Non-Consensual Liability of a Contractual Party: Contract, Negligence, Both, or In-Between?

Abstract

This article makes a comparative examination of the widening spectrum of cases in which both tort law and contract law are employed, jointly or separately, to impose non-consensual liability on a contracting party. The article focuses on liability imposed on a contracting party either toward another contracting party or toward a third party for failure to perform an obligation that, on the one hand, is predicated on and arises from the contract, but, on the other hand, does not genuinely originate in the consent of the liable party because it is external to her genuine intention. The primary objective of this article is to propose general guidelines for either choosing between tort law and contract law when imposing non-consensual liability on a contracting party or else allowing liability under both headings. These guidelines for the classification of non-consensual liability also bear on the preliminary question of whether to impose non-consensual liability at all and on the delicate interplay between contract and tort in general and particularly when the two lead to conflicting legal outcomes.