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Template:Concurrent liability: Difference between revisions
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'''''Warning''': written from a [[finance lawyer]]’s perspective. Construction lawyers, take with an even greater pillar of salt than usual.'' | |||
[[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]]. | ||
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Yet instinctive human fairness demands that Person B be compensated, and that the Defendant should be the one to pay, but the strict contractual lines seem to get in the way. (it isn’t clear that they do, by the way: because i have a contract with A, carrying it out carelessly cannot affect my civil obligations to B or C or D, if they are people whose interests I ought to hold in contemplation as I do). A concurrent duty in tort owed by the builder to that narrow and determinate group of “[[neighbour]]s” — and they might literally be [[neighbour]]s, if the house is terraced — or those who end up owning the house in the six years after it builds it — is a neat way of plugging the gap. But that group should not include the contracting counterparty itself, so really this isn’t true “[[concurrent liability]]” at all. | Yet instinctive human fairness demands that Person B be compensated, and that the Defendant should be the one to pay, but the strict contractual lines seem to get in the way. (it isn’t clear that they do, by the way: because i have a contract with A, carrying it out carelessly cannot affect my civil obligations to B or C or D, if they are people whose interests I ought to hold in contemplation as I do). A concurrent duty in tort owed by the builder to that narrow and determinate group of “[[neighbour]]s” — and they might literally be [[neighbour]]s, if the house is terraced — or those who end up owning the house in the six years after it builds it — is a neat way of plugging the gap. But that group should not include the contracting counterparty itself, so really this isn’t true “[[concurrent liability]]” at all. | ||
In any weather, these are unusual cases. In the normal run of things — at least when your rights and liabilities extent to instantly observable things like paying money and delivering securities — there’s little to be said for [[concurrent liability]]. In the grubbier world of building and manufacturing, the formal differences concerning when ones cause of action arises make a difference: a cause of action arises on breach, regardless of whether the breach is apparent or the loss has materialised; where liability depends proof of damage, as it does in [[negligence]], the period starts when plaintiff suffers loss. Thus, builders liability cases are the difficult children; cases about swaps and loans tend not to be. | In any weather, these are unusual cases. In the normal run of things — at least when your rights and liabilities extent to instantly observable things like paying money and delivering securities — there’s little to be said for [[concurrent liability]]. In the grubbier world of building and manufacturing, the formal differences concerning when ones cause of action arises make a difference: a cause of action arises on breach, regardless of whether the breach is apparent or the loss has materialised; where liability depends proof of damage, as it does in [[negligence]], the period starts when plaintiff suffers loss.<ref>{{cite|Pirelli Cable Works Ltd|Oscar Faber & Partners Ltd|1983|2WLR|6}}. There is a very good, detailed and famous, but ''looong'', monograph about all of this from then LLB honours student, now New Zealand Court of Appeal judge Christine French, which was published in the Otago Law Review in 1983 and reverentially praised in {{casenote|Henderson|Merrett}}. You can access it [http://www.austlii.edu.au/au/journals/OtaLawRw/1982/4.pdf here].</ref> Thus, builders liability cases are the difficult children; cases about swaps and loans tend not to be. | ||
The fact pattern in these builders cases is little different from that in {{casenote|Donoghue|Stevenson}} - the paradigm negligence case ''par excellence'' — where the buyer of the ginger-beer was not the one consuming it<ref>The difference is that the purchaser ''gave'' the ginger-beer to the victim, and did not ''sell'' it.</ref>. 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 {{t|contract}}. You can contract out of tortious duties (even if that isn’t obvious in principle to you, Lord Goff said so in {{casenote|Henderson|Merrett}}). 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: | The fact pattern in these builders cases is little different from that in {{casenote|Donoghue|Stevenson}} - the paradigm negligence case ''par excellence'' — where the buyer of the ginger-beer was not the one consuming it<ref>The difference is that the purchaser ''gave'' the ginger-beer to the victim, and did not ''sell'' it.</ref>. 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 {{t|contract}}. You can contract out of tortious duties (even if that isn’t obvious in principle to you, Lord Goff said so in {{casenote|Henderson|Merrett}}). 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 {{t|contract}}. Neither party will be liable to the other in tort under it.''” | :“''This is a {{t|contract}}. Neither party will be liable to the other in tort under it.''” | ||