n South African Law Journal - Limitless liability - Tokoloshe or real danger?

Volume 132, Issue 1
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



The question of pure economic loss in delict has always been problematic because of the oft-expressed fear of limitless liability. There is a long history of cautious development of this area of the law. In 1979 (3) SA 824 (A) (hereafter ''), a claim for pure economic loss arising from a negligent misrepresentation was recognised, although the court (Appellate Division) left open the question of whether a misrepresentation in contrahendo would found such a claim. It would be more than a decade before the Appellate Division allowed a claim in contrahendo in 1991 (4) SA 559 (A). In both these cases it was held that the limitless liability that was feared could be held at bay by correct application of the elements of a delict, in particular the elements of wrongfulness, negligence and legal causation ( (supra) at 832H-833B; (supra) at 568D-F: for a recent analysis of the history and development of such a claim see Anton Fagan 'Aquilian liability for negligently caused pure economic loss - Its history and doctrinal accommodation' (2014) 131 288).

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