Non-Consensual Liability of a Contracting Party: Contract, Negligence, Both, or In-Between?

3 Theoretical Inq. L. 511 (2002)

Hebrew University of Jerusalem Legal Research Paper

34 Pages Posted: 5 Aug 2015

See all articles by Israel Gilead

Israel Gilead

Hebrew University of Jerusalem - Faculty of Law

Multiple version iconThere are 2 versions of this paper

Date Written: August 3, 2015

Abstract

This article makes a comparative examination of the widening spectrum of cases in which both tort law and contract law are employed, jointly or separately, to impose non-consensual liability on a contracting party. The article focuses on liability imposed on a contracting party, either toward another contracting party or toward a third party for failure to perform an obligation that, on the one hand, is predicated on and arises from the contract, but, on the other hand, does not genuinely originate in the consent of the liable party because it is external to her genuine intention. The primary objective of this article is to propose general guide lines for either choosing between tort law and contract law when imposing non-consensual liability on a contracting party or else allowing liability under both headings. These guide lines for the classification of non-consensual liability also bear on the preliminary question of whether to impose non-consensual liability at all and on the delicate interplay between contract and tort in general and particularly when the two lead to conflicting legal outcomes.

Keywords: contract, torts, consensual, intention, liability, Israel Gilead

Suggested Citation

Gilead, Israel, Non-Consensual Liability of a Contracting Party: Contract, Negligence, Both, or In-Between? (August 3, 2015). 3 Theoretical Inq. L. 511 (2002), Hebrew University of Jerusalem Legal Research Paper, Available at SSRN: https://ssrn.com/abstract=2639391

Israel Gilead (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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