Regspraak: Troosgeld is deel van ’n reghebbende se afsonderlike boedelbates en nie deel van die gemeenskaplike boedel nie – verpligte deling troos nie

Although a husband and wife married in community of property share by default, if not design, all their patrimonial assets in the common estate, the solatium or compensation received by an injured person as satisfaction for the unjustified injury to his or her personality rights is not supposed to form part of the common estate – simply because it happened to be received in the form of a patrimonial asset. It is meant to be private or separate and for the comfort of the injured only. The purpose of the compensation received as solatium is not to fill a vacuum left by the delict in the injured party’s assets, but to serve as the only mode of solace available to law to provide redress for the wrong. Other than the position where a patrimonial asset of the claimant had been damaged, eg by the negligent car accident caused by the respondent, and where the awarded damages neatly compensate the wronged party for the damage caused, thereby placing the total estate in the same position where it was before the intervening delict, the solatium paid to the injured for the non-patrimonial damages suffered by the delictual inroad on his/her personality rights is not supposed to redress a negative impact on the total estate of the wronged. The spouse of the injured party, even where they are married in community of property, would never have been able to lay claim to those personality traits or attributes of the other spouse. Personality rights, per definition, never form part of the assets of any patrimonial estate and should not be shared simply because the matrimonial property regime happens to be community of property. The legislature correctly stipulated in section 18(a) of the Matrimonial Property Act 88 of 1984: “Notwithstanding the fact that a spouse is married in community of property – (a) any amount recovered by him or her by way of damages, other than damages for patrimonial loss, by reason of a delict committed against him or her, does not fall into the joint estate but becomes his or her separate property” – emphasis added. This formulation echoes what has been the legal position for ages. Along those lines Hiemstra J in Potgieter v Potgieter correctly held that the amount awarded as contumelia to the injured husband for the harm done to his personality rights by the adultery of his wife and the third party, would not form part of the joint estate but would be his separate property. In so doing, the court precluded the adulteress from further sharing in the spoils of her doing. In the underlying decision by the majority of the supreme court of appeal, however, it was held that section 18(a) should be read to be limited: “The context of s 18 must be read in its entirety, and apparent therefrom is the plain language and words used. [This] … section highlights that delictual damages received by a spouse during the course of a marriage in community of property, which are nonpatrimonial in nature (s 18(a)); and damages for bodily injuries owing to the fault of one’s spouse in terms of s 18(b) must be excluded from the division of the joint estate on divorce” (par 9 – emphasis added). In this case a very significant amount was received by the lady for the non-patrimonial loss suffered by her more than four years before the marriage had been concluded. According to the reading-in exercise of the supreme court of appeal it was not received “during the course of the marriage” and not ringfenced. As a consequence, the court upheld the appeal of the erstwhile husband after a marriage of very short duration (barely two years). He consequently successfully laid claim to fifty per cent of the more than half a million paid as non-patrimonial compensation to his wife, more than four years before he married her in community of property and only after becoming aware of the significant amount of that compensation invested by her. This decision not only flies in the face of logic and the legal principles underlying South African common law; it is in conflict with the latest developments in comparable Continental legal systems sharing the same historical and societal foundations as the South African law. This judgment provides poor consolation and it leaves a deeply imbedded discomfort, because the result is vehemently contrary to the outcome in comparable legal systems for a similar scenario. Dividing the solatium under the pretext of a division of the joint estate diminishes the solace intended for the injured.

A személyiségi jogok szabályozása a hatályos román Polgári törvénykönyvben

The new Romanian Civil Code (adopted in 2009, in effect since 2011) comprises a section dedicated to personality rights, as a novelty element compared to the previous Code. Their incorporation into the form of juridical norm follows both naturally from the historic evolution of some fundamental rights, both from the intention of the Romanian lawmaker to offer a comprehensive legal framework in the field of civil law.

Az emberi méltóság és a személyiségi jogok összefüggései (alkotmányi és polgári jogi szabályozásuk kritikai értelmezése)

The issue indicated in the title of the study is essentially a complex of legal problems, which raise several questions about the concepts used, such as: What is human dignity? What rights can be derived from it? Can we talk about the right to human dignity? What is personhood? What are the personality rights? How is human dignity related to the personality rights? The study examines the problem from the perspective of Romanian legislation and Constitutional Court practice.

Personality Rights – A Universal Tool for the Recovery of Non-Pecuniary Loss

As society develops, the concept of personality rights and their legal protection gain significance over the years. Naturally, this concept is evolving as society changes, and it should protect new personal interests against infringement. At the same time, there are reported instances of granting legal protection with doubtful legal justification. In Poland, many commentators and scholars point out that the courts, in some cases, seem to use the concept of personality rights as a universal tool in order to compensate for nearly any mental distress. In this paper, I wish to present interesting examples of this "search" for new personality rights as tools to compensate the plaintiffs for non-pecuniary damages, along with some controversial cases of granting non-pecuniary damages based on questionable legal justification. Following, I will attempt to clarify the notion of non-pecuniary loss and examine whether the courts try to expand its meaning to grant legal protection to plaintiffs. My analysis will be based on Polish law, with some comparative remarks. As the problem is complex and varies according to the jurisdiction, this paper provides a general illustration of the issue at hand. Keywords: Tort law; Personality rights; Non-pecuniary damage; Non-pecuniary loss; Compensation

INIURIA IN CYBERSPACE

The purpose of this note is to investigate some real-world disputes that may arise as a result of unlawful conduct in virtual worlds. The note will firstly expand the background of virtual worlds and then sketch some scenarios, which could potentially lead to liability in law. The main focus will be on actionability in criminal law and delict in South African law. Special attention will be given to the question whether personality rights of members of virtual worlds can be infringed by, for instance, the rape of their avatars. The question whether liability for economic loss caused unlawfully to members of virtual worlds by other members of such worlds will also be addressed.

The Personality Nexus

This chapter explores the changing legal landscape of moral rights in the context of music creation. It traces moral rights’ roots to the Kantian theory of authors’ personality rights in continental Europe and it also explains common law jurisdictions’ ideological resistance to a freestanding moral right doctrine in favor of a patchwork approach to the issue. It shows that international agreements including the Berne Convention, the WPPT, and the Beijing Treaty, have played different roles in promoting the minimal moral right standard for either music creators or performers at the international level. Furthermore, it should not be ignored that there has always been an unresolved tension between moral rights and the time-honored practice of music parody, because the former might exert a chilling effect on the latter. It is suggested that a reimagination of moral rights through the Kantian communicative authorship is crucial for accommodating parodic expressions in an increasingly reconfigurable music ecosystem.

Approach towards the right to be forgotten under Turkish law in comparison with EU and US laws: a need for a reform?

This study firstly analyses the general approaches of EU and US laws to the right to be forgotten. Then, basing on the right to be forgotten, a variety of dimensions from comparative law, court practice, doctrinal views and different legal sub-branches are considered from the aspect of Turkish law. Although there is no specific provision on the right to be forgotten in Turkish law, the right has been subject to doctrinal discussions from different perspectives. It is also referred to in court judgments, specifically when an individual wishes to erase certain news, data, etc. from the digital and/or non-digital archive so they can make a fresh start to a new life. Granting that person the right to be forgotten is in terms of protecting personality rights and privacy while acknowledging that these interests may compete with rights to press freedom and freedom of expression. After scrutinising the doctrinal view and court judgments, this study concludes that considering Turkish law, certain provisions should be enacted on the right to be forgotten to ensure uniform interpretation and clarify the definition and conditions of application.