Date: Fri, 21 Sep 2007 14:00

From: David Cheifetz

Subject: Mitigation and Contributory Negligence

The duty to mitigate also involves a moral concept. If contributory fault and the duty to mitigate are based on the same moral concept, or even the same factual causation concept, then they are the same doctrine expressed in different ways for different purposes. In that case, a rose is a rose, not because the consequences are the same but because the concepts are the same; just the labels are different.

It's not the same as equating contract and tort because those areas are definitionally different. Your analogy would work only if we defined tort and contract to be the same because the consequences are the same. That would amount to at least mistaking a consequence (an aspect) of the thing for the thing itself.

Regards,
David

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From: David Wingfield
Sent: September 21, 2007 8:42 AM
Subject: Re: ODG: Mitigation and Contributory Negligence

Contributory negligence, as with all negligence theories, involves a moral equation. That gives it a different status/theoretical basis from duty to mitigate. They both might lead to the same result (a reduction in the amount of money the tortfeasor has to pay) but they get to that result by a different route. Treating them as the same concept because they get to the same result is like treating a contract like a tort just because the financial consequences from the negligent performance of a contract might be the same in contract and in tort. It is important to keep separate the reasons why the tort victim might be partially liable for the wrong (contributory negligence) and why the tortfeasor's liability for the damage should not extend to damage that was not a consequence of the tort at all.

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