n Tydskrif vir die Suid-Afrikaanse Reg - Kontrakbreuk en nie-vermoënskade : geld die gesegde "belofte maak skuld" nie vir gekwetste gevoelens en psigiese besering nie?

Volume 2011, Issue 2
  • ISSN : 0257-7747
  • E-ISSN: 1996-2207



Twenty years ago Van Heerden JA imposed a prohibition in the (then) highest South African court in the case of on the recourse of non-patrimonial damages. With this finding the court reinforced the traditional view that all contracts are of a monetary nature and that the invasion of personality rights resorts under delictual liability. This approach does not, however, reflect trends in modern society. If non-compliance with "bargained for" mental and psychological life experiences are not being compensated, it exposes in the law that needs to be addressed to prevent considerable injustice. As a consequence, the pronouncement in has not only stifled legal development, but also left the South African law poorer. The aim of this article is to proffer a simple solution to issues of injured feelings and mental distress within the orthodox rules of contract law. The cardinal question to be asked is: What was promised in the contract? This relatively simple basis of explanation runs like a golden thread through other legal systems subjected to scrutiny. In England there has been a subtle change in tenor from the classification (and more or less ban) of the type of mental injury to the compensation of a frustrated right to a contractual performance (whether it be tangible or not) by the house of lords in (2001). A more overt stance is taken by the supreme court of Canada. In (2006), and confirmed in (2008), an outright recognition of an independent rule allowing claims for non-patrimonial damages upon breach of contract is prominent. Even in France the courts and writers have interpreted the general civil liability and of the French Civil Code in such a way that are freely available in instances of breach of a contractually bargained for non-patrimonial advantage. In Louisiana (United States of America) the recoverability of non-pecuniary damages for breach of contract was pertinently codified. Section 1998 stipulates that non-pecuniary damages can be claimed if the very essence of the contract aims at fulfilling a moral interest, whether known to or foreseen by the defendant, but there is a failure to comply. The conclusion reached is that parties to a contract are absolutely bound by the contractual duties undertaken (whether these be patrimonial or non-patrimonial) and that they have to fulfil their obligations in terms of the contract (). Promises are there to keep - applicable to injured feelings and mental distress as well.

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