Problems of classification

Obviously, where somebody employs a group of labourers to work, say, in his silver mine, we are dealing with a labour relationship (locatio conductio operarum); the jeweller, on the other hand, who engraves the initials of his customer on a bracelet, works under a contract of locatio conductio operis (or, to use the terminology of English law, as an independent contractor).

These difficulties continue to persist in all those modern legal systems which have adopted the trichotomy of contracts grafted on to the Roman locatio conductio by the writers of the ius commune. Take, for example, the legal relationship between physician and patient. It is normally taken to be a contract of service by the modern German courts: the contract only obliges the physician to carry out, lege artis, an indicated medical treatment; it is not intended to make him liable for the success of such treatment.^[1989] But it is very doubtful whether the same applies if a physician accepts a patient for sterilization.^[1990] The Federal Supreme Court has gone further and even regarded it as a contract of service if a dentist promises to produce a dental prosthesis or to crown a tooth.^[1991] This appears to be wrong,^[1992] even if it is conceded that removal of the toothache cannot reasonably be taken to be the object of the contract. It is, indeed, not a therapeutic success that the dentist promises. Nevertheless, he undertakes to produce a more limited result (namely to prepare and fit onto the tooth a suitable crown), which in turn will (it is hoped) have the desired therapeutic consequences.

One may ask, in view of the general recognition of "pacta sunt servanda", ^[1994] why the classification of contracts still attracts so much of our attention. In German law it is mainly the fact that special (aedilitian-type) remedies have been introduced to deal with the problem of liability for defects under a contract for work.^[1995] They are subject to very harsh prescription periods, however.⁶⁹ Claims based on malperformance under a contract of service, on the other hand, prescribe in 30 years. Such a vast discrepancy of prescription periods in closely related areas of law has proved to be a most unfortunate source of unsatisfactory distinctions and distortions.

In South Africa, the term "workman" in the Workmen's Compen­sation Act⁷⁰ has given rise to the most interesting and historically thorough judicial attempt at drawing a line between locatio conductio operis and operarum.⁷¹ After reviewing Roman and classical Roman- Dutch law, Joubert JA rejected the supervision and control test of English law (that had been adopted in an earlier decision)⁷² and stated that a right of supervision and control on the part of the employer is merely one out of several indicia (albeit an important one) in favour of a contract of service. The legal relationship between the parties as a whole has to be evaluated in order to establish the true object of the contract. In this context a variety of important legal characteristics are

contract or claim a reduction of the purchase price (i.e. bring the actiones redhibitoria or quanti minoris). If the defect was due to the fault of the conductor, damages may be claimed instead of cancellation or reduction (§§ 633 sqq. BGB). May the customer, insread of demanding removal of the defect, insist on the production of a new work? The BGB is silent on this point, the problem therefore controversial.

® Six months; in the case of work on land, one year; in the case of work on buildings, five years. The prescription begins to run from the moment of acceptance of the work (§ 638 I BGB). Thus it can happen that the claims are prescribed before it was possible for the customer to discover the defect. For details, critical evaluation and, particularly, what we have termed "systemsprengendende Kraft differenzierter Verjährungsfristen" (distorting influence of diverging prescription periods), cf.

’ Act 30/1941.

⁷¹ Smit v._ Workmen's Compensation Commissioner 1979 (11 SA 51 (A).

⁷⁷ Colonial Mutual Life Assurance Society Ltd. v. MacDonald 1931 AD 412 at 434 sq. The court also rejected the "organisation test" (turning on the integration of the employee into the employer's business) as being of a "vague and nebulous nature"; cf. also the critical dictum by MacKenna J in the English case of Ready Mixed Concrete (South East) Ltd. v. Minister of Pensions and National Insurance [1968] 1 All ER 433 (QB") at 441H-444H. listed in respect of which the two types of contract tend to differ.^[1996] They provide indicia as to the nature of the contract, and it is in this context that the problem of supervision and control, the employee's duty to obey lawful commands, orders or instructions, and his obligation to render his services in person feature prominently. The more independent, generally speaking, the position of the person rendering the services, the stronger the probability that we are dealing with locatio conductio operis. Very similar considerations prevail in German law.^[1997]

3.