THE CONTRACT/TORT DIVIDE

A BLURRING BORDERLINE

It is well known that classical legal thinking imposed a sharp distinction between contract and tort. It considered that contract was the essential manifestation of the power of self-determination of the parties (private autonomy), where the breach of pre-existing obligations created by contract gave rise to different remedies – damages being one of them – that could be claimed either on their own or in addition to other remedies. In tort law, damages were also an important remedy – probably the most important one – but in contrast to contract, liability arising from tort had its origin in the infringement of interests protected by law rather than by private arrangement.

However, this sharp distinction has been eroded over time and no longer reflects the current situation. Even the first European civil codes established obligations between contractual parties which were based, not on the parties’ consent, but on general duties of conduct established by the law, as in the case of good faith in the creation or performance of contracts. Growing state interventionism and the need to protect vulnerable parties have given rise to more obligations imposed by law, as in the case of professional liability, and in some cases even to entirely new areas of law, such as labour law or consumer law. In the tort law area, it is no longer true that all obligations arise independently of the defendant's will.