The influence of 'reasonableness' on the element of conduct in delictual or tort liability ─ comparative conclusions

Abstract

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.