Contract vs tort
The classic 19th century definition of a contract is 'a promise or set of promises which the law will enforce' (Pollock, Principles of Contract 13th edition). That is to say, there is reciprocity of undertaking passing between the promisor and the promisee.
Tort, on the other hand, is generic in nature and therefore more difficult to define. It is a collection of civil law remedies entitling a person to recover damages for loss and injury which have been caused by the actions, omissions or statements of another person in such circumstances that the latter was in breach of a duty or obligation imposed at law.
In contract, the rights and obligations are created by the acts of agreement between the parties to the contractual arrangement.
In tort, the rights and obligations are created by the courts applying common law, which has, on the basis of previous authority fallen into three distinct categories:
Historically, actions in contract and in tort derived from the same source - trespass - compared with actions for breach of a deed, which were based upon an action on the covenant. Actions for breach of contract were based on assumpsit and actions in tort were ex delicto. In the 17th century the courts began to draw procedural but not substantive distinctions between assumpsit and actions ex delicto.
These distinctions became substantive differences during the nineteenth century, reflecting the political social and economical philosophy of 'laissez-faire', which emphasised the importance of the legal doctrines of freedom of contract and sanctity of contract.
The area of tort which recently has been most exhaustively considered by the courts is negligence.
In a lecture to the Technology & Construction Bar Association and the Society of Construction Law on 30th October 2014, Lord Justice Jackson described the difference as: “The law of tort or delict requires D (defendant) to refrain from injuring C’s (claimant) person or property, alternatively to compensate C for any injury or loss caused. The law of contract requires D to fulfil his promises to C or, in default, to make compensation.” Ref https://www.scl.org.uk/sites/default/files/Concurrent%20Liability_0.pdf
[edit] Related articles on Designing Buildings Wiki
- Alternative dispute resolution.
- Adjudication.
- Arbitration.
- Breach of contract.
- Causes of construction disputes.
- Construction contract.
- Contract negotiation.
- Delict.
- Derogation from grant.
- Dispute resolution boards.
- Donoghue v Stevenson.
- Mediation.
- Modifying clauses in standard forms of contract.
- Negligence.
- Procurement
- Scheme for Construction Contracts.
- Strict liability.
- Trespass.
Featured articles and news
A change to adoptive architecture.
A must read for all built environment professionals.
A sun, tide, mass or scratch dial.
A brief description of time in the sun.
ICE Trustee Board update June 2022
Given by ICE President Ed McCann.
Artificial intelligence and project management
Two new research reports published by APM.
Association for Project Management membership offer
50% off APM Associate membership for Designing Buildings users.
Building safety, a shifting landscape for professionals
A commentary from the insurance perspective.
In brief with further links.
Walter Segal: self-built architect
A definitive book on a pioneer of green architecture.
Funding for heritage on the high street
Using heritage as a catalyst for reviving historic centres.
Commonwealth Heads of Government Meeting update.
Declaration prioritising sustainable urbanisation adopted.
A small hidden, often distant but key building component.
Some brief words about the actuator.
CIAT Chief Executive steps down.
After 34 years at the Institute.
Volunteer opportunity launched by the ICE
To support the next generation of engineers.
Provisional findings show illegal cartels in the industry.
CIAT reporting from the Competition and Markets Authority.
Making sustainable construction number one priority.
The future of construction report.
Interview with ECA CEO.
Many provisions came into force on June 28, 2022.
With room to expand.
An information packed session at the BSRIA conference.
Refurbishment, Energy Efficiency, Indoor air and process.
Create a profile, write informed product articles and share.
Aluminium Composite Panels (ACP) is one example.
We are indeed now 10 years old, so go on and be bold !
Write about something you know, help us build and grow !