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Sometimes, rights arising in different ''magisteria'' of the law ''aren’t'' cumulative. That is inevitable, you should embrace it, and a hastily injected “[[rights cumulative]]” clause is a chocolate teapot anyway. | Sometimes, rights arising in different ''magisteria'' of the law ''aren’t'' cumulative. That is inevitable, you should embrace it, and a hastily injected “[[rights cumulative]]” clause is a chocolate teapot anyway. | ||
There is generally 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 — | There is generally 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, but who haven’t directly agreed what the rights and obligations between them should be — “[[Neighbour|neighbours]]”, in Lord Atkin’s well-oiled phrase, but not “[[Counterparty|lovers]]” (in mine). | ||
[[Tort]] is the business of describing the elusive point at which strangers become [[neighbour|neighbour]]s, and articulating a practical public morality between them of the sort that hateful [[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 agree specific bilateral rules of engagement between them. Then they are contracting [[Counterparty|counterparties]], and those specific rights and duties they have worked out for themselves — their contractual obligations — override the general principles that tort would otherwise apply. It is true that a tortious relationship will pre exist a contractual one — it is hard to get close enough to someone else to engage in intimate contractual relations with them without becoming neighbours first — but seeing as the very point of a contract is to dispell all those uncertainties, it seems to me contractual obligations are, at their essence, intended to dispel tortious ones. | [[Tort]] is the business of describing the elusive point at which strangers become [[neighbour|neighbour]]s, and articulating a practical public morality between them of the sort that hateful [[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 agree specific bilateral rules of engagement between them. Then they are contracting [[Counterparty|counterparties]], and those specific rights and duties they have worked out for themselves — their contractual obligations — override the general principles that tort would otherwise apply. It is true that a tortious relationship will pre exist a contractual one — it is hard to get close enough to someone else to engage in intimate contractual relations with them without becoming neighbours first — but seeing as the very point of a contract is to dispell all those uncertainties, it seems to me contractual obligations are, at their essence, intended to dispel tortious ones. | ||