Terminology/ Legal maxims Flashcards
Obediential
Conformity/obligatory/imposed
Contrast with ‘conventional’ – ex contractu, ex voluntante
Ex lege
As a matter of law : by operation of law
Culpa
Fault, blame (no liability without fault)
Delict
Contrast with criminal law – ‘criminal wrong’
Civil wrong or wrongful act
Tort
Equivalent to delict
(not, a single complete body of law but rather a set of individual torts)
Duty of Care
A recognised legal duty incumbent on the defender
Causation
The relationship between the breach and harm – the cause (mix of question of fact and law)
Damnum injuria datum
Loss caused by a legal wrong
The general underlying delictual liability in the common law of Scotland
Damnum absque injuria
Loss without a legal wrong
Injuria sine damno
Legal wrong without harm or loss (for example, McFarlane – failed vasectomy)
Strict liability
Legal doctrine that holds a party responsible for their actions or products, without the plaintiff having to prove negligence or fault
Occupiers’ liability
Duty of care on the occupiers’ of land or premises
Liability re. dangers due to the state of the premises or anything done or omitted to be done…
Vicarious liability
Vicarious = in place of anotherWhere one party is liable for the actions of another (for example, anemployer being liable for actions of employee)
Reparation
To make good of a particular loss
Solatium
A payment made to a victim as compensation for injured feelings or emotional pain and suffering
Causa sine qua non
Factual causation
- ‘but for’ …the breach…
Causa causans
Legal causation
- Immediate, dominant or effective cause…
Res Ipsa Loquitor
‘The facts speak for themselves’
locatio operarum
Involving an enquirywhether the person who committed the wrong is working under a contract of employment
locatio operis faciendi
an independent contractor working under a contract for services
culpa tenet suos auctores
a person is not liable for the acts of third parties
Plus quam tolerabile
more than is tolerable
resitutio in integrum
restoration to the original position
uberrimae fidei
utmost good faith
Audi alteram partem
“hear the other side” or “let the other side be heard”
violenti non fit injuria
Defence available for where it is alleged that the pursuer has knowingly and voluntarily agreed to run the risk of injury
aemulationem vicini
actions in spite or malice
Ex turpi causa non oritur actio
Nuisance defence that prohibits a plaintiff from recovering damages if their claim arises from an illegal or immoral act committed by the plaintiff themselves
damnum fatale
nuisance defence, meaning act of god. very rare
Res judicata
Nuisance defence that prevents the same parties from relitigating the same claim or issue that has already been adjudicated in a final judgment by a court of competent jurisdiction.
