Differenciate Tort and Contract

Where does Tort fit in system of English Law?

PUBLIC LAW PRIVATE LAW
Involving Public Authority Civil Obligations
Constitutional Law Property Law
Administrative Law Contract Law
Criminal Law Tort

Individual v State Claimant v Defendant
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Tort and Contract

Definitions

TORT “Tortious liability arises from the breach of a duty primarily fixed by law: this duty is towards persons generally and its breach is redressible by an action for damages”

CONTRACT “Most contracts take the form of an agreement, that is to say, each party agrees to accept the promise or promises of the other in return for the promise or promises made by itself”

Similarities

Both tort and contract create civil law obligations.
Breach of both types give rise to an action for damages.
Civil courts have jurisdiction to hear contract and tort claims.

Differences

1. As a general rule contractual obligations are voluntarily undertaken but in law of Tort there is no free choice – law imposes the obligation.
2. A person who enters into a contractual obligation owes only a duty to the other party to the contract. In tort owe duty to everyone not to use violence against them, not to trespass on property belonging to others, not to defame them.
3. Generally, liability in contract is strict, while tortious liability is based on fault.
4. Generally, contractual liability is imposed on a person who has not done what promised to do. In tort imposed on someone who has done something should not have done or has failed to do something should have done.
5. Damages: the object of awarding damages in contract is to put claimant in position would have been in had contract been performed. In tort, it is to put the claimant in the position he would have been in had the tort not happened.

SOURCES OF LAW

Statute

A statute is a law passed by Parliament. Statutory Law is known as legislation. In the UK, Parliament is the supreme legal authority. A statute can change the law developed by judges in courts. A judge in a court of law can interpret a statute but cannot change it even if he thinks there is a defect in a statute. Only Parliament can change a statute by passing another statute.

Cases

Much of the English Law had been created and developed by judges when they give judgements in disputes which come before the courts. When judges decide a case, they not only have to give a decision in favour of one party or another – they have to give a reason for the decision.

The reasons for the decision are known as the ratio decidendi. The binding principle of law in a case is found in the ratio decidendi.

House of Lords
Court of Appeal
Divisional Court
High Court
Crown Court
County Court
Magistrates Court


GENERAL CHARACTERISTICS OF TORTIOUS LIABILITY

Liability arises out of a wrongful act or omission
Note: there are situations where one person is liable for another’s wrongful act or omission – Vicarious Liability.

Generally, tortious liability is based on “fault” of the defendant.
“Fault” means that the claimant must prove that the defendant committed the act (or omitted to act) intentionally or negligently.

Generally, the claimant must prove that s/he has suffered damage which is not too remote a consequence of the defendant’s wrongful act or omission.


AIMS AND OBJECTIVES OF THE LAW OF TORTS

Compensation for harm (Unliquidated damages)

Prevent continuation of harm (Injunction)

Punishment of wrongdoer (Defamation: court can award exemplary damages)
Deterrence

Justice

Restoration for Unjust Enrichment (Claimant may sue someone wrongfully detaining goods)


INTERESTS PROTECTED BY LAW OF TORTS

PERSONAL INTERESTS

Intentional interference with personal interests

Battery – the direct and intentional application of physical force to the person of another without lawful justification.

Assault – an act which directly and intentionally causes the claimant reasonably to apprehend a battery is about to be committed against him by the defendant.

False Imprisonment – an act which directly and intentionally places a total restraint upon the claimant’s freedom of movement without lawful justification.


Negligent Interference with personal interests

Negligence – the tort of negligence is committed when the defendant’s breach of his duty of care causes physical damage to the claimant.

Occupier’s Liability – an occupier is a person who has a sufficient degree of control over premises to put him under a duty of care towards those who come onto his premises – covers farmer, garage owner, householder.

Breach of Statutory Duty

Breach by the defendant of an obligation imposed upon him by statute may enable a person injured by the breach to bring a civil action for damages for “breach of statutory duty”. Health and Safety at work Legislation imposes many duties on employers. If, in breach of the Legislation, the employer can be found liable without proof of negligence or intention (no fault).


PROPERTY INTERESTS

Intentional Interference with property interests

Tort of Conversion – where defendant deals with the claimant’s goods in such a way it is wrongful denial of the claimant’s rights to the goods ( sell car without knowledge).

Trespass to Goods – tear page from book without consent.

Trespass to Land – intentionally go on someone’s land without permission of owner.

Neglient Interference with property interests

Interference with property interests without negligence or intention

Nuisance – the claimant may bring an action where the defendant unlawfully interferes with his use or enjoyment of his land. In Adams v Ursell (HC 1913), the smell from a fried-fish shop was held to constitute a nuisance to nearby residents. To cause an encroachment upon the Claimant’s land of some tangible thing such as tree roots may be actionable (Davy v Harrow Corp – CA 1958).


ECONOMIC INTERESTS

Intentional Interference with economic interests

False Representation – defendant makes a false statement knowing it to be false or without belief in its truth; intends claimant to rely on the statement and act upon it; claimant does rely and act upon it; claimant suffers economic loss.

Unlawful interference with trade – eg tort of conspiracy where 2 or more traders get together to act so as to cause damage to the trade of another.

Negligent Interference with economic interests

Tort of Negligence – in certain circumstances, a person who commits a negligent act or makes a negligent statement and causes economic loss to another is liable to make compensation. 

Builders and contractors are liable to those who suffer loss caused by defects in buildings.


INTERESTS IN REPUTATION

Defamation – the publication of a statement which tends to lower a person in the estimation of right thinking people generally or which tends to make them shun or avoid him. In Berkoff v Burchill – CA – 1996, a majority of the Court of Appeal held that to describe a film actor and director as ‘hideously ugly’ was capable of being defamatory in that it could lower his standing in the public’s estimation and make him an object of ridicule.

MISUSE OF PROCESS

Malicious Prosecution – the tort of malicious prosecution protects a person who has been wrongfully subjected to judicial proceedings by another who has acted maliciously in bringing proceedings.