82,882
edits
Template:Concurrent liability: Difference between revisions
Template:Concurrent liability (view source)
Revision as of 13:04, 24 November 2020
, 24 November 2020no edit summary
Amwelladmin (talk | contribs) No edit summary |
Amwelladmin (talk | contribs) No edit summary |
||
| Line 5: | Line 5: | ||
Extraordinary though it seems, technically it is true. Lord Scarman’s sensible observations 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 a prominent example. There, Lord Goff noted that the law of tort is the general law, the law of contract in a way a specific instance of it. So, first, establish the duty in tort, and then see if the duties in a contract modify or replace it: | Extraordinary though it seems, technically it is true. Lord Scarman’s sensible observations 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 a prominent example. There, Lord Goff noted that the law of tort is the general law, the law of contract in a way a specific instance of it. So, first, establish the duty in tort, and then see if the duties in a contract modify or replace it: | ||
:''“Yet the law of tort is the general law, out of which the parties can, if they wish, contract: [...]. Approached as a matter of principle, therefore, it is right to attribute to that assumption of responsibility, together with its concomitant reliance, a tortious liability, ''and then to enquire whether or not that liability is excluded by the contract because the latter is inconsistent with it''.”<ref>Emphasis added.</ref> | :''“Yet the law of tort is the general law, out of which the parties can, if they wish, contract: [...]. Approached as a matter of principle, therefore, it is right to attribute to that assumption of responsibility, together with its concomitant reliance, a tortious liability, '''and then to enquire whether or not that liability is excluded by the [[contract]] because the latter is inconsistent with it'''.”<ref>Emphasis added.</ref> | ||
In the case of [[Financial instrument|''financial'' contracts]], generally it will. In other, unusual cases, it might not. But these are typically “builders’ liability” cases where a Defendant built a house for Person A, who sold it to Person B, upon whom, at some significant remove, it collapsed. Uniquely here, there is a gap between contractual bat and pad: | In the case of [[Financial instrument|''financial'' contracts]], generally it will. In other, unusual cases, it might not. But these are typically “builders’ liability” cases where a Defendant built a house for Person A, who sold it to Person B, upon whom, at some significant remove, it collapsed. Uniquely here, there is a gap between contractual bat and pad: | ||