scholarly journals The Influence of "Reasonableness" on the Element of Conduct in Delictual or Tort Liability - Comparative Conclusions

2019 ◽  
Vol 22 ◽  
pp. 1-34 ◽  
Author(s):  
Raheel Ahmed
Keyword(s):  
South African ◽  
Tort Law ◽  
The Other ◽  
Tort Liability ◽  
French Law ◽  
Human Conduct ◽  
American Law ◽  
Similarities And Differences ◽  
Mentally Impaired ◽  
Law Of Delict

In this contribution the influence of reasonableness on the element of conduct in the South African law of delict will be analysed and compared with the requirement of some form of conduct in English tort law, American tort law and the French law of delict. Fundamental similarities and differences among the different legal systems must be considered. France and South Africa follow a generalising approach to determining a delict while English and American law have a system of separate torts. Even though English and American law do not explicitly refer to the requirement of conduct in tort law, it is generally implicitly required. This is the case whether one is dealing with the tort of negligence or the intentional torts. In French law too, a fait générateur (a generating, triggering, wrongful act or event) generally must also be present in order to ground delictual liability. The concept of fait générateur is broader than the concept of conduct found in the other jurisdictions in that it extends beyond what is regarded as human conduct. The conduct in all the jurisdictions may be in the form of a commission (a positive, physical act or statement) or an omission (a failure to act). The requirement that conduct must be voluntary is generally found in South African, English and American law (with an exception applying to mentally impaired persons) but not in France. Naturally, it is unreasonable to hold a person liable without conduct which results in the causing of harm or loss. In all the above-mentioned jurisdictions, it would generally be unreasonable to hold the wrongdoer liable in delict or tort law if the omission or commission does not qualify as some form of conduct. Thus the influence of reasonableness on the element of conduct in all the above-mentioned jurisdictions is implicit.

scholarly journals The Law of Obligations

2018 ◽  
Author(s):  
Michael Lobban
Keyword(s):  
United States ◽  
Tort Law ◽  
The United States ◽  
Contract Law ◽  
Public Law ◽  
The Other ◽  
Economic Changes ◽  
American Law ◽  
Anglo American ◽  
Unifying Principles

The Anglo-American law of obligations was profoundly reshaped in the two centuries after 1800, driven by social and economic changes, and changes in legal institutions and doctrines. In contract law, nineteenth-century jurists increasingly sought to put the rules of law into a coherent rational framework (inspired by continental models resting on will theory), though they soon found that this theory could not explain many contractual doctrines. In tort law, jurists were also divided over whether unifying principles underlying tort could be uncovered, with formalist efforts to find such principles being challenged by Realists who argued that tort was in effect ‘public law in disguise’. The quest for underlying principles was also pursued by scholars of unjust enrichment, first in the United States and subsequently in England; though as in the other areas of obligations, by the end of the twentieth century, there was no consensus on whether this was possible.

scholarly journals MALICE AS AN INGREDIENT OF TORT LIABILITY

2019 ◽  
Vol 78 (02) ◽  
pp. 355-382
Author(s):  
John Murphy
Keyword(s):  
Tort Law ◽  
The Other ◽  
Tort Liability ◽  
Public Office ◽  
The One ◽  
The Individual ◽  
Made In

AbstractThis article is concerned with the question of whether malice is an appropriate touchstone of liability in tort law. It begins by identifying four torts in which malice may properly be regarded as an ingredient of liability (distinguishing various other torts, such as private nuisance and defamation, in which malice plays a merely secondary and contingent role). Having identified these four torts – namely malicious prosecution, abuse of process, misfeasance in a public office and lawful means conspiracy – the article then seeks to identify a common juridical thread which links them together. So doing serves to rebut the allegation, often made in respect of all them, namely, that they are anomalous actions. It then concludes by considering the individual worth of these torts, bearing in mind the important difference between not being anomalous on the one hand, and being positively meritorious on the other. It concludes that a respectable defence of each of the four torts can be made even though malice is an atypical touchstone of liability.

scholarly journals TORT LAW AND THE MORAL LAW: ANGLO-FRENCH DIVERGENCES

2021 ◽  
Vol 80 (S1) ◽  
pp. S33-S60
Author(s):  
John Bell
Keyword(s):  
Common Law ◽  
Tort Law ◽  
Social Solidarity ◽  
Moral Foundations ◽  
Tort Liability ◽  
French Law ◽  
Moral Law ◽  
State Action ◽  
Inaugural Lecture ◽  
Private Charity

AbstractTunc's inaugural lecture “Tort Law and the Moral Law” in 1972 aimed to set out the moral foundations of tort liability in common law and French law. It triggered exchanges in this Journal with Hamson who challenged Tunc's views. This article explores the context of the debate and then reviews the subsequent developments of English and French law. Both systems have continued on the same path as the protagonists set out in their debate with France deepening its grounding in social solidarity as a justification for tort liability while English law sees its place only in state action or private charity.

scholarly journals "Contributory Intent" as a Defence Limiting Delictual Liability

2017 ◽  
Vol 17 (4) ◽  
pp. 1570
Author(s):  
Raheel Ahmed
Keyword(s):  
South Africa ◽  
South African ◽  
The Other ◽  
Law Reform ◽  
The South ◽  
Contributory Negligence ◽  
The Law ◽  
Law Of Delict

In terms of delictual liability, the term "fault" generally refers to the defendant's conduct, whereas "contributory fault" refers to the plaintiff's conduct. "Contributory intent" is a form of "contributory fault" and may apply as a defence limiting delictual liability within the ambit of the Apportionment of Damages Act 34 of 1956 (hereinafter referred to as the "Act"). In terms of the Act, the extent of the plaintiff's as against the defendant's fault is taken into account, resulting (in certain instances) in a reduction of the award to the plaintiff. The Act currently regulates the apportionment of damages based on fault in South Africa. The Act does not specifically provide for conduct performed intentionally, and this also seems to be the situation in quite a few foreign jurisdictions. Initially our courts applied the Act to instances of "contributory negligence" (the other form of "contributory fault") only, but in recent times they have applied it to instances of "contributory intent". This change has occurred as a result of practical situations that arose unexpectedly, where the courts had in the interest of serving justice to deal with cases of intentional conduct on the part of the plaintiff and the defendant. The effect of "contributory intent" as a defence in terms of delictual liability is uncertain and contentious not only in South Africa but in foreign jurisdictions as well. The South African Law Reform Commission undertook a review of the Act and published a report on its findings. The Commission acknowledged that since the Act was passed there have been major developments in the law of delict which the Act has been unable to accommodate, resulting in anomalies in this area of the law. It acknowledged that it is unsatisfactory for our courts to go beyond the parameters of the Act in order to reach a just and equitable result when dealing with the apportionment of liability. The Apportionment of Loss Bill 2003 (hereinafter referred as the "Bill") has been drafted to replace the current Act but has unfortunately not been promulgated. Over ten years have passed since it was drafted. In respect of the Bill, "contributory intent" as a defence limiting delictual liability would be recognised. It is hoped that this contribution will bring about a renewed interest in this forgotten but valuable Bill.

Orosensory Perception, Speech Production, and Deafness

1973 ◽  
Vol 16 (2) ◽  
pp. 257-266 ◽  
Author(s):  
Milo E. Bishop ◽  
Robert L. Ringel ◽  
Arthur S. House
Keyword(s):  
High School ◽  
Speech Production ◽  
Poor Performance ◽  
Normal Hearing ◽  
The Other ◽  
Functional Disorders ◽  
Form Discrimination ◽  
School Subjects ◽  
Oral Form ◽  
Similarities And Differences

The oral form-discrimination abilities of 18 orally educated and oriented deaf high school subjects were determined and compared to those of manually educated and oriented deaf subjects and normal-hearing subjects. The similarities and differences among the responses of the three groups were discussed and then compared to responses elicited from subjects with functional disorders of articulation. In general, the discrimination scores separated the manual deaf from the other two groups, particularly when differences in form shapes were involved in the test. The implications of the results for theories relating orosensory-discrimination abilities are discussed. It is postulated that, while a failure in oroperceptual functioning may lead to disorders of articulation, a failure to use the oral mechanism for speech activities, even in persons with normal orosensory capabilities, may result in poor performance on oroperceptual tasks.

The Final ‘Thank You’

Derrida Today ◽  
2010 ◽  
Vol 3 (1) ◽  
pp. 21-36
Author(s):  
Grant Farred
Keyword(s):  
South Africa ◽  
South African ◽  
Jacques Derrida ◽  
Political Transition ◽  
The Other ◽  
World Cup ◽  
The Core ◽  
Nelson Mandela ◽  
Black President ◽  
The Moment

‘The Final “Thank You”’ uses the work of Jacques Derrida and Friedrich Nietzsche to think the occasion of the 1995 rugby World Cup, hosted by the newly democratic South Africa. This paper deploys Nietzsche's Zarathustra to critique how a figure such as Nelson Mandela is understood as a ‘Superman’ or an ‘Overhuman’ in the moment of political transition. The philosophical focus of the paper, however, turns on the ‘thank yous’ exchanged by the white South African rugby captain, François Pienaar, and the black president at the event of the Springbok victory. It is the value, and the proximity and negation, of the ‘thank yous’ – the relation of one to the other – that constitutes the core of the article. 1

Tourists’ and Residents’ Impressions of A Heritage Tourism Site: The Case of Kampong Taman Sari, Indonesia

2014 ◽  
Vol 8 (3) ◽  
pp. 181 ◽  
Author(s):  
Jenny Ernawati ◽  
Gary T. Moore
Keyword(s):  
Heritage Tourism ◽  
Semantic Differential ◽  
The Other ◽  
Measuring Instrument ◽  
Built Heritage ◽  
Other Hand ◽  
Similarities And Differences

The interface between tourism and built heritage is complicated because much built heritage is located in the middle of living communities. Questions arise about how to achieve a balance between the expectations of tourists and the community. To study this question, this paper reports on tourists’ and residents’ impressions of an international heritage tourism site, the Kampong Taman Sari in Indonesia. Using a linear-numeric semantic differential as the measuring instrument and nine consensus photographs of the site as stimuli, the study investigated similarities and differences in impressions between three groups: tourists (international and domestic) and residents. Three principal dimensions were found to underlie impressions of the site: Attractiveness, Organisation, and Novelty. Significant differences were found among all three groups in their impressions of Attractiveness. In terms of impressions of the Organisation of the site, international and domestic tourists have similar impressions but these differ significantly from the impressions of residents. On the other hand, domestic tourists and residents have similar impressions of the Novelty of the site, which is evaluated differently by international tourists.

Stability and Governability the Benign Effects of Party Dominance in South Africa

2020 ◽  
Vol 13 (1) ◽  
pp. 56-75
Author(s):  
Ainara Mancebo
Keyword(s):  
South Africa ◽  
South African ◽  
Trade Unions ◽  
African National Congress ◽  
The Other ◽  
Democratic Transitions ◽  
African Countries ◽  
National Congress ◽  
Independence Era ◽  
Party Dominance

A tripartite alliance formed by the African National Congress, the South African Communist Party and the Congress of South African Trade Unions has been ruling the country with wide parliamentarian majorities. The country remains more consensual and politically inclusive than any of the other African countries in the post-independence era. This article examines three performance’s aspects of the party dominance systems: legitimacy, stability and violence. As we are living in a period in which an unprecedented number of countries have completed democratic transitions, it is politically and conceptually important that we understand the specific tasks of crafting democratic consolidation.

scholarly journals Treating Wrongs as Wrongs: An Expressive Argument for Tort Law

2018 ◽  
Vol 10 (2) ◽  
pp. 405-447 ◽  
Author(s):  
Scott Hershovitz
Keyword(s):  
Criminal Law ◽  
Tort Law ◽  
Tort Reform ◽  
Corrective Justice ◽  
Social Standing ◽  
Tort Liability ◽  
Criminal Punishment ◽  
Expressive Function ◽  
The Social ◽  
The Way

AbstractThe idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law. In this essay, I argue that tort liability expresses the judgment that the defendant wronged the plaintiff. And I explain why it is important to have an institution that expresses that judgment. I argue that we need ways of treating wrongs as wrongs, so that we can vindicate the social standing of victims. Along the way, I consider the continuity between tort and revenge, and I suggest a new way of thinking about corrective justice and the role that tort plays in dispensing it. I conclude by sketching an agenda for tort reform that would improve tort’s ability to serve its expressive function.

scholarly journals The immunological characterization of several human ribonucleases by using primary binding tests

1977 ◽  
Vol 163 (3) ◽  
pp. 419-426 ◽  
Author(s):  
E A Neuwelt ◽  
M Schmukler ◽  
M S Niziak ◽  
P B Jewett ◽  
C C Levy
Keyword(s):  
Human Plasma ◽  
Cross Reaction ◽  
The Other ◽  
Human Pancreas ◽  
Human Tissues ◽  
Antigenic Difference ◽  
Immunological Characterization ◽  
Similarities And Differences

RNAases (ribonucleases), purified from four human tissues, as well as bovine pancreatic RNAase (RNAase A), were studied by immunodiffusion methods and by two different primary binding tests. The enzymes fell into two groups immunologically, those purified from plasma and pancreas in one and those from spleen and liver in the other. No antigenic cross-reaction between the two groups was detected by any of the immunoassays used. There was a slight antigenic cross-reaction between the human and bovine pancreatic RNAases. The liver and spleen RNAases were immunologically identical by all criteria used, whereas a small but consistent antigenic difference between the human plasma and human pancreas enzymes was detected. The significance of this difference between the human plasma and pancreas RNAases is discussed in relation to similarities and differences in their properties.

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