Date: Thu, 10 Feb 2005 11:07:15 -0500

From: Jason Neyers

Subject: Remoteness Rules

Dear Colleagues:

I am not sure whether I agree with Robert's suggestion that a plaintiff can choose tort over contract (provided all the elements are established) in order to take advantage of the better remoteness rule. If it is true that the contract remoteness rule is really a rule of contract interpretation and risk allocation, then it would seem to follow that since one cannot use tort to escape explicit contractual limitations on liability (Henderson, Central Trust), one cannot use it to escape implicit allocations of risk either. Thus, in a situation of concurrency where the remoteness rule in contract gave you less recovery than that in tort, you should be limited to the contractual amount. No case, to my knowledge, has explicitly addressed this issue in this manner but I think the answer follows if one accepts the use/risk interpretation of H v B.

Cheers,

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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