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 interms 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.
El artículo 197 de la Ley 1098 de 2006, buscando la protección del interés superior del menor de edad, consagra para los jueces penales el deber de iniciar, de manera oficiosa, el incidente de ...reparación integral, siempre que haya sentencia condenatoria en contra de un mayor de edad, la víctima sea un menor de edad y su representante no lo inicie. El presente artículo analiza si el deber consiste solo en iniciar dicho incidente o, por el contrario, en tramitarlo hasta el final. Igualmente, se determina el alcance del fallo o del desinterés del representante de la víctima menor de edad, es decir, se establece si la decisión que pone fin al incidente hace tránsito a cosa juzgada, máxime en aquellos eventos en los cuales la víctima no formuló, de manera expresa, una pretensión resarcitoria de perjuicios o hubo una manifestación, tácita o expresa, de desistimiento. PALABRAS CLAVE: incidente de reparación integral, interés superior, menor de edad, pretensión resarcitoria, indemnización de perjuicios, desistimiento, cosa juzgada. The Article 197 of Law 1098 of 2006, seeking the protection of the best interests of the minor, enshrines for criminal judges, the duty to initiate, in an informal manner, the incident of integral reparation, provided there is a conviction against an adult, the victim is a minor, and his representative does not initiate it. In this article we will try to analyze if the duty consists only in initiating or, on the contrary, processing until the end, said incident. Likewise, the scope of the judgment or the lack of interest of the representative of the minor victim will be determined, that is, it will be established if the decision that ends the incident, makes transit to a thing judged, especially, in those events in which the victim He did not expressly formulate a compensation claim for damages or there was a tacit or express manifestation of withdrawal. KEYWORDS: incident of integral reparation, best interest, minor, compensation claim, compensation for damages, withdrawal, res judicata. Introducción. I. ¿El deber del juez consiste solo en iniciar el incidente de reparación integral de manera oficiosa o comprende, además, el de tramitarlo? ¿Y el trámite debe llegar a sentencia o se podrá declarar terminado de manera anticipada debido al desinterés de la víctima? II. ¿Cuál es el alcance del pronunciamiento judicial? III. ¿El fallo del incidente de reparación integral oficioso hace tránsito a cosa juzgada? Conclusiones. Referencias.
Climate Change Litigation Peel, Jacqueline; Osofsky, Hari M.
02/2015, Letnik:
v.Series Number 116
eBook
This examination of the role of litigation in addressing the problem of climate change focuses not only on how the massive and growing number of lawsuits influences regulation directly, but also on ...how the lawsuits shape corporate behaviour and public opinion. It provides readers with an understanding of how these lawsuits have shaped approaches to mitigation and adaptation, and have been used to try to force and to block regulation. There is a particular emphasis on lawsuits in the United States and Australia, the two jurisdictions which have had the most climate change litigation in the world, and the lessons provide broader insights into the role of courts in addressing climate change.
Although freezing is known as the best method of food preservation, physical and chemical changes that occur to the cellular structure during processing and storage may damage the quality of food ...products. Most freeze damages are associated with ice crystal morphology (size, number, shape and distribution) which in turn affects the microstructure of the frozen food. Therefore, the evaluation of frozen food microstructure provides opportunities for monitoring the ice crystal morphology and also identifies freeze damage at cellular level which can be linked with the final quality of frozen food products. In this review, the most important physical damages that occur during freezing and storage of food matrices are described. In addition, methods for evaluating and observing the morphology of ice crystals and microstructure of frozen food stuffs are comprehensively discussed. An understanding of the freeze damage and their relationship with ice crystal morphology can contribute to the improvement of the freezing process as well as to the frozen product quality.
•The main physical deteriorative changes that occur during freezing process are investigated.•Various analytical tools to determine the effects of freezing damages on food microstructure are assessed.•The ice crystals morphology have great impact on frozen food quality.•Evaluating frozen food microstructure, may lead to improvements in quality of frozen product.
This is a book about the improbable: seeking legal relief for pollution in contemporary China. In a country known for tight political control and ineffectual courts, Environmental Litigation in China ...unravels how everyday justice works: how judges make decisions, why lawyers take cases, and how international influence matters. It is a readable account of how the leadership's mixed signals and political ambivalence play out on the ground - propelling some, such as the village doctor who fought a chemical plant for more than a decade, even as others back away from risk. Yet this remarkable book shows that even in a country where expectations would be that law wouldn't much matter, environmental litigation provides a sliver of space for legal professionals to explore new roles and, in so doing, probe the boundary of what is politically possible.
Reactive oxygen species (ROS) are induced through a variety of endogenous and exogenous sources. Overwhelming of antioxidant and DNA repair mechanisms in the cell by ROS may result in oxidative ...stress and oxidative damage to the cell. This resulting oxidative stress can damage critical cellular macromolecules and/or modulate gene expression pathways. Cancer induction by chemical and physical agents involves a multi-step process. This process includes multiple molecular and cellular events to transform a normal cell to a malignant neoplastic cell. Oxidative damage resulting from ROS generation can participate in all stages of the cancer process. An association of ROS generation and human cancer induction has been shown. It appears that oxidative stress may both cause as well as modify the cancer process. Recently association between polymorphisms in oxidative DNA repair genes and antioxidant genes (single nucleotide polymorphisms) and human cancer susceptibility has been shown.
Nepal is a sensitive earthquake zone. On April 25, 2015, there was an Earthquake of 7.8 Mw. After that, more than 30 aftershocks of above 5 Mw occurred. One of the aftershocks was of 7.3 Mw which ...occurred on May 12. In this paper, the damages in the tunnel of the Melamchi water supply project due to this earthquake were assessed. Cracks were observed on the inside surface, wall, and crown of the tunnel. Distribution and characteristics of these seismic damages were investigated and summarised to assess potential influencing factors. The damages are categorized into the following patterns: lining cracks and spalling. Lining cracks are further divided into longitudinal cracks, transverse cracks, ring cracks, and inclined cracks. Influencing factors are discussed with respect to Earthquake parameters mainly being magnitude, depth and distance to epicenter. This paper presents the pattern of seismic damages occurred for different overburden depths and different rock types. Here, the analysis is done by observation and categorization of damages for different aspects of considered factors and there are some unusual results in damages for varying overburden depths. There were few unusual results as in the damage distribution for overburden depth and also for different rock types. The reason may be the occurrence of many considerable aftershocks and epicenter being very near, so the damages may have been accumulated after each shock. Also the distribution of rock types have influenced the damages. So one influencing factors may have its effects on the results while considering the other factor.
While floods and other natural disasters affect hundreds of millions of people globally every year, a shared methodological approach on which to ground impact valuations is still missing. Standard ...Cost-Benefit Analyses typically evaluate damages by summing individuals’ monetary equivalents, without taking into account income distribution and risk aversion. We propose an empirical application of alternative valuation approaches developed in recent literature, including equity weights and risk premium multipliers, to a case study in Ecuador. The results show that accounting for inequality may substantially alter the conclusions of a standard vulnerability approach, with important consequences for policy choices pertaining damage compensation and prioritization of intervention areas.
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