ABSTRACT
The classical understanding of the law of obligations was founded on the idea that a sharp distinction could be drawn between contract and tort. Contractual rights and obligations were seen to be shaped by the parties and adopted by consent. The law of contract was regarded as the realm of voluntary obligations; a contract was seen as a manifestation of the will of the parties.1 Hugh Collins has noted that during the classical age the perceived role of the law of contract was to facilitate voluntary choices.2 The idea that a contract could be imposed, or that a contractual obligation could be involuntary or non-consensual, was untenable.3 A clear boundary was thought to exist between contract and tort.4 As Jay Feinman has observed: ‘Classical theorists saw real, objective differences between contract law, in which liability was imposed only through the consent of the parties, and other private law fields, in which liability was imposed for causing injury to another (tort) or for violating another’s entitlement (property).’5 While duties in contract were thought to be ‘fixed by the parties themselves’, duties in tort were ‘primarily fixed by the law’.6 Sir William Anson wrote in 1879 that the wrongdoer’s obligation in delict to make good his breach of duty ‘is not created by the free-will of the parties, but springs up immediately on the occurrence of the wrongful act’.7
