Chapter 5

Question 1

What is the basic test for wrongfulness?

Answer 1

The legal convictions (boni mores) of the community

Question 2

Discuss the boni mores test.

Answer 2

An objective test based on a criterion of reasonableness. The application of boni mores criterion involves the ex post facto balancing of the interests of the defendant against the interests of the prejudiced party.

Question 3

What are the factors that play a role in determining the reasonableness or unreasonableness of the defendants conduct?

Answer 3

1. Nature and extent of the harm.
2. Whether the harm was subjectively foreseen or reasonably foreseeable.
3. The possible value to the defendant or to society of the harmful conduct.
4. The cost and efforts of steps which could have been taken to prevent the loss.
5. The degree of probability of the success of preventative measures.
6. The nature of the relationship between the parties.
7. The motive of the defendant.
8. Economic considerations and the fear of limitless liability.
9. The legal position in other countries.
10. Moral and ethical issues
11. Other considerations of public interest/policy e.g norms and values underpinned by the Constitution.

Question 4

What role do subjective factors play in the boni mores test?

Answer 4

Subjective factors such as the defendants mental disposition, knowledge and motive generally do not play a role in determining wrongfulness. However in some cases subjective factors do play a role in the determination of wrongfulness e.g in neighbour law the improper motive (malice) of a defendant who plants deciduous tress along the boundary wall of his property for the sole purpose of injuring his neighbour by causing leaves to fall onto his property. This will render his apparently reasonable act wrongful.

Question 5

What are the practical implications of the boni mores test?

Answer 5

Boni mores test is seldom used in modern law. In general, if a factual infringement of interests has taken place, this is prima facile indication of wrongfulness. Furthermore there are established legal norms and doctrines e.g infringement of a subjective right or non compliance with a legal duty to act which see more precise than the boni mores test. The boni mores test has become a supplementary test to determine wrongfulness.