I entirely agree.  You can play the same game in Tort.  Suppose there is a common law rule that contributory negligence is a complete defence to tort claims.  Legislation is passed saying that tort claims can be reduced because of contrib neg, but need not be dismissed altogether.  Would we really say that after that legislation, all claims where there is a possibility of contrib neg being a defence are now statutory?  Surely the issue is that the duty alleged to have been breached is a common law duty, not one arising by statute.  The statute says nothing about any duties, so how can this now be a claim for breach of statutory duty.  And, to take Lionel’s point, do we even think that claims for breach of statutory duty are not claims in tort?  They appear in textbooks on tort.  They seem to be subject to the limitation periods for torts.  If something walks like a duck, quacks like a duck, then maybe it is a duck.

Bill

 

 

I don’t know the article, but anyone who has interacted with the civilian tradition (where most of private law is in statutory form) will find the author’s position that you describe rather strange.

If Ontario codified its contract law into a Contracts Act (cf India) would that mean that all contracts made in Ontario would be ‘statutory claims’ and no one had any ‘contractual rights’ any more?

I think the position confuses an inquiry into what makes a rule count as a legal rule (judge-made or statutory) and what makes a rule count as a rule of contract law (see Steve Smith, Contract Theory).

Lionel

 

 

Dear Colleagues:

 

Many months ago I read a reference to an article arguing that the statutory exceptions to privity of contract are not really exceptions since a person relying on a statutory claim is in essence suing to enforce an entitlement granted by statute rather than relying solely on the contractual right. Unfortunately, and embarrassingly I cannot seem to find where I found that article referenced (I believe that it was in an Australian treatise but I have looked and looked to no avail). Does anyone know of this article? I would like to read it and cite it potentially.

 

Thank you in advance for any assistance!

 

Sincerely,  

 

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)