Yehuda Adar (University of Haifa) & Ronen Perry (University of Haifa – Faculty of Law) have posted Contorts (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:
A “contort” is a wrongful act that simultaneously constitutes a tort and a breach of contract. This concurrence potentially brings into play two competing legal frameworks—contract and tort. As these complex frameworks markedly diverge, the classification of the claim is often crucial. The Article exposes the profound incongruity between the rival frameworks, emphasizing the high stakes involved, taxonomizes existing legal responses to such incongruity in contort cases across the world, and proposes a paradigm shift in this central though undertheorized area of law.
Part I illustrates how the label may drastically alter the outcome by mapping the differences between the two frameworks—from the applicability of defenses, through the availability and scope of various remedies, to major constraints on actualization and enforcement of rights.
Part II examines the two paradigms currently used to determine the applicable law in contort cases. Under the first paradigm, one of the two frameworks categorically prevails. For example, the French principle of non-cumul mandates deference to contract law. Under the second paradigm, the applicable framework is selected on a case-by-case basis. For example, the Anglo-American principle of concurrent liability confers the power of election on the plaintiffs. However, courts sometimes scrutinize and curtail plaintiffs’ choices through vague legal concepts, such as the “gist” or “gravamen” of the action.
Part III proposes a transformative paradigm shift: a policy-driven selection of one of the two competing rules (from existing contract and tort frameworks) for each legal question raised in the overlap zone. It introduces the new paradigm, highlights its revolutionary aspects (particularly the development of an amalgam of contract and tort rules), presents compelling justifications for its adoption, and prescribes guidelines for its implementation. It then applies the new model to three representative discrepancies between the contract and tort frameworks.
Recommended.
“Contorts” used to name a course that combined “torts” and “contracts”–an approach that seems to have faded over time.