LAW 122 - Chapter 3
• A tort generally consists of a failure to fulfill a private obligation that was
imposed by law.
Torts and Crimes
• An obligation in tort law is owed to a person. For instance, I owe an
obligation to you personally to not make defamatory statements about your
past. That obligation will be broke if I falsely tell your employer that your
were once convicted of murder. I will b a tortfeasor a person who has
committed a tort. You will then be entitled to sue me. If you win that lawsuit,
the court will hold me liable and it will probably order me to pay damages to
• A tort can be compared with a crime. Whereas a tort occurs when a person
breaks a private obligation, a crime occurs if a person breaks a public
obligation. A public obligation is owed to society as a whole, rather than to
any particular person. Consequently, if something goes wrong, the
government will prosecute the accused on behalf of the whole community.
That is true even if the crime was one (theft) that affected a specific person.
Finally, if the court agrees with the government, then the accused will be
found guilty and may be subject to some form of punishment (fine or
• Examples: If I hit you, I will commit the tort of battery and the crime of
assault; if I take your car without permission, I will commit the tort of
conversion and the crime of theft; if I sneak into your house, I commit the
tort of trespass to land and the crime of break and enter.
• The idea of allowing a victim to demand compensation from a wrongdoer
developed into the system of private tort law; the idea of allowing the
community to punish a wrongdoer developed into the public system of
criminal law. ***PAGE 61
Torts and Contracts (One Similarity and Four Differences)
• Structure (similarity): Both tort and contract involve primary and
secondary obligations. Primary obligations tell people how they ought to act.
For instance, the tort of battery says, “Don’t touch another person in an
offensive way.” The law of contract says, “Keep your promises.” Secondary
obligations are remedial. They tell people how they must act after primary
obligations have been broken. In most cases, the defendant is told, “Pay
money to the plaintiff as compensation for the losses that you caused.”
• Source of Primary Obligations: The first is concerned with the source of
primary obligations. Obligations in tort are simply imposed by law. Even
though you never promised to behave yourself, even though we are
complete strangers, and even if (remarkably) you never heard of such a law,
you must not commit a battery against me. Obligations in contract, are created by the parties; if you have an obligation to deliver a car to me, it is
only because you voluntarily agreed to do so.
• Privity: When two people enter into a contract, they create a special
relationship for themselves. Consequently, the doctrine of privity states that
the only people who can sue, or be sued, on a contract are the parties
themselves. In contrast, because obligations in tort are simply imposed by
law, there is no need for the parties to create a special relationship for
themselves. I can sue you for battery, even if you never promised to hit me.
• Compensation: Compensation is available in both tort and contract; but
calculated differently in each. The purpose of imposing obligations in tort law
is to prevent harm. The tort of battery prohibits you from hurting with
punches and kicks. Consequently, if you have breached your primary
obligation, then you will have a secondary obligation to put me back into
position that I enjoyed at the outset. In contrast, the purpose of creating
obligations in contract is usually to provide benefits. I paid $10,000 to you
because I wanted your car. If you breach your primary obligation, then you
will again be required to compensate me. This time, the goal is to put me
into the position that I expected to enjoy once you fulfilled your promise.
• Risk Management: The fact that primary obligations in tort and contract
arise for different reasons also has a significant affect on the issue of risk
management. Because tort obligations are imposed by law, they are more
likely to take a person by surprise, and they may require more than a person
is actually capable of providing. In contrast, because obligations surprise,
and they should never require more than the parties believe they can
actually provide. ***PAGE 63
Types of Torts
• Tort law responds to different challenges in a variety of ways. One of its
most important strategies focuses on mental culpability. Because tort law
needs to strike a different balance in different circumstances, some torts
require proof that the defendant acted with a guilty mind, with others do not.
•Intentional Torts: occur when a person intentionally acts in certain
ways. Some torts require proof that the defendant intended to hurt the
plaintiff. Others are satisfied by proof the defendant merely intended to
act in a certain way, even if they did not realize that the plaintiff would
•Negligence Torts: occur when a person acts carelessly.
•Strict Liability Torts: occur when a person does something wrong
without intending to do so and without acting carelessly. It is enough
that the defendant was responsible for the situation that resulted in the
plaintiff’s injury. ***PAGE 64
Strict Liability • Strict liability torts create special problems for risk management. They do
not require proof of any sort of intentional or careless wrongdoing. Liability is
imposed simply because the defendant was responsible for the situation that
injured the plaintiff.
• Strict liability torts consequently may substantially affect behavior. It would
be wrong, to overestimate that possibility. Tort law is dominated by
intentional torts and negligence torts; strict liability is rare.
• It would be unfair to impose liability on a person who didn’t intentionally or
carelessly cause the plaintiff’s injury. Strict liability is therefore limited to
situations in which the defendant is involved in some extraordinarily
dangerous activity. It allows the defendant to engage in that activity, but it
also requires the defendant to pay for any damage that occurs.
General Principles of Tort Law
• Because torts can occur unexpectedly, risk management is especially
important. Business people should know enough about tort law to predict
potential problems and develop strategies for avoiding liability.
• Liability Insurance is a contract in which an insurance company agrees,
in exchange for a price, to pay damages on behalf of a person who incurs
liability. Liability insurance also includes a duty to defend. A duty to defend
requires the insurance company to pay the expenses that are associated
with the lawsuits brought against the insured party.
• Liability insurance creates an interesting tension between two of torts law’s
most important functions:
•Liability insurance contributes to the compensation function of torts. The
compensatory function aims to fully compensates people who are
wrongfully injured. If a tortfeasor can’t personally afford to pay
damages, the plaintiff will not receive full compensation unless the
defendant is insured.
•Liability insurance undermines tort of law’s deterrence function. The
deterrence function discourages people from committing torts by
threatening to hold them liable for the losses that they cause. People
have little reason to be afraid; if they know that their insurance
companies will pay if something goes wrong.
• Vicarious liability occurs when an employer is held liable for a tort that
was committed by an employee. The idea of holding one person responsible
for another person’s actions raises difficult ethical issues.
• The doctri