Ruben De Graaff, ‘Concurrent Claims in Contract and Tort: A Comparative Perspective’

Abstract:
This contribution analyses whether, and to what extent, the law permits a choice between finding liability in contract and in tort. The answer to this question is important because the outcome of a case may differ depending on whether the claim for damages is based on a breach of contract or on a violation of a tortious duty. The contribution examines the approaches in several European jurisdictions. French law is straightforward: finding liability in tort is not possible if the damage is caused by or related to the (non-) performance of a contractual obligation. German, Dutch and English law take the opposite point of view: finding liability in tort is not precluded if the damage is caused by or related to the (non-) performance of a contractual obligation. This contribution traces the historical development of these approaches and explains their differences by looking at the underlying structure of these systems of private law. It also shows that the resoluteness of both solutions has softened over time, as a result of judicial and legislative interventions. To support this argument, recent developments in case law and legislation are discussed.

Ruben De Graaff, ‘Concurrent Claims in Contract and Tort: A Comparative Perspective’, (2017) 25 European Review of Private Law, issue 4, pp 701–726.

First posted 2017-09-14 06:00:59

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