Date: Mon, 7 Apr 2008 18:04

From: Jason Neyers

Subject: Contract, Consideration and Tort Duties

From Andrew Burrows:

In relation to Jane Stapleton's query may I suggest the following  answer. One needs to distinguish the question of whether there is a  valid contract from the question of the contents of that valid contract.  The need for consideration goes to the former and not the latter. So,  for example, the promise of payment to the dentist is for the dentist to perform a range of 'duties', express and implied, and there is no  question of the dentist only being paid for what he or she is already  bound to do in tort: the patient's promise of payment is for the whole  range of duties 'promised' by the dentist, including that of using  reasonable care not to injure the patient. So while one may have  different views as to the merits of concurrent liability in contract and  tort, I do not think that this issue is somehow precluded from arising  by the 'pre-existing duty' rule in relation to consideration.

Andrew Burrows

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