Die formeelregtelike grondslag van die ex contractu-eis vir skadevergoeding weens kontrakbreuk

• Citation: 2024 TSAR 64
• DOI: https://doi.org/10.47348/TSAR/2024/i1a5
• Published date: 16 January 2024
• Pages: 64-74
• Author: Cornelius, S.
• Date: 16 January 2024

TSAR 2024 . 1 [ISSN 0257 – 7747]

64

https://doi.org /10.47348/ TSAR /2024/i1a5

Die formeelregtelike grondslag van die ex

contractu-eis vir skadevergoeding weens

kontrakbreuk

STEVE CORNELIUS*1∗

SUMMARY

THE SUBSTANTIVE LAW BASIS OF THE EX CONTRACTU CLAIM FOR DAMAGES

DUE TO BREACH OF CONTRACT

Parties generally enter into contractual relations with the sincere intention to full all the obligations

created in terms of their contract. However, for various reasons, parties sometimes do not comply

with the terms of their contract. Where a party fails or refuses to perform their obligations as specied

in their contract, that party commits breach of contract and the normal consequences for breach then

ensue. One of these consequences is that the injured party may institute a claim for damages.

The nature of this remedy has been called into question. Is a claim for damages due to breach of

contract derived from the contractual relationship between the parties, or is it no more than a delictual

claim presented under the guise of contract? The fundamental values underlying the law of contract

are consensus and reliance, as well as freedom of contract, sanctity of contract (pacta sunt servanda),

good faith and privity of contract.

Freedom of contract and sanctity of contract demand that contracts that are freely entered into must

be honoured and enforced. From this arises the principle that breach of contract occurs even if the

failure or refusal to abide by the contract cannot be attributed to fault in the sense of a wilful disregard

of the contract or a negligent failure to abide by the contract. This is in stark contrast with delict, where

fault is generally required for liability. Furthermore, reliance and good faith also demand that the

parties should honour their obligations in terms of the contract. This relationship based on reliance and

good faith is broken when breach occurs, with the result that there is a need to provide redress to the

injured party that can be derived from the contractual relationship. Lastly, privity of contract generally

limits the effects of the contract, as well as the resultant rights and duties in terms of the contract, to the

parties who contracted with each other. There is no such closed notion of privity in delict.

The article aims to explore the law of contract from a historical perspective and from a comparative

analysis of various jurisdictions today to determine the nature of the claim for damages due to breach

of contract. It concludes that there are fundamental differences between a claim for damages due to

breach and a claim for damages due to the wrongful and culpable conduct of a third party. As a result,

it is clear that the claim for damages due to breach of contract is a claim ex contractu that must be

distinguished from delictual claims.

1 Inleiding

’n Mens sou verwag dat partye wat ’n kontrak sluit, dit doen met die ernstige en

opregte bedoeling om die kontr ak na behore uit te voer en stiptelik aan d ie onderskeie

verbintenisse ingevolge die kontrak te voldoen. Dit is sekerlik tot ’n groot mate

inderdaad die geval, ma ar slegs die mees dwase en liggelowige persoon sou egter

aanneem dat pa rtye altyd met opregte bedoelinge kontrakteer. Dit is nou eenmaal

* Professor en Hoof van die Departement Privaatreg, Universiteit van Pretoria.

2024 TSAR 64

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