Torts and breaches of contract

A tort involves breach of a duty which is fixed by the law, while breach of contract is a breach of a duty which the party has voluntarily agreed to assume.



For example, we are all under a duty not to trespass on other people's land, whether we like it or not, and breach of that duty is a tort. But if I refuse to dig your garden, I can only be in breach of a legal duty if had already agreed to do so by means of a contract.



In contract, duties are usually only owed to the other contracting party, whereas in tort, they are usually owed to people in general. While the main aim of tort proceedings is to compensate for harm suffered, contract aims primarily to enforce promises.



Again, there are areas where these distinctions blur. In some cases liability in tort is clarified by the presence of agreement - for example, they duty owed by an occupier of land to someone who visits the land is greater if the occupier had agreed to the visitor's presence, than if the 'visitor' is actually a tresspasser. Equally, many contractual duties are fixed by law, and not by agreement; the parties must have agreed to make a contract, but once that has been done, certain terms will be imposed on them by law.

A defendant can be liable in both contract and tort. For example, if a householder is injured by building work done on their home, it may be possible to sue in tort for neglignence and for breach of a contract term to take reasonable care.