Date: Mon, 7 Apr 2008 22:55

From: Joost Blom

Subject: Contract, Consideration and Tort Duties

Dear group,

In response to Jane’s question and the replies I’ve read so far, I’m not aware of any case that applied the pre-existing duty rule where the “pre-existing” duty was simply a duty in tort. Certainly Canadian courts always assume that a contract to take care is perfectly valid as far as consideration is concerned, even if there is an identical tort duty of care. One reason for this may be, as Andrew Burrows suggests, that the contracting party always undertakes more than simply the taking of care in the tort sense. In tort I’m under a duty of care if I choose to do something, like drive a vehicle or give advice, whereas in contract I undertake actually to drive the vehicle or give the advice and I undertake while doing so to be careful.

Another reason may be that, in terms of history, tort and contract developed in tandem, rather than tort being an antecedent body of law in relation to which contract must orient itself. Winfield, in ch. IV of The Province of the Law of Tort (1931), gets into some of this stuff. He mentions (at 45) a 1348 case in which a defendant who had undertaken to transport the plaintiff’s cattle across the Humber, and had caused the cattle to drown by overloading the boat, was held liable in assumpsit even though the plaintiff could also have sued upon covenant or upon trespass. In the 17th century, he goes on, it was decided that a bailee could be liable on an assumpsit as well as in bailment. “Thus,” he concludes (at 46), “tort, contract, and quasi-contract were woven together in a skein, the threads of which are hard to trace scientifically”. A couple of pages on (48) he says, “[I]f the law was even at the end of the eighteenth century too much implicated with historical matter to make scientific classification advisable or even possible, it was nevertheless this same historical overlapping of tort, contract and quasi-contract that for practical, as distinct from theoretical, purposes made it easier for the courts to multiply remedies for the benefit of plaintiffs”.

It’s also arguable there’s no reason in principle why undertaking by contract something you’re already bound to do according to some other rule of law should not be considered a detriment. You’re giving somebody two grounds for holding you liable rather than just one. This seems to have been Denning LJ’s view in Williams v Williams, [1957] 1 WLR 148 at 151, that “a promise to perform an existing duty is, I think, sufficient consideration to support a promise, so long as there is nothing in the transaction which is contrary to the public interest”. The majority in that case did not go so far; they found some added obligation to sustain the contract. The Privy Council, in the Pao On case, [1979] 3 WLR 435 at 448, noted the Denning view and the contrary view without preferring one over the other.

Joost

_______________
Joost Blom, QC
Professor
Faculty of Law, University of British Columbia
1822 East Mall
Vancouver, BC  V6T 1Z1

tel. 604 822 4564
fax 604 822 8108

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From: Jason Neyers 
Sent: Monday, April 07, 2008 5:31 AM
Subject: ODG: Contract, Consideration and Tort Duties

On behalf of Jane Stapleton:

  

Dear Colleagues,

I throw myself at your feet in the hope that you will be able to show me a flaw in the following reasoning and where I might find authority on the point.

As I understand orthodox contract doctrine in England and the Commonwealth [I leave Scotland aside], a promise to perform a duty that would be owed anyway is not good consideration. So, for example, if I promise to pay you £100 in return for your promise not to defame me in your up-coming law review article, you cannot sue me in contract for the £100 when you publish your article without any defamatory mention of me. In exchange for my promise of the £100, you gave me nothing more than I would have had in any case: in publishing your article to a third party you were under an obligation not to defame me, an obligation imposed by the law of torts.

The scenario in which I am interested is where you do defame me: clearly I can sue you in the tort of defamation. But I do not think I can sue you in contract because there was not a binding contract between us.

Next, I presume obligations are severable: I promise my dentist Polly £10,000 pounds in return for her promise to extract my upper wisdom teeth on Tuesday 8th April 2008. This is an enforceable exchange of contractual promises.

I also promise my dentist Fred £12,000 pounds in return for his promise to extract my lower wisdom teeth on Wednesday 9th April 2008.

Now, it is obvious that whenever any dentist, even those acting pro bono, extracts teeth that dentist owes a duty of care to the patient: this obligation need not be bought, it is imposed by the law of torts for free. [Indeed, as Cardozo noted, it is even the case that “the surgeon who operates without pay, is liable though his negligence is the omission to sterilize his instruments”.]

On Wednesday 9th April 2008 Fred extracts my lower wisdom teeth carelessly and I suffer a personal injury. I know I can sue Fred in the tort of negligence for compensation for that injury. But I do not see on what basis I could also sue Fred in contract for compensation for my personal injury: Fred was under the obligation of care to me in any case.

This suggests that in relation to most duties of care owed by defendants in relation to their own misfeasance [I leave aside areas such as obligations to affirmatively control the conduct of third parties] the obligation is not concurrent in tort and contract, but arises solely in the law of torts. Or, much more likely, the problem is that I do not understand the rule in contract about when and why a promise to perform an already owed duty does not constitute the consideration needed to support the contractual enforceability of a promise given in exchange.

If I have simply dug myself a hole, please help me out of it!

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