Tort And Contract

The distinction between a tort and a contract, is clearly brought forth the definition of tort given by Winfield which states “Tortious liability arises from the breach of a duty primarily fixed by law, such duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”

A contract is an agreement, whereby a legal obligation is constituted and defined between the parties to it. It is a legal relationship, the nature, contents and consequences of which are determined and defined by the agreement of the parties, the law giving legal forces and authorities to the agreement. Thus, whereas in tort, the duties are fixed by the law, in the contract, they are fixed by the parties themselves.

In a contract, one party owes duty to another contracting party only (Principle of Privity of contract) while in tort, the duty imposed by law is not towards any specific individual or individuals, but they are towards the world at large. Both in tort and contract, the remedy available is damages, but while in contract, the damages are liquidated (i.e. they are predetermined by the parties), in tort, the damages are unliquidated (i.e. they are not predetermined by the parties), but are awarded by the court.

In certain cases, the same incident may rise to liability both in contract and tort, for example, when a passenger whilst travelling with a ticket is required owing to the railway company’s negligence, the company is guilty of a wrong which is both breach of contract and tort.

In Edwards v. Mallan, (1908) KB, it was held, a dentist who contracts to pull out the tooth is of course liable for breach of contract, if he injures the patient by an unskillful extraction. He is also liable for the tort of negligence, for everyone who professes skill in a amount of such skill.

In such cases, where the same fact resulted in a breach of contract as well as tort, the plaintiff cannot claim the damage twice over. he can either sue for the breach of contract or for the commission of tort. The contractual duty may be owed to one person and the legal duty (duty by law), independently of contact to another. For example, the surgeon who is called by a father to operate upon his daughter owes a contractual duty to the father who takes care. If he fails in that duty, he is also liable for a tort against the daughter.

In Pippin v. Sheppard, (1822), a surgeon was called in by a husband, to treat his wife. The court held that the husband could sue the surgeon for the breach of contractual duty while the wife could maintain an action in tort as the doctor owes a duty of care to his patient .

Thus, liability in tort is fixed by law irrespective of any contract between the parties, although it s possible that in certain circumstances liability in tort may be modified by contract.

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