All entries for Tuesday 30 November 2010

November 30, 2010

Week 8 – The law of contract and the law of torts

For this blog, I would like to focus on the division between the spheres of tort law and contract law in the English legal system. Indeed, some law students study both simultaneously as ‘civil law’ or ‘the law of obligations’. In some ways, contract and tort share some similarities: both form legally binding relations, are borne out of human interaction and often financial or economic transactions, and can give rise to a legal duty before the civil courts. However, in reality and practice, both areas have extremely nuanced and separate distinctions at their foundations.

The classical and perhaps overly simplistic distinction lies firstly in the idea that, in tort law, liability arises from the breach of an obligation fixed by law. Contract law meanwhile revolves around an idea of liability set by the parties themselves. However, such claims have little resonance with modern contract law, which does not seek to define contracts purely on prior promises – as suggested in this definition.

An alternative difference is therefore not the existence of the duty, but its content. In tort law, the content of an obligation is defined in law, whereas contracts are specified by the parties. However, this is not always entirely convincing, as statute law and jurisprudence increasingly influence the shape and content of contracts, and conversely, tort duties can be changed through consent.

Another commonly cited division between the two is that tortious duties are owed to everyone – whilst obligations in contract law are only owed to contractants, because of the guarantee of contractual freedom. Yet again, this definition falls as further restrictions from legislators - such as the Compensation Act 2006 and Contracts (Rights of Third Parties) Act 1999 for tort and contract law respectively – have further muddled the waters between distinctions previously set in stone.

What I would see as the closest and most fitting definition comes from Markesinis, who highlights that tort law serves mainly to protect life and property, whilst contract is to some extent more concerned with promoting the further development of a person’s interests: that is, protection versus production. Whilst some exceptions do of course remain here, I believe that this abstract image, alongside the above illustrations, help to clarify the situation of the differences between the two branches of civil law.

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EU Consumer Protection:

Notices and Other Communications under UNCITRAL:

The Right of Withdrawal and Unfair Contract Terms:

Law Society speaks out on EU consumer contract law:

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