Casum sentit dominus: Liability for Accidental Damages in Roman-Dutch and Modern South African Law 1987 Journal of South African Law 1987

1987 J. S. Afr. L. 332 (1987)
Casum sentit dominus: Liability for Accidental Damages in Roman-Dutch and Modern South African Law

handle is hein.journals/jsouafl1987 and id is 350 raw text is: Casum sentit dominus: Liability for
accidental damages in Roman-Dutch and
modern South African law*
D J JOUBERT**
I Introduction
South African judges have accepted the adage res perit domino as a
principle,1 but Van den Heever JA was content to describe it as a self
evident platitude.2 Like lightning, he said, the incidence of loss is where
it strikes unless the direct sufferer can avail himself of some legal rule which
serves to conduct the loss on the head of someone else.
There does not seem to have been any thorough or fundamental
examination of this principle or platitude in our literature. The inquirer must
take his material from the scattered references to risk, casus fortuitus, delict,
contract and the law of property. From such a survey it is apparent that the
law has retained its Roman character. Indeed, the Roman texts are often the
primary source of the detail of our positive law dealing with this topic, since
most of the Roman-Dutch writers limit their discussions to the bare bones of
the subject and our courts have not yet had occasion to deal comprehensively
with this theme.
Our theoretical starting point is that, in the case of property, the loss can
only be suffered by someone who has a right which has been destroyed or
diminished in value. He is, in the type of case we are concerned with, the
dominus. In order to be able to recover his loss from another he must rely on
some juristic fact which will create an obligation to compensate him for that
loss, be it a contract, a delict or some other causa obligationis, such as a
condictio.
Under the principles of the law of delict he can only recover the loss from a
defendant who caused that loss unlawfully, provided the necessary fault to
create liability is present. There are also recognised exceptions, for example
where a person is vicariously liable for the delicts of another and also cases
where the defendant is liable without fault. In the latter case, referred to as
strict liability, the law saddles an entrepreneur with liability for the damage
caused by a risk created for his own commercial advantage.
However, I imagine contract remains one of the most diverse bases for
transferring the risk of loss to another.
1 An insured can recover his loss (or as much as the policy allows) under a
contract of insurance which was not unknown in Roman-Dutch law' and is, of
course, well known in modern law.
2 A seller can recover the price of goods sold even if they perish or are
* Introductory paper delivered with the paper by Wacke (see 1987 TSAR 318) at the University
of Pretoria on 18 April 1986.
** Professor in Private Law, University of Pretoria.
Van Wyk v Herbst 1954 2 SA 571 (T); Rondalia Finansieringskorporasie van SA Bpk v
Hanekom 1972 2 SA 114 (T).
2 Pahad v Director of Food Supplies 1949 3 SA 695 (A) 709-710.
' De Groot Inleidinge 3 11 and 3 24.
332

TSAR 1987-3

[ISSN 0257-77471

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