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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?
Breach of contract and non-patrimonial damages: does the adage "keep one's promises" ring true for injuries to feelings and mental distress as well?
Twenty years ago Van Heerden JA imposed a prohibition in the (then) highest South African court in the case of Administrator, Natal v Edouard on the recourse of non-patrimonial damages ex contractu. 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 a lacuna in the law that needs to be addressed to prevent considerable injustice. As a consequence, the pronouncement in Administrator, Natal v Edouard 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 Farley v Skinner (2001). A more overt stance is taken by the supreme court of Canada. In Fidler v Sun Life Assurance (2006), and confirmed in Keays v Honda Canada (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 non cumul of the French Civil Code in such a way that dommages moraux 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 all their obligations in terms of the contract (pacta sunt servanda). Promises are there to keep - applicable to injured feelings and mental distress as well.
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