Liability in Contract Excluding Action in Delict

Question 1

Main difference between breach of contract and delict

Answer 1

Breach of contract = Enforce the contract or obtain compensation for the non-fulfilment of its terms.

Delict = Obtain compensation for harm caused by the infringement of a right or breach of duty.

Question 2

Contractual liability case

Answer 2

Thoroughbred Breeders’ Association v Price Waterhouse (auditors failed to discover that the financial manager of a company was involved in theft from the company - The Court held that the company’s fault was comparatively negligible and that the Apportionment of Damages Act does not apply to contractual claims for damages)

Question 3

Types of delictual actions arising from a contractual relationship

Answer 3

• Pre-contractual Context - where one person makes certain representation to another with the view to inducing the latter to conclude the contract.
• When a contract has already been concluded, one party may negligently perform his contractual duty.
• A contractual relationship between two parties may also give rise to a delictual action without the contract having been breached by either party.

Question 4

There are two important cases where the Supreme Court of Appeal refused to recognise actions in delict within a contractual setting:

Answer 4

o Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd (Lillicrap were consulting engineers appointed to design adn supervise construction of def. glass plant. Once plant completed, it was unsuitable for manufacturing due to problems with soil. Def. sought to recover costs in fixing defects from plaintiff. Case involved an infringement of a contractual duty to perform specific professional work with due diligence – no independent duty for delictual liability – judgement implied that only a contractual remedy is available were pure economic less is caused by negligent performance of a contractual duty.)
o Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd (applicants claimed damages for pure economic loss that resulted from the negligent design by the respondent structural engineers of the exhibit tanks – They alleged that the respondent’s negligence began before the contract between them concluded – There was no need to extend the Aquilian action to rescue a plaintiff who could have avoided the risk of harm by contractual means, but who failed to do so)