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The Potential For Concurrent Liability Add in library

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Question:

Academics and judges have long debated the overlap between the law of contract and tort and the potential for concurrent liability. Explain?
 
 

Answer:

Contract is nothing but a form of agreement which is made among two or more parties and the agreement give rise to obligations which the parties must follow and are enforceable under the court of law (Andrews, 2011). Three basic elements are being included in the process to form a valid contract which can be enforceable under law.

Offer: An offer is the term which is used when he parties are willing to get into a contract with the person in order to form a contract under some specific obligations (Anson, 1899). The parties should have the intention to get into a valid contract. A party who is willing to get into a contract is bound to express his willingness to another party with whom the offer is addressed. However, there must prevail an objective expression to intent by the offeror which must be included in the offer. The terms and conditions of the agreement must be included in the offer so that the parties may clear their obligation. In many cases, the third party is associated during the formation of the contract which may be used as a witness in future. As per English law, offer can be addressed to a specific individual, group or in some cases it can be n organisation also. An offer can be made either in oral form or in written form or may be in both the forms (Beale & Tallon, 2002). In various cases it is being observed that offer made by an oferee is confused with the invitation to treat. In cases of invitation of treat, party make offer in order to invite parties which is different from an offer. Thus, invitation to treat is treated as an advertisement (Elliott & Quinn, 2007). This can be stated from the case study, Carlill v Carbolic Smoke Ball Company [1893] 2 QB 256 (Simpson, 1985).

 

Acceptance: An acceptance is referred as the final expression of the party in terms of the offer. If the party t whom the offer is addressed agreed with the terms and conditions which are being implemented in the offer, then the party must accept the offer for getting into the contract which will be enforceable under the court of law (McKendrick, 2005). Thus, it is relevant that the party must agreed with the terms for accepting the offer. From various sources it is noticed that offer must be accepted by conduct. As per the law, acceptance has no legal effect unless and until there prevail no communication among the offeree and offeror. In many cases it is being also notice that the postal acceptance takes place whenever the letter of acceptance is being posted by the offeree (Stone, 2003).    

Consideration: every valid contract must include the term consideration. This is because according to English contract law, a value must be given against the promise and then only that can be enforceable in law. Consideration must be unconditionally in nature and under the contract law, partial consideration is not being considered therefore the contract cannot be referred as a valid contract (Mulcahy, 2008). Past consideration are not considered in a valid contract. Promise is liable to provide the consideration to the promisor. As per the law, if the promise is made by a party for providing a particular service to the party in lieu of a consideration, but the service is provided by some third party then the promise is not liable to pay to the promisor who did not provide the service (Turner, 2006).

It is important for the parties to keep in mind that they have an intention to create and establish a valid contract among each other. A contract can be express or implied in nature depending upon the situation. When a party fails to act as per the obligations which are being implemented in the contract, then the party will be responsible for the breach of the contract. Breach of contract can also be happened by the party when the parties act something which differs from the actions which he should act as per the terms and condition of the contract. Incapacitating oneself is also a major factor which leads the party to breach the terms of the contract. In many situations it is being noticed that the party has breached the contract by selling goods to third party in order to earn more profit.  

 

Tort is considered to be a civil wrong. Situations where the law of contract is not applicable, and issues are separate from the terms of contract, the law of tort is implied. Tort is applicable in cases like personal injury, economic losses, harm etc (Brennan, 2011). However, it is also relevant that ruining reputation is also included in the law of tort. Claimants are entitles to receive compensation if the claimant able to provide proofs against the defendant in the court that a tort has been taken place. Various cases of law of tort is associated with the owners of the company and the employers and in this situation if the claimant succeed to prove a tort then they are liable to pay the compensation on their part (Faure, 2009). The defences of volenti is a term which is available for the defendant under the law of tort in places where the defendant wished to show that the plaintiff was also partly liable for the issue which has been arose. Cases where both defendant and the claimant are both negligent on their part, then there are every chance that the claimant may lose that case. The case studies which are refereed for such situation are as follows: Morris v Murray, O’Reilly v National Rail and Tramway Appliances. In the case study of Nettleship v Wesrton, a driving instructor has committed an accident which caused injury and this had happened due to the negligence of his pupil. In this particular case study, Lord Denning M.R. stated that “Knowledge of the risk of injury is not enough....Nothing will suffice short of an agreement to waive any claim for negligence. The Plaintiff must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant: or, more accurately, due to the failure of the defendant to measure up to the standard of care that the law requires of him.” (Bingham, 2010)

In order to submit the proof for showing that the defendant is associated with action of .negligence, the plaintiff is liable to prove a number of things (Greene, 2012). The first and foremost thing which must be done by the plaintiff is to show the court that the defendant owed the duty of care. The concept of duty of care is being established from the famous case study of Donoghue v Stevenson. In this case study, the house of law has rejected the existing law related to liability of careless behaviour. Thus, the plaintiff have to show the court that the damages which the claimant has suffered was made foreseeable so that the court could find hat a duty of care is exist between the claimant and the defendant. The second thing that the plaintiff must prove is that the defendant has breached the duty of care which is owed by the plaintiff. Then the court will try to find out the standard of care that the defendant owed to the plaintiff (Wils, 2004). The standard of care is determined by the care which is associated with the profession of the individual (Priaulx, 2007). Thus, the balance is being done by the court regarding this standard and the risk factors which are being associated with the duty of care. The most important pat which the plaintiff has to produce in front of the court is that the defendant has breached the duty of care and for that reason the plaintiff has to suffer from damages (Samuel, 2010). Cases where the plaintiff succeed to satisfy the court regarding the damages made by the defendant and suffered by him but still he have to show the court that damages are too remote compare to the negligence of the defendant. Thus, according to the law of tort, he defendant is not liable to repay any kind of damages which he could reasonably have foreseen (Turner, 2011).   

Relationship is being noticed between law of tort and contract law. The breach of contract is mainly take place because of the breach of duty which must be performed by one of the partner in a contract. Both contract law and law of tort are considered under civil law. Contracts which are being established among the contractor and the client have the option where the law of tort can be raised easily. Though the contract between the contractor and the client is being overlapped still there prevail a duty of care on the part of the contractor. If the contractor have build a bridge ad that bridge was damaged after a year after the termination of contract, then in such situation the contractor will be liable for incurring the damages for the bridge. This is because the contractor should perform the duty of care towards the client. If the bridge got damage because of poor workmanship and material, then the contractor is liable to repay the damages or have to take action for the damage which is being incurred by the contractor because he has breached the duty of care though the contract is terminated.    

The principle which is associated with the action where multiple numbers of defendants will be liable for a particular damage is termed as concurrent liability (Ross, 1987). Therefore, in such situation, plaintiff has the option to act against the multiple numbers of defendants who are being liable for the damages. However, according to the law of UK, there prevail different types of concurrent liabilities which are as follows:

  • Joint enterprise

  • Vicarious liability

  • Non-delegable duties

  • Multiple torts causing the same damage

The meaning of the concurrent liability explains the situation where the parties have a contractual as well as tortuous liability.  Thus, in many situation t is been proved that liability can be held concurrently from both tort and contract. However, in the case study of Donoghue v Stevenson (1932), Lord Macmillan stated that “The fact that there is a contractual relationship between the parties...does not exclude the co-existence of a right of action founded on negligence as between the same parties..... ” Various ways are prevailed which may rise to various liability and in cases where there lies a contractual relationship between the parties. However, it is relevant from the law of UK that the action which is associated with contractual liability is different from tortuous liability. Among them, concurrent liabilities have strive to take advantages from the rules and principle of torts. The legislation which are associated with common law are ambiguous in nature and therefore, in situation where there prevail concurrent liability i9n contract as well as tort, there is a high chances of getting problems because of the ambiguous nature of the legislation of the common law. Thus, the decision has been taken by the court that the liability is referred as the breach of duty which must be performed as per the law of tort and contract and thus it is considered as negligence in the relevant statute. Common law which is prevailed in UK is less consistent in nature. However, when the liabilities are raised from the breach of the contractual duty of care and there is no concurrent liability in tort, then the common law will not be applicable in such situation; rather it will become inconsistent in nature. When it comes to contract elated to construction, then the agreement includes various individual like: developer, agent, contractor, and also the sub-contractor. In this situation, breach of contract can happen in many ways (Burrows, 1995). The obligation which a party is bound to perform as per the contract if fails to do so then they will be solely responsible for the breach of the contract. Three different ways can be involved which may rise to breach of contract are as follows: partial performance, defective performance and total non-performance. The basic remedies for the breach of contract are to repay the damages which are being made due to the action of the party directly or indirectly. From the case study of Esso v Mardon, it is derived that if the adviser act a negligent when he is under the contractual agreement with the victim, then the victim has the option to sue against the advisor under law of tort.

In the case study, of Robinson-v- P E Jones Ltd, the issue of tortuous liability has run concurrently to contractual liability. In this particular case study, issue is related among the employee and the contractor since the time limit of contract is much shorter than the time limit prevailed in tort (Ranjan, et al., 2011). As per the law, liability in tort can be easily extended up to 3 years from the time when the breach of contract is identified. When the contract is being established with any architecture, engineers etc then the contract attracts a concurrent duty of care related to tort against the losses, damages of property or person and also economic losses related to repairs will all lodged against the engineer and the architecture. But it is also relevant from various cases, that the cost of repair will not be the liability of the parties who was associated in the contractual agreement. But their exclusions of liability found under the law. Cases which are related to building contracts, the liability regarding the cost of repair of the building for a certain time period will be considered in the court.  Therefore, it has been decided by the court that there will not be any distinction between the professional designer and contractor. Moreover, it is also being referred by the court of UK that the contractor can also be held liable for concurrent duty of care in contract along with in tort for the purpose of economic losses.

 

It is also relevant from various sources that there prevail the term of warranty when it comes to the obligation of the contractor (Visser, 2005). This is because the obligation under which a contractor is bound to act is usually derived from implied or express term of the deed of warranty. As per the rule of the tort, a duty of care must also be implied on the contractor. It is normal that the contract is liable for the construction or designing action, but on the other hand he is also liable for constructing with negligence (O'Sullivan, 2011). However, the liability of the contractor also arises if the defects in the construction are made due to the poor workmanship or by the mixture of poor workmanship and negligence. Thus, the client has the option to sue against the contractor on the basis of the breach of contract and also on the duty of care which is being associated with the tort law. The duty of care is breached by the contractor either due to negligence or due to defective performance or from both and this rise to a liability which is held upon the contractor. Following are the possible reasons for which the contractor fails to meet his obligation which are being included in the contract are as follows:

 The contractor is liable to carry out his task properly with proper care. However, according to law, the material, goods and workmanship is the responsibility of the contractor and therefore he is bound to put proper effort towards the work (Dowlatshahi, 2001). If any kind of breach of the obligation is held by the contractor, then the contractor have to take liability to incur the cost for recovering the damages done because of him. However, if the client engages other people for getting the job done then also the cost must be barred by the contractor. Any kind of economic losses if incurred by the client that will also be the liability of the contractor as per the law as the contractor have to act as per the duty of care. The court made it pass that just if there is an assumption of obligation in connection to any contract, can a case be made in tort for immaculate economic misfortune (Gendel, 1931). Dissimilar to expert contracts, for example, an engineer's or engineer's arrangement, where there is typically such an assumption of obligation, there will for the most part be no such assumption of obligation in a conventional building contract. The court is not arranged to force a co-broad obligation in tort, just to offer a disenthralled buyer a cure it would not generally have had under its building contract. The court was making careful effort to make it pass that the law of contract is the essential law that represents a relationship in the middle of builder and customer. Besides the standard of 'opportunity of contract' is cherished in our law and ought to be maintained. Hence, if parties openly decide to assign hazard between them by going into a contract, the law of tort ought to be ease back to misshape that position and a case for economic misfortune in tort won't be conceivable (Kramer, 2010). On the off chance that the gatherings decide to bar claims for economic misfortune, for example, the expense of repairs under the terms of their contract, then even where UCTA is pertinent, it is the contract that is the essential determinant of each party's obligations and cures and the prohibition will more often than not be upheld.

 

Reference

Andrews, N. (2011) Contract law. Cambridge, Cambridge University Press.

Anson, W. (1899) Principles of the English law of contract and of agency in its relation to contract. Oxford, Clarendon Press.

Beale, H. & Tallon, D. (2002) Contract law. Oxford [England], Hart Pub.

Elliott, C. & Quinn, F. (2007) Contract law. Harlow, Pearson Longman.

McKendrick, E. (2005) Contract law. Basingstoke, Palgrave Macmillan.

Simpson, A. (1985) Quackery and Contract Law: The Case of the Carbolic Smoke Ball. J LEGAL STUD. [Online] 14 (2), 345. Available from: doi:10.1086/467776.

Stone, R. (2003) Contract law. London, Cavendish.

Turner, C. (2006) Contract law. London, Hodder Arnold.

Bingham, L. (2010) The Uses of Tort. Journal of European Tort Law. [Online] 1 (1), 3-15. Available from: doi:10.1515/jetl.2010.3.

Brennan, C. (2011) Tort law. Oxford, Oxford University Press.

Faure, M. (2009) Tort law and economics. Cheltenham, UK, Edward Elgar.

Greene, B. (2012) Tort law. London, Hodder Education.

Mulcahy, L. (2008) Contract law in perspective. London, Routledge-Cavendish.

Priaulx, N. (2007) The harm paradox. Milton Park, Abingdon, Oxon, UK, Routledge-Cavendish.

Samuel, G. (2010) Law of obligations. Cheltenham, UK, Edward Elgar.

Turner, C. (2011) Tort law. London, Hodder Education.

Burrows, A. (1995) Solving the Problem of Concurrent Liability. Current Legal Problems. [Online] 48 (Part 2), 103-124. Available from: doi:10.1093/clp/48.part_2.103.

Dowlatshahi, S. (2001) The role of product safety and liability in concurrent engineering. Computers & Industrial Engineering. [Online] 41 (2), 187-209. Available from: doi:10.1016/s0360-8352(01)00054-7.

Gendel, M. (1931) Torts: Concurrent but Independent Wrongdoers: Joint Liability for Entire Damages. California Law Review. [Online] 19 (6), 630. Available from: doi:10.2307/3475668.

Kramer, A. (2010) Contract law. Oxford, Hart.

O'Sullivan, J. (2011) BUILDING CONTRACTS – IS THERE CONCURRENT LIABILITY IN TORT?. The Cambridge Law Journal. [Online] 70 (02), 291-294. Available from: doi:10.1017/s0008197311000407.

Ranjan, S., Batar, S. & Vadakkeveedu, S. (2011) Role of Intention in Fixation of Tortuous Liability. SSRN Journal. [Online] Available from: doi:10.2139/ssrn.1823483.

Ross, M. (1987) Concurrent liability in tort and contract. Structural Survey. [Online] 5 (3), 288-299. Available from: doi:10.1108/eb006260.

Visser, M. (2005) The concept of concurrent liability and its relationship with the principle of effectiveness.

Wils, W. (2004) Concurrent liability of the Community and a Member State.

Yule, D. (1977) Concurrent liability in contract and tort. Vancouver, Continuing Legal Education Society of British Columbia.

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