Cumulation of tort and contract claims
In France, England and Germany, there are three very different way of cumulation of tort and contract responsibilities. Each State has his own application for this theory. In France, we can't cumulate contract and tort claims. The contract is very important in France and if we have a contract, we can't turn away this one and use tort claim. It's not possible. We protect contracts : 3° civ : contract takes advantages when two people are engaged in a contractual relationship. The contract is the mandatory law of the parties. One exception to this principle of “non cumul” exist when we are in presence of a contracts chain.
In Germany, the principle is the choice between contract claim and tort claim, the two actions are said to be “competing” : competition of claims (“Anspruchkonkurrenz”). There are interferences between tort and contract responsibilities. Tort responsibility is often subject to same constraints as contract responsibility, like for example similar short limitation period. But we can't cumulate both claims.
In english law, it is possible to cumulate contract and tort claim. J.A. Jolowick1 said “no formal rule against overlapping responsibilities is found, either in law or in jurisprudence”. In England, rules of tort differ a lot from rules of contract law. But, as the common law system is based on the compensatory nature of damages, this cumulation cannot lead to a double recovery. Many of the standard instances of liability in delict/tort for negligently caused harm can equally be based on breach of contract.
What is here important is the notion of cumulation of tort and contract responsibilities and the notion of choice between this two claims. In French law, Bénabent explains that : « the expression of cumul or non cumul can be misleading, because it may suggest that, even if one cannot claim under both regimes, one may at least choose which to invoke. That is not the case : the rule is really one that there is no choice, as the victim of harm that occurred in the context of a contract may not rely on delictual responsability ». Because in Germany, there is a choice but it's not possible to cumulate both claim. In France there is NO choice and we can't cumulate.
What is the most protective system ? In France we want to protect contractual relationship and in England we want ton protect the injured party. Each system has own advantages and disadvantages.
1J.A. Jolowick « aucune règle formelle de non cumul des responsabilités ne se rencontre, ni dans la loi, ni dans la jurisprudence ».
- Beale H., Fauvarque-Cosson B., Rutgers J., Tallon D. and Vogenauer S., Cases, Materials and Text on Contract Law, Oxford : Hart Publishing 2010
- Hess-Fallon B and Simon A-M, Droit civil, Sirey ; 2007
- Ruff A., Thomson, Contract LAw, Sweet and Maxwell ; 2005
- Von Bar C., Drobnig U, The interaction of contract law and tort and property law in Europe - a comparative study ; 2004