top of page

Tort and Contract

Tort and Contract
Tort and Contract


Nature of Duty in Breach of Contract and Tort

A breach of contract arises from the violation of a duty that the parties have voluntarily undertaken through mutual consent. For instance, if one promises to supply a radio set and fails to fulfil this obligation, it constitutes a breach of contract. 

On the other hand, a tort arises from the breach of duties not voluntarily undertaken but imposed by law. Duties like not assaulting, defaming, committing nuisance, or trespassing on another’s property are examples of such legally imposed duties. The violation of these duties constitutes a tort.


Privity of Contract

In a contract, duties are based on the privity of the contract, meaning each party owes duty only to the other contracting party. For example, if A and B enter into a contract, A’s duty is towards B only, and vice versa. This explains why a stranger to a contract cannot sue. Conversely, in tort law, duties are not towards any specific individual but are owed to the world at large. 

However, only those who suffer damage from the breach can sue. A classic example is the case of Donoghue v. Stevenson, where the manufacturer of ginger-beer was held liable for negligence when a consumer found a decomposed snail in a sealed, opaque bottle of ginger-beer, causing her illness.

Privity of Contract and Tortious Liability

If A breaches a contract with B and this results in injury to C, who is a stranger to the contract, the question arises whether C can sue A for tort even though there’s no contract between them.

Traditionally, it was believed that like B, C must show privity of contract to sue for tort, a notion introduced by the case Winterbottom v. Wright. 

However, this changed with Donoghue v. Stevenson, where it was established that a consumer could sue a manufacturer for tort even without a contractual relationship. Lord Macmillan stated that the existence of a contract does not preclude a simultaneous action for negligence independently of the contract.

An illustrative case is Klaus Mittelbachert v. East India Hotels Ltd., where a Lufthansa co-pilot sued for damages after being injured due to the defective design of a swimming pool in a hotel where he stayed. The defence that he was a stranger to the contract between Lufthansa and the hotel was rejected.

He could sue under the Law of Contract as a beneficiary and under the Law of Torts for compensation. The hazardous nature of the premises invoked the rule of absolute liability, resulting in the defendants being required to pay exemplary damages of 50 lac rupees.

Remedies and Overlapping Cases in Contract and Tort

The main remedy in both contract breaches and torts is damages. In contract breaches, damages can be 'liquidated' (pre-determined) or 'unliquidated' (not predetermined and decided by the court). In tort actions, damages are always 'unliquidated.' 

There can be situations where the same fact results in both a breach of contract and a tort. For instance, if a railway passenger is injured due to a driver's negligence, the railway authorities are liable for breach of contract for safe carriage and also for the tort of negligence. 

Similarly, if a neighbour allows a horse to die of starvation, it's both a breach of contract (as a bailee) and a tort of negligence. The plaintiff cannot claim damages twice and must choose whether to sue for breach of contract or tort.


0 views0 comments

Recent Posts

See All


bottom of page