What Are the Main Differences between Contract and Tort - Coursework Example

Introduction In attempting to draw a comparative analysis between a contract and tort law, it is imperative to begin by highlighting the definitions of the two terms so as to gain a clear understanding of the difference between them. Different cases will also be cited to amply demonstrate their difference. Koffman L & McDonald E. (2007:1) define a contract as, “a legally enforceable agreement giving rise to obligations for parties involved.” Simply put, if you promise that you will do something for another person and in return, that person agrees to pay you something, then you and that person have made a contract. A contract can be in verbal or written form but the most important thing is that there would be an agreement especially between two parties. On the other hand, a tort law can be described as a civil wrong not arising from a contract and in the case of negligence, one should owe due consideration to one’s neighbour (Capiro Industries vs. Dickman 1990). Features of contract laws According to the European labour laws, both the worker and the employee are bound by certain statutory regulations that would ensure that no party will breach the agreed contract. With regards to employment contracts, there ought to be written agreement which binds the two parties to honour their contractual obligations which can be enforceable in the court of law should one party defaults. Thus, as noted, a contract can be loosely defined as an agreement between two parties and these can be individuals or even organisations. One peculiar aspect of a contract is that one party offers to do something in exchange of something gainful and another party accept that offer. In a contract, there is an agreement of offer and acceptance between two parties concerned and should any party defaults, then it is called breach of contract. It is against this background that the court of law intervenes to ensure that justice prevails so as to avoid unfavorable gain by another party on behalf of the other. Basically, the court would come in so as to protect the interests of the consumer or the second party especially in the case where there is bargaining of powers. Consumers in most cases are not choosers of the terms by which they would be bound in a contract hence the intervention of the courts. Thus, it can be noted that contracts are especially concerned with the enforcement of bargains. This is aptly shown in the case of Williams v Roffey Bros & Nicholls Contractors Ltd [1990] 1 All ER 512. Whilst Williams has been subcontracted and a payment of 20 000 pounds promised to be paid in installments, the contract was however silent on the period and size of the payment to be made. Therefore, both parties which agree to enter into a contract have duties owed to each other and these form the basis of contracts. These duties are designed and imposed by the parties themselves and operational for a period in which the contract would be expected to run. The court can only enforce a duty agreed upon by the parties involved should there be a breach of contract. Economic Loss and measure of damages However, note should also be taken that there will not be an enforceable contract between the two parties unless the mutual agreement can be shown to the court and be proved. Contracts are in most cases determined by freedom of both parties to enter into an agreement without any jurisdiction. It is against this background that the courts are concerned with the existence of a bargain that is enforceable. As going to be discussed later, this is primarily the main difference between a contract and a tort law. In a contract, there is mutual agreement where the parties involved ought to clearly understand the terms that would be binding them in that particular contract whereas in a tort there is no such agreement ever entered into by the plaintiff and the defendant. Basically, the character of duty owed in both contract and tort law is the bone of contention which makes a clear distinction between the two. Aims of the law The same laws are also designed to protect the interests of the consumers in scenarios where they can enter into contract on the basis of false information or where another party breaches the contract by failing to meet the contractual obligation after receiving payment. Under such conditions, the Unfair Terms in Consumer Contracts Regulations 1999 is the statutory regulation that is meant to rectify the anomaly that may arise from the contract. The main aim basically is to support and control various agreements that collectively contribute to the well being of the economy. The Consumer Protection Regulations 2000 for instance is specifically the statute that can be inferred to in the event that the consumer has been exposed to situations which may result in loss. Online definition posits to the effect that contracts as can be noted can be written, using formal or informal terms or can be entirely verbal. If one party fails to live up to his/her part of the bargain, then theres a "breach" of the contract and certain remedies for solving the differences are available. Whether verbally agreed or written, the terms of a contract apply and are enforceable unless otherwise agreed by all parties involved for any change. The other aim is to give guidelines to the parties upon which they can contract again in the future. Features of tort laws As noted above, in a contract there is mutual agreement between the parties involved and the character of duty owed is determined by these parties as well and is only applicable to those bound by the contractual obligations of the contract agreed upon. Negligence can be described as a civil wrong arising from the act of negligence by doing something a reasonable man would not do and a plaintiff must prove that the defendant owes a duty of care Donoghue V. Stevenson (1932). It is of paramount importance for the plaintiff to be able to prove that a duty of care has been breached in order to win the claim that the subsequent injury after the action of the defendant could have been avoided in the event that he would have acted within reasonable limits. Thus, in case of tort law, specific duties apply to everyone and are imposed by the law contrary to contract laws where duty is imposed by the parties involved. Indeed, research has shown that there have been some developments in the area of negligence meant to prove the existence of day care duty. Under the case of Capiro Industries vs. Dickman (1990), the following conditions should be taken into consideration which include; foreseeability, proximity as well as reasonability. In some cases it may not always follow that a duty of care exists but common sense ought to prevail to avoid an otherwise serious injury to another person. Some situations are foreseeable before a person embarks on a particular action that may be dangerous to another person. Whilst the defendant may think that he is playing, his actions may be harmful to the next person which is a foreseeable danger should he have been reasonable enough to avoid that harmful incident. The fact that the defendant would be playing, albeit dangerously would leave him liable to negligent behaviour where he is expected to have foreseen the imminent danger in the event that such action could be harmfully to the next person. Day of duty care would have been neglected in the unfortunate situation. In the case of Donoghue V. Stevenson (1932) proximity was described as a situation where a neighbour was as a person who is closely and directly affected by somebody’s actions and ought to reasonably take that fact into account. Simply put, the aspect of proximity loosely refers to closeness to somebody which should be taken into consideration to ensure that somebody’s actions should not infringe on another person’s right to enjoy his or her safety. It therefore should be noted that practical jokes in particular are often dangerous within a close range. It would then be difficult to ascertain whether the defendant has been playing or that his actions would be intentional. As far as negligence is concerned, the element of proximity plays a crucial role as it would seek to establish the extent to which the defendant can justify his actions by arguing that the resultant injury to the next person would have been a genuine mistake. Whilst foreseeability and proximity can be established in a case of negligence, if the court of law feels that it is not reasonable or just to infer duty of care in the circumstances surrounding the issue, it may be difficult to establish a duty of care. For instance in the case of Hill v Chief Constable of West Yorkshire (1989), the court could not establish that the police owe a duty of care. In some cases the resultant injury to the next person would be a result of genuine mistake where negligent behavior may be difficult to determine but all the same, for the sake of public as well as individual safety, the duty of care is owed to everyone hence the need to be always on the lookout against such actions which can cause harm or injury to the next person. Contrary to the duty in contract which is owed between parties involved, under tort laws, everyone has a duty to care for the person next. However, there is need to establish the standard expectations of a reasonable man in order to establish if the duty of care has been breached. It does not require great skill or vice versa to observe the duty of care and there are mainly two factors which ought to be considered as a way of trying to establish if the duty of care has been breached. The likelihood and seriousness of risk of injury ought to be taken into consideration when attempting to measure the defendant’s behaviour against the risk he would have exposed the claimant to. For instance, in the case of Paris v Stepney Borough Council (1951) the editor of Salmond on the Law of Torts similarly says: “There are two factors in determining the magnitude of a risk - the seriousness of the injury risked, and the likelihood of the injury being in fact caused.” Certain actions are potentially very dangerous and any prudent and reasonable person ought to see that such kind of playing would put other people at great risk of being injured. The defendant in the event of injury should be wary about taking safety precautions always against injuring the claimant. The tort law can also be viewed from another dimension which is regarded as trespassing. In the case of trespass to the person, the duty is to refrain from infringing a person’s bodily integrity and the duty is owed to those directly affected by the action. Each human being has a right to own property hence the need to safeguard it against any form of trespassing as it would often expose it to some form of risk. In this particular situation, it can be noted that there is no mutual agreement between the parties involved like in a contract law. When it comes to the use of tort law, it is the role of the law to protect the plaintiff by owing the duty to everyone who may be accidentally harmed without eecting such kind of action. Economic Loss & Measure of damages There is also need for the claimant to show that he has suffered an injury as a result of the breach of duty care. Whilst in some cases a duty of care can be established and a breach of it as well, it may not be enough to prove a case of negligence unless some form of damage or injury can be identified. Damages in the form of injury or loss of property as a result of negligent behavior can be cited as prove that the claimant deserves some form of compensation as a result of the loss that would have resulted in the unprecedented behavior of the defendant. Basically, tortious behavior may entitle a ‘victim’ to compensation or some other remedy since the damages caused would be a result of negligent behavior. However, there is stipulated period that is enshrined in the law that can be inferred to as a way of ascertaining economic loss as well as damages caused as result of negligent behavior. Thus, the Periods & Latent Damages Act 1986, is primarily concerned with setting time limits for negligence actions in respect of latent action or damages not involving personal injuries. According to information obtained online, this therefore is, “an Act to amend the law about limitation of actions in relation to actions for damages for negligence not involving personal injuries; and to provide for a person taking an interest in property to have, in certain circumstances, a cause of action in respect of negligent damage to the property occurring before he takes that interest.” Basically, there is a time frame that can be used as a yardstick to measure the period upon which damages can be claimed from the period of occurrence. Aims of the laws The aims of tort laws are specifically designed to compensate someone who has suffered a wrong resulting in injury or loss of property at the hands of the defendant and to deter persons from acting in such a way that would infringe another person’s rights. Tort laws are also designed to protect personal property, security as well as economic interests by providing legal capacity upon which damages can be claimed. Conclusion As noted from the above discussion, there is a difference between a tort and contract law and the main distinction emanates from the character of duty owed. In tort law, specific duties are imposed by the law and are applicable to everyone while in contract law the duty is imposed by the parties themselves involved in the contract. On the other hand, there is mutual agreement between the parties that have agreed to enter into a contract and there should be existence of enforceable bargain that makes the contract binding. In the event of one party breaching the contract that is when the court of law intervenes as a way of protecting the interests of the consumers who may fall prey to unscrupulous business operators who may falsify their intentions as a way of bargaining from unsuspecting consumers. On the other hand, the duty of care with reference to tort law is imposed by the law and is applicable to everyone. The plaintiffs may claim damages or compensation in the event of loss of property or injury to another person where it can be proved that the day of duty care has been neglected. References. Latent Damage Act 1986, chapter 37, accessed on 02 September 2009, from: http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1986/cukpga_19860037_en_1 Consumer law: What is a contract? Retrieved on 02 September 2009: from: http://www.paralegaladvice.org.za/docs/chap11/02.html Donoghue v. Stevenson [1932] All ER Rep 1; [1932] AC 562; House of Lords Retrieved on 31 August 2009, From: http://www.safetyphoto.co.uk/subsite/case%20abcd/donoghue_v_Stevenson.htm Koffman L & McDonald E. (2007), The Law of Contract, 6th Edition, Oxford University Press Paris v Stepney Borough Council [1951] AC 367 13 December 1950, Retrieved on 02. 09. 09, From: http://www.a-level-law.com/caselibrary/PARIS%20v%20STEPNEY%20BOROUGH%20COUNCIL%20%5B1951%5D%20AC%20367%20-%20HL.doc Negligence UK (2007) Retrieved on 02.09. 2009 From: http://en.jurispedia.org/index.php/Negligence_(uk) G.T. Treitel (1990), Some Landmarks of Twentieth Century contract law, volume 73, Accessed on 02 September, 2009, from: http://books.google.co.za/books?id=0u8sGuhuKs8C&pg=PA18&dq=Williams+v+Roffey+Bros+%26+Nicholls&ei=FS6eSsP-MpmSywTf2qDYDg#v=onepage&q=Williams%20v%20Roffey%20Bros%20%26%20Nicholls&f=false Read More