Lord Justice Jackson has referred to as on the government to generate a single core limitation regime” for all claims in contract and tort, as advisable by the Law Commission. A contract may well expressly specify a duty which can give rise to a separate and actionable breach of contract. The initial and foremost question really should be regardless of whether there is a specific contractual duty designed by an express term of the contract which is co-extensive with the frequent law duty of care which the representee alleges the representor has breached. Hence, whether the complete agreement clause excludes Intrawest from liability for negligent misrepresentation is not very easily answered. By contrast, tortious claims permit all losses to be recovered which are reasonably foreseeable at the time the tort occurred.
In Henderson v. Merrett , Lord Goff laid down the present English position on concurrent liability, by holding that the existence of a contract involving parties does not necessarily exclude the concurrent existence of liability in tort. Here, the plaintiff might seek to sue concurrently or alternatively in tort to secure some advantage distinct to the law of tort (such as a much more generous limitation period) (BG Checo, para 19).
This selection will likely be influenced by the relationship among the tort duty and the contractual duty. The conventional distinction involving tort and contract was that an obligation in contract was from the agreement or will of the parties, and an obligation in tort was imposed by law. The present case is the first to consider the applicable guidelines as to remoteness in instances of concurrent liability in tort and contract.
Below the law of contract, a loss is ordinarily recoverable only if it may well reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of a breach. The judge at initial instance had held that such a loss would be as well remote for a claim in contract, but would be recoverable by means of a claim in tort.
The case really should also in certain circumstances minimize the will need, in conjunction with the other developments mentioned above, for extra legal expenses to be spent in formulating complicated claims in tort alongside additional straightforward contractual claims. On the other hand, a contractual limitation may possibly not apply where the tort is independent of the contract in the sense of falling outdoors the scope of the contract (BG Checo, para 21).