The tortification of contract

JurisdictionSouth Africa
AuthorPierré Olivier
Citation2000 Acta Juridica 283
Published date29 May 2019
Date29 May 2019
Pages283-299
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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