Date: Mon, 7 Apr 2008 14:52

From: John Swan

Subject: Contract, Consideration and Tort Duties

Jason,

In response to Jane Stapleton’s inquiry I would say that a Canadian court would probably not follow what she describes as “orthodox doctrine”. I can, for example, see no difference between a tort obligation not to defame and a contractual obligation to do (or not to do) the same thing. The cases of Williams v. Roffey Bros and Nicholls (Contractors) Ltd., [1991] 1 Q.B. 1, [1990] 1 All E.R. 512, [1990] 2 W.L.R. 1153 (C.A.) and Ward v. Byham, [1956] 1 W.L.R. 496, [1956] 2 All E.R. 318 (C.A.), give some support to the argument that the fact that the other side was already bound to do what he or she then promised to do does not mean that there is no consideration for the promise. There is also the line of cases following Shadwell v. Shadwell (1860), 30 L.J.C.P. 145, including New Zealand Shipping Co. Ltd. v. A.M. Satterthwaite & Co. Ltd. (The "Eurymedon"), [1975] A.C. 154, [1974] 1 All E.R. 1015, [1974] 2 W.L.R. 865 (P.C.). Besides, if the promisee was prepared to pay good money for the (additional) undertaking, why shouldn’t the promisor be contractually bound?

With respect to the second aspect of Jane’s inquiry, viz., whether the promisee can sue in tort or contract, I can see no reason why he or she cannot sue in either. It may be that the damages may not differ — as they may not in the defamation case — but with respect to the dentist, there are several cases in Ontario dealing with the damages for which a solicitor may be liable which may bear on the point. In my text, I deal with a collection of Ontario cases where it is certainly not clear that, the solicitor having been paid for his or her services, a claim in contract is not available. The cases are confused. I would refer Jane to my text, Canadian Contract Law (Markham, Ontario: Butterworths/LexisNexis, 2006), § 6.2.1.1.2, pp. 314 – 316, for a discussion of them and of the relation between a contractual claim and one in tort. If Jane can’t find a copy of the text and wants a copy of the section, I can easily send her one directly.

John

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From: Jason Neyers
Sent: April 7, 2008 8:31 AM
Subject: ODG: Contract, Consideration and Tort Duties

On behalf of Jane Stapleton:

  

Dear Colleagues,

I throw myself at your feet in the hope that you will be able to show me a flaw in the following reasoning and where I might find authority on the point.

As I understand orthodox contract doctrine in England and the Commonwealth [I leave Scotland aside], a promise to perform a duty that would be owed anyway is not good consideration. So, for example, if I promise to pay you £100 in return for your promise not to defame me in your up-coming law review article, you cannot sue me in contract for the £100 when you publish your article without any defamatory mention of me. In exchange for my promise of the £100, you gave me nothing more than I would have had in any case: in publishing your article to a third party you were under an obligation not to defame me, an obligation imposed by the law of torts.

The scenario in which I am interested is where you do defame me: clearly I can sue you in the tort of defamation. But I do not think I can sue you in contract because there was not a binding contract between us.

Next, I presume obligations are severable: I promise my dentist Polly £10,000 pounds in return for her promise to extract my upper wisdom teeth on Tuesday 8th April 2008. This is an enforceable exchange of contractual promises.

I also promise my dentist Fred £12,000 pounds in return for his promise to extract my lower wisdom teeth on Wednesday 9th April 2008.

Now, it is obvious that whenever any dentist, even those acting pro bono, extracts teeth that dentist owes a duty of care to the patient: this obligation need not be bought, it is imposed by the law of torts for free. [Indeed, as Cardozo noted, it is even the case that “the surgeon who operates without pay, is liable though his negligence is the omission to sterilize his instruments”.]

On Wednesday 9th April 2008 Fred extracts my lower wisdom teeth carelessly and I suffer a personal injury. I know I can sue Fred in the tort of negligence for compensation for that injury. But I do not see on what basis I could also sue Fred in contract for compensation for my personal injury: Fred was under the obligation of care to me in any case.

This suggests that in relation to most duties of care owed by defendants in relation to their own misfeasance [I leave aside areas such as obligations to affirmatively control the conduct of third parties] the obligation is not concurrent in tort and contract, but arises solely in the law of torts. Or, much more likely, the problem is that I do not understand the rule in contract about when and why a promise to perform an already owed duty does not constitute the consideration needed to support the contractual enforceability of a promise given in exchange.

If I have simply dug myself a hole, please help me out of it!

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