Skip to main content Accessibility help
×
Hostname: page-component-848d4c4894-2pzkn Total loading time: 0 Render date: 2024-05-28T19:06:15.405Z Has data issue: false hasContentIssue false

South Africa

Published online by Cambridge University Press:  15 November 2019

Johann Neethling
Affiliation:
Research Fellow of Private Law, University of the Free State, Bloemfontein
Get access

Summary

QUESTIONS

TRACING THE BORDERLINES

South African law does make a clear distinction between tort (delict) and contract mainly because there are various material differences between these two legal phenomena. These differences are, for historical, systematic and practical reasons, also supported by the fact that breach of contract is not formally treated as part of the law of delict but is considered to be part of the law of contract. The law of contract provides specific rules for breach of contract that are not applicable to a delict. This accordingly necessitates its treatment as a separate and independent form of wrongful conduct. The distinction between delict and breach of contract is clearly apparent from the fact that one and the same act may render the wrongdoer liable ex contractu as well as ex delicto .

Examples of the recognition of a ‘grey zone’ between contract law and the law of delict are scarce. Our law of contract does not recognise the application of culpa in contrahendo (negligence in the conclusion of a contract). However, in some instances delictual and contractual principles overlap. One example is precontractual delictual liability, where the courts intimated that principles and terminology of contract law should preferably be avoided, unless it is possible to reconcile such principles with applicable delictual principles. Other examples of such overlap occur in instances of professional liability where a duty to act with reasonable care and skill as an implied term of the contract can also give rise to a delictual duty with a similar content; or in the case of the direct liability of mandators, there does not seem to be a difference between ‘tort cases’ and ‘contract cases’.

As is clear from the above, in principle different rules regulate tort and contract, but where these rules overlap, courts seem to apply them basically similarly.

MAIN DIFFERENCES BETWEEN TORTIOUS AND CONTRACTUAL LIABILITY

A. DIFFERENCES AS REGARDS THE FOUNDATIONS OF LIABILITY

A delict is the act of a person that in a wrongful and culpable way causes harm to another. Wrongfulness inter alia lies in the infringement of a right or the breach of a legal duty, while fault consists of intent or negligence.

Type
Chapter
Information
The Borderlines of Tort Law
Interactions with Contract Law
, pp. 467 - 506
Publisher: Intersentia
Print publication year: 2019

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

  • South Africa
    • By Johann Neethling, Research Fellow of Private Law, University of the Free State, Bloemfontein
  • Edited by Miquel Martin-Casals
  • Book: The Borderlines of Tort Law
  • Online publication: 15 November 2019
  • Chapter DOI: https://doi.org/10.1017/9781780689135.015
Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

  • South Africa
    • By Johann Neethling, Research Fellow of Private Law, University of the Free State, Bloemfontein
  • Edited by Miquel Martin-Casals
  • Book: The Borderlines of Tort Law
  • Online publication: 15 November 2019
  • Chapter DOI: https://doi.org/10.1017/9781780689135.015
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • South Africa
    • By Johann Neethling, Research Fellow of Private Law, University of the Free State, Bloemfontein
  • Edited by Miquel Martin-Casals
  • Book: The Borderlines of Tort Law
  • Online publication: 15 November 2019
  • Chapter DOI: https://doi.org/10.1017/9781780689135.015
Available formats
×