PVL3703 EXAM REVISION Qsns And Ans.

Delict Exam Revision Q’s Similarity = Breach of contract (BOC) is normally an act by one person (contracting party) which in a wrongful & culpable way causes damage to another (contracting party) Differences: BOC Delict Only constituted by the non-fulfilment by a contractual party of a contractual personal right (claim) / an obligation to perform Constituted by the infringement of any legally recognised interest of another party, excluding the non-fulfilment of a duty to perform by a contractual party Primary remedy = directed at enforcement, fulfilment / execution of the contract – a claim for damages as a remedy only plays a secondary part Remedies are primarily directed at damages (or satisfaction) and not at fulfilment BOC is not formally treated as part of the law of delict but is considered to be part of the law of contract Law of contract therefore provides specific rules and remedies for BOC that are not applicable to a delict – this distinction is clearly apparent from the fact that one & the same act may render the wrongful doer liable ex contractu as well as ex delicto At most, it can be said that both are species of the genus “wrongful conduct” in private law All private law rules, principles / norms are subjected to and must therefore be given content in the light of the basic values of Chapter 2 This prompting of the spirit, purport & objects of the BOR will in all probability deliver the same results as the direct application & applies in particular to the open-ended / flexible delictual principles i.e. boni mores test for wrongfulness imputability test for legal causation the reasonable person test for negligence where policy considerations & factors such as reasonableness, fairness & justice may play an NB part The basic values underlying Chapter 2 could be implemented with good results as NB policy considerations in determining wrongfulness, legal causation & negligence PVL3703 EXAM REVISION Qsns And Ans. Definition of conduct = a voluntary human act or omission Definition: Conduct is a voluntary Human Act or omission CHARACTERISTICS: 1. Only an act of a human being 2. Human action only constitutes conduct if it’s performed voluntarily 3. Conduct may be in the form of: a A positive act (active conduct (commission); or b Omission (omisio) X did not act for the purposes of the law of delict. DEFENCE OF AUTOMATISM: 1. X’s conduct was not voluntary. he acted in a mechanical manner. 2. His epileptic condition led to the damage to Y’s car. 3. Following conditions may cause person to act involuntarily (incapable of controlling bodily movements): 4. Epilepsy, heart attack etc However, the answer will indeed be different if X had been receiving treatment for epilepsy prior to the accident and had forgotten to take his medication INTENTION 1. Defence of automatism will not succeed if the defendant intentionally created the situation in which he acts involuntarily in order to harm another. 2. This is known as an actio libera in causa. NEGLIGENCE 1. The defendant will be held liable for his culpable conduct in creating the state of automatism which resulted in damage to the plaintiff’s car.