Last edited 11 May 2017

Contract vs tort

The classic nineteenth 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 seventeenth 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.