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
Protective construction clothing for women
It shouldn't be so difficult to find PPE that fits properly.
Pivoting infrastructure technology stands up to the test of time.
Report on the construction sector in Ireland
TASC/CIOB study looks at post-pandemic struggles and trends.
Revised targets for Carbon Budget 6
The Government announces recalibrated goals.
ECA proposes strategies for the present and the future.
Paul Morrell to lead independent review of the construction products testing regime.
Standard will help employers foster wellbeing and manage psychosocial risks.
The United Nations has approved the IFSS common principles
Global fire standards for safety of people and property.
An introduction to the 5 core principles of lean.
Civil engineers and environmental methods of construction
Can the profession use its skills to save the world from climate change?
How faulty science resulted in sanitation reform.
Conserving the Hilda Besse Building
Improving facilities, accessibility and overall appearance.
BSRIA IAQ topic guide published
Free download of TG 12/2021 available.
Electrotechincal mentors wanted
TESP works with The Youth Group to form skill sharing network.
Receive the Designing Buildings newsletter
Click the button to subscribe.