The Delict

 Define
a legal obligation
 Explain the number of
obligations arising from a
 Discuss legally relevant
The right of the creditor to claim performance (the right to
insist that something be done or not be done).
Duty of the debtor to perform accordingly (to do / not do
Rights and duties were not created in a vacuum, but
developed from recognised sources: Contract, Delict,
Unjustified Inrichment, Unauthorised agency, Statute and
Family relationships.
In Roman Law not all contracts were recognised. Contracts
that were not recognised created no legal obligation. That
changed in the Roman-Dutch Law. Any contract concluded
with the serious intent by parties to be legally bound, created
a legal obligation.
A legal tie between legal subjects, recognised by law,
created because of certain legal facts that creates
rights and duties recognised by law.
If these rights and duties are recognised and enforced
by law, it is known as a civil obligation. If these rights
and duties are recognised but not enforced by law, it is
known as a natural obligation.
A legal fact must exist before a legal obligation
can be created. They therefore create, alter or
destroy rights.
 Legal facts are divided into events that occur
without human intervention or it can be
human acts and conduct.
 Human conduct is divided into juristic acts
(law gives effect according to the intentions of
the parties) and non-juristic acts (law gives
effect irrespective of the intentions of the
 Juristic acts are divided into unilateral and
multilateral acts.
A single contract can create more than one obligation.
Car sold = right to receive the car / duty to deliver the
car / duty to pay the price / right to claim purchase
Contract therefore describes the total of all the
obligations that exists between contracting parties.
Failure to perform properly leads to breach of
The party who has the right to claim = creditor.
The party who has the duty to perform = debtor.
Agreements that create legal obligations,
Agreements that extinguish legal obligations,
Agreements that transfer duties in tems of legal
Rights and duties have an economic value and form
assets and liabilities of one’s estate.
Transfer of rights = cession.
Transfer of duties = delegation.
Transfer of rights and duties = assignment.
Theme 2
Define a delict
Distinguish between a delict and a crime
Name and discuss all the elements....
Discuss delictual remedies
Explain vicarious liability
Name and discuss the four requirements
which must be complied with in order to
establish vicarious liability
A culpable, wrongful act by a person that causes
patrimonial loss to another or which impairs the
latter’s personality.
Private Law
Criminal Law
Protect the personal
interests of the
Maintain order in the
interest of the general
Action instituted by one
person against another.
Crime is an illegal
culpable act, prosecuted
by the State. .
To claim compensation
for loss / injury caused
by the delict.
Purpose :
Punishment for the
violation of the public
The Delict has 5 elements. All these elements must be
present before a person can be held liable.
1. Act
2. Wrongfulness
3. Fault
4. Patrimonial Loss / Impairment of
5. Causation
A person’s conscious decision to act voluntarily in a
certain way. A person can decide how and when he
wishes to act.
A person must make a conscious decision. If a person
acts in a state of automatism, he does not act
according to his will. Example: Epileptic fit / in a
trance. Such a person is not held liable for the
consequences of his actions.
Distinguish 2 types of actions:
◦ Positive conduct To do something = commissio.
◦ Negative conduct Fail to do something = ommisio. A person
can only be held liable for a failure to act if a legal duty to act
in such a way rests upon him.
Subjective rights are recognised in Private Law.
◦ Real rights Rights to a thing, eg. Land.
◦ Immaterial / Intellectual Property rights Right in relation to the
products of his creativity, eg. Copyright.
◦ Personality rights Right as objects of a person’s personality, eg. Good
◦ Personal rights Rights to claim against another to perform in terms of
an obligation , eg. Contract
Infringement of these rights = wrongful.
When the subjective rights of 2 legal subjects are in
conflict with each other, the objective criterion of
reasonableness must be applied to balance the
Things to consider:
1. Nature and extent of the harm caused
2. Value of the loss to the victim and to
3. Possible preventative measures and the
possible success thereof
4. Nature of the relationship between the
5. Motive and knowledge of the wrongdoer.
In the event of liability for a failure to act, one must
ask whether a legal duty to act has been breached. The
following are actionable omissions in our law:
A person creates a potentially dangerous situation and
fails to remove the danger:
Also known as ommisio per commisionem. If a
person creates a potentially dangerous situation and
subsequently fails to remove the danger which results
in loss or damage being caused to another, he will be
held liable for such loss or damage. 3 requirements
exist:. (a)
creation of a new source of danger;
failure to remove this danger;
resulting injury to another person.
Failure to exercise control over a dangerous object
Where a person controls a dangerous object and fails
to exercise proper control over it, with the result that
loss or damage is caused to someone else, the
wrongdoer is held liable. (EXAMPLE: VELD FIRE)
Rules of law
Where either the common law or
statutory law contains a provision that requires a
person to act in a specific way, and he does not act in
accordance with such a rule, his action will be
Occupation of a public office or position If a person
is expected to act in a certain way due to the
occupation of a public office, failure to do so will lead
Special relationship between parties Where a special
relationship between parties requires certain action,
failure to act in such a manner can result in liablity.
Contractual undertaking for the safety of a third party
Where a person is contractually obligated to protect
another from harm and fails to do so, his failure is
Creating the impression that the interest of a third
party will be protected Where a person is placed
under a reasonable reliance by another that his
interests will be protected by the latter, a legal duty
rests upon that person. Where such an impression is
created innocently – such a person cannot be held
Private defence / Self-defence Where a person
protects his or another’s interests by staving off an
unlawful attack or imminent unlawful attack and in
the process causes harm to the attacker. Requirements:
◦ Wrongful attack by another person with purpose to infringe
on rights of another.
◦ Attack must have commenced or be imminent, but not yet
◦ Defence must be aimed at the attacker.
◦ Act of defence must be necessary in order to protect the
interest threatened.
◦ Fault not required on the part of the attacker.
◦ Act of defence must be reasonable.
Necessity Not a wrongful human attack, but any
other state of necessity or superior force that forces a
person to act, must be staved off.
 Danger must be imminent or should have
 Own or other are protected.
 Conduct is the only way to protect the interest.
 Interest infringed upon should not be greater than
interest protected.
Consent to injury
Person waives his right to
bodily integrity and consent to injury to himself.
◦ Consent must be given consciously.
◦ Consent can be expressly or tacitly before conduct
◦ Serious intention to consent to injury.
◦ Consent given voluntarily and not under duress.
◦ Injured must have full capacity to act.
◦ Lawful.
◦ Knowledge of rights being waived.
◦ Wrongdoer must act within limits.
Voluntary assumption of risk: Person expresses
willingness to subject himself to the risk and
subsequent injury. Example: Boxer. .
Unauthorised agency A protects the interest of B. A
acts in the interest of B without his consent, if If A’s
actions leads to B suffering damage – it will not be
wrongful. Courts will determine if B would have
acted in the same way? And if A was of the opinion
that his actions would benefit B.
Statutory authority Were a statutory provision
authorises a person to act in a certain way, actions
performed will not be wrongful.
Official duty Where an official position requires
certain action which lead to harm to another, it will
not be wrongful.
Power to discipline Parents may administer lawful
punishment provided it is modest and reasonable.
Coporal punishment to offenders and learners are
now unconstitutional and forbidden.
Provocation When someone is taunted or incited
towards injurious conduct by words or actions,
provocation is acknowledged as a defence. The person
who provokes, forfeits his right to claim damages.
Accountability is a prerequisite for blameworthy
conduct. The wrongdoer must have the necessary
disposition at the time of his conduct before he can be
blamed for the conduct. Persons can be unaccountable
due to: youth, intoxication, mental illness, etc.
Fault has 2 forms:
◦ Intent
◦ Negligence
Intent Person directed his will at achieving a
particular result. 3 forms of intent exist:
◦ Dolus directus (direct intent) Will directed at achieving a
particular result.
◦ Dolus indirectus (indirect intent) Conse-quence is intended
and proceeds to act even though another consequence will
invariably follow.
◦ Dolus eventualis Possibility of a consequence is foreseen and
proceeds with action.
 Negligence Person does not act intentionally, but his
conduct is not in accordance with that expected
from a reasonable man. Can reasonable man
foresee and guard against loss suffered.
 Contributory
negligence: Where a person
contributes to his own loss, he is liable to bear a
portion of his on loss. Example: Vehicle accident.
 Voluntary assumption of risk cancels fault.
 Absolute or strict liability (liability without fault)
also occurs in exceptional circumstances. Example:
actio de pauperie, etc.
Damage must be caused by the culpable, wrongful act.
There must be a nexus between the act and the
damage. .
◦ Factual causation conditio sine qua non test. If the act is
taken is taken out of the equation – does damage still occur?
◦ Legal causation To which extent will a person be held liable
for harmful events caused? (reasonable foreseeability)
A culpable, wrongful act by a person that causes
patrimonial loss to another or which impairs the
latter’s personality.
Patrimonial Loss: Hypothetical patrimonial position
prior to the commission of the wrongful act compared
with his current patrimonial position.
Non-patrimonial Loss: Courts apply com-parative
method and use awards made previously in similar
Patrimonial loss can be caused by:
◦ Loss of patrimonial element
◦ Reduction in the value of the estate
◦ Creation or increase of debt
Forms of patrimonial loss:
◦ All forms of direct damage(damnum emergens) and loss of
profit or prospective loss(lucrum cessans)
◦ Damage to property or personality of the victim or another
◦ Direct and indirect loss
Non-patrimonial loss Value allocated to compensate
for the detrimental impact by an impairment or
disturbance of personality interests (reputation,
dignity, etc.)
The injured party may institute 3 possible actions
against the wrongdoer:
Actio legis Aquiliae Claim damages for pecuniary loss
be ceded.
Actio iniuriarum
Claim satisfaction for
INTENTIONAL impairment of personality. Claim
cannot be ceded.
Action for pain and suffering Claim for impairment of
a person’s personality caused by NEGLIGENT conduct.
The purpose of an interdict is to prevent, limit or
avoid harm. No compensation or satisfaction can be
recovered by means of an interdict. The following
requirements must be met before an interdict will be
◦ An act occurs or is imminent.
◦ The act is wrongful.
◦ No other remedy is available on an urgent basis to protect the
applicant’s rights.
The courts will allow an interdict in certain instances
where other legal remedies are available:
◦ The amount of damages is difficult to determine;
◦ Further harm could be caused to the prejudiced party;
◦ Respondent does not have the necessary financial means to
satisfy the applicant’s claim.
The period of prescription for all delictual claims is 3
years. After 3 years no above mentioned actions can
no longer be instituted.
Legal Tie
of rights
Strict liability
- Actio legis
- Actio
Act causes
- Action for pain
and suffering
- Interdict