Moraalfilosofiese grondslae van die aksie vir pyn en lyding

Abstract

It is generally accepted that the two major delictual actions derived from Roman law (the actio legis Aquiliae for patrimonial loss and the actio iniuriarum for sentimental damages in cases of libel) do not provide for the recovery of immaterial damages flowing from injury to the human body. This action for pain and suffering which forms part and panel of modem South African law has its roots in other legal systems. This article aims to trace its moral philosphical origins with reference to the views of Thomas of Aquino, authors of manuals used during confession and the sixteenth-century Spanish philosophers, as well as their influence on the important Roman-Dutch author, Hugo de Groot. In this context the role of restitution as instance ofiustitia commulativa is pivotal.