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.