Terminology/ Legal maxims

Question 1

Obediential

Answer 1

Conformity/obligatory/imposed
Contrast with ‘conventional’ – ex contractu, ex voluntante

Question 2

Ex lege

Answer 2

As a matter of law : by operation of law

Question 3

Culpa

Answer 3

Fault, blame (no liability without fault)

Question 4

Delict

Answer 4

Contrast with criminal law – ‘criminal wrong’
Civil wrong or wrongful act

Question 5

Tort

Answer 5

Equivalent to delict
(not, a single complete body of law but rather a set of individual torts)

Question 6

Duty of Care

Answer 6

A recognised legal duty incumbent on the defender

Question 7

Causation

Answer 7

The relationship between the breach and harm – the cause (mix of question of fact and law)

Question 8

Damnum injuria datum

Answer 8

Loss caused by a legal wrong
The general underlying delictual liability in the common law of Scotland

Question 9

Damnum absque injuria

Answer 9

Loss without a legal wrong

Question 10

Injuria sine damno

Answer 10

Legal wrong without harm or loss (for example, McFarlane – failed vasectomy)

Question 11

Strict liability

Answer 11

Legal doctrine that holds a party responsible for their actions or products, without the plaintiff having to prove negligence or fault

Question 12

Occupiers’ liability

Answer 12

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…

Question 13

Vicarious liability

Answer 13

Vicarious = in place of anotherWhere one party is liable for the actions of another (for example, anemployer being liable for actions of employee)

Question 14

Reparation

Answer 14

To make good of a particular loss

Question 15

Solatium

Answer 15

A payment made to a victim as compensation for injured feelings or emotional pain and suffering

Question 16

Causa sine qua non

Answer 16

Factual causation

• ‘but for’ …the breach…

Question 17

Causa causans

Answer 17

Legal causation

• Immediate, dominant or effective cause…

Question 18

Res Ipsa Loquitor

Answer 18

‘The facts speak for themselves’

Question 19

locatio operarum

Answer 19

Involving an enquirywhether the person who committed the wrong is working under a contract of employment

Question 20

locatio operis faciendi

Answer 20

an independent contractor working under a contract for services

Question 21

culpa tenet suos auctores

Answer 21

a person is not liable for the acts of third parties

Question 22

Plus quam tolerabile

Answer 22

more than is tolerable

Question 23

resitutio in integrum

Answer 23

restoration to the original position

Question 24

uberrimae fidei

Answer 24

utmost good faith

Question 25

Audi alteram partem

Answer 25

“hear the other side” or “let the other side be heard”

Question 26

violenti non fit injuria

Answer 26

Defence available for where it is alleged that the pursuer has knowingly and voluntarily agreed to run the risk of injury

Question 27

aemulationem vicini

Answer 27

actions in spite or malice

Question 28

Ex turpi causa non oritur actio

Answer 28

Nuisance defence that prohibits a plaintiff from recovering damages if their claim arises from an illegal or immoral act committed by the plaintiff themselves

Question 29

damnum fatale

Answer 29

nuisance defence, meaning act of god. very rare

Question 30

Res judicata

Answer 30

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.