Last edited 10 May 2021

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

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