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Contract in tort's clothing
Published online by Cambridge University Press: 02 January 2018
Extract
Normally one person is not obliged to confer a benefit on another unless he has promised to do so. Even if he did promise to confer the benefit, he will not normally be liable for failing to confer it if the promisee gave no consideration for the promise. Moreover even if the promisee did give consideration, a third party, who did not, but for whom the benefit was intended, cannot sue. In principle the same applies where a party provides another with some article or service. The recipient cannot complain that the article or service is not good enough, unless the other party promised, for consideration, to provide the thing or service, and what is provided falls below the quality promised. So actions based on the failure to confer a benefit, or sufficient benefit, normally lie in contract.
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References
1. Carmarthenshire Country Council v Lewis [1955] AC 549; Ellis v Home Office [1953] 2 All ER 149; Home Office v Dorest Yacht Co Ltd [1970] AC 1004.
2. For a recent discussion see J. C. Smith and Peter Burns, (1983) 46 MLR 147.
3. Winfield, Province of the Law of Tort, p 65ffGoogle Scholar Prosser Selected Topics on the Law of Torts, Ch VII; Poulton, (1966) 82 LQR 346; Guest, (1961) 3 Malaya LR 191; Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch 384 at 405–411; Kaye, (1984) 100 LQR 680.
4. (1842) 3 QB 511 at 525–6.
5. (1966) 82 LQR 346 at 363–4.
6. It is probable, though not certain, that there is no contractual relationship between National Health Service doctor and patient: Finch Health Services Law, p 8; Martin, Law Relating to Medical Practice (2nd edn), pp 243–4Google Scholar; Speller Law of Doctor and Patient, p 5.
7. Pippin v Sheppard (1822) 11 Price 400; Gladwell v Stegall (1839) 5 Bing NC 733. The third party with whom the doctor will most often have contracted is the Family Practice Committee under the National Health Service.
8. Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 shows that a doctor may be liable in tort for not curing a patient even if he has not undertaken to treat him, where he is under a public duty to do so. In fact there was no liability in that case, for lack of causation.
9. (1903) 19 TLR 534.
10. p 535.
11. Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch 384 at 410.
12. (1903) 19 TLR at p 536.
13. [1966] 1 QB 197.
14. p 204.
15. pp 204–5.
16. p 203.
17. [1965]CLJ 27.
18. [1964] 1 QB 533.
19. [1936] 1 KB 399.
20. Where the solicitor is acting under the legal aid scheme, the relationship between solicitor and client is the same as if the solicitor was paid solely by the client: Legal Aid Act 1974, s 7(6)(a).
21. [1939] 1 KB 194.
22. p 222.
23. [1964] AC 465.
24. [1979] Ch 384, not following Clark v Kirby-Smith [1964] 1 Ch 506, in which it was held that the liability of a solicitor to his client for negligence was in contract only, and that Hedley Byrne had not altered the principle applied in Groom v Crocker. For a full recent discussion see Kaye, (1984) 100 LQR 680.
25. [1976] QB 801. See also Forster v Outred & Co [1982] 1 WLR 86.
26. [1979] Ch 384 at 416–7.
27. Poulton, (1966) 82 LQR 346 at 360–3.
28. [1964] AC 465.
29. pp 502–3.
30. But it is arguable that if there is a contract the relationship and its consequences should be wholly governed by what is agreed between the parties. See Kaye loc cit.
31. [1979] Ch at p 416.
32. The same, it is submitted, applies to the remarks of Lord Denning MR in Esso Petroleum v Mardon (1976] QB 801 at 820. That case was also concerned with actual loss suffered as the result of entering a contract in reliance on a misrepresentation.
33. (1903) 19 TLR 534.
34. [1966] 1 QB 197.
35. Buckpitt v Oatcs [1968] 1 All ER 1145; Bennett v Tugwell [1971] 2 WLR 847; Hedley Byrne v Heller [1964] AC 465.
36. s 1(3), s 2(2).
37. [1978] QB 554.
38. Emmet on Title (18th edn), p 120.
39. [1978] AC 728.
40. [1984] 1 All ER 930.
41. [1982] 3 WLR477. 44. [1906] AC 428.
43. [1984] 1 All ER at p 938.
44. The developer is made subject to the same duties as the builder by the Defective Premises Act 1972 also (s 1(4)). See also Mount Albert Borough Council u Johnson [1979] 2 NZLR 234 at 240–1.
45. [1980] Ch 297. Cane (1980) 96 LQR 182 at 184, (1983) 99 LQR 346 (discussing Scale v Perry [1982] VR 193, in which Ross v Counters was not followed).
46. [1979] Ch 389, discussed at length above.
47. [1970] 2 QB 223.
48. [1976] 136 CLR 529.
49. [1978] AC 728.
50. And even if the testator had given no consideration, following the Midland Bank Trust Co case.
51. [1968] AC 58.
52. [1982] 3 WLR 477. Palmer & Murdoch (1983) 46 MLR 213; Holyoak (1983) 99 LQR 591; See, most recently, Todd (1984) 4 LS 312.
53. [1982] 3 WLR 477 at 485.
54. The effect of the Defective Premises Act 1972 will be mentioned below.
55. Cotton v Wallis [1955] 1 WL.R 1168 at 1175–6, 1178. This point seems not to be taken into account by Todd (1984) 4 LS at p 325.
56. p 483.
57. A point which it is submitted is not given sufficient weight by Todd (1984) 4 LS 312.
58. Of course Junior Books is in the first place a Scottish case, and in Scottish law there is a doctrine of ius quaesitum tertio. The reasoning in Junior Books would presumably make it to some extent superfluous.
59. [1975] 1 WLR 1468.
60. [1980] 1 WLR 277.
61. See for example Balsamo v Medici [1984] 2 All ER 304.
62. [1982] 3 WLR at p 487.
63. p 494.
64. s 6.
65. (1979) 95 LQR 117 at 138–140.
66. Mr Cane also suggests that the manufacturer who by his advertising or representations as to the quality of the product creates certain expectations in the consumer as to its quality should be liable in tort for the disappointment of these expectations on the basis of some sort of liability for misstatements. It is submitted that this liability in tort should be for the loss incurred in paying more than the market value of the goods in reliance on the representations. The courts should also be willing to find a collateral contract between manufacturer and customer (‘if you buy the product from the retailer then I guarantee its quality as claimed in the advertisements’) which would cover any expectation loss - the difference between promised value and actual value.
67. [1977] 1 NZLR 394 at 423.
68. [1982] 3 WLR at pp 494–5.
69. [1972] 1 QB 373.
70. [1978] AC 728. Duncan Wallace (1978) 94 LQR 60; Cane (1979) 95 LQR 117.
71. [1978] AC at p 759.
72. [1983] 2 WLR 6.
73. Sparham-Souter v Town and Country Developments Ltd [1976] 1 QB 858.
74. [1983] 2 WLR 6 at 12.
75. (1983) 99 LQR 217 at 227, n 27. Alternatively he says that the cases ‘like the injunction, are based of the very similar principle of preventing disruption of the plaintiffs status quo; that is, the plaintiff must spend money to avoid future harm.’.
76. (1979) 95 LQR 117 at 126.
77. [1977] I NZLR 394.
78. Would the prior diminution in value, because the cracks were inevitably going to develop, be taken into account?.
79. [1983] 2 WLR 6 at 12.
80. Anns v London Borough of Merton [1978] AC at p 759, Batty v Metropolitan Realizations Ltd [1978] 1 QB 554, Governors of the Peabody Donation Fund u Sir L Parkinson & Co Ltd [1984] 3 All ER 529.
81. Eanes London Estates Ltd v North Hertfordshire DC (1980) 259 EG 491 at 497.
82. [1978] 1 QB 554.
83. Grubb [1984] CLJ 111.
84. [1982] 3 WLR at p 487.
85. p 493.
86. [1982] 3 WLR at pp 482–3, per Lord Frascr.
87. Emmet OR Title (18th edn), p 120.
88. [1977] 1 NZLR 394.
89. p 407.
90. p 419.
91. p 407.
92. (1963) 110 CLR 74 at 85.
93. [1982] 3 WLR at pp 482–3.
94. Presumably the duty in tort under Anns is owed by the builder to the original owner with whom he contracted, in addition to the contractual duty based on the implied term as to workmanship and materials. The effect could be a Fortuitous advantage to the owner in relation to limitation (the cause of action arising only when the cracks come into existence) and remoteness of damage. See Cynat Products Ltd u Land build (Investment and Property) Ltd [1984] 3 All ER 513.
95. Including architects (Eames London Estates Ltd v North Hertfordshire DC (1980) 259 EG 491), consulting engineers (Pirelli v Oscar Faber [1983] 2 WLR 6) and even a do-it-yourself owner (Hone v Benson (1978) 248 EG 1013).
96. Dutton v Bognor Regis UDC [1972] 1 QB 373 at 396; Higgins v Argon Borough Council [1975] 1 WLR 524; Sparham-Souter v Town and Country Developments Ltd [1976] QB 858; Anns v London Borough of Merton [1978] AC 728 at 760; Pirelli v Oscar Faber & Partners [1983] 2 WLR 6; Robertson, (1983) 99 LQR 559; Jones, (1984) 100 LQR 413.
97. Thus, as regards the period of limitation, under the Act the cause of action accrues when the dwelling is completed. Under the Act the liability is confined to dwellings, whereas the common law liability extends to other premises also. Under the Act there is no requirement of ‘physical damage’ or danger, and the liability is strict. It seems probable that under the Act the quality of work and materials required of the builder is that fixed by, or implied by, the builder's contract (but ignoring any exemption clauses), having regard to any instruction given in terms of the contract and (presumably) the price. See sections 1 and 6.
98. [1964] AC 465.
99. p 529.
100. Winfield, and Jolowicz, Tort (12th edn), pp 285–6Google Scholar.
101. [1964] AC 465 at 533.
102. Weir, [1963] CLJ 216 at 217.
103. It is not clear that it does, unless the tort of injurious falsehood has become redundant. Ministry of Housing u Sharp [1970] 2 QB 223 is not quite such a case, since no one relied on the statement, but it is analogous.
104. Atiyah The Rise and Fall of the Freedom of Contract; (1978) 94 LQR 493; Gilmore The Death of Contract.
105. For an interesting rebuttal, see Burrows (1983) 99 LQR 217, especially at p 263ff.
106. Except, as shown above, in the Anns sort of liability (in contrast to Junior Books), where the liability, although in respect of expectation loss, is truly tortious, involving liability if the quality of work falls below a standard assessed without reference to any contract to which defendant or plaintiff was party.