HND BCR 商务契约关系 outcome1

Case 1

Question 1

General principles of the law of delict

The law of Delict, like the law of contract, is a part of the law of obligations. A delict has been defined as: “a civil wrong committed by a person in deliberate or negligent breach of a legal duty, from which liability to make reparation for any consequential loss or injury may arise”. Delict is also known as the law of civil wrongs and applies to much of the same area of law as the English law of tort . General principles of delictual liability is that a loss or injury, such as physical or personal injury, the loss of earnings, nervous shock, distress, damage to a reputation; caused by a legal wrong; caused by culpa on the part of the wrongdoer. Two exceptions will be discussed is that vicarious liability, where the defender is liable for the actions of another; and strict liability, where liability can arise without fault through statutory provision. Liability is transferred to the person benefiting or gaining by the actions of the wrongdoer and they are more likely to be able to pay and/or be covered by insurance. Vicarious liability is an example of joint and several liability as the injured party can sue both the employee and the employer.

Negligence and the duty of care

Negligence is the most common delict and an action in delict arise where harm is caused carelessly or inadvertently. The law of negligence has developed to protect individuals from physical harm to the person and to property. Financial interests are only protected where the financial loss is consequential to the harm of the person or property. For a claim to arise in negligence, the following points must be considered: owed; breach of the duty of care; caused and causation and remote. And this is judged on what the reasonable man would or would not have done had he been in the defender s position to eliminate the risk which in the exercise of his reasonable foresee ability he had identified. In the case of Scott V London and St Katherine Dock Co (1861). Six bags of sugar fell on a custom house officer as he was passing under a warehouse loading bay. The bag were being lowered to the ground by a crane and there was no explanation for the accident. In the absence of an explanation the presumption was that the accident arose from the defender s negligence. And in the case of Smith v Leech Brain and Co Ltd (1961), a man was burnt on his lip by a splash of molten metal and his employer was held negligent in not providing adequate protection for the employee. This led to cancer although there was already a premalignant condition in his ;op tissue. The employers were held liable for his subsequent death.

Question 2

Standard of care

The standard of care varies according to the particular circumstances, in this case Mrs McGregor was seriously injured in a car crash because her brakes

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