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The Lottery of Contractual Risk Allocation and Proportionate Liability

Journal of Contract Law, Vol. 26, No. 1, pp. 1-24, 2009

Sydney Law School Research Paper No. 10/15

25 Pages Posted: 19 Jan 2010  

Barbara McDonald

The University of Sydney Law School

John Carter

The University of Sydney Law School

Date Written: January 18, 2010

Abstract

The article explores the relationship between the contractual standard of duty requiring the exercise of care and the imposition of a duty of care in tort. One aspect of that relationship has become a matter of considerable importance in the application of the proportionate liability provisions of the Australian civil liability legislation. Although that legislation applies to claims for purely economic loss and property damage ‘arising from a failure to take reasonable care’, recent decisions have held that requirement to be satisfied by the careless breach of a strict duty. This article argues that this approach is wrong and undesirable.

Keywords: contract, concurrent liability in tort and contract, proportionate liability, purely economic loss in tort, negligence

JEL Classification: K10, 12, K13, K30

Suggested Citation

McDonald, Barbara and Carter, John, The Lottery of Contractual Risk Allocation and Proportionate Liability (January 18, 2010). Journal of Contract Law, Vol. 26, No. 1, pp. 1-24, 2009; Sydney Law School Research Paper No. 10/15. Available at SSRN: https://ssrn.com/abstract=1538631

Barbara McDonald (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

John Carter

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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