Flashcards in Section 1- essential concepts Deck (11)
Give some of the characteristics of delict?
-it is a part of obligation that does not depend on agreement
-The obligation is to make reparation
- Reparation is an involuntary obligation which arises from wrongdoing
What is the famous quote from Erskine, with regard to the function and nature of delict?
“Every one who has the exercise of reason, and so can distinguish between right and wrong, is naturally obliged to make up the damage befalling his neighbour from a wrong committed by himself.”
What are the general principles of delictual liability at common law, being Damnum Injuria Datum?
A loss that is caused by a wrong (wrongfully)
N.B. individual word breakdown
- Damnum- loss, harm, damage, invasion of a right or reparable interest
- Injuria-without right, without justification, unlawfully, wrongfully, culpably
- Datum- caused by
What is the definition of common law/ case law/ president?
A law that does not come from statute books (government) nor the constitution, but from the court law reports.
N.B. it is judge maintained and modified, and is used unless it conflicts with statute.
what is the meaning of "injuria sine damno"?
Their is no such thing as a victimless delict. Their is no delict without loss.
what happens when a loss is not caused wrongfully?
Their is not liability for "absque injuria", loss without a wrong.
when justifying liability, how would you prove culpa, or fault?
-loss is attributed to the defenders wrongful behaviour (delictual conduct)
-the defender has caused the loss of the pursuer, without justification
- the loss is the defenders fault
Define culpable conduct?
what is most common law liability based on?
What is strict liability?
The loss may not be necessarily attributable to defender’s wrongful conduct but the defender is nevertheless held responsible
strict liability means that a pursuer does not need to prove that the defender is at fault, even though defences may be available.