Thursday, 29 March 2012

The difference between Tort Law and Contract Law

I remember writing in one of my previous blog posts that there was quite a lot of overlap between Contract Law and Tort Law. Any lawyer would agree with me on that point. One good example of this is in the world of misrepresentation, one could sue the party in question in contract under misrepresentation or sue in tort under negligent misstatement.

Nevertheless, over the past term I've started to become aware of the difference between Contract Law and Tort Law. They differentiate from each other by the way in which they change. Tort is affected by the developments in science and technology, so the cases you use go out of date more quickly than the cases used in contract. In Contract Law, there are quite a few cases used that were decided in the 19th century, although the majority of cases used were decided in the 20th century or 21st century. It is true to say that there are some cases used in tort that were decided in the 19th century but it's more common to find that this is the case in contract law.

When you study negligence, you learn about the reasonable man test. This test is done to decide whether a negligence claim should succeed. So for example: if someone has an accident, the courts ask whether the reasonable man could have done anything to prevent it. This test is also used in relation to the claimant, eg. whether the claimant could have done anything more to stop themself from suffering an injury. Admittedly, this is a somewhat simplified version of what happens in tortious claims, because of course the courts have to take other factors into account such as the impact of such a decision as a precedent. But as our knowledge of the brain grows, the reasonable man test will change because the courts will have a different idea of what the reasonable man could have done to prevent something happening. This will also, no doubt have an effect on criminal law and the sentencing process. It is clear to see that negligence has already been effected by the growth in scientific knowledge, when you consider the world of psychiatric injury because this is becoming a wider area within tort law, as our knowledge of psychiatric illnesses grows.

Tort is also affected by the growth of technologies such as the internet. For example, my tort tutor was telling us the other day that social networks such as Facebook and Twitter could affect the world of defamation, if people start suing one another for posting an allegedly defamatory statement about them in a status, tweet, etc. The growth of technology has already affected the world of liability because it affects what the reasonable man can do to prevent an accident/problem occurring. No doubt this must have affected the possible extent of a driver's liability for an accident as cars have been built with more safety mechanisms, although liability in general must have been affected by the developments in technology.

Because Tort Law changes quite quickly your lecturers and tutors will stress the importance of having an up to date text book for the subject. You should always make sure that you have up to date text books in any sort of law but it's particularly important in the world of tort.

1 comment:

  1. I don't really see the comparisons, you talk about tort a lot but thanks anyway.