1.

Introduction
i. Nature of Delict
ii. Difference between civil wrongs and criminal wrongs
iii. Difference between law of delict and other branches
of Law
iv. Type of actions under delictual liability
v. Aquilian Action
vi. Actio injuriarum
vii. Special forms of liability
viii. Application of RDL and EL in the Sri Lankan Dutch Law

2. General Principles of Delict

i. Harm
ii. Conduct
iii. Causation
iv. Fault
v. Wrongfulness
vi. Loss

3. Aquilian Action
i. Injury or Death of another person
ii. Product Liability
iii. Negligent Misstatement
iv. Narvous shock
v. Medical negligence
i. Economic loss
ii. Defence
 4. Actio injuriarum
i. Infringement of Reputation
ii. Infringements of Dignity
iii. Privacy and identity
iv. Infringements of bodily integrity
v. Defences

5. Special Forms of Liability

i. Strict Liability
ii. Private Nuisance
iii. Vicarious Liability
iv. Occupiers Liability

6. Remedies
7. Contemporary Developments in Delictual Liability
i. Liability involving pain and suffering
ii. Professional Liability
iii. Public Authorities
iv. Delict and insurance
1. DEFINITIONS OF OBLIGATION

I. The definition of obligation in law refers to the

responsibility to follow through on actions agreed
upon in a contract, promise, law, oath, or vow.
II. Obligation is the moral or legal duty that requires an
individual to perform, as well as the potential
penalties for the failure to perform.

i. General meaning

 In the most general sense, duty is a synonym of

obligation.
 When getting more technical, obligation refers to the tie
that binds a party to complete a task, perform an action,
or pay a required amount of money
 In accordance with the

ii. Legal meaning

 In legal sense obligation means a class of duties which
are co-relative of rights in personam which means
right of a particular person.
  Obligation is a moral or legal duty to perform or not
perform an act.

Legal Scholars

I. Some legal scholars, including Fredrick Pollock claim

that obligation is another word for duty.

II. The legal sense of obligation from early Roman law

claims that obligations are the bond of vinculum juris,
or legal necessity, between at least two individuals or
parties.
III. Another legal scholar, John Salmond, stated that an
obligation refers to the morals or laws that command or
require an individual to perform an action

In today's legal system and current legal materials, obligation

is singly or exactly defined.
 However, scholars often apply their own definitions based on
their legal situations and systems.

 judges in France  Might define obligation as

the legally binding
regulations between
parties, outlining the
requirements to perform an
action or not perform an
action.
 civil code in  It refers to obligations but
Ethiopia, Book IV doesn't include a specific
definition.
 Similar to the French judges, who use Article
1101 of the French civil code; judges in
Ethiopia apply the principle of an obligation
based on the legal circumstance.
 This agreement is between two or more parties
or persons, in which they extinguish, vary, or
create obligations in a legal sense.

 Justice CG Weeramantry

–All legal bonds by virtue of which one person is obliged

to perform an act for the benefit of another or to refrain
from performance to the detriment of another.
 The obligor:

Legal bond
The obligee

elememts

The prestation
3. TYPES OF LAW OF OBLIGATION
Obligations can be divided into following classes as per the law-

 Contractual obligations
 Delictual obligations
 Quasi-contractual obligations
 Innominate obligations

Contractual obligations
1. Contractual obligation means a duty which occurs from the
contract.

2. A contract is a legal bond between two persons. It creates right for

one person and the duty for the other person. Both the parties of
contract are responsible to act according to the terms of the contract
for the benefit of each other.

3. The right which comes into picture by virtue of contract is right in

personam, which means right against the particular person who is
the party of contract.

4. In contractual obligations person who breaches the contract is

liable to pay to the other person pre-fixed compensation as per the
conditions and terms of the contract.
 Delictual obligations

1. These obligations are connected to delict or tort.

2. Tort is a branch of civil law. Tort is recognized in India as well as in
U.K.
3. Whenever there is a civil wrong for which action has been taken for
liquidated damages it is called Tort.
4. Tortious liability is the liability of wrong doer or defendant towards
the victim or plaintiff.
5. In such obligations there is a liability to pay compensation in form
of money to the sufferer. For the purpose of such obligation term
tort is confined with situations where for a civil wrong the only
remedy is action for damages/compensation.
6. Mere breach of contract or mere breach of trust cannot be
considered as tort. Situation in tort is different to situation in
contracts. In tort duties are fixed by the general laws but in contracts
duties are specified for the parties.
7. In tortious liability there are always unsettled damages that are
claimed but in case of breach of contract the claimed amount is
always pre fixed by the parties.
8. To differentiate between tort and other wrong one should always
keep in mind that a criminal wrong is different than tort. Tort is a
civil wrong however there are certain wrongs which fall in both
categories,

For example, defamation, nuisance, malicious prosecution etc.

 Quasi contractual obligations

1. These obligations are regarded by law as contractual though they are

not actually.
2. Quasi-judicial obligations are similar to to the contractual
obligations.
3. A money decree by court is the example of quasi-contractual
liability.
4. In such case the decree holder gets the position as creditor and
judgment debtor as debtor.
5. Money decree judgment creates a debt where judgment debtor is
liable to pay the amount fixed to the decree holder.
6. Though this was not a contract but still there is a duty to pay.
7. Under Indian Contract Act 1872, in chapter V from section 68 to 71
provisions are given which deal with situations where certain
relations resemble to those which are created by legal contract.

Examples of quasi-contractual
obligations
1. If a person provides to other person necessary things for his
life, he has a right of return of value of things provided. If the
other person is lunatic (mad) and incapable of making a
contract, his family is liable to repay from the property of
lunatic.

2. If a person „A‟ gives his land on lease to „B‟. A pays the

revenue of such land to government. Due to the failure in
 revenue payment government wants to sell such property but
B makes necessary payments. B is entitled to get
reimbursement of such money from A.

3. If one person leaves his thing mistakenly at the place of other

and the other person makes use of it, latter is liable to
reimburse the former. Situation is different if the act was
gratuitous which means that the person who leaves thing is
voluntarily leaving it for the use of other person. No
reimbursement is required.

It was held by Supreme Court that if state requested for certain

works related to the construction, It could not reject the same.
Though state had the right to deny and demolish the construction
but once it was accepted it could not be denied. Hence Court held
that State Government was liable to pay the cost of
construction to the contractor.

5. If a thing is delivered by mistake or through coercion, or

money is paid to a person such person is liable to return such
thing or to repay such money to the other person.
 Concept of obligation is co-related with concept of liability. There
is always a right of one person over the other person who is duty
bound to do or not to do anything against such person.
Obligation cannot be equalized with liability as there is a huge
difference. Obligation is a proprietary right in personam but
liability is a duty of wrongdoer to compensate the sufferer.

 It is very important to mention that there can be no right without

a duty. The concept of obligation covers the both right and duty
from the legal point of view. Obligation is like a legal tie which
bound two persons for the benefit of each other for a particular
action not in all respects.

 It can be called as law of everyday life. If there is no such concept

of obligation situation like chaos can occur in society. From the
legal point of view it is very important to bound people to perform
their
.
 The word delict was originated from the Latin term
“delictum” (“to be at fault”).

 The term Law of delict is comes from Roman Dutch

Law.
 A delict is a kind of wrongdoing.

 When you commit a delict you do something

unlawful.

 Delict is different from crimes, although both are forms

of wrongdoing. A contractual wrong is also different
from a delictual wrong.
I. The term Delict is difficult to define. However most writers
attempt to define the term by either comparing it to other
areas of law such as Criminal Law and contract Law or by
describing the elements contained in a delict.

 The term delict as used in the Roman and Roman Dutch

law means a wrongful act committed by one person against
another person in breach of the legal rights of the latter.

 A delict is a civil wrong doing aimed at calming damages

and falls under Private Law.

This wrong would give rise to a civil action for damages

against the wrongdoer
A delict is an unlawful, noteworthy act or omission (intentional
fault or negligence) causing damage to persons or property or
injury to personality.
A delict can be caused by a positive act or by failing to act.
 Definition of Delict

Van der Merwe and Olivier

“A delict is understood to be a wrongful and culpable act that causes harm
or infringes another’s personality interest. Within this realm of the law of
delict belong all the rules that determine the private-law liability of a
person who has caused harm or a personality infringement to another in
wrongful and culpable way.”

 wrongful and culpable act

 infringes another’s personality interest
 private-law liability of a person
 Caused harm wrongful and culpable way.”

R G Mckerron
“The breach of a duty imposed by law, independently of the will of
the party bound, 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.”(Chapter I )

breach of a duty imposed by law

independently of the will of the party
an action for damages to whom the duty was owe
who has suffered harm in consequence of the breach.
 Boberg:
Van der Merwe and Olivier regard fault as an essesntial
characteristic of delictual liability,

so that instances of no-fault liability ( such as liability for damage

caused by animals and the vicarious responsibility of a master for
the delicts of his servant)are in their view not delictual.

, but arise … for the same reason an

interdict(which can be obtained without showing fault) does not
seem to them a delictual remedy…There seems to be no warrant
for this restriction of the ambit of delict…

Neethling, Potgieter and Visser

Boberg…defines a delict as the “infringement of another’s
interest”. This description is, however, both incomplete and
misleading. On the one hand there is an omission to state fault as
a general delictual requirement, and on the other hand the
erroneous impression is created that all individual interests,
and not only those that
ELEMENTS OF THOSE DEFINITION OF LAW
OF DELICT

 A delict is a civil wrong as opposed to a criminal wrong.

 It is an infringement of the rights or interests of another

person. Such an infringement can also occur in Contract-
However, in the case of contract there should be a prior
contract. There is no such requirement in order for delictual
liability to arise.

 The infringement entitles the injured person to claim

compensation.
1. Regulating relations between individuals

The purpose of private law is to regulate relations between

individuals in a community.

1. Accordingly, it is the function of private law to recognize

these interests, delimit them in relation to each other and
coordinate those that are in conflict.

In particular, it is the role of the law of delict to indicate which

interests are recognized by the law, under which circumstances
they are (that is, when the hurt of a
legally recognized interest constitutes a delict) and how such a
disturbance in the harmonious.

2. a person has caused another to suffer

damage is, of course, insufficient to
constitute a delict

The mere fact that a person has caused another to suffer damage
is, of course, insufficient to constitute a delict for which he may
be held liable.

To found liability, further requirements must be met.

These requirements otherwise referred to as the different
elements which constitute a delict, appear from the following
definition:

„…A delict is the act of a person that in a wrongful and culpable

way causes harm to another. All five requirements or elements, an

act, wrongful- ness, Fault, causation and harm must be present before
the conduct complained of may be classified as a delict.

If anyone (or more) of these elements is missing, there is no

question of a delict and consequently, no liability…‟

3. The fundamental premise in law is that

(harm) rests where it falls, that is, person
must bear the damage he suffers (res
perit domino).

1. It someone drives his car carelessly and collides with a tree,

or clumsily drops and breaks
his watch or hail damages his
corn crop, or lightning kills his
horse,
2. He has, in principle, no legal
ground for complaint.
 4. law of delict belongs to that part of private law
known as the law of obligations

In general terms, the law of delict thus determines the

circumstances, in which a person is obliged to bear the
damage he has caused another,

Because the wrongdoer has an obligation to make compensation

for the damage suffered, the person prejudiced has a
corresponding right to claim compensation.

As a result, an obligatio or obligation between the two parties is

created.

Thus the law of delict belongs to that part of private law known
as the law of obligations.

.
 2.PURPOSE OF DELICT

 Delict forms part of a regulatory framework for the society

which is close to the cure problem of balancing individual
freedom against collective security.

 The purpose of delict is also to set standards of behavior for

human conduct.

 It is a compensatory regime.

 The Law of delict sometimes requires judges to decide which

conflicting moral principles should be given practical effect
when regulating behavior in society. Because underlying
delict is a sense of morality and fairness.
For the sake of conceptual clarity, it is necessary to distinguish
between a delict and two similar legal phenomena, ie breach of
contract and crime.

Delict and breach of contract

1. Breach of contract clearly constitutes a different form of

wrongful conduct in private law.

2. As with a delict, breach of contract is normally an act by

one person (contracting party) which in a wrongful and
culpable way causes damage to another (contracting party).

Thus there is apparently no material difference between

these two legal phenomena.

Nevertheless, breach of contract and a delict are

fundamentally different.

 Breach of contract is only constituted by the non-

fulfillment by a contractual party of a contractual
personal right (claim) or an obligation to perform.
 1. Accordingly, the primary remedy for breach of
contract is directed at enforcement, fulfillment
or execution of the contract; a claim for damages
as a remedy only plays a secondary part.

By contrast, a delict is constituted by the

infringement of any legally recognized interest of
another party, excluding the non-fulfillment of a
duty to per- form by a contractual party.

Consequently, the delictual remedies are primarily

directed at damages (or satisfaction), and not at
fulfillment.
2. The fundamental differences between breach of
contract and a delict are, for historical,
systematic and practical reasons, also
supported by the fact that

Breach of contract is not formally treated as part of the law

of delict but is considered to be part of the law of contract.

The law of contract, as indicated, therefore provides

specific rules and remedies for breach of contract that
are not applicable to a delict.

This distinction is clearly apparent from the fact that one

and the same act may render the wrongdoer liable
ex contract as well as ex delicto.
Thus, despite the apparent similarity between a delict and
breach of contract, these concepts may not be treated
identically. At most, it can be said that both are specifies
the genus 'wrongful conduct' in private law.
 Delict and crime

The law also takes appreciation of wrongful and culpable acts

in the sphere of public law, more particularly in criminal
law.

Despite the apparent similarity between delict and

crimes, there are fundamental differences between them.

The principal difference relates to the distinction between

law is directed at the protection of individual (private)
interests, while public law is directed at upholding the public
interest. .

Accordingly, delictual remedies differ substantially from

criminal sanctions. Delictual remedies are compensatory in
character, compensating or covering the aggrieved party for
the harm the wrongdoer has caused.

By contrast, criminal sanctions are of a penal nature, and

are intended to punish the criminal for his transgression
against the public interest.

The distinction between a delict and a crime is also apparent

from the fact that one and the same act may found delictual,
as well as criminal, liability.

This does not mean that the two legal phenomena always
overlap. On the contrary, their difference is emphasized by the
fact that a delict is not necessarily a crime and vice versa.
 The word “torts” is the corresponding term used in English and
other common law jurisdiction.

 Both terms mean the same.

 The English writers say that the word “tort” is very difficult to
define.

 It is a civil wrong committed by one person against another.

 The court will respond by awarding that person a sum of money as

damages.

 Sometimes a court may issue an injunction to stop the activity

which is causing the infringement.(defamation cases)

 The word “tort” is derived from the Latin tortus meaning “twisted”.
It came the mean “wrong”…

 Tort – Loss or injury may take the form of injury to person, or

property, financial interests, dignity or reputation.

 The aim of the EL of torts is to formulate rules and principles by

which to determine when the law will not require a person to pay
compensation for loss and injury which he/she has caused to
another.

 So the basic principle which the English law has formulated in this
regard is the “ fault principle” by which the law will ascertain
whether or not the defendant was at in causing loss or injury to the
plaintiff.

 It is a complex mixture of principles of personal responsibility for

conduct which may be intentional, reckless/negligence and personal
responsibility for outcome(strict liability).