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Template:Concurrent liability: Difference between revisions
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[[Mediocre lawyer|Brethren attorneys]] will occasionally caution you that the four corners of a {{tag|contract}} might not be the extent of your liability: You might get sued in [[tort]]. | [[Mediocre lawyer|Brethren attorneys]] will occasionally caution you that the four corners of a {{tag|contract}} might not be the extent of your liability: You might get sued in [[tort]]. | ||
Extraordinary though it seems, technically it is true. Lord Scarman’s sensible observations in {{casenote|Tai Hing Cotton Mills|Liu Chong Hing Bank}}, that there isn’t “anything to the advantage of the law’s development in searching for a liability in tort where the parties are in a contractual relationship” has been long since overruled - 1995’s {{casenote|Henderson|Merrett}} being a prominent example. | Extraordinary though it seems, technically it is true. Lord Scarman’s sensible observations in {{casenote|Tai Hing Cotton Mills|Liu Chong Hing Bank}}, that there isn’t “anything to the advantage of the law’s development in searching for a liability in tort where the parties are in a contractual relationship” has been long since overruled - 1995’s {{casenote|Henderson|Merrett}} being a prominent example. There, Lord Goff noted that the law of tort is the general law, the law of contract in a way a specific instance of it. So, first, establish the duty in tort, and then see if the duties in a contract modify or replace it: | ||
But these are typically “builders’ liability” cases where a Defendant built a house for Person A, who sold it to Person B, upon whom, at some significant remove, it collapsed. Uniquely here, there is a gap between contractual bat and pad: | :''“Yet the law of tort is the general law, out of which the parties can, if they wish, contract: [...]. Approached as a matter of principle, therefore, it is right to attribute to that assumption of responsibility, together with its concomitant reliance, a tortious liability, ''and then to enquire whether or not that liability is excluded by the contract because the latter is inconsistent with it''.”<ref>Emphasis added.<./ref> | ||
In the case of [[Financial instrument|''financial'' contracts]], generally it will. In other, unusual cases, it might not. But these are typically “builders’ liability” cases where a Defendant built a house for Person A, who sold it to Person B, upon whom, at some significant remove, it collapsed. Uniquely here, there is a gap between contractual bat and pad: | |||
*Person A had a [[contract]], for six years from the date of construction, and therefore a [[cause of action]] for breach against the Defendant but, sold the house at full value and has suffered no [[loss]]. | *Person A had a [[contract]], for six years from the date of construction, and therefore a [[cause of action]] for breach against the Defendant but, sold the house at full value and has suffered no [[loss]]. | ||
*Person B has suffered a [[loss]] all right, but has no contract with (and therefore no [[cause of action]] for [[breach]] of one against) the Defendant, and cannot sue Person A who was innocent of any knowledge of the defect when it sold the house. | *Person B has suffered a [[loss]] all right, but has no contract with (and therefore no [[cause of action]] for [[breach]] of one against) the Defendant, and cannot sue Person A who was innocent of any knowledge of the defect when it sold the house. | ||