the general words and conduct used, imply that they ratify it.
• Statutory exceptions: A minor can make their own will at the age of 16 without parental assistance. This is provided for in the Wills Act 7 of 1953.

Question 29

Inembisa desperately wants to see her favourite singer in concert, but she can’t afford the tickets. She decides to sell her MP3-player on the internet to be able to go. Sipho responds to Thembisa’s advertisement and transfers the money to her bank account. Thembisa refuses to send Sipho the MP3 player he has paid for. Sipho was unaware that Thembisa is only 16 years old, as she repeatedly stated she was 19. On what grounds can Sipho enforce the contract?

Answer 29

Fraud

Question 30

What remedy allows for a contracting party to claim in situations where a person receives a benefit or value from the contracting party at the expense of the latter without any legal cause for such receipt or retention of the value or benefit by the former?

Answer 30

Unjustified enrichment

Question 31

What remedy allows for a contracting party not to perform in terms of a contract until the other party has performed?

Answer 31

Exceptio non adimpleti contractus (ENAC)

Question 32

Which of the following categories of persons are not able to conclude valid contracts?

Answer 32

Infans

Question 33

Who is regarded as having limited contractual capacity?

Answer 33

Minors

Question 34

Anelisa is 17 years old and enters into a contract with Benny to teach her how to play guitar. Anelisa agreed to pay Benny R 1 000 for four guitar lessons (R 250 per class). Benny usually requires payment upfront, but this time he allowed Anelisa to pay R 250 after each class. Anelisa did not have any assistance from her parents or legal guardians before entering into this contract.
Required:
- What is the legal name for the specific age category that Anelisa is part of?
- Will Anelisa be bound to this contract completely, or is there a certain benefit she receives?
- If Anelisa fails to pay for the first two classes (i.e. R 500), is there any remedy available to Benny against her?
- Is Anelisa able to ratify the contract? If so, when?
- What would happen if Anelisa told Benny she was 18 before signing this contract? Would she still be bound to the contract?

Answer 34

Give reasons for your answer.
If Anelisa has a six-year-old daughter, would the daughter also be able to enter into a separate contract with Benny for guitar lessons? State yes or no, and give a brief explanation (in one or two sentences).
Minor

No, she can only receive rights, and does not have to perform the obligations.

Exceptio non adimpleti contractus. He can withhold performance until she has paid.

Yes, but only when she is 18 / a major.

Yes, she fraudulently misrepresented herself as being a major; therefore, she will be fully bound to the contract as if she were a major (i.e. incur rights and obligations).

No, the daughter is an infans, and infans have no contractual capacity.

Question 35

Explain Legal possibility?

Answer 35

Contracts must be legal, which means they cannot contradict or contravene any law in the country. It is not possible to conclude a contract to commit a crime. Crimes are specifically prohibited by certain parliamentary statutes or the common law; therefore, any contract that regulates the committing of a crime is invalid and unenforceable by the courts.

Question 36

Explain Restraint of trade?

Answer 36

Is a clause often included in employment contracts. These clauses place a great limitation on employees, given that it often restricts them, at the time of signing the employment contract, from finding employment of a similar nature to their current position elsewhere

Question 37

Explain Physical possibility?

Answer 37

For a contract to be valid, it must be physically possible to perform in terms of the contract (Hutchison et. al, 2011: 203). If a contract were to require someone to perform something impossible, such as buying a plane ticket for a country that does not even exist, then the contract is void.

Question 38

Explain Formalities?

Answer 38

Formalities deal with those aspects which must be complied with for a contract to be valid. The most common formality is that a contract must be in writing. Keep in mind that contracts can be verbal or written, but if an offeror demands that it is in writing, then any verbal agreements are invalid.

Question 39

What is the minimum number of months of warranty that suppliers must give on all sold goods, according to the Consumer Protection Act 68 of 2008?

Answer 39

3

Question 40

Which term refers to the social norms and legal convictions of a particular society as developed over a period of time?

Answer 40

Public policy

Question 41

How must an agreement be formulated in terms of the General Laws Amendment Act 50 of 1956, if a person agrees to bind themselves as surety for the debts of another person?

Answer 41

In writing and signed by the surety

Question 42

TIom and jerry conclude a verbal agreement in which Tom agrees to purchase the contents of Jerry’s workshop for R 15 000. Tom is unaware that the tools and implements which form part of the agreement are the property of Jerry’s employer, Matthew. Why is this contract invalid?

Answer 42

It is subjectively impossible

Question 43

Abongile works as an accountant at Mckinsey Incorporated based in Cape Town. His contract of employment contains a clause which provides that he is unable to work as an accountant for a period of 6 months, in the greater Cape Town area, upon termination of his employment at Mckinsey Incorporated. What is this an example of?

Answer 43

Restraint of trade agreement

Question 44

Ismail is speaking with Cebo about biology tutoring classes that Ismail offers. Cebo needs assistance as his biology mark is not very good. Cebo asks if Ismail is willing to tutor him. Ismail accepts and states that his rate is R 80 per class. Cebo accepts that rate. You may accept that both parties have the necessary contractual capacity to enter into an agreement.

Required:

1. Has a valid contract been entered into?
2. What are the five requirements for a valid contract?
3. The contract was not in writing – will this impact the validity of the contract?

Answer 44

1. Yes. What is the legal intention of the parties in forming a contract – i.e. what do the parties legally expect from each other?
2. Consensus, contractual capacity, legal possibility, physical possibility and formalities.
3. No – contracts can be verbal/oral too. The intention is to bind each other to the contract. Both must perform in terms of the contract.

Question 45

Explain Grounds for rescission?

Answer 45

When all the requirements discussed above are satisfied, then a valid contract comes into being, and the parties are obligated to act in accordance with the contract. However, circumstances can arise that allow for a contract to be rescinded even though all the requirements have been met. It is important to know what these grounds are, so if ever a person (or company) finds themselves in a similar situation, they will know what relief they have in order to rescind the contract.

Question 46

Explain Misrepresentation?

Answer 46

If a person were to enter into a contract based on being told or informed of something that is favourable to them, but only later to discover, once the agreement has already been signed, that what they were told was not correct, they may want to get out of the contract on account of it not being what they were informed of. This, briefly put, is misrepresentation (Matzukis, 2014: 232). Misrepresentation is any representation made which is false.

Question 47

Explain Duress?

Answer 47

If a person threatens another person to conclude a contract, it is not fair to say that consensus was reached, as consensus was forced. In circumstances where the threat causes fear within the other party to enter into a contract, then this is most likely duress, and the contract can be rescinded on those grounds.

Question 48

The requirements for duress, are as follows?

Answer 48

• Threats must be made against the person, their property, family or even their economic status.
• The threat must be imminent.
• The fear caused by such a threat must be reasonable.
• The threat must have caused the other party to have entered into the contract.
• The threat must be unlawful.

Question 49

Explain Undue influence?

Answer 49

Undue influence is where one person unduly influences another person to enter into a contract. The influencing of a person to enter into a contract is not wrong, but it is where a person, in a position of trust, exploits that trust to influence the other person to enter into a contract that may even be prejudicial to them.

Question 50

The requirements for establishing undue influence?

Answer 50

• The contracting party must be in a position of trust and influence over the other party.
• The other party must have a pliable will – i.e. must be easily influenced.
• The contracting party must abuse the trusting relationship in an immoral way – i.e. showing no regard for ethical principles.
• The undue influence must have caused the other party to enter into the contract.

Question 51

What are the different ways in which a person can breach a contract?

Answer 51

• Positive malperformance
• Mora debitoris
• Mora creditoris
• Prevention of performance
• Repudiation
• Remedies for breach of contract
• Specific performance
• Damages

Question 52

Damages is a novel word in law – it essentially means?

Answer 52

that another party can claim money for any loss they suffered. It need not be physical damage, but if a person in a contract suffered any type of loss, then the defaulting party may be liable to pay damages (i.e. money) to the non-defaulting party. The purpose of claiming damages is to compensate the loss that the other party suffered due to the breach of contract,

Question 53

Explain breach of contract?

Answer 53

Breach of contract is a phrase used to explain when a person has not performed or done their part in terms of the contract. In other words, the person is not honouring their promises. If a person is in breach, it gives the other party (the innocent or non-defaulting party, as they are commonly referred to) certain remedies. These remedies will be mentioned shortly

Question 54

Explain Cancellation?

Answer 54

If a party is in breach, then the non-defaulting party may wish to just cancel the contract. This is an extreme remedy and is seldom relied on, given that there are other remedies available. When a contract is cancelled, neither party will have to continue with their obligations toward the other party, and in fact, the parties must both be restored to their previous positions

Question 55

Exolain Exceptio non adimpleti contractus?

Answer 55

This relief is more informally referred to as ENAC (it is derived from the first letter of each of the words), as it is cumbersome to refer to the full name each time. ENAC was briefly referred to previously when discussing minors in contractual capacity. If services are being rendered, then ENAC allows the one party to take matters into their own hands, and withhold performance until the other party performs. If it is clear from a contract that only one person is performing in terms of a contract, then that person can stop performing until the other person starts to perform. This remedy is a bit more extreme, as the person is taking law into their own hands

Question 56

Explain Penalty clauses in contracts?

Answer 56

Finally, many contracts include clauses which make mention of penalties that must be paid if a party is in breach. These penalty clauses are regulated by legislation, as it would be unfair to set extremely high penalty payments for minor breaches such as mora debitoris.

Question 57

A delict is?

Answer 57

any wrongful and blameworthy action or conduct that causes harm to another person.

Question 58

The wrongdoer must have physically done something, although, there are a few exceptions where an omission (i.e. not doing anything) can amount to?

Answer 58

a delict

Question 59

the action must have caused the harm. If a person physically does something, but it did not cause harm to the person who is claiming there was a delict (referred to as the harmed party), then there is?

Answer 59

no delict.

Question 60

There are broadly speaking six different types of claims that can be brought?

Answer 60

• Lex aquilia
• Actio iniuriarum
• Pain and suffering
• Actio de pauperie and actio de pastu
• Vicarious liability
• Lex aquilia: This is the most common claim brought against a wrongdoer. In this claim, the harmed party has suffered some physical loss which results in them having to spend money for something that was not their fault. They, therefore, seek to claim damages to compensate for the monetary loss they suffered.
• Actio iniuriarum: In this unique claim, there is no actual money lost by the harmed party, but they seek to claim money from the wrongdoer on account of their (the harmed party’s) reputation or dignity having been impaired. This is the claim brought in defamation cases. When one person defames another, there is no monetary loss suffered at all, yet the harmed party still seeks some retribution for the degradation of their reputation. In some cases, the harmed party could argue that there is a loss of money, in that when their reputation is damaged, they will receive less work and less money from prospective customers.
• Pain and suffering: This is where monetary loss was suffered but not due to any physical damage that has occurred to the harmed party’s property. This deals more closely with instances where a party has to incur certain medical, physiological or psychological expenses as a result of a wrongful conduct caused by the wrongdoer. It may even be possible that the wrongdoer does not harm any property of the harmed party, but because of the conduct that was committed by the wrongdoer, the harmed party has to still incur certain medical expenses which the wrongdoer should be liable to pay. It also includes claiming for situations where the harmed party has lost certain amenities in life, such as walking or even brushing one’s teeth because, for example, the harmed party is in a wheelchair or partially paralysed.
• Actio de pauperie and actio de pastu: These claims will not be dealt with in detail, but are mentioned because they are also delictual claims. These are claims relating to domesticated animals. When another person’s animal causes harm to the harmed party, then the wrongdoer must compensate the harmed party for the loss or damage suffered as a result of their animal’s conduct.
• Vicarious liability: This is where the harmed party sues another person who has some type of relationship or link with the wrongdoer. It is usually the case of the employee being the wrongdoer, and the employer being held liable. The rationale is that the employer, or person in charge, ought to have had more control over their employee, and that the employer should be held accountable. The employer is, therefore, sued in place of the employee.

Question 61

The five elements of delict are as follows?

Answer 61

• Harm
• Conduct
• Causation
• Wrongfulness
• Fault

Question 62

Explain Harm?

Answer 62

In all delictual cases, the first question to ask is whether any harm was suffered. If there is no harm, then there is no right to bring an action (i.e. legal proceeding) against the alleged wrongdoer

Question 63

The legal terminology for harm differs. It is often referred to as?

Answer 63

• loss,
• infringement of a right,
• damage or
• cost etc.

Question 64

There are two types of claims that fall under non-patrimonial loss. These claims are?

Answer 64

• Pain and suffering
• actio iniuriarum

Question 65

Explain actio iniuriarum?

Answer 65

which is also referred to as the infringement of a person’s personality rights. This includes bodily integrity, dignity and reputation. If a party feels any of those have been harmed, they may sue for a non-patrimonial claim, specifically for an infringement of their personality rights.

Question 66

Actio iniuriarum is divided into three aspects?

Answer 66

• Bodily integrity (corpus)
• Dignity
• Reputation

The actio iniuriarum is an action for delict which not only seeks to protect an individual’s dignity and reputation but also his or her physical integrity.”

• Bodily integrity (corpus): This is when there is some form of harm to the body. If a person is illegally detained, then their freedom of movement, which is a legally protected right, is restricted. Therefore, they could sue for the infringement of their bodily integrity. It also includes assault, as this is a physical assault on the body. Another less well-known claim arising out of one’s bodily integrity is psychological harm, as a person’s brain and nervous system, which are mostly associated with psychological issues, is part of the body (Loubser et al., 2010: 53).
• Dignity: This is incredibly subjective as it depends on the subjective feelings of a person, and whether they felt wounded or offended by a certain statement. The offence must be of such a nature that it would permit the harmed party to sue for it. Other elements which fall under the dignity umbrella are privacy and identity. When a person’s privacy is invaded, or where a person feels their identity is threatened, they may bring claims as an infringement on their dignity.
• Reputation: The last element falling under actio iniuriarum is reputation. This element is always claimed in cases of defamation. When a person sues on account of them having been defamed, they will most certainly claim that their reputation has been harmed, and as a result of that, are entitled to damages.

Question 67

Explain conduct in a scenario?

Answer 67

As obvious as it may seem, the general principle is that for there to be a delict, someone (the wrongdoer) must have done something. If a person merely thinks about breaking an expensive laptop but does not actually do it, then they cannot be held liable for damage to a laptop. If a person actually takes a hammer and hits a laptop, then that is physical conduct, as it is possible to prove that they physically took a hammer and hit the laptop. Their conduct caused the harm

Question 68

A defence to this conduct element is that of automatism?

Answer 68

If a person is accused of committing a delict, and they acknowledge that they caused wrongful harm to another person, they can still raise the defence of automatism.

Question 69

A defence to this conduct element is that of automatism. If a person is accused of committing a delict, and they acknowledge that they caused wrongful harm to another person, they can still?

Answer 69

Can raise the defence of automatism. If they are successful, the court will not hold them liable. The defence of automatism implies that although the wrongdoer committed the act, they did not do so voluntarily

Question 70

Explain Causation?

Answer 70

There must be a causal connection between the conduct of the wrongdoer and the harm suffered by the harmed party. This element can be best described by using the previous example, namely with John and Nokuthula. Therefore, please refer to that example for the purposes of discussion of causation.

Question 71

Explain Factual causation?

Answer 71

• Factual causation, as the name suggests, looks at the facts.
• Factual causation is the link between a person’s conduct and the consequence of their act (Cause and effect)

There are two types of causations which need to be tested (and proved) in a court.
The first is factual causation and the second is legal causation.

Question 72

How does the ‘but for’ test work?

Answer 72

making a hypothetical addition to the set of facts, in order to determine if the same consequence would occur. This is usually done when a person did not act where there was a legal duty to act

Question 73

The ‘but for’ test is not always appropriate. If there is more than one wrongdoer?

Answer 73

the test struggles to identify which individual is liable

Question 74

A court is by no means limited to using the ‘but for’ test in factual causation. Other tests which courts have used in the past are as follows?

Answer 74

• Material contribution: Any conduct which materially contributes to the harm suffered by the harmed party. Therefore, with the assault example above, A materially contributed to the harm suffered by D, as without A’s conduct, D would not have sustained serious injury. A should be held liable. B and C only caused light bruising on D’s arm, which would arguably absolve them from having to pay for the full extent of D’s medical damage.
• Common sense: As the name suggests, the judge hearing the matter must use their common sense to determine if a person is liable. A judge would look at the assault example and, using common sense, would possibly conclude that hitting someone in the face does more damage than hitting someone on the arm, and that A should be liable for the majority of the medical expenses. The problem with the ‘common sense’ approach, is that it is subjective. What appears to be common sense to one person may not be common sense to another. It is for that reason that it is not used as often in the courts.
• Human experience and knowledge: This approach is somewhat similar to the ‘common sense’ approach. This approach requires the court to look solely at the actual facts of a matter, and not to create hypothetical facts (as the ‘but for’ test would do). Using the actual facts, the judge must then use human experience and knowledge to make a finding. Human experience would, for example, inform the court that punching someone in the face does more damage than being punched on the arm. Therefore, in terms of this approach, it is likely that A would once again be held liable for the majority of the damage.

Question 75

Legal causation is the second test that is applied?

Answer 75

It is applied after determining whether the wrongdoer factually caused the harm.

Question 76

The flexible approach is a combination of various factors, as well as former approaches (or tests) that used to be relied on. These tests are as follows?

Answer 76

• Reasonable foreseeability
• Adequate cause
• Direct consequence
• Intention
• Novus actus interveniens
• Talem qualem
• Reasonable foreseeability: If the wrongdoer should have foreseen that their conduct would have caused harm, then that should form the basis of their liability. The wrongdoer does not have to foresee the specific harm that occurred, but rather some type of general harm.
• Adequate cause: This approach is linked with the human experience and knowledge approach referred to above. If the harm suffered can be adequately connected to the conduct of the wrongdoer, then there is liability.
• Direct consequence: In this approach, it does not matter whether the harm could have reasonably been foreseen; the question is whether the harm suffered was a direct consequence of the conduct of the wrongdoer. This is a very strict test, so it has been relied on more as a factor than an actual test.
• Intention: The court will consider whether the consequences of the wrongdoer’s conduct were intended. If the harm which occurred is so far removed from what the wrongdoer intended, then this will certainly be a factor in determining legal causation.
• Novus actus interveniens: This is an independent, unconnected and extraneous factor or event which is not foreseeable and which actively contributes to harm that the harmed party has already suffered. It is the occurrence of harm, where harm was already inflicted on the harmed party (Van der Walt and Midgley, 2005: 207).
• Talem qualem rule: This is more commonly referred to as the ‘thin skull’ rule. In terms of this approach, if a person has any condition or genetic predisposition which makes them more susceptible to a certain kind of harm, and which might amplify that type of harm suffered against them, then the wrongdoer must be held accountable for the full extent of the harm suffered by the harmed party, even if it was not foreseeable. For example, if a person who suffers from brittle bone disease is pushed off a chair, and cracks their skull, then the wrongdoer must pay for all related medical costs. This applies even if the wrongdoer was unaware of that person’s condition or predisposition, and even if it is unlikely that any other person would have cracked their skull if pushed off a chair.

Question 77

Wrongfulness implies that the conduct caused by the wrongdoer was?

Answer 77

was wrong?

Question 78

Wrongfulness is usually when there has been a violation or harm of a legally protected interest. A legally protected interest could be?

Answer 78

• real rights,
• personal rights,
• personality rights,
• immaterial property rights (such as trademarks and copyrights) and possibly privacy rights. To satisfy this requirement,

Question 79

Explain Grounds of justification?

Answer 79

There are numerous situations where a person could be sued for conducting themselves in a manner which caused harm (a delict) but for which there was a good reason to commit such an action.

Question 80

Consent applies mainly in the realm of professional sports. If this defence did not exist, nearly every contact sport (wrestling, boxing and martial arts, to mention a few) would result in litigation. When a person consents voluntarily to injury or to the risk of being injured, and the goal of such consent is recognised by law (i.e. like with sport), then the injury suffered is lawful (Loubser et al., 2010: 158)/.

Answer 80

Consent implies that the other person (the harmed party) is consenting to damage, and therefore, they cannot sue after the damage has occurred.

Question 81

Every time a person goes to the doctor or a dentist, they are?

Answer 81

consenting to the doctor encroaching on their body.

Question 82

if the wrongdoer intends to rely on consent as a ground of justification, they must be able to prove?

Answer 82

that the wrongdoer complied with all the following requirements:
-The consent must be voluntary.
- The person who gave the consent must have been of a sufficient mental capacity to have expressed their will.
- The consent must be obvious.
- The consent must have been given before the harm occurs.

Question 83

Explain Private defence?

Answer 83

his is commonly known as ‘self-defence’. A person may use reasonable and necessary force against the attacker, if the attacker unlawfully attacked the person or any third party. To rely on private defence, the person being attacked must use force against the attacker almost immediately.

Question 84

Explain Necessity?

Answer 84

This defence is similar to private defence, except that the person may use reasonable and proportional force against an innocent third party, provided such force is necessary to escape danger. The danger must be actual danger – i.e. not a mere fear of there being danger.

Question 85

Explain Impossibility?

Answer 85

This defence may only be relied on when there was a legal duty to act, but the wrongdoer failed to act, on account that it was impossible. Consider this example – an adult sees a child drowning, then that adult has a legal duty to try to save that child.

Question 86

Explain Superior orders?

Answer 86

This is more commonly used in criminal cases, but it can equally apply to situations where the wrongdoer is involved in the military or police force and has been instructed by a superior to do an unlawful act

Question 87

Explain Official capacity?

Answer 87

Some people may be authorised to act in a certain way that an ordinary person may not be able to act in.

Question 88

Explain Disciplinary chastisement?

Answer 88

This is an interesting ground of justification, as it relates to guardians disciplining their children.

Question 89

Explain Minor transgressions?

Answer 89

In law, this is known as de minimis non curat lex, which means that the law does not concern itself with trivialities. If a wrongdoer breaks someone’s pencil, then that person cannot take the wrongdoer to court, as the court will not even entertain such a claim.

Question 90

Explain Negotiorum gestio?

Answer 90

If the wrongdoer protects another person’s legal interests without their consent, then the wrongdoer may rely on this defence. For example, if the wrongdoer has to break into their neighbour’s property because the geyser is leaking, then the wrongdoer may rely on this defence to escape being held liable for breaking down the door.

Question 91

Explain what is meant by Provocation?

Answer 91

The law recognises certain circumstances where a person is so overwhelmed with emotion, such as rage, that they cannot think rationally or that their conduct cannot be prevented.

Question 92

Which term refers to an ascertainable amount suffered by the harmed party, and which is directly linked to loss in the harmed party’s estate?

Answer 92

Patrimonial loss

Question 93

When may a wrongdoer be held liable for an omission?

Answer 93

When he or she has a legal duty to act

Question 94

Explain Fault?

Answer 94

This is possibly one of the most important and complicated elements. Where possible, the discussion surrounding fault will be kept simple and without too much legal discussion.
- This element speaks to the wrongdoer’s mind at the time the delict occurred.

Question 95

Explain Intent?

Answer 95

The wrongdoer has intent when they know an action to be wrong, yet still, go ahead with it. With intent, it must be established that there was a direction of the will, meaning, that the wrongdoer must have directed their will to cause harm to a specific legally protected interest.

Question 96

There are three forms of intent?

Answer 96

• Dolus directus
• Dolus indirectus
• Dolus eventualis
• Dolus directus: The wrongdoer had actual intent. They knew the conduct was wrong and went ahead with it. For example, a disgruntled employee hits their employer’s vehicle with a cricket bat on purpose.
• Dolus indirectus: The wrongdoer had indirect intent. The delict caused by the wrongdoer may not have been the wrongdoer’s main aim, but they realised that if they want to achieve their main aim, then they have to cause harm first. For example, a disgruntled employee hits their employer’s car with a cricket bat on purpose. The cricket bat was a signed collectable bat which belonged to one of their co-workers. When the employee hit the vehicle, not only did they damage the vehicle, but they also damaged the bat, although it was not the main purpose of the wrongdoer to damage the bat.
• Dolus eventualis: The wrongdoer has a main aim that they want to achieve, and they realise that they may cause someone harm in order to achieve this aim, yet they still reconcile or accept the consequences that a delict may occur (Fryer et al., 2016: 52). For example, a hunter sees a game ran

Question 97

Dolus directus?

Answer 97

The wrongdoer had actual intent. They knew the conduct was wrong and went ahead with it. For example, a disgruntled employee hits their employer’s vehicle with a cricket bat on purpose.

Question 98

Dolus indirectus?

Answer 98

The wrongdoer had indirect intent. The delict caused by the wrongdoer may not have been the wrongdoer’s main aim, but they realised that if they want to achieve their main aim, then they have to cause harm first.

Question 99

Dolus eventualis?

Answer 99

The wrongdoer has a main aim that they want to achieve, and they realise that they may cause someone harm in order to achieve this aim, yet they still reconcile or accept the consequences that a delict may occur

Question 100

There are some defences that may excuse having intent. So, if a person deliberately committed a delict – i.e. it was not them being negligent – then they may raise either of the following defences in the hope of not being held liable:

Answer 100

• Mistake
• Jest
• Intoxication
• Provocation
• Mistake: The person did not know that what they did was wrong. The mistake must be reasonable, and a type of mistake that public policy would regard as being reasonable. For example, sending a defamatory message on a WhatsApp group when it was meant as a private message to somebody else.
• Jest: This is when someone is making a joke. Here, the person has the necessary intent, but not the intent to actually cause harm.
• Intoxication: Sometimes a person can be so intoxicated that they cannot appreciate the consequences of their actions. Courts are reluctant to allow this remedy to succeed, as a person should not be able to get off from being held liable merely because they were drinking too much alcohol. Nevertheless, this is a defence that has succeeded in the past.
• Provocation: Please see what is discussed above, under grounds of justification. Provocation can also exclude intent.

Question 101

The test for negligence asks whether the wrongdoer could have?

Answer 101

acted differently. This test makes use of a well-known test in law called the ‘reasonable person’ test.

Question 102

The ‘reasonable’ person is a fictitious person. There is no single reasonable person that the courts are referring to. The law has created an example?

Answer 102

of how a normal citizen with good moral standings would act in a specific situation. The reasonable person, therefore, embodies a normal law-abiding citizen.

Question 103

The duty that a person (the wrongdoer) owes to the public with regard to foreseeing and possibly preventing harm can depend on certain situations. The duty can, therefore, shift based on what circumstances are applicable?

Answer 103

• General practice
• Statutory duty
• Children
• Sudden emergency
• Beginners vs. experts
• General practice: There may be certain norms or standards that apply in a given industry with regard to how persons in that industry should conduct themselves.
• Statutory duty: Legislation may prescribe that people should act in a certain way. If a person does not act in accordance with legislation, then they will in all likelihood be held liable.
• Children: There must be a heightened duty when around children.
• Sudden emergency: It is conceivable that situations might arise where a person has to think on their feet, even if that means causing harm to others.
• Beginners vs. experts: If a person is an expert in a field, such as a surgeon, engineer or a seasoned accountant, then it would be unreasonable to compare their conduct with that of a reasonable person in the position of a non-expert. The ‘reasonable person’ test is therefore adapted to the ‘reasonable expert’, and the court will determine what the reasonable expert in the same situation as the wrongdoer (who is also an expert) would have done. The converse is true. If a person is a beginner, then it is unfair to apply a stricter standard to them, so the ‘reasonable person’ test will be made less strict to accommodate the beginners. The test would then become that of a ‘reasonable beginner’.

Question 104

Define Lex aquilia?

Answer 104

This is the most common claim brought against a wrongdoer. In this claim, the harmed party has suffered some physical loss which results in them having to spend money for something that was not their fault. They, therefore, seek to claim damages to compensate for the monetary loss they suffered.

Question 105

Define Actio iniuriarum?

Answer 105

In this unique claim, there is no actual money lost by the harmed party, but they seek to claim money from the wrongdoer on account of their (the harmed party’s) reputation or dignity having been impaired.

Question 106

Define Pain and suffering?

Answer 106

This is where monetary loss was suffered but not due to any physical damage that has occurred to the harmed party’s property.

Question 107

Define Actio de pauperie and actio de pastu?

Answer 107

They are delictual claims. These are claims relating to domesticated animals.

Question 108

Define Vicarious liability?

Answer 108

This is where the harmed party sues another person who has some type of relationship or link with the wrongdoer.

Question 109

What are the grounds for Breach of contract?

Answer 109

Breach of contract is a phrase used to explain when a person has not performed or done their part in terms of the contract.

• Positive mal performance
• Mora debtors
• Mora creditoris
• Prevention of performance
• Repudiation
• Positive mal performance: most common form of breach. Is where a person performs in terms of the contract, but their performance is inadequate.
• Mora debtors: is when a person does not perform in time.
• Mora creditoris: This is very similar to mora debitoris except that now it is the creditor who is delaying the contract.
• Prevention of performance: This is when performance is no longer possible because of something that the one contracting party did. In other words, one of the contracting parties did something which made delivery of the goods or service impossible.
• Repudiation: When one of the contracting parties creates an objective impression that they will no longer honour the contract, then this is repudiation, and the other party can sue them for breach of contract.

Question 110

Remedies for breach of contract?

Answer 110

• Specific performance
• Damages
• Cancellation
• Exceptio non adimpleti contractus

Question 111

Damages is a novel word in law – it essentially means?

Answer 111

that another party can claim money for any loss they suffered.

Question 112

Explain Specific performance?

Answer 112

If a person is not performing their obligations in terms of the contract, then the other party can take them to court and get a court order which compels the defaulting party to perform in terms of the contract. In other words, the court order will force them to act in the way they initially promised.

Question 113

Explain Cancellation with regards to contracts?

Answer 113

If a party is in breach, then the non-defaulting party may wish to just cancel the contract. This is an extreme remedy and is seldom relied on, given that there are other remedies available. When a contract is cancelled, neither party will have to continue with their obligations toward the other party, and in fact, the parties must both be restored to their previous positions

Question 114

Explain Exceptio non adimpleti contractus?

Answer 114

If services are being rendered, then ENAC allows the one party to take matters into their own hands, and withhold performance until the other party performs.

Question 115

Explain Penalty clauses in contracts?

Answer 115

Finally, many contracts include clauses which make mention of penalties that must be paid if a party is in breach. These penalty clauses are regulated by legislation, as it would be unfair to set extremely high penalty payments for minor breaches such as mora debitoris.

Question 116

There are two types of causations which need to be tested (and proved) in a court?

Answer 116

• factual causation
• legal causation.

Question 117

Explain Factual causation?

Answer 117

As the name suggests, looks at the facts. Factual causation is the link between a person’s conduct and the consequence of their act – i.e. damage to the other party’s car.

Question 118

Define Legal causation ?

Answer 118

It is applied after determining whether the wrongdoer factually caused the harm. Legal causation usually limits the factual causation, otherwise, society would operate with extreme caution whenever involved in a precarious situation.

Question 119

The ‘but for’ test in factual causation, explain?

Answer 119

• Material contribution
• Common sense
• Human experience and knowledge
• Material contribution: Any conduct which materially contributes to the harm suffered by the harmed party. Therefore, with the assault example above,
• Common sense: As the name suggests, the judge hearing the matter must use their common sense to determine if a person is liable.
• Human experience and knowledge: This approach is somewhat similar to the ‘common sense approach.

Question 120

This case therefore adds support to the notion that a court must use a flexible approach in determining the legal causation element. The flexible approach is a combination of various factors, as well as former approaches (or tests) that used to be relied on. These tests are as follows?

Answer 120

• Reasonable foreseeability:
• Adequate cause
• Direct consequence
• Intention
• Novus actus interveniens
• Talem qualem rule
• Reasonable foreseeability: If the wrongdoer should have foreseen that their conduct would have caused harm, then that should form the basis of their liability. o
• Adequate cause: This approach is linked with the human experience and knowledge approach referred to above.
• Direct consequence: In this approach, it does not matter whether the harm could have reasonably been foreseen; the question is whether the harm suffered was a direct consequence of the conduct of the wrongdoer.
• Intention: The court will consider whether the consequences of the wrongdoer’s conduct were intended.
• Novus actus interveniens: This is an independent, unconnected and extraneous factor or event which is not foreseeable and which actively contributes to harm that the harmed party has already suffered.
• Talem qualem rule: This is more commonly referred to as the ‘thin skull’ rule. If a person has any condition or genetic predisposition which makes them more susceptible to a certain kind of harm, and which might amplify that type of harm suffered against them, then the wrongdoer must be held accountable for the full extent of the harm suffered by the harmed party, even if it was not foreseeable.

Question 121

Wrongfulness is usually when?

Answer 121

there has been a violation or harm of a legally protected interest. A legally protected interest could be real rights, personal rights, personality rights, immaterial property rights (such as trademarks and copyrights) and possibly privacy rights.

Question 122

To satisfy this requirement, for wrongfulness, there are two questions that are asked?

Answer 122

• The first leg of the test is often satisfied as soon as a person alleges that a person conducted themselves in a manner that caused harm – i.e. there was some physical act.
• The second leg of the test acts as a filter to ensure that not all people that commit a delict are punished when there may be good reasons for them doing so. Self-defence is a good example

Question 123

Explain Grounds of justification?

Answer 123

There are numerous situations where a person could be sued for conducting themselves in a manner which caused harm (a delict) but for which there was a good reason to commit such an action.

Question 124

Explain Consent?

Answer 124

Implies that the other person (the harmed party) is consenting to damage, and therefore, they cannot sue after the damage has occurred.

Question 125

Consent has several requirements that must be met. In other words, if the wrongdoer intends to rely on consent as a ground of justification, they must be able to prove that the wrongdoer complied with all the following requirements?

Answer 125

• The consent must be voluntary.
• The person who gave the consent must have been of a sufficient mental capacity to have expressed their will.
• The consent must be obvious.
• The consent must have been given before the harm occurs.

Question 126

Explain Private defence?

Answer 126

This is commonly known as ‘self-defence’. A person may use reasonable and necessary force against the attacker, if the attacker unlawfully attacked the person or any third party. To rely on private defence, the person being attacked must use force against the attacker almost immediately.

Question 127

Explain Necessity?

Answer 127

This defence is similar to private defence, except that the person may use reasonable and proportional force against an innocent third party, provided such force is necessary to escape danger. The danger must be actual danger

Question 128

Explain Impossibility?

Answer 128

This defence may only be relied on when there was a legal duty to act, but the wrongdoer failed to act, on account that it was impossible.

Question 129

Explain Superior orders?

Answer 129

This is more commonly used in criminal cases, but it can equally apply to situations where the wrongdoer is involved in the military or police force and has been instructed by a superior to do an unlawful act.

Question 130

Explain Official capacity?

Answer 130

Some people may be authorised to act in a certain way that an ordinary person may not be able to act in.

Question 131

Explain Disciplinary chastisement?

Answer 131

This is an interesting ground of justification, as it relates to guardians disciplining their children. In normal circumstances, a child cannot sue their parents for assault when in actual fact the parents were merely disciplining their child

Question 132

Explain Minor transgressions?

Answer 132

In law, this is known as de minimis non curat lex, which means that the law does not concern itself with trivialities. If a wrongdoer breaks someone’s pencil, then that person cannot take the wrongdoer to court, as the court will not even entertain such a claim.

Question 133

Explain Negotiorum gestio?

Answer 133

If the wrongdoer protects another person’s legal interests without their consent, then the wrongdoer may rely on this defence.

Question 134

Explain Provocation?

Answer 134

The law recognises certain circumstances where a person is so overwhelmed with emotion, such as rage, that they cannot think rationally or that their conduct cannot be prevented. This is therefore an argument for involuntary conduct.

Question 135

When may a wrongdoer be held liable for an omission?

Answer 135

When he or she has a legal duty to act

Question 136

Gertand Hannes were sitting across from each other in their classroom at school. Gert kicked Hannes on his shin so lightly that Hannes did not immediately feel it. However, minutes later Hannes was crying out in pain due to the injury. It appeared that Hannes’ shin bone was damaged from an earlier accident and the kick that Gert delivered to Hannes’ shin made the injury worse. Hannes will never be able to use his leg again. Gert will be held accountable for the full extent of the harm suffered by Hannes, even though he was unaware of his underlying condition. What is this approach known as?

Answer 136

The talem qualem-rule

Question 137

To find factual causation, a court is able to use and apply numerous tests?

Answer 137

The but-for test is a test commonly used in both tort law and criminal law to determine actual causation. The test asks, “but for the existence of X, would Y have occurred?” In tort law, but-for causation is a prerequisite to liability in combination with proximate cause.

Question 138

Which term implies that although a wrongdoer committed a delict, they did not do so voluntarily and therefore they should not be held liable?

Answer 138

Automatism

Question 139

Donald is walking down the road when he sees a rabid dog at the other end. The dog starts to chase Donald, so Donald quickly turns around and runs as fast as he can. Donald quickly turns around a corner and collides with Zibi. Zibi in turn falls, fractures her arm, and the rabid dog starts to attack Zibi. Zibi eventually gets away, but with serious wounds. She has to go to hospital to be treated for her wounds as well as rabies. She now also has a fear of dogs. She sues Donald for all her hospital expenses.

Required:

1. Which ground of justification could Donald possibly rely on?
2. What are the requirements that must be satisfied before he can rely on that ground of justification?
3. Assuming that ground of justification is accepted by the courts, will Donald have to pay for Zibi’s medical expenses?
4. If Donald opened the gate, which caused the rabid dog to escape, could Donald still rely on the ground of justification identified in?

Answer 139

1. Necessity
2. Reasonable and proportional force against an innocent third party, and such force must be necessary to escape danger. There must be actual danger – i.e. the threat must not have been caused by the wrongdoer
3. No.
4. No, this ground only applies if he did not cause the incident.

Question 140

Explain Fault?

Answer 140

This is possibly one of the most important and complicated elements. A negligent or intentional failure to act reasonably or according to law or duty; an act or omission giving rise to a criminal indictment or a civil tort lawsuit.

Question 141

Once again, the law will not hold a person liable if they?

Answer 141

are not able to appreciate their actions. A person must be of a certain mental maturity before they can be held liable for a civil wrong.

Question 142

Explain Intent?

Answer 142

The wrongdoer has intent when they know an action to be wrong, yet still, go ahead with it. With intent, it must be established that there was a direction of the will, meaning, that the wrongdoer must have directed their will to cause harm to a specific legally protected interest. Secondly, they must have had a consciousness of wrongfulness. This implies that they knew that their conduct was wrongful, yet still directed their blameworthy conduct.

Question 143

There are three forms of intent?

Answer 143

• Dolus directus
• Dolus indirectus
• Dolus eventualis
• Dolus directus: The wrongdoer had actual intent. They knew the conduct was wrong and went ahead with it. For example, a disgruntled employee hits their employer’s vehicle with a cricket bat on purpose.
• Dolus indirectus: The wrongdoer had indirect intent. The delict caused by the wrongdoer may not have been the wrongdoer’s main aim, but they realised that if they want to achieve their main aim, then they have to cause harm first. For example, a disgruntled employee hits their employer’s car with a cricket bat on purpose. The cricket bat was a signed collectable bat which belonged to one of their co-workers. When the employee hit the vehicle, not only did they damage the vehicle, but they also damaged the bat, although it was not the main purpose of the wrongdoer to damage the bat.
• Dolus eventualis: The wrongdoer has a main aim that they want to achieve, and they realise that they may cause someone harm in order to achieve this aim, yet they still reconcile or accept the consequences that a delict may occur (Fryer et al., 2016: 52). For example, a hunter sees a game ranger next to the springbok, but still tries to shoot the springbok. If the hunter shoots the game ranger, then the hunter would have dolus eventualis, as he would have seen a possibility (no matter how small) that a delict could occur, yet he still made the shot. This type of intent was heavily relied on in the infamous case of S v Pistorius 2014 (2) SACR 314 (SCA) where the famous athlete, Oscar Pistorius, shot and killed his girlfriend. The court ruled that he had dolus eventualis, as he possibly foresaw that a crime would be committed, yet he still went ahead with firing his gun.

Question 144

Define Dolus directus?

Answer 144

The wrongdoer had actual intent. They knew the conduct was wrong and went ahead with it. For example, a disgruntled employee hits their employer’s vehicle with a cricket bat on purpose.

Question 145

Define Dolus indirectus?

Answer 145

The wrongdoer had indirect intent. The delict caused by the wrongdoer may not have been the wrongdoer’s main aim, but they realised that if they want to achieve their main aim, then they have to cause harm first.

Question 146

Define Dolus eventualis?

Answer 146

The wrongdoer has a main aim that they want to achieve, and they realise that they may cause someone harm in order to achieve this aim, yet they still reconcile or accept the consequences that a delict may occur

Question 147

What are some defences against intent?

Answer 147

• Mistake
• Jest
• Intoxication
• Provocation
• Mistake: The person did not know that what they did was wrong. The mistake must be reasonable, and a type of mistake that public policy would regard as being reasonable.
• Jest: This is when someone is making a joke. Here, the person has the necessary intent, but not the intent to actually cause harm.
• Intoxication: Sometimes a person can be so intoxicated that they cannot appreciate the consequences of their actions.
• Provocation: Please see what is discussed above, under grounds of justification. Provocation can also exclude intent.

Question 148

Which test is used for Negligence?

Answer 148

The test for negligence asks whether the wrongdoer could have acted differently. This test makes use of a well-known test in law called the ‘reasonable person’ test.

Question 149

The ‘reasonable’ person is a?

Answer 149

fictitious person.

Question 150

The reasonable person’s test is used extensively in determining ?

Answer 150

whether the wrongdoer was negligent or not.

Question 151

What are the five elements of a delict?

Answer 151

• Harm
• Conduct
• Causation
• Wrongfulness
• Fault

Question 152

Explain Harm regarding delictual cases, is whether any?

Answer 152

harm was suffered. If there is no harm, then there is no right to bring an action (i.e. legal proceeding) against the alleged wrongdoer.
- The legal terminology for harm differs. It is often referred to as loss, infringement of a right, damage or cost etc.
- It should now be clear, that the harm suffered must have been against something which the harmed party has a legally protected right toward.

Question 153

Define non-patrimonial loss?

Answer 153

This is loss which cannot be easily determined, as it usually relates to intangible aspects such as a person’s well-being.

Question 154

Explain patrimonial loss?

Answer 154

When there is an easily ascertainable amount suffered by the harmed party, and where the loss is directly linked to loss in the harmed party’s estate (i.e. their bank account)

Question 155

There are two types of claims that fall under non-patrimonial loss, and which are important to know. These claims are?

Answer 155

• pain and suffering, and
• the actio iniuriarum (The actio iniuriarum is an action for delict which “not only seeks to protect an individual’s dignity and reputation but also his or her physical integrity.”)

Question 156

Explain Pain and suffering?

Answer 156

is notoriously difficult to litigate in court, as it is dependent on the subjective feelings of the harmed party. It is therefore unique to each person. Pain and suffering is a broad concept that deals with physical pain such as hurting limbs. It also deals with emotional pain, such as shock or PTSD, and can even cater for situations where a person is now inconvenienced as a result of a wrongdoer – i.e. because a person is now in a wheelchair (Midgley, 2016: 47).

Question 157

Define actio de pauperie?

Answer 157

is an action that is available to someone who has suffered damages due to the conduct of another person’s domestic animal. The owner of the domestic animal will, in terms of this action, be liable for the damages caused by the animal.

Question 158

Define actio de pauperie?

Answer 158

is an action that is available to someone who has suffered damages due to the conduct of another person’s domestic animal. The owner of the domestic animal will, in terms of this action, be liable for the damages caused by the animal.

Question 159

Define actio de pastu?

Answer 159

is available where an animal causes damage or loss by eating plants. The animal acts of its own volition when causing the damage. This is inapplicable in the present case.