The tort/contract boundary: great divide or grand illusion

Abstract

This thesis considers the difference between contract and the tort of negligence. It compares the traditional view of the distinction with a more contemporary view, and concludes that the two areas of law are becoming interrelated. Three main aspects of contract and tort are compared; the nature of the liability, the scope of the liability and the extent of the remedy. The historical origins of the two areas of law are explored, as are the ideological concepts which underpin them. There is also an investigation of how the courts in the UK deal with the relationship between contract and tort in both contracts for services and contracts of service; these being two areas where there is a considerable overlap between contractual and tortious liability. The thesis argues that contract and the tort of negligence are based on common historical roots and underpinned by common ideologies. In both cases, the courts seek to decide liability on the basis of 'reasonableness', a subjective concept which is determined according to their own criteria. This is seen as related to such factors as the bargaining power of the litigants, and their opportunities to secure alternative means of protection against liability. It is suggested that this is more important than whether the action is brought in contract or tort. The nature of the contract/tort divide is considered in the alternative jurisdiction of New Zealand, in order to see how it deals with the problems posed. The thesis concludes by considering whether an alternative model could be constructed in order to explain the current nature of the relationship between contract and tort, and what type of relationship should exist.