Fault Element in Delict
INTRODUCTION
The law of delict is a branch of private law falling under the law of obligations. It deals with civil wrongs as opposed to criminal wrongs. The essential purpose of the law of delict is to afford a civil remedy, usually by way of compensation, for wrongful conduct that has caused harm to others. A delict is the breach of a general duty imposed by law which will ground an action for damages at the suit of any person to whom the duty was owed and who has suffered harm in consequence of the breach. Just as one and the same act may be a crime and a delict, one and the same act may also be a delict and a breach of contract. Actions for delicts are based on three pillars; the actio legis Aquiliae, the actio iniuriarum and the action for pain and suffering. Patrimonial loss is actionable with the Aquilian action while injury to personality is actionable in terms of the actio iniuriarum and finally there is a separate action that can be taken for pain and suffering. But before one can claim in terms of any of the above three actions, it must be determined that the conduct complained of is indeed a delict. There are five requirements for delict, namely, an act, wrongfulness, fault, harm and causation. Unless all five are present, the defendant or the wrongdoers conduct cannot be said to be a delict.
FAULT…….in brief
In the archaic legal orders, liability under the law of delict was independent of fault. Someone causing harm to property or personality of another was held liable, because experience taught that people, who commit certain harmful acts, as a rule, intend to cause harm. Over time, however, intent became an explicit requirement for all delictual liability. Negligence constituted liability only under the Aquilian action. However, as stated above, the principle that there should be no liability without negligence derives from Roman law. The requirement of fault is not usually found in more primitive legal systems, where a person is held liable for
The law of delict is a branch of private law falling under the law of obligations. It deals with civil wrongs as opposed to criminal wrongs. The essential purpose of the law of delict is to afford a civil remedy, usually by way of compensation, for wrongful conduct that has caused harm to others. A delict is the breach of a general duty imposed by law which will ground an action for damages at the suit of any person to whom the duty was owed and who has suffered harm in consequence of the breach. Just as one and the same act may be a crime and a delict, one and the same act may also be a delict and a breach of contract. Actions for delicts are based on three pillars; the actio legis Aquiliae, the actio iniuriarum and the action for pain and suffering. Patrimonial loss is actionable with the Aquilian action while injury to personality is actionable in terms of the actio iniuriarum and finally there is a separate action that can be taken for pain and suffering. But before one can claim in terms of any of the above three actions, it must be determined that the conduct complained of is indeed a delict. There are five requirements for delict, namely, an act, wrongfulness, fault, harm and causation. Unless all five are present, the defendant or the wrongdoers conduct cannot be said to be a delict.
FAULT…….in brief
In the archaic legal orders, liability under the law of delict was independent of fault. Someone causing harm to property or personality of another was held liable, because experience taught that people, who commit certain harmful acts, as a rule, intend to cause harm. Over time, however, intent became an explicit requirement for all delictual liability. Negligence constituted liability only under the Aquilian action. However, as stated above, the principle that there should be no liability without negligence derives from Roman law. The requirement of fault is not usually found in more primitive legal systems, where a person is held liable for