Template:Noncontractualobligations: Difference between revisions
Amwelladmin (talk | contribs) (Created page with "“non-contractual obligations” includes claims based on tort (such as negligence), breach of competition law and breach of statutory duty.") |
Amwelladmin (talk | contribs) No edit summary |
||
| Line 1: | Line 1: | ||
“[[non-contractual obligations]]” includes | If you’ve ever despaired at the pernicketiness of {{tag|governing law}} clauses such as this:— | ||
:''This agreement and any [[non-contractual obligation]]s [[arising out of or in connection with it]] shall be governed by and construed [[in accordance with]] {{tag|English law}}.'' <br> | |||
Then you have the [[Rome II]] {{tag|EU Regulation}} ({{eureg|864|2007|EC}} to blame. Enacted in July 2007 it applies to all {{tag|EU}} Member States<ref>Except {{tag|Denmark}}.</ref> and is designed to harmonise the “[[conflict of laws]]” rules across [[Member States]]<ref>Except {{tag|Denmark}}.</ref> dealing with with [[non-contractual obligations|non-contractual disputes]]. | |||
===[[Non-contractual obligations]]=== | |||
In this context breach of “[[non-contractual obligations]]” includes actions based on [[tort]] (e.g. [[negligence]]), [[competition law]] and [[statutory duty]]. But, fabulously, ''not'' those arising out of the [[negotiable]] nature of [[bills of exchange]], [[cheque]]s and [[promissory note]]s and other [[negotiable instrument]]s, or [[company law]] or [[defamation]] — though it’s hard to see how you could have a [[non-contractual obligation]] to defame someone. | |||
But the main thing is to ensure any [[concurrent liability|concurrent claims]] in {{tag|contract}} and [[tort]] can be — must be — decided in the same forum. This is mostly interesting where the parties to a {{t|contract}} are in different jurisdictions, and each will prefer their own jurisdiction to hear a non-contractual dispute. But even there, frankly, a concurrent claim in {{tag|tort}} would only be relevant in most cases to [[concurrent liability|builders]]. | |||
Of course, the sensible thing would be to expressly exclude [[tort]] claims under the {{tag|contract}}. But for those not prescient enough to do that, there’s always this [[magic words|magic]] incantation. | |||
Revision as of 10:00, 28 December 2018
If you’ve ever despaired at the pernicketiness of governing law clauses such as this:—
- This agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
Then you have the Rome II EU Regulation (864/2007/EC (EUR Lex) to blame. Enacted in July 2007 it applies to all EU Member States[1] and is designed to harmonise the “conflict of laws” rules across Member States[2] dealing with with non-contractual disputes.
Non-contractual obligations
In this context breach of “non-contractual obligations” includes actions based on tort (e.g. negligence), competition law and statutory duty. But, fabulously, not those arising out of the negotiable nature of bills of exchange, cheques and promissory notes and other negotiable instruments, or company law or defamation — though it’s hard to see how you could have a non-contractual obligation to defame someone.
But the main thing is to ensure any concurrent claims in contract and tort can be — must be — decided in the same forum. This is mostly interesting where the parties to a contract are in different jurisdictions, and each will prefer their own jurisdiction to hear a non-contractual dispute. But even there, frankly, a concurrent claim in tort would only be relevant in most cases to builders.
Of course, the sensible thing would be to expressly exclude tort claims under the contract. But for those not prescient enough to do that, there’s always this magic incantation.