Law of Delict Lecture 1Tayla Waterwortht.Waterworth@ru.ac.za

Prescribed textbook

M Loubser et al The Law of Delict in South Africa (2010) Oxford University Press: Cape Town

Useful for basic principles, but be aware that it goes into more detail than is necessary for this course.

What is “delict”? “…delict provides a system for compensating those who

have been harmed by the conduct of others.” (Loubser et al. p4)

Roman law recognized several types of delict – now we have one overarching system to deal with ALL delicts.

Related to ethics Law of delict sets standards for human behavior The ethical ideal of “Love thy neighbor” becomes “Do not

injure your neighbor” (Donoghue v Stevenson [1932] AC 562 at 580)

What is “delict”? Core principle of delict: no liability without fault.

The law of delict has various objectives, including:1. Compensating victims for harm suffered2. Promoting social cohesion3. Deterring perpetrators from performing the same

harmful actions again

Actions and remedies Most common remedies:1. Compensation (usually monetary)2. Interdict (Court order preventing someone from

performing a specific action)

Remedy will usually depend on action used. The type of action that you use will usually depend on the

type of harm caused.

Types of delictual actions1. Lex aquilia/ action legis aquila/ Aquilian action

Used for patrimonial harm

2. Germanic remedy Used for pain and suffering

3. Actio iniuriarum Harm to personality interests Corpus, dignitas and fama

The Aquilian Action Five main elements:

1. Conduct2. Causation3. Harm4. Fault5. Wrongfulness

The Aquilian Action: conduct Two forms of conduct:1. Commission (action)

Positive act2. Omission (inaction)

Not acting where there is a duty to act

Conduct must be human conduct

The Aquilian Action: conduct Conduct must be voluntary

What would be involuntary conduct…? Compulsion Reflexive muscle movements Unconscious actions

Infants and/or mentally ill persons?

The Aquilian Action: causation Did the conduct cause the harm? Determining whether there is causation requires a two-

fold enquiry:1. Is there factual causation?

I.e. did the person’s conduct actually cause the harm? Sine qua non test is used (the “but-for” test) But for [conduct], would [harm] have occurred? Commision: if the person had not performed that action,

would the harm have occurred? Omission: if the person had performed the action, would

the harm have occurred?