Template:Concurrent liability: Difference between revisions

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 The Defendant might say, well, my liability arises here under a contract, so therefore no action sounds in tort.
-Yet instinctive human fairness demands that Person B  be compensated, and that the Defendant should be the one to pay, but the strict contractual lines seem to get in the way. A concurrent duty in tort owed by the builder to that narrow and determinate group of neighbours — people who end up owning the house in the six years after it builds it — is a neat way of plugging the gap.
+Yet instinctive human fairness demands that Person B  be compensated, and that the Defendant should be the one to pay, but the strict contractual lines seem to get in the way. (it isn’t clear that they do, by the way: because i have a contract with A, carrying it out carelessly cannot affect my civil obligations to B or C or D, if they are people whose interests I ought to hold in contemplation as I do). A concurrent duty in tort owed by the builder to that narrow and determinate group of “[[neighbours]]” — and they might literally be [[neighbour]]s, if the house is terraced — or those who end up owning the house in the six years after it builds it — is a neat way of plugging the gap. But that group should not include the contracting counterparty itself, so really this isn’t true “[[concurrent liability]]” at all.
-These are unusual cases. In the normal run of things there’s little to be said for [[concurrent liability]]. The fact pattern in these builders cases is little different from that in {{casenote|Donoghue|Stevenson}} - the paradigm negligence case ''par excellence'' - where the buyer of the gingerbeer was not the one consuming it<ref>The difference is that the purchaser ''gave'' the gingerbeer to the victim, and did not ''sell'' it.</ref>. In a straightforward bilateral contract with no aggrieved Person B, it would be absurd for tortious duties that arise at general law to widen or constrict the allocation of risk set out in the {{t|contract}}. You can contract out of tortious duties (even if that isn’t obvious in principle to you, Lord Goff said so in {{casenote|Henderson|Merrett}}). Unless your contract is uncommonly vague, by just having one you will have done so. You can always explicitly exclude tortious liability in the contract if you are really worried about it (though it does look a little “[[for the avoidance of doubt]]” to this pair of eyes. It’s not hard to do:
+In any weather, these are unusual cases. In the normal run of things there’s little to be said for [[concurrent liability]]. The fact pattern in these builders cases is little different from that in {{casenote|Donoghue|Stevenson}} - the paradigm negligence case ''par excellence'' - where the buyer of the gingerbeer was not the one consuming it<ref>The difference is that the purchaser ''gave'' the gingerbeer to the victim, and did not ''sell'' it.</ref>. In a straightforward bilateral contract with no aggrieved Person B, it would be absurd for tortious duties that arise at general law to widen or constrict the allocation of risk set out in the {{t|contract}}. You can contract out of tortious duties (even if that isn’t obvious in principle to you, Lord Goff said so in {{casenote|Henderson|Merrett}}). Unless your contract is uncommonly vague, by just having one you will have done so. You can always explicitly exclude tortious liability in the contract if you are really worried about it (though it does look a little “[[for the avoidance of doubt]]” to this pair of eyes. It’s not hard to do:
 {{box|This is a {{t|contract}}. Neither party will be liable to the other in tort under it.}}