1

Contract and Tort Law:

Boundaries and Differences

[Writer Name]

[Instructor Name]

2

Table of Contents

Background and Rationale...........................................4

Background of the Study..........................................4

Law of Tort....................................................4The Law of Contract............................................5

Rationale for the Study..........................................6Research Objectives................................................7

Research Question(s)...............................................7

Research Methodology...............................................8

Sampling Method..................................................8Population.......................................................9

Sample Size......................................................9Data Analysis....................................................9

Key Literature Review for the Project.............................10

Differences and Boundaries Based on Liabilities.................10

Differences Based on Definitions................................10Approaches of Tort and Contract.................................11

The Underlying Ideology of Contract and Tort Law................12Change in Ideologies..........................................13

The Effects of the Ideological Change.........................14Overall Effect of the Change..................................16

Contradictions in the law.......................................16Contradictions in contract law................................17

Contradictions in Tort Law....................................18Proposed Research Timetable.......................................19

Limitations of the Study..........................................21

Delimitations of the Study........................................21

Ethical Considerations............................................21

Honesty.........................................................22

Objectivity.....................................................23

3

Integrity.......................................................23Carefulness.....................................................23

Openness........................................................23Respect for Intellectual Property...............................23

Confidentiality.................................................24Responsible Publication.........................................24

Responsible Mentoring...........................................24Respect for colleagues..........................................24

Social Responsibility...........................................24Non-Discrimination..............................................25

Competence......................................................25Legality........................................................25

Animal Care.....................................................25Human Subjects Protection.......................................25

References........................................................27

4

Contract and Tort Law:

Boundaries and Differences

Background and Rationale

Background of the Study

The core concepts pertaining to this study have been explained

in the background of the study. These concepts include the

major part of the topic being the contract and tort. The

contract and tort are considered as very important in the

legal issues as the contract is the legal agreement about

something and tort is the break of the contract that resulted

in the liabilities. The contract and tort is very important to

understand the legal issues and liability issues. Contract and

tort issues are increasing day by day which made the topic to

study more important in last few years. It is very important

to understand the legal framework of both contract and tort to

avoid legal issues.

5

Law of Tort

The law of tort deals with the governance of the

responsibilities that we owe other people only by our

relationship of being humans1. Most of the cases related to

tort are those that include inflicting of a personal injury

whether it happened intentionally or unintentionally. The law

of tort has been established to compensate people for the

injuries they sustain because of someone’s actions. The

actions that cause the injury should be some kind of breach of

duty to the person injured2.

Tort can be of many types. These involve both physical and

mental types of torts. Torts also include deception as well3.

Torts also include offences related to the lands and their

owners. These include trespassing the land as well as making

deals whatsoever on the lands that have been trespassed.

Basically, any act that can be counted as being negligent is

called as tortuous act. It also includes harming someone

unintentionally in an effort to save someone else or one’s own

1 Bart, Sir F. P. A Treatise on the Principles of Obligations Arising from Civil Wrongs in the Common Law. (1895).2 Tort law. Chapter 10. n.d.3 Barnett, Randy E. "Contracts is Not Promise; Contract is Consent." Suffolk UL Rev. 45 (2011): 647.

6

self from harm. Tort also includes the duties in respect of

public that are either not fulfilled or are fulfilled in a

manner that causes harm to the public4.

In context of this topic, it is also essential to understand

the concept of the law of contract.

The Law of Contract

The enforcement of promises is carried out by the law of

contract. It must be noted that the courts are not the only

authority that can enforce a contract, the same can be done by

contracts5. In order for a contract to be enforceable, it must

have some specific elements. The elements pertinent to a

contract can be defined by way of the process of formation of

a contract. The main factor in a contract is that the parties

to it have assumed the responsibilities related to it

voluntarily6.

The first element is an offer with which the entire process

begins. This offer has to be accepted unconditionally. Also,

there are several conditions related to the communication of 4 Bart, Sir F. P. A Treatise on the Principles of Obligations Arising from Civil Wrongs in the Common Law. (1895).5Kysar, D. A. What climate change can do about tort law? 20106 MacMillan, C. & Stone, R. Elements of the Law of Contract. University of London. (2012).

7

the offer and its acceptance which an agreement does not come

into being7. In the absence of any of these elements the

contract does not become enforceable. Promises in respect of

any given objective cannot be fulfilled without the existence

of a valid contract. Therefore, the essential task is to

determine whether a contract has been formulated or not8.

Rationale for the Study

The importance of the boundaries between tort and contract is

generally for the businessmen9. Businessmen are frequently

sued upon based on various policies and procedures that they

follow. The tortuous act is considered as crime and deal in

the criminal law. Businesses generally have to compensate many

people who have either intentionally or unintentionally been

hurt or injured by the business or some of its actions10.

The biggest disadvantage that businessmen have to deal with,

due to litigation, whether it is for tort or for contract, is

the waste of time and money that it causes. Together with

7 Epstein, Richard A. "Toward a general theory of tort law: Strict liability in context." Journal of Tort Law 3, no. 1 (2010).8 Torts Outline. (n.d).9 Farran, Sue, and Jennifer Corrin Care. "Towards a pragmatic approach to the contract or tort debate in the South Pacific." Journal of South Pacific Law 4 (2009): 2000.10Tort law. Chapter 10. n.d

8

that, the reputation of the business is put at stake. The

business can suffer losses of huge amounts when they are

charged in litigation11.

Therefore, it is necessary that the businesses determine the

true nature of these litigations that whether these are in

respect of torts or contract so that these can properly defend

themselves against these. The tort and contract help to solve

the business problem as most of the business problem emerge

because of the legal issues due to the contract and tort12.

These litigations are only increasing by the day as people

feel more and more disappointed in the businesses whether

these are public or private13. Both the customers and employees

sue businesses when they are offended in one way or another14.

The businesses have to be very careful in respect of the

distinction between torts and contracts to be better prepared

11 Lloyd’s. Litigation and Business: Transtalantic Trends. 360: Driving theDebate on Emerging Risk. (2008).12 Fried, Charles. Contract as promise. Harvard University Press, 2009.13 Campanale, C., Castro, R., & Clementi, G. L. Asset pricing in a production economy with Chew–Dekel preferences. Review of Economic Dynamics, 13(2), 379-402. 201014 Shamoo A and Resnik D. Responsible Conduct of Research, 2nd ed. (New York: Oxford University Press) (2009).

9

to deal with the litigations that they so often face. This

preparation would allow them to incur minimum losses15.

Research Objectives

The main objectives pertinent to this study will be:.

To understand the boundaries of the Tort and Contract Law.

To review the situations where Tort Law applies.

To review the situations where Contract Law applies.

To determine whether it is true that in most of the cases

Businessmen fall victim to the law of Tort rather than the

law of Contract when the court decides these cases.

To evaluate the effects of the tort and contract to solve

the problems of the business.

To evaluate the issues due to lack of tort and contract.

Research Question(s)

The main questions explored in this study will be:

What are the differences between Tort and Contract Law?

Do the contract and tort similar or dissimilar?

15 Kreitner, Roy. "Fault at the Contract-Tort Interface." Michigan Law Review (2009): 1533-1549.

10

What are the boundaries specified for Tort and Contract

Law?

Do the Contract and the tort affects business?

When the tort and contract apply?

Is it true that in most of the cases Businessmen fall

victim to the law of Tort rather than the law of Contract

when the court decides these cases?

Research Methodology

The methodology adopted for this paper will be a quantitative

descriptive study. The data will be collected mainly through

the primary sources. A review of literature would also be

carried out for establishing a firm understanding of the core

concepts of the paper. For the purpose of data collection,

online survey questions will be distributed.

The reason this paper will use a quantitative method is that

quantifying the data makes it easier to interpret and the

facts related to the study would be explored and identified

clearly. The quantitative study only focuses on simple facts

and explores the exact answer rather than bringing various

11

options to the table and making a theme based discussion that

happens in qualitative study16.

Sampling Method

The paper will carry out a non-probability based sampling. In

this type the entire population does not have an equal chance

of selection. The sampling technique adopted for this purpose

will be that of convenience sampling.

As compared to the non-probability sampling, probability

sampling is one where the entire population has an equal

chance of selection17.

Convenience sampling will allow an appropriate selection of

the sample and would avoid the selection of redundancies in

the data.

Population

The population targeted for this paper will comprise of

businessmen as these have to deal with matters of litigation

most and the necessity to differentiate between tort and

contract law is their essential need. The 50 small business

16 Bryman, Alan. Social research methods. Oxford university press, 2012.17 Bryman, Alan. Social research methods. Oxford university press, 2012.

12

and people related to these businesses is the target

population of the study. The population is small business out

of which people will select randomly.

The selected population will be significant for the evaluation

of the answers for the research questions and research

objectives. If a court identifies a case to be that of tort,

sometimes, the person under contractual liability is able to

evade any liabilities and the other defendant, if any, has to

bear the consequences18. The small businesses mean the local

firms and privately own firms will be selected randomly out of

the total small and private firms of the industry.

Sample Size

The sample selected from the above population would comprise

of 50 businessmen selected conveniently from small businesses

who may have to deal with everyday tort and contract law cases

where small businesses means that local and privately owned

firms and companies. The sample is basically selected to study

the tort and contract in the businesses and small businesses

are more appropriate in order to understand the tort and

18 Bryman, Alan. Social research methods. Oxford university press, 2012.

13

contract in the business more clearly. It was studied that

small business have more influenced by the tort and contract19.

50 applicants would provide sufficient data for quantitative

analysis.

Data Analysis

The analysis of the data will be carried out by empirical

representation. The data will be collected from both primary

and secondary sources which will be analysed by different data

analysis methods like ANOVA and ANCOVA. Graphs and charts will

be used to explain the results derived from the data. The raw

data would first be tabulated and then converted into graphs

and charts to show the results so that appropriate conclusions

and recommendations can be drawn from it.

Other than that, taking the review of literature that will be

collected from different research papers and journals and

articles of past as a secondary data as a base, the study will

be able to explain many concepts pertaining to the study and

verify whether the results obtained from the primary data

actually correspond with the variety of authors reviewed.19 Kahan, D. R. Shareholder liability for corporate torts: a historical perspective. Georgetown Law Journal, 97(4). 2009

14

Key Literature Review for the Project

The literature examined for the purposes of this study focuses

on the elements that cause major differences between the law

of tort and the law of contract. These elements create several

differences between the law of tort and the law of contract20.

Differences and Boundaries Based on Liabilities

In respect of business operations, it is essential to compare

the torts liability with contractual liability. As far as

liabilities are concerned both the law of tort and the law of

contract form part of the law of obligations21. The law of the

tort apply to all those cases which are related to the

tortuous act and cause harm and injury to others. In terms of

obligations and damages, two basic differences can be seen in

case of both tortuous liability and contractual liability.

Torts are the result of law and their damages are compensatory

while contracts are the result of agreements while their

losses are expected. The tort is considered as the most

20 Tort law. Chapter 10. n.d.21 Thoma, Oliver. "Having Your Cake and Eating It Too: Post-contract-Formation Fraud." Baylor L. Rev. 66 (2014): 782-812.

15

important law because it deals through the criminal procedure

law22.

Differences Based on Definitions

Legal writers distinctly define torts and contracts as being

different. The contract has been defined time and again as the

rising of legal obligations by way of an agreement between two

parties23. Therefore, the actual basis of a contractual

obligation is an agreement between two parties. The contract

also defines the nature and the extent of the liability that

parties can incur in respect of the agreement between them24.

A tortuous liability can be understood as an obligation that

arises from a breach of a duty that has been fixed by the law.

This breach of duty does not necessarily have to be

compensated by way of monetary damages25. These can also be

taken care of by non-monetary damages. The liability in

respect of tort is one that is not bound by any agreement but

it is imposed by the law. That implies that under the 22 Fried, Charles. Contract as promise. Harvard University Press, 2009.23 Smith, Henry E. "Modularity and Morality in the Law of Torts." Journal of Tort Law 4, no. 2 (2011).24 Sebok, Anthony J., and W. Bradley Wendel. "Duty in the Litigation Investment Agreement: The Choice between Tort and Contract Norms When the Deal Breaks Down." Vanderbilt Law Review, Forthcoming (2013).25 Robertson, Andrew, ed. The law of obligations: connections and boundaries. Routledge, 2012.

16

liability of a tort, every person is legally responsible for

causing a loss or injury to other person and this legal

obligation is by law not under the terms of any contract26.

Approaches of Tort and Contract

The difference in the approach between contract and tort can

be understood by many factors. For instance, the focus of the

contract is on the promise made while the focus of the tort is

on the injury that the plaintiff suffers. Other than that, the

contract is generally aimed at protecting the future interests

of contracting parties while the tort is generally aimed at

taking care of the present interest of people. That also

signifies that the contract is productive while the tort is

protective27.

Certain legal writers, however, believe that it is imperative

that these differences would just diminish one day so much so

that the tort and contract become utterly identical. The

contract and tort may one day become unified in a civil

26 Barnett, Randy E. "Contracts is Not Promise; Contract is Consent." Suffolk UL Rev. 45 (2011): 647.27 Smith, Henry E. "Modularity and Morality in the Law of Torts." Journal of Tort Law 4, no. 2 (2011).

17

obligation28. Many legal writers find it extremely difficult to

make a clear distinction between the two concepts. There is a

conflict of opinion among several writers about the

differences and similarities between tort and contract.

Another important factor that has the capability of

identifying the existing difference between tort and contract

is that of the underlying ideology of the law of contract and

the law of tort29.

The Underlying Ideology of Contract and Tort Law

The basic ideology of the contract and the tort also creates

significant difference between the two concepts. The contract,

ideologically, is that object that allows individuals to

create their own legal liabilities and in case of existence of

a contract, the State cannot intervene the legal obligations

created by the contract30. This ideology is based on the

freedom of contract. As per this ideology, the individual is

free to make his or her own decisions. The legal rights and

28 Kreitner, Roy. "Fault at the Contract-Tort Interface." Michigan Law Review (2009): 1533-1549.29 Robertson, Andrew, ed. The law of obligations: connections and boundaries. Routledge, 2012.30 Kreitner, Roy. "Fault at the Contract-Tort Interface." Michigan Law Review (2009): 1533-1549.

18

duties in the market are determined by the factors of the

market place as well as the view that parties themselves

determine their own legal liabilities. Therefore, the courts

do not lay a moral obligation in case of contracts and allows

the parties to fulfil their own set of obligations after they

have consented to it. The core concept of a contract comes

from the ‘laisser faire’ introduced in the 19th century that

suggested that the regulation of business matters should

depend upon the forces of the market. That is also called

market individualism31.

However, the core base of the law of tort is based on criminal

law that gave rise to tort. Here, a penalty is applied on

those who do wrong to others so that others may be prevented

from suffering. At one point in time in history, it was

difficult to tell the criminal liability apart from the civil

liability32. However, the 19th century brought a clear

distinction and tort was finally categorised as a civil

liability that came from a correctional system of justice and

31 Miceli, Thomas J. "The color of law: an economic theory of legal boundaries."European Journal of Law and Economics 38, no. 2 (2014): 185-209.32 Farran, Sue, and Jennifer Corrin Care. "Towards a pragmatic approach to the contract or tort debate in the South Pacific." Journal of South Pacific Law 4 (2009): 2000.

19

the focus remained on the deliverable punishment to the person

who committed tort. Tort basically gave its own definition of

what was right and what was not33.

Change in Ideologies

With the dawn of the new millennium several changes took place

in the ideologies of both tort and contract. For instance, in

case of contractual liability the government started taking

interest and issued provisions of workings that should

comprise of an attitude that promoted good faith. This concept

was in congruence with the benefit surrounding the bargaining

power of the customer. It later came to be known as Consumer

Welfarism or Communitarianism34.

On another hand, the shift that has taken place in case of

tort is the turning of corrective justice in tort to a

distributive justice. Before deciding upon a case of tort, the

court actually takes into account the fact that all liability

should not fall on the shoulders of one person who was

completely responsible rather the liability should evenly fall33 Stroud III, Donald R. "Beyond Deception: Finding Prudential Boundaries Between Breach of Contract and Deceptive Trade Practices Act Violations inWisconsin." Marq. L. Rev. 93 (2009): 1157.34 Farran, Sue, and Jennifer Corrin Care. "Towards a pragmatic approach to the contract or tort debate in the South Pacific." Journal of South Pacific Law 4 (2009): 2000.

20

on all those charged with its commitment35. Initially, the

concept that tort carried, one that wanted to provide

punishment for the wrongdoer now focuses on social and

economic factors and also takes into account the fairness of

the decision based on the bargaining power of all the

defendants. Therefore, it can be clearly seen that courts are

pursuing the idea of fairness and justice as it is seen in a

society36.

The ideological changes in tort and contract have had an

instrumental effect on not only the original framework that

had been established in their respect but have also played a

significant role in making the boundaries between tort and

contract a little vague. These boundaries have altered where

the idea of fairness and good faith got hold of both the

notions of tort and contract37.

35 Bart, Sir F. P. A Treatise on the Principles of Obligations Arising fromCivil Wrongs in the Common Law. (1895).36 Thoma, Oliver. "Having Your Cake and Eating It Too: Post-contract-Formation Fraud." Baylor L. Rev. 66 (2014): 782-812.37 Feldman, Steven W. "EXPANDED MERCHANT TORT LIABILITY, DEMOCRATIC DEGRADATION, AND MASS MARKET STANDARD FORM CONTRACTS--A TWO-PART CRITIQUE OF BOILERPLATE: THE FINE PRINT, VANISHING RIGHTS AND THE RULE OF LAW (PARTII)." Clev. St. L. Rev. 63 (2014): 163-269.

21

The Effects of the Ideological Change

Contract Law

Many aspects of the contract law have been affected by the

above mentioned change. In this respect two essential and

fundamental concepts of contract have been altered. These are

the concepts of privity and consideration38. In a contract, the

two of these concepts play the role of pillars that are able

to hold the contract. However, even the existence of these

elements does not keep the contract from resulting into an

unforeseeable outcome. That shows that the sometimes the

intentions of the contracting parties tend to change or never

meant to stay intact39.

The concept of privity of contract means that the contract is

not enforceable by the third parties where a contract can be

revoked on the basis of non-fulfilment of consideration. The

changes in the contract law have brought legal liability on

legal judgement as well because as per the previous practice

38 Farran, Sue, and Jennifer Corrin Care. "Towards a pragmatic approach to the contract or tort debate in the South Pacific." Journal of South Pacific Law 4 (2009): 2000.39 Rhee, Robert J. "The Tort Foundation of Duty of Care and Business Judgment."notre dame law review 88 (2013): 1139.

22

it seemed rather strange that legal liability be imposed on

contracting parties based on their conduct40.

Other than that, the courts have imposed use of limitation

clauses in contracts so that the contracting parties cannot

escape their liabilities. That has included the influence of

the court in the contracts. Here, the courts do so because it

is in accordance with the terms of fairness and good faith

which is also an essential element in cases of tort41.

Therefore, the courts are basically reducing the boundary

between tort and contract. As per this, it seems like a very

near option that liability for negligence shall also be a part

of contractual liability.

If these changes kept on going, the damages applicable in the

law of contract are likely to be presented as per the extent

of the offence generated rather than the expectations of the

parties which generally places importance on the conduct

rather than the offence42.

40 Epstein, Richard A. "Toward a general theory of tort law: Strict liability in context." Journal of Tort Law 3, no. 1 (2010).41 Barnett, Randy E. "Contracts is Not Promise; Contract is Consent." Suffolk UL Rev. 45 (2011): 647.42 Bart, Sir F. P. A Treatise on the Principles of Obligations Arising fromCivil Wrongs in the Common Law. (1895).

23

Tort Law

Tort has been affected indirectly by the changes that have

taken place in the ideological concept of the law. The changes

in the concept and the law are made to reduce the victims’

ability to get damage. The changes have been rather clear in

tort so that they have not affected many things in it. The

changes are generally reforms and amendments that is the

reason for not being affected as it is must in all changes for

the second party to pay to the first party43.

The biggest effect that is faced by the law of tort is the

clause regarding remedies. The clauses are those articles or

paper that defines the laws and the rules about the harm and

injuries. The remedies are generally presented limited to the

actual loss incurred by the offended party but due to the

changes, the expected losses of the offended party are now

considered. However, since the case of HEDLEY BYRNE v HELLER

(1963), these expected losses can be called as economic losses

that arise due to negligence due to misstatement44. Other than

43 MacMillan, C. & Stone, R. Elements of the Law of Contract. University ofLondon. (2012).44 Lloyd’s. Litigation and Business: Transtalantic Trends. 360: Driving theDebate on Emerging Risk. (2008).

24

that, cases involving frauds can also make use of these losses

as was the case in EAST v MAURER (1991).

If torts begin to award damages in respect of expectations of

the parties than these would not only be restricted to the

damages pertaining to negligent actions these would spread to

other areas of the tortuous liability45.

Overall Effect of the Change

The overall effect of the changes in the ideologies of both

tort and contract is that both of these laws are becoming more

and more similar. The boundaries between these is slowly

fading and becoming so thin that it seems in near future there

shall only be one civil law or one law of obligation46.

Contradictions in the law

The changes that have taken place in the ideology of the law

of contract and the law of tort, have affected the two of

these laws deeply but at the same time several contradictions

have taken place within these individual laws. The effect of

the changes has befallen both the laws internally. While the

45 Breach of Contract & Remedies. (n.d).46 Lloyd’s. Litigation and Business: Transtalantic Trends. 360: Driving theDebate on Emerging Risk. (2008).

25

effects are very prominent in the case of the law of contract,

the same cannot be said by the law of tort but tort has also

been affected47.

Contradictions in contract law

The contradictions arising in the law of contract are

generally due to the differences that have occurred in the

traditional framework of the law and the changes in effect

that have recently developed. Many a problems within the law

have come to surface in this respect48.

One such example is the idea of consensus and strict liability

within the law. The traditional approach to the law of

contract merely looks at the existence of the terms pertaining

to consent and based on those terms imposes strict liability

upon the parties to the contract49. Whereas, the modern outlook

of the law of contract suggests that only the existence of the

consent does not suffice and it must be evaluated whether the

evidence to the consent exists and whether the terms that were

47 Shamoo A and Resnik D. Responsible Conduct of Research, 2nd ed. (New York: Oxford University Press) (2009).48 Kreitner, Roy. "Fault at the Contract-Tort Interface." Michigan Law Review (2009): 1533-1549.49 Sebok, Anthony J., and W. Bradley Wendel. "Duty in the Litigation Investment Agreement: The Choice between Tort and Contract Norms When the Deal Breaks Down." Vanderbilt Law Review, Forthcoming (2013).

26

able to establish a consent were fair or that whether the

agreement was made at arm’s length. A very clear example of

that can be seen in the case of BUTLER MACHINE TOOL CO v EX-

CELL-0 CORP (1979) where the contract present with the buyer

had a fixed price clause in it and the contract with the

seller had the room for a variation in the price. But when the

court pronounced its judgement it was based on the traditional

framework of the contract where it was not taken into

consideration that although the contract had been performed,

there was never truly a consensus between the parties as both

the parties had different terms with them. The modern view has

the idea that would have helped in identifying the absence of

consensus in this agreement. Also, in the traditional

framework in the above case, the fairness of the contract was

never judged50.

In another case, however, the modern view of the contract was

touched more clearly. In the case of INTERFOTO v STILETTO

VISUAL PROGRAMMES LTD (1988) the court denied an application

for imposition of strict liability of the contract with regard

to an onerous term of the contract. The issue was discussed by

50 Fried, Charles. Contract as promise. Harvard University Press, 2009.

27

the court in respect of limitation clauses. The court explored

the modern day concept of good faith and fairness within the

contract rather than exercising the effect of the traditional

framework as per the agreement formed an offer and

acceptance51.

That expresses that the law of contract has its main

concentrations on the principles of fairness. The conduct

between the parties is established with the premise whether it

is explicit or implicit in the contact, that the parties shall

act fairly in respect of the contract. Both the parties should

honour the terms of fairness in the contract and that has to

be evaluated when the contract is being decided upon52.

The two cases mentioned above have several issues in this

respect. The first think is that these are business contracts

which do not have any protection whatsoever. Both the cases

had at least one onerous clause and neither of the parties had

informed the other party of the existence of such a clause53.

51 Sebok, Anthony J., and W. Bradley Wendel. "Duty in the Litigation Investment Agreement: The Choice between Tort and Contract Norms When the Deal Breaks Down." Vanderbilt Law Review, Forthcoming (2013).52 Barnett, Randy E. "Contracts is Not Promise; Contract is Consent." Suffolk UL Rev. 45 (2011): 647.53 Sebok, Anthony J., and W. Bradley Wendel. "Duty in the Litigation Investment Agreement: The Choice between Tort and Contract Norms When the Deal Breaks Down." Vanderbilt Law Review, Forthcoming (2013).

28

At the same time, in both the cases it was not detected that

the intention of any of the parties was either

misrepresentation or fraud. However, the first case was taken

into account based on the principles of the traditional

framework of the law of contract while the second one was in

accordance with the modern developments in the law of

contract. In the second case the true nature of the consent

was discovered and decided upon54.

Contradictions in Tort Law

The main contradiction that arises in the tort law is that of

the compensation for loss. While previously losses were

restricted to actual loss, now the losses are more diverted

towards economic or expected loss. The tort law is now

implicated with the terms of the law of contract. This

development in the law of tort generally came out of the case

of HEDLEY BYRNE v HELLER55.

Similar problems have been rising due to this but all of this

have had varied approaches. For instance in the case of MURPHY

54 Smith, Henry E. "Modularity and Morality in the Law of Torts." Journal of Tort Law 4, no. 2 (2011).55 Robertson, Andrew, ed. The law of obligations: connections and boundaries. Routledge, 2012.

29

V BRENTWOOD DISTRICT COUNCIL (1990) the courts did not find

that a local authority’s negligent misstatement had violated

the authority’s general duty of care whereas in the case of

SMITH v BUSH and HARRIS v WYRE DISTRICT COUNCIL (1989) false

valuation of a house by a valuer was considered as a liability

to the purchaser of the house56. Although in both the above

mentioned cases the misstatements were negligent but the

outcomes were very different from one another.

Proposed Research Timetable

The following research timetable will be adapted for the

research. This timetable is subject to change.

Tasks Ja

n

Fe

b

Ma

r

Ap

r

May Ju

n

Ju

l

Aug Sep Oct Nov Dec

1. Selection and approval

of the topic of the

study

56 Sebok, Anthony J., and W. Bradley Wendel. "Duty in the Litigation Investment Agreement: The Choice between Tort and Contract Norms When the Deal Breaks Down." Vanderbilt Law Review, Forthcoming (2013).

30

2. Writing of the research

proposal

3. Approval of the proposal

4. Collection of Data

5. Analysing the Data

6. Drafting the Results

Derived from the Data

7. Writing of the final

Report

8. Submission of the First

Draft for feedback

9. Making the proposed

changes in the draft

10. Resubmission of the

final draft

11. Preparation for

presenting the defence

of the study

31

12. Defence of the study

Limitations of the Study

This study will not take any interviews in the process of

collection of primary data neither will it use any hard copies

for the questionnaire and the survey. Both of these actions

will be avoided for the purpose of saving cost and time as the

researcher will face a potential time constraint during the

research. The research will only focus on the small business

and this may change the results of the further researches

about the topic in future.

Delimitations of the Study

The subject matter of the study will be limited to the

differences and boundaries that exist between the Tort law and

the Contract Law in the context of the United Kingdom.

However, the paper will consider examples of case laws from

different contexts in order to make the study more compelling.

32

Ethical Considerations

The ethical considerations in any given research are very

essential for it. The principles guiding a research generally

represent the aims the research intends to explore, and those

are generally the acquiring of knowledge, truth and making

sure that it is done with least possible errors. The ethical

considerations of this research include the restriction on

presenting false data, forging it or misrepresenting it.

Ethics in the research also promote a collaborative approach

to work. People work in different teams for varied different

functions. That requires many qualities within the team such

as respect, accountability, fairness and trust among the team

mates57.

Other than that, ethics in this research are also formulated

to protect the intellectual property of individuals working on

the research. The ethics ensure that these intellectual

property rights are saved by way of establishing copyrights

and patents on the works of researchers so that others cannot

57 Stroud III, Donald R. "Beyond Deception: Finding Prudential Boundaries Between Breach of Contract and Deceptive Trade Practices Act Violations inWisconsin." Marq. L. Rev. 93 (2009): 1157.

33

misuse the data collected by a particular research team or the

reports completed by them58.

The ethical considerations in the research are also necessary

for the purpose of protection of the subjects or the

respondents of the research such as humans or animal care etc.

Other than that, the people who are funding the research need

to be aware of the various ethical considerations that the

research has undertaken so that it becomes clear whether they

should continue to extend funds to the research or not,

whether the funding of the research is being given for a just

reason or not. The decision of funding of the research is very

essential for the survival of the research project and its

sufficient working. The quality of the work of the research as

well as the integrity of the research and the author all have

to be evaluated for the purpose of research. The compliance of

many elements such as the rights of animals, humans and social

responsibility towards all aspects of the research play an

important part in determining if the research should continue

for longer59. 58 Farran, Sue, and Jennifer Corrin Care. "Towards a pragmatic approach to the contract or tort debate in the South Pacific." Journal of South Pacific Law 4 (2009): 2000.59 Thoma, Oliver. "Having Your Cake and Eating It Too: Post-contract-Formation Fraud." Baylor L. Rev. 66 (2014): 782-812.

34

A research, its life, its quality and integrity are highly

affected by the ethical considerations that are carried out by

the research. These ethical considerations should include the

following:

Honesty

The honesty in a research depends upon the scientific

communication in a research. This includes the data of the

report as well as its results, methodology and the status of

its publication. Other than that, the colleagues must not be

deceived during the research as well as integrity of the

research must be maintained for the public also.

Objectivity

The objectivity of the research should not be comprised. This

can happen in the design of the research. The bias in the

interpretation, analysis, writing and many other areas of the

research can seriously affect the research. The research will

be based on the random selection of the small firms in order

to avoid objectivity and biasness.

35

Integrity

The integrity of the research should be kept intact by keeping

promises on a consistent basis and bringing together the

thought and action of the people within the research.

Carefulness

The research should be devoid of careless errors so that it

must be seen clearly whether the research can be carried out

clearly. Other than that, the research activities have to be

carried out clearly.

Openness

The research should be carried out with an openness such as

the sharing of data, sharing of results and the tools and

resources of the research. The research should also be

criticised and new ideas are given.

Respect for Intellectual Property

The intellectual property of the research has to be respected

by the members of the research team. The teams should also be

aware of the copyrights and patents of the research. The

36

material used in the research should be not be plagiarised, it

should not have any discrepancies.

Confidentiality

The communications carried out in the research should be

carried out with complete confidentiality. A clear example of

that is the paper or the grant that is submitted for the

purpose of publication should not be shared with anyone else

or the record of the patients if they are involved as the

subjects of the research.

Responsible Publication

The publication of the research must also be very ethical.

That actually means that if a research is carried out for

publication, it must be published for the purpose of

dissemination of information, not for the purpose of one’s own

career advancement.

Responsible Mentoring

A research must also be published with an intention to teach,

mentor and educate students. The welfare of the students must

be maintained and their decisions must be honoured.

37

Respect for colleagues

The research team mates must be treated fairly and

respectfully.

Social Responsibility

The social responsibility of the research must also be

maintained and carried out properly.

Non-Discrimination

The research should not discriminate against anyone towards

whom the research is directed. No race, religion, culture,

ethnicity or identity should be discriminated in the research.

Competence

The education and experience through the research program

should allow encourage the professional to maintain their

competence.

Legality

The legalities surrounding the research project must be

critically evaluated.

38

Animal Care

The research should show a concern and care towards animals.

Experiments that may intend to harm the animals must not be

conducted. The tort law not only identify the rights of the

human beings but also the rights of the animals in order to

determine that any business is not harming to the animals.

Human Subjects Protection

The human subjects of the research must be protected and their

privacy as well as their human dignity, autonomy and other

rights must be protected under the research such as those

mentioned below:

The researcher will keep the personal information of the

respondents to the research confidential.

The researcher will not exploit any of the information

received from the research of purposes other than the

study.

The study will not comment on any decision by any court in

the UK being flawed or otherwise ill advised.

39

The study will review the cases in the paper only for

purpose of evidence against the arguments discussed in the

paper.

40

References

Barnett, Randy E. "Contracts is Not Promise; Contract is

Consent." Suffolk UL Rev. 45 (2011): 647. Retrieved From:

http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi

?article=1614&context=facpub&sei-redir=1&referer=https%3A

%2F%2Fscholar.google.com.pk%2Fscholar%3Fstart%3D10%26q

%3DTort%2Band%2BContract%2Bboundary%26hl%3Den%26as_sdt

%3D0%2C5%26as_ylo%3D2009#search=%22Tort%20Contract

%20boundary%22

Bart, Sir F. P. A Treatise on the Principles of Obligations

Arising from Civil Wrongs in the Common Law.

(1895).Retrieved From:

http://files.libertyfund.org/files/2123/Pollock_1428_Bk.p

df

Breach of Contract & Remedies. (n.d). Retrieved From:

https://www.goldsmithibs.com/resources/free/Breach-of-

Contract/notes/Breach-of-Contract-Remedies.pdf

Bryman, Alan. Social research methods. Oxford university

press, 2012. http://www.imemsummaries.nl/downloads/2010-

2011/year1/SE2/SE2_summary_Social_Research_Methods_in_Dut

ch.pdf

Campanale, C., Castro, R., & Clementi, G. L. Asset pricing in

a production economy with Chew–Dekel preferences. Review

of Economic Dynamics, 13(2), 379-402. 2010. Retrieved

41

From:

http://pages.stern.nyu.edu/~gclement/Papers/Asset.pdf

Epstein, Richard A. "Toward a general theory of tort law:

Strict liability in context." Journal of Tort Law 3, no.

1 (2010). Retrieved From:

http://lsr.nellco.org/cgi/viewcontent.cgi?

article=1251&context=nyu_lewp&sei-redir=1&referer=https

%3A%2F%2Fscholar.google.com.pk%2Fscholar%3Fstart%3D90%26q

%3DTort%2Band%2BContract%2Bboundary%26hl%3Den%26as_sdt

%3D0%2C5%26as_ylo%3D2009#search=%22Tort%20Contract

%20boundary%22

Farran, Sue, and Jennifer Corrin Care. "Towards a pragmatic

approach to the contract or tort debate in the South

Pacific." Journal of South Pacific Law 4 (2009): 2000.

Retrieved From:

http://www3.paclii.org/journals/fJSPL/vol04/8.shtml

Feldman, Steven W. "EXPANDED MERCHANT TORT LIABILITY,

DEMOCRATIC DEGRADATION, AND MASS MARKET STANDARD FORM

CONTRACTS--A TWO-PART CRITIQUE OF BOILERPLATE: THE FINE

PRINT, VANISHING RIGHTS AND THE RULE OF LAW (PART

II)." Clev. St. L. Rev. 63 (2014): 163-269. Retrieved

From:

http://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi

?article=3828&context=clevstlrev&sei-

redir=1&referer=https%3A%2F%2Fscholar.google.com.pk

%2Fscholar%3Fstart%3D50%26q%3DTort%2Band%2BContract

42

%2Bboundary%26hl%3Den%26as_sdt%3D0%2C5%26as_ylo

%3D2009#search=%22Tort%20Contract%20boundary%22

Fried, Charles. Contract as promise. Harvard University Press,

2009. Retrieved From:

http://www.law.harvard.edu/programs/about/privatelaw/cont

ract.as.promise.1.56.fried.pdf

Kahan, D. R. Shareholder liability for corporate torts: a

historical perspective. Georgetown Law Journal, 97(4).

2009. Retrieved From:

http://georgetownlawjournal.org/files/pdf/97-4/Kahan.PDF

Kreitner, Roy. "Fault at the Contract-Tort

Interface." Michigan Law Review (2009): 1533-1549.

Retrieved From:

http://www2.tau.ac.il/InternetFiles/news/UserFiles/Kreitn

er%20-%20Fault%20at%20the%20Contract-Tort%20Interface.pdf

Kysar, D. A. What climate change can do about tort law? 2010.

Retrieved From:

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?

article=4847&context=fss_papers

Lloyd’s. Litigation and Business: Transtalantic Trends. 360:

Driving the Debate on Emerging Risk. (2008). Retrieved

From:

http://www.lloyds.com/~/media/lloyds/reports/360/360%20li

ability%20reports/360_litigationandbusiness.pdf

MacMillan, C. & Stone, R. Elements of the Law of Contract.

University of London. (2012). Retrieved From:

43

http://www.londoninternational.ac.uk/sites/default/files/

programme_resources/laws/ug_subject_guides/

elements_law_contract-subjectguide4chapters.pdf

Miceli, Thomas J. "The color of law: an economic theory of

legal boundaries."European Journal of Law and

Economics 38, no. 2 (2014): 185-209. Retrieved From:

http://web2.uconn.edu/economics/working/2013-17.pdf

Rhee, Robert J. "The Tort Foundation of Duty of Care and

Business Judgment."notre dame law review 88 (2013): 1139.

Retrieved From:

http://scholarship.law.nd.edu/cgi/viewcontent.cgi?

article=1129&context=ndlr&sei-redir=1&referer=https%3A%2F

%2Fscholar.google.com.pk%2Fscholar%3Fstart%3D70%26q

%3DTort%2Band%2BContract%2Bboundary%26hl%3Den%26as_sdt

%3D0%2C5%26as_ylo%3D2009#search=%22Tort%20Contract

%20boundary%22

Robertson, Andrew, ed. The law of obligations: connections and

boundaries. Routledge, 2012. Retrieved From:

https://books.google.com.pk/books?

hl=en&lr=&id=oVKPAgAAQBAJ&oi=fnd&pg=PP1&dq=Tort+and+Contr

act+boundary&ots=3FMdmJ3DGQ&sig=VHmzVjK0z2iRqazvpwwOLbDGf

UI#v=onepage&q=Tort%20and%20Contract%20boundary&f=false

Sebok, Anthony J., and W. Bradley Wendel. "Duty in the

Litigation Investment Agreement: The Choice between Tort

and Contract Norms When the Deal Breaks Down." Vanderbilt

Law Review, Forthcoming (2013). Retrieved From:

http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?

44

article=2272&context=facpub&sei-redir=1&referer=https%3A

%2F%2Fscholar.google.com.pk%2Fscholar%3Fq%3DTort%2Band

%2BContract%2Bboundary%26hl%3Den%26as_sdt

%3D0%252C5%26as_ylo%3D2009%26as_yhi%3D#search=%22Tort

%20Contract%20boundary%22

Shamoo A and Resnik D. Responsible Conduct of Research, 2nd

ed. (New York: Oxford University Press) (2009). Retrieved

From:

http://www.niehs.nih.gov/research/resources/bioethics/wha

tis/

Smith, Henry E. "Modularity and Morality in the Law of

Torts." Journal of Tort Law 4, no. 2 (2011). Retrieved

From:

http://dash.harvard.edu/bitstream/handle/1/8789603/Modula

rity.pdf?sequence=1

Solomon, J. M. Equal Accountability Through Tort

Law. Northwestern University Law Review, 103, 08-010.

2010. Retrieved From:

http://scholarship.law.wm.edu/cgi/viewcontent.cgi?

article=2165&context=facpubs

Stroud III, Donald R. "Beyond Deception: Finding Prudential

Boundaries Between Breach of Contract and Deceptive Trade

Practices Act Violations in Wisconsin." Marq. L. Rev. 93

(2009): 1157. Retrieved From:

http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?

article=4974&context=mulr&sei-redir=1&referer=https%3A%2F

%2Fscholar.google.com.pk%2Fscholar%3Fstart%3D20%26q

45

%3DTort%2Band%2BContract%2Bboundary%26hl%3Den%26as_sdt

%3D0%2C5%26as_ylo%3D2009#search=%22Tort%20Contract

%20boundary%22

Thoma, Oliver. "Having Your Cake and Eating It Too: Post-

contract-Formation Fraud." Baylor L. Rev. 66 (2014): 782-

812. Retrieved From:

http://www.baylor.edu/law/lawreview/doc.php/240217.pdf

Tort law. Chapter 10. n.d. Retrieved From:

http://www.jus.unitn.it/users/patterson/course/topics/mat

eriale/ch10.pdf

Torts Outline. (n.d). Retrieved From: https://latrieved From:

w.wustl.edu/sba/firstyearoutlines/torts/Unknown/TORTS_OUT

LINE.pdf