Tort and contract are among the most frequently used terms in the field of law. Although both of them deal with legally enforceable agreements, they also differ in various ways.
In most cases, the distinction between tort and contract boils down to consent. In a contract, both parties agree to the terms of the agreement. And, In a tort, one party is accused of breaching a duty owed to another party without consent.
But that is not the only difference between tort and contract. This article discusses some of the critical differences between torts and contracts. Read on to learn more.
What Is Contract?
A contract is basically a term used to refer to an agreement between two parties that creates certain obligations that can be enforced legally. The agreement can be either written or oral, and it can be expressed or implied.
For a contract to be legally binding, the following elements must be present:
- Offer: There must be an offer made by one party to another.
- Acceptance: The other party must accept the terms of the offer.
- Consideration: Both parties must exchange something of value, such as money, goods, or services.
- Capacity: Both parties must be of legal age and have the mental capacity to understand the contract terms.
- Legality: The terms of the contract must not be illegal.
Most contracts usually require formalities such as signing or exchanging money to be valid and enforceable. But in some cases, the contract can be implied from the actions or words of the parties involved.
What Is Tort?
A tort is a civil wrong that one person can commit against another. Unlike a contract, there is no need for the two parties to have any kind of relationship with each other. All that is needed is for one party to breach a duty that they owe to the other party.
There are three main types of torts: negligence, intentional torts, and strict liability torts.
- Intentional torts: As the name suggests, intentional torts are those where the defendant has intentionally caused harm to the plaintiff. Examples of intentional torts you may know include assault, battery, and false imprisonment.
- Negligence: Negligence is the most common type of tort. When the defendant has breached a duty of care owed to the plaintiff, it results in damages.
- Strict liability torts: In these cases, the defendant is held liable for the damages even if they are not negligent. This is usually applicable in cases where the defendant is engaged in an inherently dangerous activity.
Tort vs Contract: Similarities
Before we discuss the differences between tort and contract, let us first take a look at some of the similarities between these two concepts.
Both tort and contract are created by agreement. In a contract, the agreement is between two or more parties to create certain obligations. In a tort, the agreement is implicit in the sense that one party agrees not to do something that would cause harm to the other party.
Both tort and contract are civil wrongs. This means that they are not crimes. However, both of them can give rise to criminal charges if the actions of the parties involved amount to a crime.
Another similarity between the two is that both of them can be breached. When a party breaches a contract, they can be sued for breach of contract. When a party commits a tort, they can be sued for damages.
Tort vs Contract: Differences
Now that we have discussed the similarities between tort and contract, let us take a look at the key differences between these two concepts.
A contract means an agreement between two or more parties to create certain obligations. A tort means a civil wrong that one person can commit against another.
2. Type of Agreement
In a contract, the agreement is between two or more parties to create certain obligations. In a tort, the agreement is implicit in the sense that one party agrees not to do something that would cause harm to the other party.
3. Relation Between Parties
There must be a contractual relationship between the parties in order for a contract to exist. This is not necessary in the case of a tort.
For a contract to be formed, there must be an intention on the part of the parties to create legal relations. This is not necessary in the case of a tort.
Most contracts require some formalities such as signing or exchange of money in order to be valid and enforceable. But in some cases, the contract can be implied from the actions or words of the parties involved. There are no formalities required in the case of a tort.
The scope of a contract is limited to the terms of the agreement between the parties. The scope of a tort is much broader as it includes all the duties that a person owes to another.
7. Rights and Obligations
In a contract, the parties have certain rights and obligations towards each other that are mentioned in the agreement. In a tort, the obligations are implicit, and there is no mention of any rights.
Either party to the agreement can enforce a contract. A tort can only be enforced by the victim. There will be no case if the victim doesn’t file a lawsuit.
9. Legal Remedies
The remedies for breach of contract are usually damages or specific performance. The remedies for a tort are usually damages or injunction.
Tort Vs Breach of Contract Difference in table form for easy understanding
Here is a chart highlighting the main differences between torts and breach of contract:
|Breach of Contract
|A wrongful act or omission that causes harm to another person or property.
|A failure to fulfil the terms of a legally binding agreement.
|Based on common law or statutory law.
|Based on the terms of the contract itself.
|A plaintiff is typically a person who has suffered harm as a result of the defendant’s actions.
|The plaintiff is typically a party to the contract who has not received the benefits of the contract as agreed upon.
|Type of harm
|Can involve physical harm, emotional distress, or damage to property.
|Usually involves financial harm, such as loss of income or profits.
|Measure of damages
|Damages are meant to compensate the plaintiff for the harm suffered.
|Damages are meant to put the plaintiff in the position they would have been in if the contract had been fulfilled.
|Types of remedies
|Remedies can include compensatory damages, punitive damages, and injunctive relief.
|Remedies can include damages, specific performance, or cancellation of the contract.
|Requirements for liability
|The plaintiff must prove that the defendant’s actions or omissions caused harm.
|The plaintiff must prove that the defendant failed to fulfil the terms of the contract.
The differences between tort and contract can be confusing, but it is essential to understand the distinctions when creating an agreement.
Both tort and contract are means of enforcing a promise, but they differ in their application and consequences. If you have any questions about which type of agreement is right for your situation, please contact an attorney for more information.
This article is written by Naphtal. He is the brand manager at Legal Giant and a highly experienced content writer. Legal Giant is a leading lawyer referral site with clients all over the U.S. When Naphtal is not working, he enjoys spending time with his son and exploring nature.