Tort+in+a+Contractual+Matrix


 * Fleming Article**

Fleming’s article examines the relation between K and tort. Specifically, starting from the historical assumption that “a defendant’s Ktual undertaking pre-empted a corresponding tort duty, not only to the Ktual partner, but also to third parties. Admittedly, //Donoghue// sort of blew that apart (“privity fallacy”), but still there is not clear understanding of the linking and consistency of treatment of obligations of tort wound through a Ktual setting. This is what the author means by his title (“Ktual matrix”). He is specifically talking about potentially tortuous situations that arise out of “planned transaction[s]”, prime example being Hedley Byrne.

First, the author tackles the sticky situation of the effect of Ktual limitation clauses on third parties. He departs from the assumption that this situation is solveable either through recourse to expanding the reach of the K beyond privity or by “jumping the privity gap” in tort. The first part of the paper details ways to follow the tort route.

In the second part of the paper the author deals with the question of how to appropriately treat a K’ing party’s failure to seize an opportunity to pre-emptively K in such a way as to mitigate/eliminate risk. Should the protection of tort law be extended to a party who was capable of Kting away the risk?

The author ventures that both these situations exemplify the “weakening of the borders between contract and tort”. While some have noted an ongoing absorption of K into tort law, the author here argues not for dominance of one but for increasing reciprocity: “If K is being obliterated in some contexts, like concurrence, it has come to define the incidence of tort duties in others. This is especially apparent in the context of planned transactions which, until recently, fell within the exclusive domain of K.”