Contractual Rights and Third Parties: a Unified Perspective of the Law of Property and the Law of Delict

Abstract

In this article I will discuss a conflict between two persons who – at first – had nothing to do with each other. Let us call them Promisee and Transferee. Their conflict arose because they were interested in the same piece of property and consequently they had dealings with the same third person, the owner of the said piece of property. Promisee was there first. Promisee had entered into a contract with the above mentioned third person – Promisor. The contract concerned an object that Promisor owned. According to the contract, Promisee had a right in that property. His contractual right might be, e.g., a right of use or a right of pre-emption. After entering into the contract with Promisee, the Promisor sold the piece of property to Transferee, who – at the time of the sale – knew of Promisor’s duties arising from the contract with Promisee. After the sale, Promisee wanted to exercise his contractual right – e.g., to use the object or to buy it according to the terms of his right of pre-emption – while Transferee, as owner of the object, was not willing to let him do it. Is Promisee entitled to exercise his contractual right in the property despite the subsequent sale to Transferee? If not, is Promisee entitled to a monetary compensation from Transferee for the right which he has lost due to the sale?1