Involuntary Obligations Delict and Unjustified Enrichment
While the law of obligation deals with the specific property rights that an individual may have in something, the obligation arises whereby there is a decision to make on whether the person will do something or not. They also differ from real rights as they relate to only specific relationships. There are various distinctions in the law of obligations which are voluntary and involuntary obligations. Involuntary obligations refer to obligations that are imposed by the law such that they do not consider the parties intentions and as such, they are created by the operation of law1. In the provided scenario, we have a scenario under which, Ian, who is a 16 year old participating in a race and based on provided information holding the lead in the race when Matthew who is aged 4 years old runs from his father and enters the race track which forced Ian to swerve in order to avoid colliding with him.
Harsco Infrastructure Ltd. Where the case was based on the transferred intent and the scope of vicarious liability the law of delict could have seen to be have been employed even though the accused, who in this case was Smith admitted to fault. The happenings of the case were in that Bazela and Somerville who worked at Harsco were managed by Smith and in one day, Smith threw a hammer towards Bazela, but instead of getting to the required target, the hammer went over thirty feet and hit Somerville on the head. Smith, who threw the hammer did not intend to throw it to Somerville. However, he admitted the fault and was fired with claims of gross misconduct. The English law differs in that it specifies the particular tort which then faces the issues of having to come up with new civil wrongs that fit the existing categories.
The term delict originates from the Latin language ‘delictum’ which means a legal wrong. The obligation that is created by the law is a compensation for the wrongs done. A delict is a civil wrong hence there is a need to understand the difference between it and crime. In some situations, the incidents which lead to the rise of claim in delict may also have an aspect of the crime. Unintentional delicts arise when the individual is negligent and gives rise to the concept of duty of care, and this is where the case lies within. It should be noted that people are not always liable for the serious consequences of accidents and other cases where negligence may cause harm to another person.
For the defender to be given the liability of harming the pursuer due to the defender’s negligence the law raises some questions; • Did the defender owe the pursuer duty of care which is the element of injuria • Was the duty of care breached by acts of omission by the defender which falls below the standard of care by the reasonable person? • Did the pursuer suffered any loss which is an element of damnum • Was the breach of care of the defender case the loss to the pursuer which is the element if datum • Was it foreseeable that the loss would occur or would not be contemplated? Therefore, based on this overview as to who could be the guilty one or the perpetrator, it is also important to understand who caused the whole scene to happen.
Some may argue that since Ian is the one who directly caused the injuries and harms that happened to the children, in addition to the damage that was realized, then he should be held accountable. However, on the other hand, Derek, who is the father to the 4-year old boy, Matthew who rushed to the race track and caused all this may also be viewed as being accountable for the happenings that took place. The ruling of the case was that; “The rule that you are to love your neighbor becomes in law, you must not injure your neighbor; and the lawyer's question, Who is my neighbor? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor.
Who, then, in law, is my neighbor? The answer seems to be —persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. ” per Lord Atkin at 44 of SC5. Therefore, in utilizing this approach, the duty of care of the father, Derek ought to have been considered as he might have been viewed as the main cause of the events that took place within the occasion. Some Legal Determinants of External Finance in Scotland: A Response to Lord Hodge. Edinburgh Law Review, 21(1), 30-54 (2017). Hogg, M. Obligations: Law and Language. Cambridge University Press (2017).
The Apologies (Scotland) Act 2016: An Innovative Opportunity in the Twenty-First Century or an Unnecessary Development? (2016). McClelland, P. The seller's liability for sale of faulty goods in Scots law (2015) (Doctoral dissertation, University of Glasgow). McLaren, Yvonne, and Josephine Bisacre. "2 Legal System of Scotland. Rahmatian A, 'The Political Purpose Of The ‘Mixed Legal System’ Conception In The Law Of Scotland' (2017) 24 Maastricht Journal of European and Comparative Law Reid, K. G. Smoothing the Rugged Parts of the Passage: Scots Law and its Edinburgh Chair (2014). Edinburgh Law Review, 18(3), 315-340. Reid E, 'Beyts V Trump International Golf Club Scotland Ltd : Caught Short On Data Protection And Privacy' (2017) 21 Edinburgh Law Review Reid, K. Open Book Publishers. The Paisley Snail case- Donoghue v Stevenson Wagner, T. Limitations of Damages for Breach of Contract in German and Scots Law-A Comparative Law Study in View of a Possible European Unification of Law (2014) Hanse L.
From $10 to earn access
Only on Studyloop