The contract-delict interface and harm-causing omissions
Author A Fagan
Affiliations: BA LLB (Cape Town) BA DPhil (Oxon); WP Schreiner Professor in the Faculty of Law, University of Cape Town.
Source: Acta Juridica, 2021, p. 203 – 242
Dale Hutchison co-authored two excellent articles on the contract– delict interface. Their focus was primarily on breaches of contract causing pure economic loss. This article extends the investigation to omissions which are in breach of contract and which cause physical harm to person or property. At the centre of the investigation is the Supreme Court of Appeal’s (majority) judgment in the case of Chartaprops 16 v Silberman 2009 (1) SA 265 (SCA). A harm-causing omission will be wrongful, for the purpose of delictual liability, only if it was in breach of a specific duty. To date, our law has recognised only a small number of such specific duties. The Chartaprops judgment seems to recognise another, arising – in a way which is not clearly explained in the judgment – from the contractual duties by which the harm-causer and certain third parties are bound. In a series of steps, this article develops an account of that duty, culminating in the following formulation, which is meant to capture both the duty’s ground and its content: ‘If a person has contracted with another person to perform a task and knows (or ought to know) that the other person has contracted with him to perform that task in order to discharge a delictual duty owed by the other person to one or more further persons, then he owes those further persons a specific duty, the breach of which constitutes a wrong for the purposes of Aquilian liability, not to cause harm to them by negligently having contracted with the other person to perform that task and then failing to perform it.’