Many liabilities in tort arise by virtue of the law alone and are not fixed by the parties. By contrast, the law of contract is based notionally on agreements, the terms of which are fixed by parties. However, in modern law it is unrealistic to suppose

However the Unfair Contract Terms Act 1977, restricts the ability of an occupier to exclude liability for death or personal injury caused through the negligence of the occupier, this is absolute and can not be deviated from where the premises are being used for business purposes. Any limits on liability for damage to property are also a question of reasonableness.

Continuing with this theme, contractual obligations are also present in the area of employer’s liability, by way of vicarious liability. Employers are automatically responsible for any negligent conduct by their employees which causes harm to others. The reason the law imposes an automatic vicarious liability on employers is because the person who stands to profit from a business should also be responsible with the risks associated with the business. However a key requirement before an employer can be held responsible for negligent acts or omissions of his workers is that the worker must be an employee, who has committed the tort “during the course of employment.” His requirement was established in the case. As demonstrated by the examples above with the regard to contracts, it is clear that in contrast to Harpwood’s assertion many tortious duties arise out of contractual relationships. So arguably many tortious obligations arise as a result of some voluntary act or omission of the defendant, from which liability may arise.

Another common viewpoint is that the distinction between the two is that contract law is “forward looking”, meaning that the role of contract law is to put the claimant in the position he would have been had the defendant honoured the terms of the contract. This point was illustrated by the case Robinson v Hardman (1854).In contrast the law of tort is said to be “backward looking” and is designed primarily to return the claimant to the position before suffering a loss as a consequence of the defendants act or omission. This distinction was illustrated in the case Livingstone v Raywards Coal Company (1880),Where Lord Blackburn held “that sum of money which will put the party who has been injured, or who has suffered, in the same position he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.” 

However, this idea is not without exception, as illustrated by the case of Ross v Caunters [1979].This case centred on a solicitor who was instructed to deal with his clients will. This relationship was based on contract law but the beneficiary of the will, who failed to receive the bequest of the will of the deceased client, sued the solicitor for failing to take reasonable care under the law of tort. This point was re-affirmed in the case White v Jones [1995] which confirmed that there can be a “concurrent liability” in contract and tort.

The idea that there can be concurrent liability, or an overlap between contract and tort was also famously decided in Donoughue v Stevenson [1932]This case provided the bases upon which the same factual scenario could give rise to liability in both contract and tort. Here the defendant was found liable in contract to person A, and simultaneously liable in tort to person B. The case destroyed the fallacy that where the defendant is liable to someone in contract then he can not be concurrently liable in tort. Donoughue v Stevenson had a profound impact on the privity of contract which was previously established in Winterbottom v Right (1842)

Arguably the most controversial instance where the doctrine of privity was extended was in the case Junior Books v Vietchi Company Ltd [1983] here party A entered into a contract to build a factory for B, and then entered into a sub contract with C for the flooring. There was no contract between B and C, but it was held that defects in B’s work would make him liable to C in tort.

Furthermore it is widely accepted that there are distinct mental elements associated with contract and tort. The general assumption is that tortious duties are fault based whereas contractual duties are strict. The difference between fault based and strict liability torts is that the defendant’s state of mind for the latter is irrelevant. The majority of torts remain fault based, this is largely due to the fact that prior to the advent of insurance most tortfeasor were required to compensate their victims personally. As such the courts placed a heavy requirement that fault must be established. Although most torts can be insured against, and in certain cases it is a legal requirement for example to have motor insurance, the need to establish fault remains in the majority of cases.

However the law has developed certain strict liability torts. Simply a strict liability tort is one where a defendant maybe found liable even when fault can not be attached. The landmark case Rylands v Fletcher (1868) provides a good example of a strict liability tort. Rylands v Fletcher centred on nuisance and damage cause to land. In this case it was decided that if the claimant can “prove the necessary elements, he or she can recover even if the defendant was non-negligent and took all reasonable –and even all unreasonable-steps to avoid harming the respondent”this case is therefore one of strict liability and created the principle that in order for this a claimant must prove a causal link between the harm and the defendant. Therefore there is no need to prove any element of negligence of intention.

As mentioned above the general consensus is that contractual duties are strict. However this notion also has exceptions, namely where liability can arise in the absence of any obvious fault on the part of the defendant. Citing an example from Treitel, here a man can not pay for goods he has bought, simply because his bank has failed there is no doubt therefore that this is strict liability and also a breach of contract. Similarly in the case Lewis Emanuel & Son Ltd v Sammut [1959] Where it was decided that even though it was not the defendants fault, his liability in contract remedies was strict.

In Daniels v White, a case which followed the landmark decision in Donoughue v Stevenson, it was decided that even though the shopkeeper was in no obvious way at fault for the fact that acid was found in the lemonade he sold, he was nevertheless in breach of contract. 

The above cases illustrate that indeed contractual liability is strict. However there are instances where fault is a factor in deciding contractual liability. Explaining this it will be useful to look at the doctrine of frustration. Frustration is where performance of a contract is prevented by for example destruction of the subject matter. Fault becomes relevant under these circumstances, for instance where a person contracts to supply a service in the course of profession or a business. Treitel provides the example of a doctor who contracts to provide medical treatment is not normally understood to guarantee its success, he need only show reasonable care and skill. The standard of care based on the objective standard is from Nettleship v Weston [1971] and for the professionals the test used is from the case of Bolam v Friern Hospital Management Committee [1957].

Moreover the law of private obligations, namely contract and tort, are designed to protect different interests. However a clear distinction between contract and tort exists with regards to the remedies available, the liability of minors and the limitation of actions.

With regard to the situation with minors it is important to first of all to note that a minor is someone who is aged below 18. For contract the basic common law rule is that contracts are not binding on minors. There are however exceptions to this rule. These include, contracts for the supply of ‘necessaries’, and also contracts of service for the minors benefit. Another important factor with regard to minors and contracts is the fact that minor’s contracts are voidable.

In contrast minors are usually liable under tort law as long as they are old enough to know the nature of what they are doing, in effect there is no age at which persons become liable in tort. However the courts have insured that potential claimants do not use this as a way of enforcing a contract on a minor. As decided in the case Leslie Ltd v Sheill (1914)

The law on minors and contracts is considered to be out of step with modern society and it is considered strange that somebody who is 16 may join the army or get married but not be liable in contract This is an area of law that the Law Commission has looked at and in 1982 recommended that contracts be binding on minors who are 16 or over.

With regards to the time limits related to contract and tort there are clear statutory differences. “Over the years the law of limitation has undergone a number of reforms, great and small.” Currently the law regarding to contract they must normally be bought within 6 years from the cause of action. A contract made by deed must be bought within 12 years of the date in which the breach occurred. Furthermore s2 of the Limitation Act 1980 provides that in situations where a claimant is unaware of a breach of contract, either by mistake or through fraud of the defendant, the limitation does not begin until the claimant has discovered the mistake or fraud or when they could have discovered this by using reasonable steps. s32 was used in Applegate v Moss (1971) 

In relation the tort, time limits are rather more complicated in that the various torts have different time limits. For example, in general claims for personal injury must be commenced within three years, action for defamation in general must be commenced within one year.

Remedies is an area of the English Legal system where tort and contract differ, as mentioned earlier the job of tort is to put the person in the position they were prior to the harm, whereas contract aims to put the person in the position had the contract been honoured. Consequently the remedies available are different. For a breach of contract remedies include equitable remedies such as specific performance, up to restitution. Remedies in tort are designed to compensate the individual. They may include punitive measures, such as requiring the tortfeasor to adapt his property so as to avoid a repeat of any harm or loss, or monetary payments as in personal injury claims.

Another vital area is the concept of pure economic loss.  In relation to negligence this covers instances of financial loss or damage suffered by an individual, but it excludes situations of physical damage or damage to property unless the economic loss is a consequence from the damage. To illustrate this is an example where a family’s primary source of income disrupted when the main worker in the family is seriously injured in an accident. He would be likely to recover a sum of damages made up of a few elements which include: loss of enjoyment of life, pain and suffering, expenses, loss of earnings.

When claiming for economic loss, circumstances in which a claimant can successfully pursue a claim is very unlikely as the courts have either applied stricter rules in order to restrict the claims and avoid the floodgates issue. This restrictive approach is not due to a single factor, but the nature of the problem varies from case to case.

In negligence a necessary requirement is that there must be a close relationship of proximity between the claimant and defendant. To illustrate this is the case of Junior Books v Veitchi [1983]. In this case the House of Lords tried to establish a general duty of care in respect of pure economic loss resulting from a negligent act, based on the closeness of the relationship between the parties and reliance by the claimant on the defendant’s skill. The basis of the claim was “the relationship was so close to contract that it justified the recovery of what was in fact, if not ,in name, a loss of a type normally only recoverable in contract.”It is unclear why in this case the claimant found their normal contract action against the defendant unsatisfactory. But the possibility of an alternative tort action on such facts is clearly of great significance and led to much discussion.

Although, subsequent to its decision in Junior Books, the House of Lords have demonstrated a reluctance to admit a duty of care in respect of economic loss. For example in the Court of Appeal case of Greater Nottingham Cooperative Society v Cementation Piling & Foundations Ltd [1989] English courts have continued to consider the duty between a contracting party and the third party to the contract. Lord Brandon referred to Lord Roskill’s dicta in junior books, “noted that it was obiter, and cast doubt upon its application”

The situation now therefore is that where the claimant suffers loss due to the actions of a third party, the courts have held that the claimant cannot recover because there is no duty to prevent this type of loss. This was confirmed in Londonwaste v AMEC Civil Engineering (1997) a leading case in this area is the case of Hedley Byrne & Co Ltd v Heller & Partners LTD [1964], where the idea of voluntary assumption of responsibility was considered. This was discussed above where Ross v Caunters and White v Jones were considered.  

        

By considering the extract from Harpwood, “in modern law it is unrealistic to suppose that contract and tort are so very different from each other.” This can be supported from the above discussions which have displayed both arguments for and against his view. There is clearly an overlap with contract and tort and the case of Junior Books clearly illustrates this. Nevertheless this is not to say that contract and tort do not have fundamental differences in their purpose and value for potential claimants but quite clearly there is an overlap with the two. There are clear and similarities between the two branches of the law of private obligations. In conclusion it can be said that tort and contract have similarities, there are instances of overlap, they can and do operate concurrently but in the final analysis it would be prudent to say that they remain different in many ways.  

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