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Contractual negligence: Difference between revisions
→But isn't this an easier catch-all?
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But a contract is meant to stipulate what you are expected to do. For some obligations, a "reasonable standard of care" rider is not appropriate. The payment of money, for example. | But a contract is meant to stipulate what you are expected to do. For some obligations, a "reasonable standard of care" rider is not appropriate. The payment of money, for example. | ||
{{Box|Bill borrows Ben's car. He agrees to return it to Ben on Thursday at 3pm. At the appointed time Bill presents himself to Ben, but announces that he has just been mugged, and the car has been stolen. His mugger was quite unexpected, applied overwhelming force, and immediately drove the car into a wall and wrote it off. Through no fault of his own, Bill is unable to perform his obligation. Should he be able to rely on a carve out from liability because he has not been negligent?}} | {{Box|Bill borrows Ben's car. He agrees to return it to Ben on Thursday at 3pm. At the appointed time Bill presents himself to Ben, but announces that he has just been mugged, and the car has been stolen. His mugger was quite unexpected, applied overwhelming force, and immediately drove the car into a wall and wrote it off. Through no fault of his own, Bill is unable to perform his obligation. Should he be able to rely on a carve out from liability because he has not been negligent?}} | ||
====What about concurrent liability in Tort and Contract?==== | |||
The sensible observation, 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 the most prominent example. | |||
But these are typically "builders' liability" cases where the defendant had a contract with one person who sold the house to another before it, inevitably, collapsed. Here: | |||
*The contracting party has a cause of action for breach but has suffered no loss. | |||
*The Purchaser has suffered no loss but has no cause of action for breach. | |||
Where there's an ordinary contract between two folks and no aggrieved third party, it would be absurd for tortious duties to widen or constrict the allocation of risk set out in the contract. In any case you can always exclude tortious liability in the contract if you are really worried about it. Like so: | |||
{{box|This is a contract. Neither party will be liable to the other in tort under this agreement.}} | |||
''But explicitly referencing a tortious standard in your contract hardly helps with that exercise''. | |||
===See also=== | ===See also=== | ||
{{casenote|Fardell|Potts}} | {{casenote|Fardell|Potts}} | ||