The contract-delict interface and harm-causing omissions
| Author | Fagan, A. |
| DOI | https://doi.org/10.47348/ACTA/2021/a8 |
| Citation | 2021 Acta Juridica 203 |
| Published date | 23 August 2021 |
| Pages | 203-242 |
| Date | 23 August 2021 |
203
https://doi.org/10.47348/ACTA/2021/a8
The contract-delict interface and harm-
causing omissions
ANTON FAGAN*
Dale Hutchison co -authored two excel lent articles on the contract–
delict inter face. Their foc us was prim arily on breaches of contract
causing pure economic loss. Th is article extends the investigation to
omissions which are in breach of cont ract and which cause physical
harm to per son or property. At the centre of the investigation is
the Supreme Court of Appeal’s (majorit y) judgment in the case of
Chartaprops 16 v Silber man 2009 (1) SA 265 (SCA). A harm-causing
omission w ill be wrongfu l, for the purpose of delict ual liabilit y, only
if it was in breach of a specic duty. To date, our law has recognised
only a sma ll number of such specic d uties. The Chartaprops judgment
seems to recog nise another, arising – in a way which is not clearly
explained in the judgment – f rom the contract ual duties by which
the harm-causer and cer tain th ird part ies are bound. In a series of
steps, thi s article develops an account of that dut y, culminating in
the followin g formulation, which is mea nt to capture both the duty’s
ground and its content: ‘If a person ha s contracted w ith another
person to perform a task and knows (or ought to know) that t he
other person ha s contracted w ith him to per form that task in order
to discharge a delictual duty owed by the other person to one or
more furt her persons, then he owes t hose furt her persons a specic
duty, the breach of which constitutes a wrong for the purposes of
Aquilian liabil ity, not to cause har m to them by negligently havi ng
contracted w ith the other person to per form that task and t hen failing
to perform it.’
I IN TRODUC TION
Dale Hutchison taught me neither contract nor delict. But he and
I did for several years co-teach an LLM course in which one of the
topics was the contract–delict interface. Dale had co-aut hored two
articles ab out this topic. The r st, called ‘Lillicrap revisited: Further
thoughts on pure economic loss and concurrence of actions’, was
written w ith Danie Visser and appeared in the South African Law
* BA L LB (Cape Town) BA DPhil (Oxon); WP Sch reiner Profes sor in the
Facult y of Law, Universit y of Cape Town.
2021 Acta Juridica 203
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204 THE FUT URE OF THE LAW OF CONTR ACT
https://doi.org/10.47348/ACTA/2021/a8
Journal in 1985.1 The second, called ‘The tort/contract divide seen
from the South Af rican perspective’, was written w ith Belinda van
Heerden and appeared in Acta Juridica in 19 97.2 Both articles were
characterised by Dale’s hallmark lucidity.
The two articles in question accepted that the following t wo
rules concerning the contract–delict interface had been endorsed
by the South Afr ican Appellate Division (albeit that the articles
did not formulate the two rules in quite this way):
The non-e xclusion rule: It is not the case that a person who caused loss
to another by conduct wh ich was in breach of a contract with either
the loss-su erer or a third party ca nnot be subjected to Aqu ilian
liabil ity towards t he loss-suerer.
The independent-satisfaction rule: A person who caused loss to another
by conduct which was in breach of a contract w ith either the loss-
suerer or a th ird party can be subje cted to Aquilian l iability towards
the loss-su erer only if a ll the conditions for Aquilian liabil ity are
satised independently of the contract.
As authority for these two rules, the articles in question cited the
judgments of Van Wyk v Lewis3 a nd Lillicrap, Wassenaar & Partners v
Pilkington Brot hers.4 And it is so that, whi le the rst of these judgments
endorsed the non-exclusion rule, the second of them endorsed both
the non-exclusion and independent- satisfaction rules.5 That they
did so has been acknowledged by other delict scholars, such as Paul
Boberg and Annél van Aswegen.6 It has also been acknowledged
by the Supreme Court of Appeal, in the cases of Holtzhausen v Absa
Bank7 and Viv’s Tippers v Pha Phama Sta Se rvices.8
1 D Hut chison & DP Viss er ‘Lillicrap rev isited: Fu rther thoug hts on pure
economic los s and concurr ence of actions’ (1985) 102 SALJ 5 87.
2 D Hut chison & B van Hee rden ‘The tort /contract divide se en from the
South Af rican pers pective’ (1997) Acta Juridica 9 7.
3 Van Wyk v Le wis 1924 AD 438.
4 L illicrap, Wassenaar & Partners v Pi lkington Brother s 1985 (1) SA 475 (A).
5 Van Wyk v Le wis (n 3) 443, 455–7; Lillicra p (n 4) 496D–I, 499F–I , 500H.
6 P QR Boberg ‘Back to Winte rbottom v Wright? – Not quite!’ (1985) 102 SALJ
213 at 215–16; A van Aswegen ‘Die t oets vir d ie bestaan v an ’n “onafha nkli ke
delik ” in die geval v an kontrakbr euk’ (1992) 55 THRHR 271 at 271, 273. See
also J Neet hling & JM Pot gieter Law o f Delict 7 ed (2015) 273; JC van d er Walt
& JR Midg ley Princip les of Delict 4 ed (2 016) 80; M Loubser & R Midg ley (eds)
The Law of D elict in South Africa 2 ed (2 012) 193–5.
7 H oltzhausen v Absa Bank 2 008 (5) SA 630 (SCA) 6 33B–634C .
8 V iv’s Tippers v Pha Ph ama Sta Services 2 010 (4) SA 455 (SCA) 459E–460B.
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THE CONTRAC T-DEL ICT INTE RFACE 205
https://doi.org/10.47348/ACTA/2021/a8
The articles which Dale co-authored with Danie Visser and
Belinda van Heerden primarily focused on breaches of contract
causing pure economic loss. Breaches of contract resulting in
physical har m to person or propert y were dealt with only in
passing. The same is true of the articles on the contract–delict
interface w ritten by other South A frican delict scholars. There are
likely to be several reasons for this uneven treatment. One reason,
no doubt, is the fact that the Lillic rap case – which has been the
leading South A frican case on the contract–del ict interface ever
since it was reported in 1985 – concerned a breach of contract
which had caused pure economic loss.9 But there may be another
reason why breaches of contra ct resulting in physica l harm were by
and large neglected in these ar ticles, namely that, unlike breaches
of contract causing pure economic loss, those resulting in physical
harm were believed to be relatively unproblematic.10
As this tribute to Dale tr ies to explain, the contract–delict
interface in fact creates diculties, not only in cases involving
pure economic loss, but also in cases involving physical harm to
person or property, when that harm was caused by an omission
rather than a positive act. This should not come as a surprise. As
the Lillicrap case made clear, and as Dale and Danie emphasised
in their note, in cases dealing with the contract–delict interface
the requirement of wrongfulness assumes special importance.
In respect of conduct causing pure economic loss, the majority
in Lillicra p adopted a proposition which has since been rm ly
entrenched in our law, namely that, for the purpose of Aqui lian
liabil ity, such conduct is prima facie lawfu l.11 This, Dale and Danie
correctly pointed out, means that ‘there i s no general duty to avoid
negligently causing economic loss’.12 In order for conduct causing
pure economic loss to have been wrongful, it consequently has to
have breached a specic duty, owed by the person who caused the
loss to the person who suered it. The fact that pure economic loss
9 Hut chison & Visser (n 1), as well a s Boberg ‘Back to Winter bottom v Wright?’
(n 6), were in fact note s on this case.
10 T here is evidence for th is belief in Hutchi son & Van Heerden (n 2) 112, 113.
11 Lillicrap (n 4) 497B–C, 499 C–D, 504E–G. Why th e cited passages e ntail the
Lillicra p majorit y’s adoption of ‘the view th at while neg ligent in iction of pu re
economic los s may be wrongf ul in some cir cumsta nces, it is not gener ally to be
regarde d as prima facie w rongful ’ is explained by Hutch ison & Visser (n 1) 588–9.
12 Hutchison & Vi sser (n 1) 589.
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