Private Law Theory

Abstract:
This Article challenges the prevailing view in the United States, and everywhere else in the common law world, which classifies the claim of negligent misrepresentation as a tort. I argue negligent misrepresentation is best understood as a contractual claim akin to promissory estoppel, with the gist of both claims being invited reliance. The prevailing view is an unfortunate byproduct of classical theories of contract and the idealization of contract as essentially private legislation. The classification of the claim as a tort is unfortunate because the rise of the modern tort of negligence, which has at its heart a principle of liability for harm carelessly caused, creates a risk that the tort of negligent misrepresentation will be subsumed into a general tort of negligence. Subsuming the claim into negligence will efface important features of the claim. Classifying the claim as contractual, however, will preserve these features while reinforcing largely positive trends in modern contract law … (more)

Mark P Gergen, ‘Negligent Misrepresentation as Contract’. California Law Review, vol. 101, 953 (August 2013).

First posted 2013-08-25 17:42:25