In Component II of this post, I discuss negligent tort liability under the CISG in the context of selection-of-law theories, informed by application of Articles 4 and 5 of the CISG. The usual rule in relation to clauses excluding liability is that if liability can be primarily based on negligence or on some other ground, and if the clause does not specifically state that liability for negligence is excluded, then liability for negligence is not excluded. The second possible lead to of action in contract is breach of a term implied by statute, namely section 13 of the Provide of Goods and Solutions Act 1982. This implies not providing the plaintiff compensation for any losses not related to the misrepresentation, but resulting from such elements as the plaintiff’s own poor overall performance, or marketplace or other forces that are a regular element of company transactions.
The essential issues are (1) will a given pre-contractual misrepresentation assistance a claim in contract and tort concurrently and (2) what consequences outcome from concurrent liability. In Holt LJ said that: ‘…if the similar parties enter a contractual connection involving far more limited obligations than these imposed by the duty of care in tort. On the facts of Glanzer, supra, then, the scope of the defendant’s liability could readily be delimited and indeterminacy, for that reason, was not a concern.
The proper to sue in tort is not extinguished, nonetheless, and might stay critical, as exactly where suit in contract is barred by expiry of a limitation period. Subsequent cases indicated very first that experts (see Henderson v Merrett ) and then contractors themselves (for instance, see Tesco v Costain ) could be liable in tort concurrently with their duties in contract as regards defects.
The principles of concurrency, as expressed in BG Checo, assistance the entitlement of a plaintiff to opt for either, or both, contract and tort remedies. If the contract duty is lesser than the tort duty, then the plaintiff will similarly likely sue in contract simply because recovery in tort would be diminished by the extent to which the contract limits the tort duty. When the tort of negligence was created in Donoghue v Stevenson and subsequent instances, it aim was to offer a remedy for negligence causing physical damage. Such circumstances, the duty of care and the duties imposed by contract will be concurrent and not co-existent’.
Reference to the variations in between tort and contract talked about above (limitation periods, damages, remoteness guidelines, and application of statutes) will help the plaintiff in deciding how to frame the action. V. Touche, 174 N.E. 441 (N.Y.C.A. 1931), at p. 444, the basic policy consideration that should be addressed in negligent misrepresentation actions centres about the possibility that the defendant may be exposed to liability in an indeterminate quantity for an indeterminate time to an indeterminate class”.