The tortification of contract

• Jurisdiction: South Africa
• Author: Pierré Olivier
• Published date: 29 May 2019
• Date: 29 May 2019
• Pages: 283-299

The tortification of contract

2000 Acta Juridica 283

Pierré Olivier *

Supreme Court of Appeal, Bloemfontein

I A general introduction

In both the Continental and Anglo-American legal worlds perceptions relating to the

foundations of contractual li ability 1 have been in a state of flux for the last 150

years. At the centre of this uncertainty is the question whethe r the old dema rcation

between contract and t ort is still valid, and if so, where to draw the line between

them.

The dichotomy of contract and delict derives from Gaius who, in his Institutiones

(3, 88), stated that 'omnis obligati o vel ex contractu nascitur vel ex delicto'. But this

renowned jurist himself was apparently dissatisfied with this cryptic utterance and

the more detailed state ment in the Digesta (D 44.7.1 pr) is also attributed to him:

'Obligationes aut ex contractu nascuntur aut ex maleficio aut pr oprio quodam iure

ex variis causarum figu ris'. But Justinianus, in his turn dissatisfied with this

statement, added a further elaboration in the Institutiones (3,13,2): obligations can

arise 'aut . . . ex contractu aut quasi ex contractu aut ex maleficio aut quasi ex

maleficio'.

The idea behind the contract/d elict dichotomy was clear: a contractual obligation

is produced by the co-operation of the parties; by their mutual agreement to a

specific performance or a non-performance; by their consensus about the mutual

performance. Delictual obligation, i n contrast, has nothing to do with consensus, but

arises from the unlawful violation of the rights of others.

The difficulty with this division was — and remains — that breach of con tract may

also be seen as a d elict, for the breach of an obligation formed ex contractu is

simply one form of the unlawful disregard of the rights of oth ers.

Because th e Roman jurists adopted a pragmatic approach, this anomal y did not

greatly trouble them. Yet even so, there can be no doubt that at times the difficulty

of separating contractual from delictual wrongs did occu r. Ul pian, for exampl e, (D

9.2.5.3) discusses the following case borrowed from Julian: A teacher injures the

eye of a pupil in class. Here the actio legis Aquiliae applies. But what of the ca se

where a shoe-maker, frustrated at his apprentice's slow progress , strikes him with a

last on th e neck and c auses the apprentice to lose an eye? Julian, accordi ng to

Ulpian, believed the actio iniuriarum did not apply because the blow with the last

was not struck with the

* BA LLB (Pret) Dr Iur (Leyden) LLD (hc) (Pret) SC, Judge of the Supreme Court of Appeal, Bloemfontein.

2000 Acta Juridica 284

animus iniuriandi but with the intention of teaching th e apprentice to apply himself

more diligently. But Julian does, apparently, suggest that the apprentice has an

action for breach of contract as the contract between master and app rentice allows

the former to use only reasonable and moderate mean s of correction. Ulpian

disagrees with Julian. He has no doubt that the actio legis Aq uiliae applies. And al so

of relevant interest is that in the next section Ulpian grants the father of the

apprentice a claim for loss of future profit from his son's now diminished earning

capacity an d also a claim for medical expenses. On e wonders whether the amoun t

recoverable in compensation woul d have varied using these two different solutions,

the on e based on delict, the othe r on breach of contract. D 8.2.7.8 offers another

example: according to Ulpian, Proculus accepted, without hesitati on, that the owne r

of a slave had an action based either on breach of contract or ex lege Aquiliae where

1 In Afrikaans: die grondslag van kontraktuele gebondenheid.

2000 Acta Juridica 283

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