Breach of Contract as a Special Case of Tort

Abstract

Abstract This chapter discusses a way of distinguishing the law of torts from other parts of the law. It argues that the law of torts is a law of the following: civil recourse, for wrongs, in which primarily corrective justice is attempted, in a primarily reparative mode, in response to claims for unliquidated sums, and where the duties breached are non-contractual. The chapter also explains primacy of the law of contract over the law of torts, according to economists of private law. The best way to think of the law of contract is to think of it as augmenting, or supplementing, the law of torts. This does not entail that the best way to justify the law of contract is to justify it as an augmentation or supplementation of the law of torts. Possibly, as the economists think, the order of justification is the other way round.