Comparing Compensatory Damages in Tort and Contract: Some Problematic Issues

From Simone Degeling, James Edelman and James Goudkamp (eds), Torts in Commercial Law (Law Book Co 2011) 367-390

Oxford Legal Studies Research Paper

22 Pages Posted: 17 Jun 2013

See all articles by Andrew Burrows

Andrew Burrows

University of Oxford - Faculty of Law

Date Written: 2011

Abstract

This essay considers a number of difficult issues in comparing compensatory damages in tort and contract in the context of concurrent liability. Four questions are focused on. Looking across all four questions, it is argued that, while the measure of damages should reflect the underlying wrong in question – so that the reliance interest should not be protected for breach of contract as opposed to tortious misrepresentation – there is usually no rational reason for applying different restrictions on compensatory damages in contract and tort in cases of concurrent liability. So it is that there should be an assimilated approach to remoteness and to the recovery of mental distress in the context of concurrent liability with, in both situations, the contractual rules applying to the concurrent claim in the tort of negligence. And as regards loss of a chance, the most rational assimilation depends on recognising that the differences should rest not on whether the cause of action is tort or contract but rather on whether the type of loss in question is economic or a personal injury.

Keywords: Damages, contract, tort

Suggested Citation

Burrows, Andrew Stephen, Comparing Compensatory Damages in Tort and Contract: Some Problematic Issues (2011). From Simone Degeling, James Edelman and James Goudkamp (eds), Torts in Commercial Law (Law Book Co 2011) 367-390, Oxford Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=2280293 or http://dx.doi.org/10.2139/ssrn.2280293

Andrew Stephen Burrows (Contact Author)

University of Oxford - Faculty of Law ( email )

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