Traditional contract and tort claims exist mutually exclusively as distinct and separate actions. When thinking of the impact of the subsequent contract on the representee’s tort action, anything revolves around the nature of the contractual obligations assumed by the parties and the nature of the alleged negligent misrepresentation. It is rather that the tort duty, a common duty imputed by the law in all the relevant circumstances, need to yield to the parties’ superior correct to arrange their rights and duties in a diverse way. The third relationship is a single in which the duty in contract and the duty in tort are co-extensive.
While indeterminate liability would have raised some concern to the Lords had the plaintiff not been known to the defendants or had the credit reference been used for a goal or transaction other than that for which it was in fact ready, no such troubles about indeterminacy arose on the specific details of the case. The legal analysis of such misrepresentations depends on regardless of whether the misrepresentations were created prior to, or soon after, the execution of the contract.
On the other hand, before turning to these two key problems, a brief discussion of the importance of concurrent liability is presented. An issue not addressed by the court, but which arises potentially by way of analogy, is no matter if the broader guidelines as to causation which ordinarily apply in tortious claims are also to be aligned with the narrower contractual position in situations of concurrent liability.
In contract the accrual date is the date of breach: when the solicitor/surveyor failed to take affordable care and gave wrongful guidance. A decision of the Court of Appeal final week has viewed as the appropriate approach to remoteness in situations where there is concurrent liability in contract and tort. The proper to sue in tort will not be excluded merely since the parties have dealt with the matter expressly in their contract.
If a single says categorically, as we comprehend Iacobucci J. to say, that exactly where the contract deals with a matter expressly, the proper to sue in tort vanishes altogether, then the latter two possibilities vanish. It is untrue that a contradiction of the tort duty by the contract fully negates the tort duty rather, the tort duty is diminished to the extent that it is contradicted by the contract (BG Checo, para 16).
