The contract—delict dichotomy
In the course of our discussion of the origins of liability we have been referring to contractual and delictual obligations. This is the summa divisio obligationum, which Gaius—probably putting the old Aristotelian distinction between voluntary and involuntary transactions to systematical use51 [53]—introduced in his Institutes.[54] It has remained fundamental ever since and is a reflection of the fact that different rules are needed to govern the voluntary transfer of resources between two members of the legal community on the one hand, and possible collisions between their private spheres on the other:[55] the one body of rules being concerned with the fulfilment of expectations engendered by a binding promise, the other with the protection of the status quo against wrongful harm.[56] However, the borderline between contract and delict is by no means as clear as might be imagined. That it has been considerably blurred becomes apparent when one compares how different modern legal systems have tried to cope with the demands for extension of liability, arising as a result of the complexities of the technological age.[57] [58] The protection of the consumer against defective products by means of a claim against the manufacturer is a matter for the law of torts in English law, whilst the French courts have been prepared to grant him a direct contractual claim.[59] In the case of negligent statements, the German courts operate with contractual liability (even though in some cases the fictitious nature of the contractual construction can hardly be concealed: the defendant is liable, not because he wants to be bound, but because he is— under certain circumstances—supposed to be liable);[60] the House of Lords, by contrast, in the celebrated case of Hedley Byrne and Co. Ltd. v. Heller and Partners Lid.,' based the action on tort. In addition, Rudolf von Jhering's famous "discovery"61 of culpa in contrahendo,[61] applied by him to a fairly restricted number of situations,[62] has been used (or abused?) by the German courts to make large inroads into the law of delict;[63] thus, they have granted a contractual action for damages where a prospective purchaser, while inspecting some carpets in a store, was hit by a linoleum carpet which had been negligently handled by an employee of that store/'[64] or even where the daughter of a prospective customer slipped on a lettuce leaf while entering the store with her mother.[65] As a result, it has been said that "the distinction between contract and tort is rapidly breaking down",[66] and in England as well as America the "death of contract" has been proclaimed.[67] [68] [69] Yet one must not overlook the fact that these developments, in so far as they appear to be illegitimate extensions of either of these regimes, have their origin in certain doctrinal idiosyncrasies that have prevented a (systematically) more adequate approach. Certain deficiencies in the law of delict {particularly the absence of strict vicarious liability)69 which the courts were not able and Parliament was too weak to overcome have led to the German courts achieving by means of the law of contract what other jurisdictions have managed to resolve in the area of torts. If, on the other hand, English judges have tended to expand the common law of torts,70 they were forced to do so because of the limitations of their law of contract, especially the one imposed by the doctrine of consideration. "If it were possible in English law," as Lord Devlin has put it in the Hedley Byrne case,[70] "to construct a contract without consideration,... the question would be, not whether on the facts of the case there was a special relationship [sc: giving rise to a duty of care], but whether on the facts of the case there was a contract." Of course, there are borderline cases which present genuine delictual as well as contractual aspects. The contract/delict dichotomy can, therefore, hardly be carried through with dogmatic rigidity. That does not detract from the fact that contract is still alive and well today and that, in all likelihood, contract and delict will, and should, remain distinct bodies of law.[71] As Arthur van Mehren has pointed out, the rise of insurance has probably even sharpened the differences between the two regimes.[72] 2.
More on the topic The contract—delict dichotomy:
- The subject called �obligations' is mostly about contract and delict. There are some other heads to be considered, but the right impression is given if we say that contract and delict between them occupy about ninety per cent of the ground.
- ‘Quasi-contract’ is an unsatisfactory term applied to certain specific obligations which did not arise from contract or delict but were legally enforceable.
- See Bauman, R. A., 'The Interface of Greek and Roman Law: Contract, Delict and Crime' (1996) 43 RIDA 3, 39-62 for an interesting discussion on delict and crime.
- Delict and contract
- In the chapters that follow, first the law of contract, then unjustified enrichment, and finally the law of delict will be dealt with.
- II. DELICT AND QUASI-DELICT
- From contract verbis to contract litteris
- There are different ways or organising a law of contract. That is as much as to say that there are different ways of responding to the central tasks which contract has to perform.
- The Name of the Delict
- Delict and tort
- The Shape of the Delict
- Delict and crime
- 1. Causation in the Roman law of delict
- The origins of delict in Roman law
- DELICT AND THE FRENCH CODE
- Other Forms of Delict