Contract and tort Essay Example | Topics and Well Written Essays - 2000 words

Contract and tort - Essay Example In the past, liability was automatically imposed for causing injury to another, and this was the province of tort. On the other hand, contract law applied liability, only if there was consent among the parties. However, there is some commonality between the contract and tort laws. This has induced some plaintiffs to proceed against the defendant, under one of these laws. Although, it is not permissible to recover damages twice for the same injury, claimants have taken an active interest in exploring the possibilities offered by these two bodies of law. In fact, a plaintiff may recover by suing in contract, in order to circumvent some difficulty presented by the tort law to his action.3 The situation obtaining in this regard has been clearly described in their Lordships ruling in Henderson v Merrett Syndicates Ltd. In this case the House of Lords held that the defendant company was concurrently liable.4 As such, the defendants in this case were held liable under both contract and tort law. ... Syndicates Ltd directed that irrespective of the relevant nature of the damage,5 concurrent liability betwixt contract and the tort of negligence was to be conceded.6 The situation prevailing, on account of the tort law has no bearing upon the law of restitution, which remains independent of the tort law. However, the tort committed does not inescapably constitute the basis of the recovery. It is the enrichment that results from the invasion or appropriation of the protected interest of the plaintiff that constitutes the basis of recovery.7 Not surprisingly, establishing the elements of the tort of interference is not indispensable for permitting recovery. It is an incontrovertible fact that new needs have arisen, which have not been adequately addressed by the traditional concepts that emerged from tort law.8 This serves to unequivocally demonstrate the independence of restitutionary claims. The principle of concurrent liability in contract and tort was recognised with Hedley Byrne & Co Ltd v Heller & Partners. In this case, it was held by the court that there could be a claim in tort, despite the existence of a contractual remedy.9 The ruling in Hedley Byrne states that assuming responsibility does not place the defendant under a duty of reasonable care to benefit the plaintiff. Jane Stapleton, an eminent legal scholar, has contended that the tort of negligence usually comes into play, with regard to a negligent failure to benefit. In such cases, it is the general practice to impose liability under the tort of negligence. As a consequence, it would be incorrect to consider such cases under contractual liability. 10 This stance is based on the notion that the commencement of the performance of a beneficial service by the defendant immediately places him in a