Template:Concurrent liability

Citizens and brethren attorneys will occasionally caution you that the four corners of a contract might not be the extent of your liability: You might get sued in tort.

You what?

Extraordinary though it seems, technically it is true. Lord Scarman’s sensible observations in Tai Hing Cotton Mills v 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 Henderson v Merrett being a prominent example.

But these are typically “builders’ liability” cases where a Defendant agreed to build a house for Person A, who sold it to Person B upon whom, inevitably, it collapsed. Uniquely here there is a gap between contractual bat and pad:

• Person A has a contract, and therefore a cause of action for breach against the Defendant but has suffered no loss.
• Person B has suffered a loss alright, but has no contract and therefore no cause of action for breach against the Defendant.

These are unusual cases. In the normal run of things there’s little to be said for concurrent liability. 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 contract. You can contract out of tortious duties (even if that isn’t obvious in principle to you, Lord Goff said so in Merrett v Henderson). 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:

This is a contract. Neither party will be liable to the other in tort under this agreement.