Tort and Contract

Tort and Contract. Contract law is the body of law that deals with contracts, written, oral, express and implied. Tort law is the law that deals with the legal theories of negligence and strict product liability.

However, contract law Vs tort law, broadly speaking both are branches of civil law. They define how a person can commit civil wrong which can lead to liability for injury to another person or damage to their property or other interests. Both breach of contract and breach of the duty of care engender liability to pay money damages to compensate the injured party for the harm done to them.

A tort, in common law jurisdiction, is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. It can include intentional infliction of emotional distress, negligence, financial losses, injuries, invasion of privacy, and many other things.

Tort and Contract

The main distinction between tort and contract is that in tort the duties of the parties are primarily fixed by law, whereas in contract they are fixed by the parties themselves. In other word, contractual duties arise from agreement between the parties; tortuous duties are created by operation of law independently of the consent of the parties.

Secondly, the duties owed by two contracting parties towards one another are frequently not duties which they expressly agreed upon but obligations which the law implies, such as the terms implied under the Sale of Goods Law 1958, or under the Hire Purchaser Act 1965.

Conversely, some duties in tort can be varied by agreement, for example, the duties owed by the occupier of premises to his visitors; and liability in tort can be excluded altogether by consent (the doctrine of non fit injuria)

Sometimes a wrongful act may be both a tort and a breach of contract, for example:

  1. Is A has contracted to transport B’s goods, and due to A’s negligence the goods are lost or damaged A will be liable to B for breach of the contract of carriage and for the tort of negligence.
  2. A dentist who negligently causes injury in the course of extracting a tooth may be liable to the patient both for breach of an implied term in his contract with the patient to take reasonable care, and for the tort of negligence.

Lastly, there are some areas of overlap between contract and tort: for instance, a victim of fraudulent misrepresentation in may sue for the tort of deceit, and a victim of negligent misrepresentation may sue for the tort of negligence.
Also, there are some concepts, which are common to both contract and tort, for example, the concept of remoteness of damage and of agency.

Tort and breach of trust

Liability in tort and liability for breach of trust are fundamentally different in that whereas tort is a common law concept, the trust is purely equitable creation and was never recognized by the common law. A trust arises where a property is given to trustees to hold on behalf of certain beneficiaries, and a breach of trust will occur if the trustees deal with the property in an unauthorized way,.

If, for example, the trustees misappropriate the trust property, the beneficiaries may bring an action against them to recover the property or its value.

This is quite different from damages in tort, since a claim for breach of trust is liquidated and is measured by the loss caused to the trust estate, whereas a claim for damages in tort is unliquidated. Furthermore, a claim for breach of trust is not properly regarded as a claim for damages at all, for damages is a purely common law concept, and trusts are equitable only. It is thus appropriate to regard the concept of breach of trust as belonging to an entirely separate system of law and having no connection with tort.

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