Deliberate Third Party Conduct and the Creation of Obligations (1): Delict and Unjustified Enrichment

Typically, in the three sources of obligation mentioned below the parties are directly involved: in the case of a contract, the parties conclude their contract by agreement, or the contract denier misleads the contract assertor to reasonably believe that consensus has been reached; from a delictual perspective, the wrongdoer causes harm to the injured party; and in the case of unjustified enrichment the impoverished party bestows a benefit upon the enriched party without legal cause. Similarly, in the case of estoppel the representor makes a representation directly to the representee. The position is somewhat different, and becomes much more complicated, when an independent third party is added to the mix. For present purposes, broadly a third party may be regarded as a person who engages in conduct which potentially induces a legal consequence between two other parties, but who does not act in collusion with, or as representative or independent agent of either of the parties ('in other words a true outsider acting on his own'). A third party may actually intend an obligation to arise, such as by inducing a contract between two parties through fraudulent misrepresentation, or merely by deliberate act cause loss or enrichment without necessarily intending an obligation to arise between other parties. Also estoppel may be invoked as an effective bar to the vindicatory action of an owner where a third party has fraudulently disposed of the owner’s property to another. In such instances deliberate conduct on the part of the third party places other parties within a situation where a court could find that an obligation between them has arisen, or in the case of estoppel that a claim has been defeated. The deliberate act of the third party usually is the direct cause of the contract, loss, enrichment or prejudice, which raises the question whether liability should lie or estoppel be upheld in the circumstances.