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There is no [[concurrent liability]], for example, in [[contract]] and [[tort]], because they are the yin and yang of civil liabilities: [[tort]] is the system of rights and obligations that are presumed to exist between otherwise unconnected souls whose existences happen to interfere with each other — who are “[[Neighbour|neighbours]]”, in Lord Atkin’s well-oiled phrase, but not “[[Counterparty|lovers]]” (in mine) — people who haven’t directly agreed what the rights and obligations between them should be. | There is no [[concurrent liability]], for example, in [[contract]] and [[tort]], because they are the yin and yang of civil liabilities: [[tort]] is the system of rights and obligations that are presumed to exist between otherwise unconnected souls whose existences happen to interfere with each other — who are “[[Neighbour|neighbours]]”, in Lord Atkin’s well-oiled phrase, but not “[[Counterparty|lovers]]” (in mine) — people who haven’t directly agreed what the rights and obligations between them should be. | ||
[[Tort]] is the business of describing the | [[Tort]] is the business of describing the elusive point at which strangers become [[neighbour|neighbours]], and articulating a practical public morality between them of the sort that the hateful ordinary [[Man on the Clapham Omnibus|fellow on the Clapham Omnibus]] might contrive. Those presumptive, “when all else fails” rules fall away when [[neighbours]] become intimate enough to personally agree specific rules of engagement between them. Then they are contracting [[Counterparty|counterparties]], and their specific rights and duties they have work out for themselves — their contractual obligations — override the general principles that tort would otherwise apply. If I have, in full possession of my senses, agreed to do something unreasonable, and you have agreed to pay for it, I cannot appeal to the rules derived from [[Donoghue v Stevenson - Case Note|misadventures with gifted gingerbeer]], [[Ferae naturae|escaping wild animals]] and [[Miller v Jackson - Case Note|mis-hit cricket balls]] to excuse my commitment. | ||
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