Q&As

In relation to a breach of an oral contract for the provision of goods and services which also constitutes negligence, what is the difference in bringing a claim in contract or tort in terms of the recoverability of losses, causation, remoteness, foreseeability and recovery of economic loss? When drafting the particulars of claim, how should the contract and tort allegations be pleaded?

read titleRead full title
Published on LexisPSL on 04/09/2017

The following Dispute Resolution Q&A provides comprehensive and up to date legal information covering:

  • In relation to a breach of an oral contract for the provision of goods and services which also constitutes negligence, what is the difference in bringing a claim in contract or tort in terms of the recoverability of losses, causation, remoteness, foreseeability and recovery of economic loss? When drafting the particulars of claim, how should the contract and tort allegations be pleaded?
  • Differences between tort and contract?
  • Recovering and assessing damages
  • Causation and remoteness
  • Negligence
  • Damages in negligence
  • Particulars of claim

Differences between tort and contract?

There are three key differences between tort and contract:

  1. tortious and contractual duties are determined through different means. It is the law—itself developed by society through the State and judges—which defines tortious duties. Individuals do not actively choose the tortious obligations they must meet in certain scenarios; rather, how people ought and ought not to behave in their dealings with others is decided for them. Contractual duties, on the other hand, only arise as a result of an agreement made between two parties and are therefore voluntarily assumed

  2. a person owes a tortious duty to others generally or to a type of person in a certain situation, whereas a person only owes a contractual duty to the specific person who is the other contracting party

  3. the conceptual approach behind tortious and contractual remedies is different: contractual remedies are designed to put the claimant in as good a position as they would have been had the contract been performed, whereas tortious remedies aim to put the injured party back into as good as position as they were before the wrong occurred

Where there is a contractual relationship between two parties, a claimant may still sue in tort, as well as or rather than contract, provided that the contract does not expressly or impliedly exclude liability in tort. There are narrower limitation rules

Popular documents