Saturday 20 April 2013


As part of a society, we have obligations to others that can be enforced by law. Criminal Law seeks to deter and punish behaviour which the State feels is bad. [for example - homicide; offences which injure, damage or destroy people or property; fraud; dishonesty; public drunkenness; disorder....].

Other obligations are enforced through the civil courts. Traditionally the labels "Contract" and "Tort" have been applied to two very different types of obligations.

"Contract Law" gives a framework for dealing with certain agreements. Not all promises or agreements will be considered by the Courts. The first thing that the courts must do is decide whether there is a legally enforceable contract. Often law textbooks refer to the 'essentials of a contract'. If a purported agreement doesn't enjoy these attributes, the Courts will not consider adjudicating upon and enforcing the "agreement"

In English Law - the essentials of a contract are

- Offer
- Acceptance
- Consideration
- Intention to Create Legal Relations.

There are very specific rules, mainly arising from particular cases which govern what the courts will recognise for each essential.

If a contract does exist, then the next question for the Court is, "what is in the contract"? So they consider 'Express Terms' and 'Implied Terms'

If one of the parties has failed to properly carry out the terms - the final issue is what remedies should be given.


Other obligations arise - not because we have agreed to do, or to refrain from doing, something - but because our behaviour and interests can conflict with the interests of others. The term 'tort' (yes, for any readers of French - it is the same word as the French Language uses for 'wrong'!) - covers a number of "wrongs" that one person may commit in relation to the person or property of another. These include defamation; trespass against the person; trespass against property; nuisance; and negligence.

Once, 'negligence' was a minor tort - a relationship which existed because there was a contract between two people, might give rise to additional responsibilities. If I agree to buy something from you, let's say a kettle- there is a contract which requires you to give me the kettle and requires me to pay you an agreed sum of money. But if the kettle is dangerous and I am injured when using it - the courts might find that an additional obligation has been created not to injure me.

Then came Donoghue v Stevenson - the case of the decomposing snail in the ginger beer bottle. This held that there can be a wide "duty of care", not confined to existing contractual relationships. The three questions a Court must ask are

1 Is there a duty of care?
2 Has that duty been breached? (and this involves considering what standard of care is required)
3 Did the breach of the cuty cause the injury or damage?

This is a brief outline - highlighting the significance of key terms in 'Contract' and 'Tort'. If you are a law student you'll need to turn to your text book (or if an Open University Student) your manual for the detail. While statute does play some role in these areas of law - cases are very important.