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Law of Damages Notes
Law of Damages (University of South Africa)
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Damages
Notes 1
CHAPTER 1: LAW OF DAMAGES NOTES:
Definition, nature and scope of the law of damages
Definition:
The law of damage is that part of the law which indicates how the existence
and extent of damage, as well as the proper amount of damages are to be
determined in the case of delict, breach of contract and other legal principles
providing for the payment of damages.
Nature and scope
The law of damages should be defined as constituting of principles regarding the
compensation of all forms of damage.
The law of damages determines the content of an obligation to pay damages or
satisfaction.
The object of the law of damages should be seen as the provision of just, logical
and practical rules and principles in solving problems regarding the determination
of damage, damages and satisfaction.
What will give rise to a claim for damages?
1) Delictual remedies:
a) The actio legis aquiliae which provides for damages on
account for unlawful and culpable causing of any patrimonial
loss
b) Actio inuriarum: satisfaction may be recovered for
unlawful and intentional personality infringement
c) Action for pain and suffering: damages for non- patrimonial loss
on account of the unlawful and culpable infringement of the
physical-mental integrity
2) Liability without fault and liability based on risk:
a) The actio de pauperie: damages for patrimonial and non-
patrimonial loss caused by animals are recoverable
b) Actio de pastu: compensation for patrimonial loss may be
recovered where an animal has caused damage through eating
and damaging plants
c) Vicarious liability: a duty to pay damages or satisfaction is
placed on the defendant because of a delict of another
3) Legislation
4) Breach of contract
5) Contract and realization of risk (insurance contract): the conclusion of
a contract and the subsequent realization of risk are a source for the
claim of damages where an insurer has given a contractual
undertaking to indemnify the insured in terms of a policy if the
realization of risk causes damage
6) Claims based on a right of recourse or adjustment
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Damages
Definitions – NB!!
Notes 2
Damage: is the reduction as a result of the damage causing event, of
the use or quality of a patrimonial or personality interest in satisfying
the legally recognized needs of the person involved
Patrimonial loss: is the diminution in the utility of a patrimonial
interest in satisfying the recognized needs of the person entitled to
such interest. It may be defined as the loss or reduction of a positive
asset in someone’s patrimony or the creation or increase of a negative
element
Patrimony: consists of all subjective rights having a monetary value
as well as the expectation of acquiring such rights.
In a factual and economic sense its everything of an individual which
has a monetary value and which may be used by him in satisfying his
legally recognized needs
Non-patrimonial loss: is the reduction in the quality of a highly
personal interest of an individual in satisfying his legally recognized
needs but which does not affect his patrimony
Damage-causing event: it’s a factual situation of an uncertain
nature, which has brought about damage. The factual situation
consists of conduct which may in principle lead to delictual liability or
liability for breach of contract, which may bring about a duty to pay
compensation
Affective loss: this is someone’s emotional reaction caused by having
to suffer any kind of damage or invasion of his rights
Damages: Is the monetary equivalent of damage awarded to a person
with the object of eliminating as fully as possible his past as well as
his future damage.
Compensation: in a narrow sense compensation denotes damage – in
general it’s the reparation of any patrimonial or non-patrimonial loss
Satisfaction: means that the law is upheld through penance and it
denotes the psychological gratification, which the victim of an
injustice receives.
It implies the reparation of damage in the for of injury to personality
by effecting retribution for the wrong suffered by the plaintiff and by
satisfying the plaintiffs and the communities sense of justice
Compensation for non-patrimonial loss: an appropriate amount of
money is awarded to someone who has suffered non-patrimonial loss,
in an attempt to neutralize his loss through the fact that the money
may bring happiness or comfort to him to assist him in overcoming
his loss
Solatium: money
Sum-formula: is a method in which damage is determined by
subtracting the plaintiffs present patrimonial position (after the
occurrence of the damage causing event) from a hypothetical
patrimonial position which he would presently have enjoyed had the
damage causing event not occurred
Concrete concept of damage: damage is determined by comparing
the utility of an element of the plaintiffs patrimony before the damage
Downloaded by Nthabeleng Mashele
Law of Damages Notes
Law of Damages (University of South Africa)
Downloaded by Nthabeleng Mashele
, lOMoARcPSD|5432710
StuDocu is not sponsored or endorsed by any college or
university
Downloaded by Nthabeleng Mashele
, lOMoARcPSD|5432710
CLS cc ©
Damages
Notes 1
CHAPTER 1: LAW OF DAMAGES NOTES:
Definition, nature and scope of the law of damages
Definition:
The law of damage is that part of the law which indicates how the existence
and extent of damage, as well as the proper amount of damages are to be
determined in the case of delict, breach of contract and other legal principles
providing for the payment of damages.
Nature and scope
The law of damages should be defined as constituting of principles regarding the
compensation of all forms of damage.
The law of damages determines the content of an obligation to pay damages or
satisfaction.
The object of the law of damages should be seen as the provision of just, logical
and practical rules and principles in solving problems regarding the determination
of damage, damages and satisfaction.
What will give rise to a claim for damages?
1) Delictual remedies:
a) The actio legis aquiliae which provides for damages on
account for unlawful and culpable causing of any patrimonial
loss
b) Actio inuriarum: satisfaction may be recovered for
unlawful and intentional personality infringement
c) Action for pain and suffering: damages for non- patrimonial loss
on account of the unlawful and culpable infringement of the
physical-mental integrity
2) Liability without fault and liability based on risk:
a) The actio de pauperie: damages for patrimonial and non-
patrimonial loss caused by animals are recoverable
b) Actio de pastu: compensation for patrimonial loss may be
recovered where an animal has caused damage through eating
and damaging plants
c) Vicarious liability: a duty to pay damages or satisfaction is
placed on the defendant because of a delict of another
3) Legislation
4) Breach of contract
5) Contract and realization of risk (insurance contract): the conclusion of
a contract and the subsequent realization of risk are a source for the
claim of damages where an insurer has given a contractual
undertaking to indemnify the insured in terms of a policy if the
realization of risk causes damage
6) Claims based on a right of recourse or adjustment
Downloaded by Nthabeleng Mashele
, lOMoARcPSD|5432710
CLS cc ©
Damages
Definitions – NB!!
Notes 2
Damage: is the reduction as a result of the damage causing event, of
the use or quality of a patrimonial or personality interest in satisfying
the legally recognized needs of the person involved
Patrimonial loss: is the diminution in the utility of a patrimonial
interest in satisfying the recognized needs of the person entitled to
such interest. It may be defined as the loss or reduction of a positive
asset in someone’s patrimony or the creation or increase of a negative
element
Patrimony: consists of all subjective rights having a monetary value
as well as the expectation of acquiring such rights.
In a factual and economic sense its everything of an individual which
has a monetary value and which may be used by him in satisfying his
legally recognized needs
Non-patrimonial loss: is the reduction in the quality of a highly
personal interest of an individual in satisfying his legally recognized
needs but which does not affect his patrimony
Damage-causing event: it’s a factual situation of an uncertain
nature, which has brought about damage. The factual situation
consists of conduct which may in principle lead to delictual liability or
liability for breach of contract, which may bring about a duty to pay
compensation
Affective loss: this is someone’s emotional reaction caused by having
to suffer any kind of damage or invasion of his rights
Damages: Is the monetary equivalent of damage awarded to a person
with the object of eliminating as fully as possible his past as well as
his future damage.
Compensation: in a narrow sense compensation denotes damage – in
general it’s the reparation of any patrimonial or non-patrimonial loss
Satisfaction: means that the law is upheld through penance and it
denotes the psychological gratification, which the victim of an
injustice receives.
It implies the reparation of damage in the for of injury to personality
by effecting retribution for the wrong suffered by the plaintiff and by
satisfying the plaintiffs and the communities sense of justice
Compensation for non-patrimonial loss: an appropriate amount of
money is awarded to someone who has suffered non-patrimonial loss,
in an attempt to neutralize his loss through the fact that the money
may bring happiness or comfort to him to assist him in overcoming
his loss
Solatium: money
Sum-formula: is a method in which damage is determined by
subtracting the plaintiffs present patrimonial position (after the
occurrence of the damage causing event) from a hypothetical
patrimonial position which he would presently have enjoyed had the
damage causing event not occurred
Concrete concept of damage: damage is determined by comparing
the utility of an element of the plaintiffs patrimony before the damage
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