Delict and contract

It is not without irony, though, that contract is said to have rejoined tort just at the time when tort itself "has been subjected to the most intense theoretical and practical attacks in its long history".^[4607] The explosion of civil liability, of traffic accidents and medical malpractice law has drawn attention to the "creaking jointfs] of our arthritic tort system".^[4608]

"The toll on life, limb, and property exacted by today's industrial operations, methods of transport, and many another activity benignly associated with the 'modern way of life' ", writes Fleming,^[4609] "has reached proportions so staggering that the economic cost of accidents represents a constant and mounting drain on the community's human and material resources, calculable as a significant fraction of the gross national product.

Does that imply the death of tort? Probably not, but it does entail an ever-increasing shift from the classical model of individual loss-bearing towards a collectivization of losses, a gradual absorption of tort law, or at least large parts of it, into the modern social security system.^[4610] Yet, despite these somewhat sombre prospects, both contract and delict have, to date, displayed a remarkable longevity; and whether jurisprudentially justifiable and practically satisfactory or not, the distinction does, as a matter of fact, continue to exist in modern legal systems. Contract law ratifies and enforces the joint ventures of two or more parties beyond the boundaries of the existing status quo;^[4611] it seeks to protect specific expectations engendered by a binding promise. Tort law, on the other hand, attempts to coordinate the freedom of the individuals by deliminating and protecting their respective spheres against intrusions by each other; it is concerned with the degree of care owed even between strangers, and liability thus arises solely from the unlawful act committed by the wrongdoer, quite irrespective of whether any prior relationship existed between the parties concerned.

(b) Exclusivity or altemativity of remedies?

Given, then, the existence of two different bodies of rules and of two different types of remedy, the danger of a considerable overlap is obvious. Thus, if a complete stranger in a particular situation enjoys protection under the law of delict, should not—at least!—the same protection be accorded to contractual partners? Would it not be absurd to maintain that the general duty not to destroy other people's property does not also apply to the person who has leased the piece of property in question from its owner? Or take the case of products liability: the consumer's claim for damages resulting from the defective product may be based on the contract with his vendor, but it may also be, against the manufacturer, of a delictual character. Does that mean that, if vendor and manufacturer are one and the same person, two actions are available against him? Ultimately one may even ask whether every breach of contract that results in damage does not also constitute a delict.^[4612]

The answer to these questions is not of a purely academic nature.

In spite of these differences, German law allows, in principle, a choice of remedies:²⁸ if a set of facts gives rise to a claim in delict and in contract, the plaintiff may proceed on either basis.²⁹ But this approach is practicable only where, as indeed in Germany, the scope of delict is defined in such a manner that it cannot be used to turn the flank of contract. The German law of delict does not protect a person's property at large, and thus it is mainly via the law of contract that pure economic (or patrimonial) loss³" which has been negligently caused may be recovered.³¹ As a result, a sufficiently large range of cases is left to the exclusive regulation of the law of contract to prevent the existing differences between contractual and delictual remedies from being rendered meaningless.

The situation is entirely different under the French code civil.^[4613] Here we find the famous general clause of delictual liability,^[4614] according to which "every act whatever of man which causes damage to another obliges him by whose fault the damage occurred to repair it".^[4615] It is so wide that the admission of an elective concurrence of liability would lead to every culpable breach of contract being actionable in delict too. As a result, French doctrine has to protect the rules relating to contractual liability by means of the principle of "non-cumul des responsabilites". Where a contractual bond exists between two parties, the law of contract must be given preference as the lex specialis; and even though all the elements of a cause of action in delict may be present, the availability of a contractual remedy is taken automatically to preclude any recourse to it.

In this context it is interesting to note a recent shift of approach by the South African courts. For while contractual and delictual liability have traditionally never been regarded as exclusive of each other,^[4616] the Lillkrap decision has introduced an important qualification to the principle.^[4617] Significantly, it follows closely on the heels of the extension of Acnrilian (i.e. delictual) liability to cases involving purely economic loss,^[4618] and it may be inferred from Lillkrap that a concurrence of delictual and contractual liability is no longer permissible where the harm does not flow from physical damage to the person or to a specific piece of property of the plaintiff, but where it is of a purely economic nature.^[4619] English law, incidentally, which also does not exclude pure economic loss, a limine, from the confines of the law of torts,^[4620] appears to adopt an intermediate position too.⁴⁰

3.