Relevance of rules of contract in tort situations

Abstract

The historical origins of tort and contract have left some technical rules which separate them and may make it advantageous for a plaintiff to sue in tort or in contract. For example the duty in contract is generally strict while that in tort is not generally so. A plaintiff who has alternative cause of action in tort and contract may thus sue in contract. But this advantage is not listed to the law of contract for generally the damages that are recoverable in tort are wider than in contract. Also under the limitation of actions it is submitted that given the same circumstances arising from breach of duty, time may begin to run or may expire in contract when it has not begun to run in tort. This conflict between tort and contract raises the problem as to what law should be given primacy in a conflict situation. Three possible answers exist: (1) To give primacy to contract as creating the relationship;(2) To give primacy to tort on the basis that to exclude tort is to allow a wrongdoer benefit by committing two wrongs instead of one;(3) To give primacy to none and allow the plaintiff choose his cause of action. Some systems have made a choice between these but at common law only the second answer has not been adopted. Thus a Plaintiff may in some cases bring his action in tort or in contract or in contract alone depending on the capacity in which the contractual relationship is entered into. This conflict has extended to Private International Law and it is interesting to observe that the Courts have gone off in all directions to find an answer.